Non-she-po v. Wa-win-ta

• Decision Date: 13 August 1900
• Citation: 37 Or. 213,62 P. 15
• Parties: NON-SHE-PO v. WA-WIN-TA et al.
• Court: Oregon Supreme Court

62 P. 15

37 Or. 213

NON-SHE-PO v. WA-WIN-TA et al.

Supreme Court of Oregon

August 13, 1900

Appeal from circuit court, Umatilla county; S.A. Lowell, Judge.

Action by Non-she-po against Wa-win-ta and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

A.D Stillman, for appellant.

T.G Hailey, for respondents.

BEAN, C.J.

This is an appeal from a decree dismissing a complaint in a suit under section 504 of the statute (Hill's Ann.Laws), to determine an adverse claim to real estate. The parties are Indian women belonging to the Umatilla and Walla Walla tribes, respectively; both residing upon the Umatilla reservation. The real property in controversy is a 40-acre tract of such reservation, in possession of the plaintiff allotted, under the act of March 3, 1885 (23 Stat. c. 319) to one George Pearson, who died prior to the commencement of the suit, leaving no lineal descendants, and neither a wife nor a father. Defendant is the mother, and plaintiff the grandmother, of Pearson. The complaint alleges that in the year 1879, when Pearson was about four months old, he was abandoned by his mother and left to perish; that thereupon he was taken and cared for by the plaintiff until his death; that, according to an immemorial custom among the tribes of Indians residing on the reservation, whenever an infant is abandoned by its parent or parents the person caring for it becomes its adopted parent, and thereafter has and enjoys all the rights and privileges which would have been enjoyed and possessed by its parent or parents if it had not been so abandoned, and such infant becomes the adopted child of the person so caring for it, and enjoys all the rights and privileges of a natural child; that by reason of these facts the infant, Pearson, became to all intents and purposes the son of the plaintiff, and the defendant thereby abandoned and forever surrendered all rights and privileges of heirship she might otherwise have had by reason of being the mother of such child. The plaintiff therefore claims to be the heir of Pearson, and as such entitled to inherit the 40 acres of land allotted to him under the act of congress, while the defendant claims that she is entitled to the property as his natural mother.

The act of congress referred to provides for the allotment in severalty of the land comprised within the Umatilla reservation to the Indians residing thereon, and that after such allotment "the president shall cause patents to issue to all persons to whom allotments of...