Sully v. United States

• Citation: 195 F. 113
• Decision Date: 28 February 1912
• Docket Number: 534.
• Parties: SULLY et al. v. UNITED STATES et al.
• Court: U.S. District Court — District of South Dakota

195 F. 113

SULLY et al. v. UNITED STATES et al.

No. 534.

United States Circuit Court, D. South Dakota, Southern Division.

February 28, 1912

George A. Jeffers and Joe Kirby, for complainants.

Edward E. Wagner, U.S. Dist. Atty., for defendants.

ELLIOTT District Judge.

The above-entitled action has been submitted upon the pleadings and proofs, and after hearing counsel for the respective parties, the court makes and files the following:

Findings of Fact.

(1) That prior to 1840, Scares at his Shadow, a full-blooded Yankton Indian, and Wistu, a full-blooded Yankton Ai or Crow Creek Indian woman, intermarried upon what was then the Great Sioux Indian reservation, and as the issue of said marriage an Indian girl, who was named Goodline, was born.

(2) That thereafter, when Goodline was about 14 years of age, in 1850 or 1851, Goodline, this Indian girl, whose father was a Yankton, and her mother a Crow Creek Indian, married a Frenchman named Goulette, on the Great Sioux reservation near old Ft. Pierre, and was a little later deserted by Goulette and as the issue of said marriage an Indian girl was born near the old stockade at Ft. Pierre, within the Great Sioux reservation, in the now state of South Dakota, in the year 1852, named Mary Goulette (now Mary Sully), who is the above-named complainant; the rest of the complainants being her descendants, as will appear from further findings.

(3) That in 1868 said Mary Goulette (now Mary Sully) married Henry Brindell, a white man, and an employe at the Whetstone Issue Station on the Great Sioux reservation, and they continued to reside there until 1869, when the said Henry Brindell died, and was buried near the old Whetstone Issue Station on said reservation, and there was born to them, the issue of said marriage, a daughter named Mary Brindell (now the complainant Mary McGhee hereinafter referred to) Mary Brindell being born at her father's place east of the Missouri river just across from the Whetstone agency soon after her father's death.

(4) That in 1889 said Mary Brindell was living on the Rosebud reservation on the west side of the Missouri river on one of the islands in the Missouri river, same being a part of the reservation, and was married to Pat Gaughen, said marriage taking place on the east side of the Missouri river in Charles Mix county, where she continued to reside with her husband for a period of about six months, when she and her said husband returned to the west side of the river on what was known as Pocahontas Island, where they had resided before being married, she with her mother, and he as an employe of one of her relatives.

(5) That there was born to them, the issue of this marriage, five children, complainants herein, Emmet Gaughen, born in 1893; Ollie Gaughen, born in 1894; Mollie Gaughen, born in 1896; Julia Gaughen, born in 1899; Emma Gaughen, born in 1900-- all of whom were born upon the said Rosebud reservation, and said Pat Gaughen died and was buried on the Rosebud reservation in 1900.

(6) That after the death of said Pat Gaughen his wife, Mary Brindell, married a white man, Nels McGhee, in 1902. That they continued to live on the Rosebud reservation, and in 1903 there was born, the issue of said marriage, a daughter named Grace McGhee, one of the complainants herein.

(7) That subsequent to the death of Henry Brindell in 1869, and about 1871, the said Mary Brindell (now Mary Sully) married John Kinkaid, a white man, on the east side of the Missouri river in Charles Mix county, at which place there was born to them, the issue of said marriage, Amy Kinkaid (now La Roche), who is now enrolled and allotted on the Lower Brule agency, and who is not a party to this action; the complainant William Kinkaid, born in 1874; and Estelle Kinkaid (now the complainant Estelle Blackbird), born in 1875. And said John Kinkaid died in 1877.

(8) That on January 3, 1892, said Estelle Kinkaid, daughter last above named, married Joe Blackbird, a white man, on the Rosebud reservation, where they have since continued to reside, and there was born to them upon said Rosebud reservation, the issue of said marriage, the complainants Susie Blackbird, born in 1893; Louisa Blackbird, born in 1895; Annie Blackbird, born in 1896; and George Blackbird, born in 1900.

(9) That subsequent to the death of John Kinkaid above named, his widow, Mary Goulette Brindell Kinkaid, married John Sully, on the east side of the Missouri river in Charles Mix county. That as the issue of said marriage between said Mary and John Sully there was born to them on Pocahontas Island, within the Rosebud reservation, the following named complainants in this action: Louisa Sully (now Louisa Waugh), born in 1882; Eva Sully, born in 1884; Millie Sully, born in 1885; John Sully, born in 1887; Frank Sully, born in 1888; George Sully, born in 1890; Samuel Sully, born in 1893; and Claude Sully, born in 1897. And said John Sully died and was buried on the Rosebud reservation in 1904.

(10) That in 1900 Louisa Sully, the oldest child above named, was married to a white man named Frank Waugh, at and upon the Rosebud reservation, and there was born to them, on the said reservation, the issue of said marriage, complainants herein as follows: John Waugh, born in 1901; May Waugh, born in 1903; Reanor Waugh, born in 1905, in Canada, during a temporary absence from the reservation.

(11) That continuously since 1883 to 1886 all of the complainants have resided on the Great Sioux reservation in South Dakota, until it was segregated by the Act of Congress of March 2, 1889, into the Rosebud and Lower Brule reservations, and all of said complainants then continued to live on what is now the Rosebud reservation, except such of those as were born upon the reservation during that time, and they have lived all their lives there, except as herein stated.

(12) That in the year 1892 the complainants Mary Sully and all of her children by the said John Sully, then born, together with William Kinkaid and Estelle Blackbird, were duly enrolled by the authorities in charge of the records of the Lower Brule reservation, and their names were continued upon said rolls until 1897, when at some time during that year, one more child, the son of Mary Sully, Claude Sully, was added to the said roll at said agency.

(13) That thereafter the names of the complainants mentioned in the last paragraph were, without notice to or consent of, any of said complainants, dropped from said roll of the Lower Brule agency, some time after the year 1897, and have not since appeared thereon.

(14) That at all times while said complainants were enrolled at the Lower Brule reservation they received and shared in the annuities and per capita payments which were made under the provisions of the act of March 2, 1889, the same as all other Indians on said reservation.

(15) That while said complainants were so enrolled on the Lower Brule agency they were each allotted Indian land thereon by the special allotting agent of the government for that purpose, but subsequently all of said land was taken from them and allotted to other parties, all of which was done without their consent.

(16) That in 1896 the said complainants who were enrolled at the Lower Brule reservation or agency, together with a large number of other Indians, moved, with their belongings, south of the White river onto the Rosebud reservation, but which the said Indians believed to be their territory, which removal resulted in an act of Congress, and a treaty between the Lower Brules and Rosebuds, bearing dates, respectively, March 1, 1898, and March 10, 1898, and approved by an act of Congress dated March 3, 1899, at which place on said Rosebud reservation complainants have ever since continued to so reside.

(17) That at the date said treaty was negotiated between James McLaughlin, in behalf of the government, and the Lower Brule Sioux, which resulted in the act of Congress last above mentioned, one of the chief spokesmen of the council held for the purpose of procuring such treaty, in the presence of the other Indians, requested of the said McLaughlin that the names of said complainants be included among those who were in the future to reside on the Rosebud reservation, and at said time said Lower Brules, by their chiefs and spokesmen, recognized said complainants as members of their band.

(18) That prior to the time complainants were placed upon the rolls, a council was had upon the reservation near where Oacoma now is, and it was the sense of that meeting that complainants should become members of the Lower Brule tribe.

(19) That later, in 1908, a council was held at Rosebud, and those present favored receiving complainants into the Rosebud band.

(20) That the court finds that as a matter of fact, prior to the treaty of 1889, if a member of one tribe wanted to become a member of another, or an Indian wanted to go from one band to another, they made the transfer by simply going there and joining the band. As a matter of fact, they were always accepted. The record also shows that many Yankton Indians associated with the Brules and settled there, have been allotted on the Rosebud, and are known as members of that band, and that it was all done by simply going from the one reservation to the other and affiliating with them. It appears upon the record that Indians desiring to go from one band to another were invariably accepted by the chiefs or subchief, and that this migratory custom continued until the treaty of 1889, when the separate reservations were set apart for the different bands.

(21) I further find from the record that the custom of the Indians where they are part of one blood and part of another, as to which one they will choose, is varied. It was optional with...