Red Hawk v. Joines

• Decision Date: 11 June 1929
• Parties: RED HAWK v. JOINES.
• Court: Oregon Supreme Court

278 P. 572

129 Or. 620

RED HAWK v. JOINES.

Supreme Court of Oregon

June 11, 1929

Rehearing Denied July 2, 1929.

Department 1.

Appeal from Circuit Court, Umatilla County; James Alger Fee, Judge.

Action by George Red Hawk against Vestal Joines. Judgment for defendant and plaintiff appeals. Affirmed.

This was an action in replevin. The cause was tried in the circuit court, and from a judgment in favor of defendant plaintiff appealed. A sufficient statement of the issues is found in the opinion of the circuit judge, which is quoted and adopted as the opinion of this court, except as to a single question apparently not urged in the court below.

Edward J. Clark, of Portland (Archie C. McIntyre, of Pendleton, on the brief), for appellant.

George R. Lewis, of Pendleton (William M. Peterson, of Pendleton, on the brief), for respondent.

McBRIDE J.

This cause, while it involves but a trifling amount in a financial sense, is important in other respects. As to the authority of the state court to take jurisdiction of the controversy, and the efficacy of state legislation to protect Indian allottees, or their white lessees, from trespasses of the character shown here, we fully agree with the court below, whose careful and painstaking opinion so fully covers the subject discussed that we give it in its entirety premising, however, if the Umatilla Herd Law were in fact ineffective within the limits of the reservation, the fact that plaintiff brought this action in the state court would not estop him from coming into the state court for relief. But the opinion, which we here quote, so effectually disposes of the question of jurisdiction, that we have no doubts concerning the question of both legislative and judicial jurisdiction. The opinion of the circuit court is as follows:

"This case was tried by the court without the intervention of a jury, submitted, and decided by the court, in favor of the defendant. However, the attorneys have requested the court to render a written opinion, at the court's convenience, setting forth specifically its views upon the questions of law.

"This was an action of replevin brought by George Red Hawk stipulated to be a full-blooded Indian, who was an allottee on the Umatilla Indian Reservation, and who had not yet received final patent to any lands from the United States. In the complaint, he alleged he was entitled to the possession of the cattle, and in charge thereof by virtue of the special ownership therein. He deposited a statutory bond, agreeing to return the cattle to the defendant in the event a return thereof were adjudged, and to pay any sum the defendant might recover from the plaintiff in the action.

"Inferentially the record disclosed that the property had been in his possession prior to the taking up by Joines but there was no proof of ownership of the cattle by Red Hawk, either general or special. There was no proof that the United States had any interest or ownership in the cattle, or right of possession thereof, either as guardian of the Indian or otherwise. Joines alleged and proved that the cattle were taken up by him under conditions giving him the advantage of, and with the intent to take advantage of chapter 413, General Laws of Oregon, for 1921, on land which was lawfully in his possession. The proof showed that this land was in part upon the Umatilla Indian Reservation and consisted of two Indian allotments, duly leased to Joines by the United States through the superintendent of the Umatilla Indian Reservation. Joines demanded a return of the cattle, or, in default thereof, a judgment for his special interest by virtue of the terms of the statute. The court held for defendant.

"The question of whether the statutory notice was given by Joines was of no importance. His intention to take up the cattle under the Umatilla Herd Law is clear. Red Hawk, who had been in possession, was actually notified, and the cattle retaken from Joines by replevin prior to the time when the statutory notice could have been required. No unreasonable delay on the part of Joines is shown. Besides, Red Hawk had negotiated for the return of the cattle, through his agent, offering to pay the money demanded. If Joines actually acquired a lien by virtue of the statute, this lien was not divested, by the failure to give the statutory notice in writing, prior to the time the cattle were taken by replevin, in view of these circumstances and the fact that Red Hawk had actual notice. There was testimony of a written notice, but it was not clear enough for the court to adjudge the statutory notice was given. The court held that the right of possession was in Joines, by virtue of his taking up the cattle, under the terms of the statute, and appraised his special interest, in view of the damages and expenses proven by the testimony.

"The chief point urged by plaintiff is that the court had no jurisdiction of the action, and particularly no jurisdiction to award a return of the cattle to the defendant. This claim is based upon three grounds, to wit:

"(a) The court did not have jurisdiction of Red Hawk, because he is a full-blooded Indian, has never received certificate of competency or final patent to his lands, although an allottee on the Umatilla Indian Reservation.

"(b) That the property of the Indian is not subject to the jurisdiction of the court.

"(c) That the alleged trespass occurred on the Umatilla Indian Reservation, over which the court has no jurisdiction.

"These questions were considered separately, although the same principles enter into the determination of each.

"Jurisdiction of the Court over the Indian.

"Red Hawk contends that, since he is an Indian, the court has no jurisdiction over him. His position is anomalous, because he has come as a suitor, asking the court to adjudge to him the right of possession of these cattle. He availed himself of the power of the court and retook possession, and filed an undertaking voluntarily binding himself to return the property, and to pay damages; but he contends that, though the court can award possession to him, it cannot find in favor of the defendant. This anomaly was called to the attention of the attorney for plaintiff upon his motion made after he closed his testimony. At that time plaintiff still insisted upon his right to have the power of the court exercised in his favor, although strenuously contending against its being exercised against him.

"Where the Indian has sought the forum of this court and asked for relief, without regard to his race, upon a matter without the exclusive control of the United States, it would seem that the court has the right to find the right of possession was in the defendant in the same transaction, and to award the statutory judgment against the Indian. Red Hawk is a citizen of the United States and of this state, if not by virtue of the allotment in trust, at least by virtue of the statute passed prior to the germination of this controversy. Act June 2, 1924; chapter 233, 43 Stat. 253. As a citizen he could come as a suitor in the courts of the state of Oregon and relief could be awarded either for or against him. Stevenson v. Christie, 64 Ark. 72, 42 S.W. 418; Rubideaux v. Vallie, 12 Kan. 28; Daugherty v. Bogy, 3 Ind. T. 197, 53 S.W. 542; Stacy v. La Belle, 99 Wis. 520, 75 N.W. 60, 41 L. R. A. 419, 67 Am. St. Rep. 879; Bates v. Printup, 31 Misc. 17, 64 N.Y.S. 561; Bem-Way-Bin-Ness v. Eshelby, 87 Minn. 108, 91 N.W. 291; Deragon v. Sero, 137 Wis. 276, 118 N.W. 839, 20 L. R. A. (N. S.) 842; Smith v. Mosgrove, 51 Or. 495, 94 P. 970; Gho v. Julles, 1 Wash. T. 325; Brown v. Anderson, 61 Okl. 136, 160 P. 724; Rider v. La Clair, 77 Wash. 488, 138 P. 3.

"These authorities leave no doubt that an Indian may sue and be sued in the state courts in any matter over which Congress has not expressly retained jurisdiction in the United States. Especially is this true where the Indian is a citizen. An Indian who has received an allotment and patent for land is no longer a ward of the government, except as to the particular property still held in trust, but a citizen of the United States and of the state within which he resides, and not within the right of Indian regulations on the part of Congress, and this emancipation from federal control cannot be set aside without the consent of the Indians and the states, nor is it affected by the provisions of the act subjecting the land allotted to conditions against alienation and guaranteeing him an interest in the tribal property. In re Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848; State ex rel. Tompton v. Denoyer, 6 N. D. 586, 72 N.W. 1014; State ex rel. Crawford v. Norris, 37 Neb. 299, 55 N.W. 1086; Wa-La-Note-Tke-Tynin v. Carter, 6 Idaho, 85, 53 P. 106; In re Now-ge zhuck, 69 Kan. 410, 76 P. 877; U.S. v. Rickert (C. C.) 106 F. 1; Farrell v. U.S. (C. C. A.) 110 F. 942; Boyd v. Thayer, 143 U.S. 135, 12 S.Ct. 375, 36 L.Ed. 103.

"It has been repeatedly held that, by virtue of the act of Congress, Indians who had severed their tribal relations and taken allotments are citizens, and entitled to institute or defend actions of ejectment or trespass in state or federal courts, regardless of the prohibition against alienation of the lands obtained under the allotment. It should be carefully noted that the distinction which runs through the decisions as to Indians completely under the control of the United States and those who have a right to use the state courts is based upon the division between those who have severed their tribal relations and become citizens of the United States and those who have not. This distinction is of no validity at the present time, in view of the act hereinabove cited since tribal relations are thereby declared abolished and...