Robinson v. Caldwell

• Decision Date: 04 February 1895
• Docket Number: 188.
• Citation: 67 F. 391
• Parties: ROBINSON v. CALDWELL.
• Court: U.S. Court of Appeals — Ninth Circuit

67 F. 391

ROBINSON v. CALDWELL.

No. 188.

United States Court of Appeals, Ninth Circuit.

February 4, 1895

James H. Forney, for appellant.

Rothchild & Ach, for respondent.

Before McKENNA and GILBERT, Circuit judges, and HAWLEY, District Judge.

GILBERT Circuit Judge.

William Craig, a native-born citizen of the United States, was on the 6th day of July, 1838, married to Isabel Craig, an Indian woman, belonging to the Nez Perce tribe of Indians. On the 15th day of September, 1846, Craig and his wife located and settled upon the land in controversy in this suit. The land was then a part of the lands occupied by this Nez Perce Indians in what is not the state of Idaho, and it is included within the boundaries of the present Nez Perce Indian reservation. Craig and his wife continued to reside upon the land and cultivate the same from the 15th day of September 1846, until the 4th day of June, 1855, upon which latter date Craig filed his notification with the register and receiver of the land office of the then territory of Washington, at Olympia, in said territory, for the settlement of said land which notification was as follows:

'Pursuant to the act of congress approved on the 14th day of February 1853, entitled 'An act to amend an act entitled 'An act to create the office of surveyor-general of public lands in Oregon, and to provide for the survey, and make donations to settlers of the public land,' and amendments thereto,' I, William Craig, of Walla Walla county, in the territory of Washington, hereby give notice of my claim to donation of 640 acres of land, particularly bounded and described as follows: 'Beginning at a stake 30 yards north of Lapwai creek; thence two miles to a pile of rocks thence south half a mile to a stake; thence east two miles to a cottonwood tree; thence north half a mile to the place of beginning."

On June 19, 1855, said Craig filed in said land office his own affidavit and the affidavits of Henry M. Chase, William C. McKay, and Louis Raboin. These affidavits are to the effect that the affiants are disinterested parties; that they are personally acquainted with William Craig, and know that he has personally resided upon and cultivated said tract of land continuously from the 15th day of October, 1849; and Raboin's affidavit contains the further statement that Craig and his wife have lived together as man and wife from the 6th day of July, 1838, and that they are and were reputed by their neighbors to be man and wife during said period. After making the said proofs, Craig and wife received a letter from the officers of the land office, where the same were filed, notifying Craig that his filing and proof were complete, and that he had as complete a title to said land as could be acquired prior to issuing a patent, and that patent could not issue until the government survey had been extended over the country. In the year 1870, one D. P. Thompson, while engaged in making and extending the first surveys of the government from township 35 N., range 3 W., P.M., in which is included the land in controversy, made a survey of the Craig claim at the request of one Joseph K. Vincent, tenant thereof under the heirs of William Craig, and was paid for said survey by said Vincent. A plat of this survey was made, and kept on file in the office of the Indian agent at Lapwai, Idaho. In the month of October, 1887, in reply to a letter written by R. J. Monroe, attorney for the heirs of William Craig, and for one Samuel Phinney, who has acquired an interest from the Craig heirs in said land, the commissioner of the general land office notified said Monroe that the proof of said William Craig was deficient, for the reason that it was not accompanied by the affidavit required by section 12 of the donation act, approved September 27, 1850, and that no certificate of the surveyor general or the register and receiver of the local land office appears to have been made, setting forth the facts in the case, and specifying the land to which the party is entitled, as is prescribed by the seventh section of said act. On the receipt of this letter, said Phinney, through his attorney, on December 20, 1890, made application to the surveyor general of Idaho for an order of survey of said land. On March 14, 1891, said surveyor general replied that he had no authority to issue said order, for the reason that said lands were included in the lands of the Nez Perce Indian reservation. On receipt of this letter, the attorney for Phinney and the Craig heirs applied to the commissioner of the general land office for patent, inclosing the plat and notes of the survey made by said D. P. Thompson in 1870, together with the affidavit of said Vincent, in which the facts concerning the settlement by Craig and the survey of said claim by said Thompson are set forth. The commissioner of the land office refused to issue a patent, on the ground that the treaty provisions of the 11th of June, 1855, conferred no title or authority to issue title to William Craig and wife, but simply granted a right to occupancy so long as the Indian title to the reservation remains unextinguished; and the further ground that congress, in preamble approved March 3, 1873 (17 Stat. 627), construed the right of Craig as a personal right to occupy the land, that his right ceased with his death; and upon the further ground that no affidavit seems to have been made by said Craig, as required by the twelfth section of the donation act, and that no certificate of the surveyor general or receiver and register appears to have been made, setting forth the facts in the case, as required by the seventh section of said act; and upon the further ground that the said land was not subject to donation entry when Craig made his settlement, for the reason that the Indian title had not then been extinguished.

The defendant, Joseph Robinson, is the United States Indian agent of the Nez Perce Indians in Idaho. As such Indian agent, and acting under the direction of the commissioner of Indian affairs and the secretary of the interior, he has ordered the plaintiff to remove from said land. The said William Craig and wife, on February 13, 1869, conveyed all their right, title, and interest to said Phinney and one Moses H. Rice. Subsequently, the said Rice conveyed his interest to Phinney, and Phinney, under the said conveyance, went into the possession of and continued to occupy and cultivate the said land until the 9th day of March, 1891, when he conveyed an undivided one-half interest in the tract to said W. A. Caldwell, the complainant, who thereupon went into possession of said land, together with said Phinney.

On the 29th day of January, 1894, upon the facts stated above, the circuit court granted a decree adjudging the respondent to be the true and lawful owner of an undivided one-half interest in said land, and quieting his title thereto, and enjoining the defendant from interfering with his possession of said premises.

The assignments of error upon the appeal bring to our consideration two principal questions: First. Was the land in controversy subject to location and settlement by William Craig and wife under the provisions of the donation act? And second, were the necessary steps taken by them, under the provisions of that act, to entitle them to a patent to the land, or to the relief awarded by the decree? It is contended that the land in controversy was Indian country at the time William Craig entered into the possession of the same, and that its character as Indian country has remained unchanged from that time to the present day, and that by virtue of the act of June 30, 1834, commonly known as the 'Intercourse Act,' no valid settlement could be made upon the land so long as the right of the Indians remained unextinguished. The act of June 30, 1834, is entitled 'An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers. ' It defines the Indian country to be all that part of the United States west of the Missouri river not included in the states of Missouri and Louisiana or the territory of Arkansas, and all lands east of that river not within any state 'to which the Indian title has not been extinguished. ' It contains many provisions for the regulation of trade and intercourse with the Indians in the Indian country. In section 11 is found the reference to settlement by whites upon the Indian lands. A penalty is therein denounced against any person who shall make a settlement upon or survey 'any lands belonging, secured, or granted by treaty with the United States to any Indian tribe. ' At the time this act was adopted, there had been no treaty with the Nez Perces; no lands had, by statute, contract, or treaty, been recognized as belonging to them. In its dealings with the Indians the United States has uniformly denied their title to any of the lands within its domain. In Johnson v. McIntosh, 8 Wheat. 574, the nature of the right of the United States in the Indian country was considered at length, and the conclusion was there reached that the absolute title to all such lands is vested in the United...