Smith v. Bonifer

• Decision Date: 15 July 1907
• Docket Number: 2,683.
• Citation: 154 F. 883
• Parties: SMITH et al. v. BONIFER et al.
• Court: U.S. District Court — District of Oregon

154 F. 883

SMITH et al. v. BONIFER et al.

No. 2,683.

United States Circuit Court, D. Oregon.

July 15, 1907

R. J Slater and J. T. Hinkle, for complainants.

Winter & Collier, for defendant Martha Bonifer.

W. C Bristol, U.S. Atty.

WOLVERTON District Judge.

While it is conceded that the mother of Philomme Smith was a member of the Walla Walla tribe of Indians, it is contended that she severed her tribal relations, and that by reason thereof her daughter Philomme is not a tribal Indian, and was therefore not entitled to an allotment of land upon the Umatilla reservation. From this position, it is further argued that the children of Philomme, who are Indians of half blood, were also not entitled to allotments.

The testimony in the case shows beyond question that the mother of Philomme was a full-blood Walla Walla Indian woman; that she married one Thomas Tawakown, who was an Iroquois Indian and probably came into the United States from Canada. Tawakown was engaged in trapping for the Hudson Bay Company, and traveled about from place to place wherever he was directed to go. He lived for a time in the Willamette Valley, and from there made expeditions into California and elsewhere. It is not clear as it respects the place of Philomme's birth, but I am impressed that the weight of the testimony indicates that it was within the Walla Walla region-- perhaps at some point by the stream that goes by that name-- and that while quite young she was brought by her parents into the Willamette Valley. Mrs. Elliot, a full-blood Indian woman, seemingly quite intelligent, who lives in Douglas county, testifies that she helped to take care of Philomme while she was very young; that Philomme was born in Walla Walla, and was brought to the Willamette Valley, the witness seeing her first when she was but three or four months old. F. A. Smith, one of the complainants, testifies that she was born in Walla Walla, but that his information comes through what he heard other people say about it. Mrs. Smith herself is not clear upon the subject, but says that her mother said she was born in the Willamette Valley. However this may be, whether she was born in the Walla Walla country or at St. Paul in the Willamette Valley, the fact is not decisive of the case. The subsequent history of Philomme is in brief this: Her father died at St. Paul when she was about six years of age, and her mother thereafter married a French Canadian by the name of Sauve. This marriage probably took place soon after Tawakown's death, as it was before Philomme reached her seventh or eighth year, at which time (and it appears to be the only time) she attended school. Sauve having died in the meanwhile, the mother and Philomme moved to The Dalles, in Oregon, when the latter was about 14 years of age. Shortly thereafter Philomme was married to Smith, her present husband. The year of Philomme's birth was about 1846-- it may have been a little later or a little earlier-- so that she was about nine years of age when the treaty between the confederated bands and tribes of Walla Wallas, Cayuses, and Umatillas, and the general government was entered into, and it is important that we now inquire into her status, whether a member of the Walla Walla tribe at the date of such treaty, namely, 1855. The treaty was formulated and adopted for the effectuation of several purposes. Among them were to extinguish the Indian title to all those lands described by the treaty, to set aside the Umatilla reservation for the exclusive use of these confederated tribes, and eventually to secure for the individual members of those tribes allotments in severalty. The unalterable policy of the government has long been to encourage the Indians to abandon their primitive habits and customs, to break up their tribal relations and affiliations, and to adopt the arts and methods of the civilized races. This treaty is only one among many adopted, both earlier and later, looking to the ultimate achievement of these ends; and so it may be further premised that the allotment act of March 3, 1885, pertaining to the segregation of the lands of the reservation among the Indians settled thereon, is in furtherance of the cardinal purpose and policy of the government. Indians members of one tribe can sever their relations as such, and may form affiliations with another or other tribes. And so they may, after their relation with a tribe has been severed, rejoin the tribe and be again recognized and treated as members thereof, and tribal rights and privileges attach according to the habits and customs of the tribe with which affiliation is presently cast. As to the manner of breaking off and recasting tribal affiliations we are meagerly informed. It was and is a thing, of course, dependent upon the peculiar usages and customs of each particular tribe, and therefore we may assume that no general rule obtains for its regulation.

Now, the first condition presented is that the mother of Philomme was a full-blood Walla Walla Indian. She was consequently a member of the tribe of that name. Was her status changed by marriage to Tawakown, an Iroquois Indian? This must depend upon the tribal usage and customs of the Walla Wallas and the Iroquois. It is said by Hon. William A. Little, Assistant Attorney General, in an opinion rendered the Department of the Interior in a matter involving this very controversy:

'That inheritance among these Indians is through the mother and not through the father, and that the true test in these cases is to ascertain whether parties claiming to be Indians and entitled to allotments have by their conduct expatriated themselves or changed their citizenship.'

But we are told that:

'Among the Iroquoian tribes kinship is traced through the blood of the woman only. Kinship means membership in a family; and this in turn constitutes citizenship in the tribe, conferring certain social, political, and religious privileges, duties, and rights, which are denied to persons of alien blood. ' Handbook of American Indians, edited by Frederick Webb Hodge, Smithsonian Institute, Government Printing Office, 1907.

Marriage, therefore, with Tawakown would not of itself constitute an affiliation on the part of his wife with the Iroquois tribe, of which he was a member, and a renunciation of membership with her own tribe. Furthermore, no testimony has been adduced indicating that Tawakown ever took his wife with him to live with his own people. Nor does the further fact that Tawakown was a trapper in the employ of the Hudson Bay Company, and went from place to place where his occupation called him, and that his wife accompanied him, signify a change of status upon the part of either. With all this there may have been an abiding purpose of returning to the habitation of either the one tribe or the other, and there is yet here not sufficient evidence of the intention to renounce tribal relations. And, again, bearing in mind the presumption that obtains that a thing or condition once proven to exist continues in the same relation as things and conditions of that nature are wont to continue or remain, the proofs fall far short of establishing a different tribal relation for the wife of Tawakown, the mother of Philomme, than that which we find to have existed at the time of her marriage.

The next feature of the controversy to be noted is the marriage of Philomme's mother to Sauve, a French Canadian. Of Sauve we know but little. Presumably, he was engaged in civilized pursuits, and his wife, being with him, had adopted his habits and customs in that regard. But this condition did not affect the daughter of Tawakown, who was then a minor, a mere child, without volition to disengage her tribal affiliations, or to cast...