Smith v. Mosgrove

• Decision Date: 07 April 1908
• Citation: 94 P. 970,51 Or. 495
• Parties: SMITH v. MOSGROVE et al.
• Court: Oregon Supreme Court

94 P. 970

51 Or. 495

SMITH v. MOSGROVE et al.

Supreme Court of Oregon

April 7, 1908

Appeal from Circuit Court, Umatilla County; H.J. Bean, Judge.

Action by Philomme Smith against James Mosgrove and others. From an order dismissing the action for want of jurisdiction of the subject-matter, plaintiff appeals. Reversed and remanded.

R.J. Slater, for appellant.

James A. Fee, for respondents.

BEAN C.J.

This is an action to recover damages for trespass upon real property. The pleadings are voluminous, and present important questions for ultimate determination; but, for the purpose of this appeal, it is not necessary to allude to them. It is sufficient that this is an action brought by an Indian allottee of land on the Umatilla reservation against a white man to recover damages for an alleged unlawful trespass upon such land. After issue had been joined the court below, on motion of defendants, dismissed the action for want of jurisdiction of the subject-matter, and this presents the only question for determination at this time.

Defendants' contention is that the state courts have no jurisdiction over the property or property rights of Indian allottees residing within the reservation and under charge of an Indian agent. In many respects this position is sound. So long as the United States recognizes the national character of Indians and they are under the protection of treaties and laws of Congress, their property is withdrawn from the operation of state laws (Kansas Indians, 5 Wall. 757, 18 L.Ed. 667), and the state courts have not been given jurisdiction over controversies concerning the titles to Indian allotments while the same are held in trust by the United States ( McKay v. Kalyton, 204 U.S. 458, 27 Sup.Ct. 346, 51 L.Ed. 566). It does not follow, however, that an Indian allottee may not invoke the aid of a state court for protection or enforcement of his personal or property rights when invaded by a white person. The Constitution of this state declares that "every man shall have remedy by due course of law for injury done him in person property or reputation" (article 1, § 10), and it certainly would be a violation of both the letter and spirit of this constitutional provision for a state court to refuse its aid, when invoked to protect the rights of a suitor, on the sole ground that the party seeking its aid was an Indian. And such is not the law. There are numerous cases to be found in the books in which Indians have prosecuted actions and suits in state courts. 22 Cyc. 116; 16 A. & E.Ency. of Law, 216; Bem-Way-Bin-Ness v. Eshelby, 87 Minn. 108, 91 N.W. 291. In Felix v. Patrick (C.C.) 36 F. 457, which was a suit in a federal court by an Indian to enforce a trust in real property, the complainant's bill was dismissed on the ground of laches; it being held that the state courts were open to him, and that he had unreasonably delayed invoking their aid, Mr. Justice Brewer remarking that "as a matter of fact Indians are frequent suitors in the courts of the various states." On an appeal the decree was affirmed on the same ground, the Supreme Court saying: "The courts of Nebraska were open to them as they are to all persons irrespective of race or color." Felix v. Patrick, 145 U.S. 317, 12 Sup.Ct. 862, 36 L.Ed. 719. Y-Ta-Tah-Wah v. Rebock (C.C.) 105 F. 257, was an action by a tribal Indian, living on a reservation, against the agent and another to recover damages for an alleged false arrest and imprisonment for the violation of a state law regulating the practice of medicine. Subsequent to bringing the action plaintiff died, and one question in the case was whether the right of action survived under the state laws. After referring to the authorities on the right of an Indian to maintain an action for the protection of his personal or property rights Mr. Justice Shiras says: "These authorities clearly demonstrate that, if it be true that the defendants were guilty of a trespass to the person of the Indian, the injured party had the right to bring suit for the damages caused him in any state court within whose territorial jurisdiction the defendants reside. The defendants, being citizens and residents of Iowa, cannot question the jurisdiction of the courts of Iowa over them, and the Indian, though not a citizen, by invoking the aid of the court, submits himself to the jurisdiction thereof, and the court, having obtained jurisdiction over the parties, will apply the law, no matter what its source, that is applicable to the question in dispute, and the same rule will be followed in cases coming within federal jurisdiction. If the defendants, without right or authority so to do--a question to be solved by the laws and treaties of the United States--undertook to subject the Indians to the provisions of the state laws regulating the practice of medicine therein, and in so doing committed a trespass on his person, then the common law would give a right of action therefor, and to enforce the same the courts, state and federal, were open to the injured party."

It thus appears that an Indian has as much right to resort to the state...