McKnight v. United States

• Decision Date: 02 May 1904
• Docket Number: 1,036.
• Citation: 130 F. 659
• Parties: McKNIGHT et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

130 F. 659

McKNIGHT et al. v. UNITED STATES.

No. 1,036.

United States Court of Appeals, Ninth Circuit.

May 2, 1904

McConnell & McConnell, for plaintiffs in error.

Carl Rasch, U.S. Atty.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

This action was brought by the United States, as guardian of Josephine Hall, an Indian woman, for the conversion by the defendants to the action of 34 head of cattle, alleged to have been owned, held, and possessed by this Indian subject to the control of the government, and of the value of $1,125. The answer of the defendants put in issue the averments of the complaint, and also alleged in defense that the defendant Taylor is, and was at the times in question the duly elected, qualified, and acting sheriff of the county of Teton, state of Montana; that on the 25th day of September, 1901, one John Hall was, and from thenceforth until November 9, 1901, remained, the sole owner of the cattle mentioned in the complaint; that thereafter, to wit on the 25th day of September, 1901, an action was commenced by the defendant McKnight against John Hall in the district court of the Eleventh judicial district of the state of Montana, in and for the county of Teton, to recover the sum of $603.72, with interest thereon at the rate of 1 per cent. per month from May 8, 1900, with attorney's fees and costs of suit, according to the terms of a certain promissory note of said Hall; that process was duly issued and served upon Hall in that action, and on September 25, 1901, a writ of attachment was regularly issued therein in due form, which writ of attachment was placed in the hands of the defendant Taylor, as sheriff of the county, with instructions to levy the same upon the cattle mentioned in the complaint, which was accordingly done; that on the 25th day of October, 1901, judgment was duly entered in the action of McKnight against John Hall for the sum of $762.65, upon which execution was duly issued in due form, under which the cattle in question were sold for the sum of $1,247 on November 12, 1901; and that John Hall was the owner of and in possession of the cattle at the time of the levy. These averments of the answer were put in issue by the replication filed by the plaintiff. The case came on for trial before the court with a jury, and resulted in a verdict and judgment for the plaintiff, and is brought here by the defendants below on writ of error.

The first, and principal, contention on the part of the plaintiffs in error is that the court below was without jurisdiction of the subject-matter of the action, 'for the reason that Josephine Hall is a citizen of the United States, and this action is between citizens of the same state, and the amount involved does not exceed $2,000, and the United States is not a proper party plaintiff in this action. ' The case shows that some years prior to the transactions in question Josephine Hall married John Hall, who was a white man and a citizen of the United States. Josephine Hall was a member of the Blackfeet tribe of Indians, and as a matter of fact lived upon its reservation and received from the government, through its agent there, issues of cattle and other things, like the other Indians of the tribe. John Hall entered upon a piece of public land, situated across a creek that separated such public land from the Indian reservation, and entered that piece of land as a homestead, and claimed his residence thereon, which was but a short distance from the house in which his Indian wife actually lived, and where he visited her, as she also did him, occasionally.

The act of Congress of February 8, 1887, entitled 'An act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the territories over the Indians, and for other purposes' (24 Stat. 388, c. 119, 1 Supp.Rev.St. pp. 534, 536), provided in its sixth section as follows:

'Sec. 6. That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the state or territory in which they may reside; and no territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property.'

The first and second sections of Act Aug. 9, 1888, c. 818, 25 Stat. 392, 1 Supp.Rev.St. p. 608, entitled 'An act in relation to marriage between white men and Indian women,' are as follows:

'Be it enacted,' etc., 'that no white man, not otherwise a member of any tribe of Indians, who may hereafter marry an Indian woman, member of any Indian tribe in the United States, or any of its territories except the five civilized tribes in the Indian Territory, shall by such marriage hereafter acquire any right to any tribal property, privilege, or interest whatever to which any member of such tribe is entitled.

'Sec. 2. That every Indian woman, member of any such tribe of Indians, who may hereafter be married to any citizen of the United States, is hereby declared to become by such marriage a citizen of the United States, with all the rights, privileges, and immunities of any such citizen, being a married woman: Provided, that nothing in this act contained shall impair or in any way affect the right or title of such married woman to any tribal property or any interest therein.'

It has been held by this court, by the Circuit Court of Appeals for the Eighth Circuit, by the Supreme Court, and by other courts, that the citizenship conferred upon the allottees under and by virtue of the act of February 8, 1887, did not operate to withdraw them from the supervision, control, and protection of the government, but that such Indians still remained wards of the nation. United States v. Rickert, 188 U.S. 432, 23 Sup.Ct. 478, 47 L.Ed. 532; Farrell v. United States, 110 F. 942, 49 C.C.A. 183; Eells v. Ross, 64 F. 417, 12 C.C.A. 205; United States v. Logan (C.C.) 105 F. 240; United States v. Flournoy Live Stock & Real Estate Co. (C.C.) 69 F. 886; State v. Columbia George (Or.) 65 P. 604, 610. In and by its act of August 9, 1888, declaring that every Indian woman, member of a tribe, who shall thereafter be married to a citizen of the United States, shall 'become by such marriage a citizen of the United States, with all the rights, privileges, and immunities of any such citizen,' Congress expressly added that nothing in the act contained 'shall impair or in any way affect the right or title of such married woman to any tribal property or interest therein.' By Act May 1, 1888, entitled 'An act to ratify and confirm an agreement with the Gros Ventre, Piegan, Blood, Blackfeet, and River Crow Indians in Montana, and for other purposes,' the United States, in consideration of certain cessions and relinquishments on the part of those Indians, agreed--

'To advance and expend annually for the period of ten years after the ratification of this agreement, under direction of the Secretary of the Interior, for the Indians now attached to and receiving rations at the Fort Peck agency, one hundred and sixty-five thousand dollars; for the Indians now attached to and receiving rations at the Fort Belknap agency, one hundred and fifteen thousand dollars, and for the Indians now attached to and receiving rations at the Blackfeet agency, one hundred and fifty thousand dollars, in the purchase of cows, bulls, and other stock, goods, clothing, subsistence, agricultural and mechanical implements, in providing employees, in the education of Indian children, procuring medicine and medical attendance, in the care and support of the aged, sick, and infirm, and helpless orphans of said Indians, in the erection of such new agency and school buildings, mills, and blacksmith, carpenter, and wagon shops as may be necessary, in assisting the Indians to build houses and inclose their farms, and in any other respect to promote their civilization, comfort, and improvement: Provided, that in the employment of farmers, artisans, and laborers, preference shall in all cases be given to Indians residing on the reservation who are well qualified for such positions: Provided, further, that all cattle issued to said Indians for stockraising purposes, and their progeny, shall bear the brand of the Indian Department, and shall not be sold, exchanged, or slaughtered, except by consent or order of the agent in charge, until such time as this restriction shall be removed by the Commissioner of Indian Affairs.' 25 Stat. 114, c. 213, art. 3.

And article 5 of the same act is as follows:

'In order to encourage habits of industry, and reward labor, it is further understood and agreed, that in the giving out or distribution of cattle or other stock, goods, clothing subsistence, and agricultural implements, as...