Uhlig v. Garrison

• Decision Date: 01 January 1879
• Citation: 2 Dak. 71,2 N.W. 253
• Parties: Otto Uhlig, Respondent, v. A. G. Garrison and another, Appellants.
• Court: South Dakota Supreme Court

2 N.W. 253

2 Dak. 71

Otto Uhlig, Respondent,

v.A. G. Garrison and another, Appellants.

Supreme Court of the Territory of Dakota.

Filed 1879.

Appeal by the defendant from the judgment of the district court of Lawrence county.Tripp & Boyles, for appellants.

Gamble Bros., for respondents.

SHANNON, C. J.

In his complaint the plaintiff alleges mere possession, without any legal interest, and without showing any right of possession, but relies solely upon an alleged relation of landlord and tenant. He sets up a written contract, dated the twenty-fourth day of August, 1876, at Deadwood, by which he leased to the assignors of the defendants a part of a lot of ground in said city for a term of eight months. The lease is made a part of the bill of exceptions, and shows a rent of twenty-five dollars per month, payable in advance, and an agreement that, at the expiration of the lease, the plaintiff should pay the actual value of improvements made upon the lot.

Further allegations in the complaint are, of the expiration of the term on the twenty-fifth day of April, 1877, of a holding over, and of a notice to quit, and a refusal. The relief demanded is for the possession, and for damages for the unlawful withholding, and costs.

The answer of the defendant, without disputing the execution of the written contract, denies any ownership in the plaintiff, and that he was ever, at any time, lawfully possessed of the premises. It contains the further averment that the lawful and exclusive possession of the premises, at the date of the contract, and when the plaintiff pretended to be possessed thereof, to-wit, on the twenty-fourth day of August, 1876, was, as against plaintiff, in the Sioux Indians, and not in the plaintiff; and, moreover, that the premises, on the twenty-fourth day of August, 1876, were lands to which the Indian title had not been extinguished, and were within an Indian reservation, and so remained until the twenty-eighth day of February, 1877, when they became a portion of the public lands of the United States, and were open for lawful settlement and occupation, etc.

It appears by the bill of exceptions that after the closing of the testimony the defendants, by their counsel, asked the court to instruct the jury, among other things, as follows:

“The jury are instructed that prior to February 28, 1877, no title could be acquired to the ground in controversy by plaintiff, nor could he make any lawful lease of the same; the jury are therefore instructed to find a verdict for defendants.”

The district court refused to give such instruction, and this is alleged as error.

This court, in the case of McCall v. The United States, December Term, 1876, considered that Deadwood was a place in the Sioux Indian Reservation, set apart under the treaty proclaimed February 24, 1869, and that the said reservation was in the Indian country; and that Deadwood was then a place within the sole and exclusive jurisdiction of the United States.

In that case it was objected that the defendant should have been indicted and tried in the territorial court. But the court said that “it is well settled that a trial for homicide committed in an Indian reserve must be had on the federal side of a territorial court, and is governed by the United States statutes and the rules of the common law.” Dakota R. 334.

It is evident from the language of the court that it was so considered at the time, although in the absence of any such elaborate discussion as has been displayed in the present case. We shall, however, proceed to examine the question again. It is now conceded from authentic survey that Deadwood was, in August, 1876, within the limits prescribed by article 2 of the aforesaid treaty with the Sioux Indians, to-wit: the treaty of 1868, proclaimed by the president on the twenty-fourth day of February, 1869.

The tract of country described in article 2 was set apart for lhe absolute and undisturbed use and occupation of those Indians; and the United States solemnly agreed that no persons except those therein designated and authorized so to do, and except such officers, agents, and employes of the government as may be authorized to enter upon Indian reservations, in discharge of duties enjoined by law, “shall ever be permitted to pass over, settle upon or reside in the territory” described in said article, etc.

By this treaty, therefore, that district of country became an Indian reservation, to all intents and purposes. The treaty has never been wholly abrogated. The executive departments of the government have continually acted upon it. There was some contention in the selection of the lands reserved, and regarding the approval of Congress thereto, Congress concurring, but on the fifteenth day of August, 1876, an act was approved entitled “An act making appropriations for the current and contingent expenses of the Indian department,” etc., in which, in reference to the Sioux Indians, the above tract is termed “ the permanent reservation established by the treaty of 1868 for the said Indians.” The agreement approved February 28, 1877, abrogates article 16 of the treaty, relinquishes and cedes the Black Hills country, and contains certain changes and concessions; but by article 8 of the agreement the provisions of the treaty of 1868, except as modified, shall continue in full force, and, with the provisions of the agreement, shall apply to any country which may hereafter be occupied by the said Indians as a home.

Whilst section 2079, Rev. St., declares that thereafter no Indian nation or tribe shall be recognized as an independent nation, yet it also declares that “no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe, prior to March 3, 1871, shall be invalidated or impaired.”

If the treaty of 1868 was not lawfully made and ratified, why, it may be asked, did not con...