United States v. Gardner

• Decision Date: 03 October 1904
• Docket Number: 1,040.
• Citation: 133 F. 285
• Parties: UNITED STATES v. GARDNER.
• Court: U.S. Court of Appeals — Ninth Circuit

133 F. 285

UNITED STATES v. GARDNER.

No. 1,040.

United States Court of Appeals, Ninth Circuit.

October 3, 1904

Jesse A. Frye, U.S. Atty., and Edward E. Cushman, Asst. U.S. Atty.

Happy &amp Hindman, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The defendant in error was the defendant in an action brought against him by the United States to recover the sum of $1,665.38 and interest, alleged to be the manufactured value of certain timber wrongfully and lawfully cut and removed by the defendant in error from certain lands described in the complaint. These lands, prior to the cutting and removal of the timber, had been allotted to two certain Indians, 80 acres to each, pursuant to the act of Congress approved July 1, 1892, c. 140, 27 Stat.62, and entitled 'An act to provide for the opening of a part of the Colville reservation in the state of Washington and for other purposes,' and the general allotment act of February 8, 1887, c. 119, 24 Stat. 388. The jury returned a verdict in favor of the United States in the sum of $300. The defendant in error moved the court for a judgment notwithstanding the verdict, for the reason that the verdict was contrary to law and the evidence and for the further reason that the plaintiff in error had no capacity to sue, and no title to the lands from which the timber was removed. Upon the latter ground the court sustained the motion, and judgment was entered for the defendant in error.

Section 4 of the act of July 1, 1892, contains the following provisions:

'That each and every Indian now residing upon the portion of the Colville Indian reservation hereby vacated and restored to the public domain, and who is so entitled to reside thereon, shall be entitled to select from said vacated portion eighty acres of land, which shall be allotted to each Indian in severalty. No restrictions as to locality shall be placed upon such selections other than that they shall be so located as to conform to the congressional survey. * * * Such selections shall be made within six months after the date of the President's proclamation opening the lands hereby vacated to settlement and entry and after the same have been surveyed, and when allotments have been selected as aforesaid and approved by the Secretary of the Interior, the titles thereto shall be held in trust for the benefit of the allottees respectively, and afterwards conveyed in fee simple to the allottees or their heirs, as provided in the act of Congress entitled 'An act to provide for the allotment of land in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and territories over the Indians, and for other purposes,' approved February eighth, eighteen hundred and eighty-seven, and an act in amendment and extension thereof, approved February twenty-eighth, eighteen hundred and ninety-one. * * * Provided that such allotted lands shall be subject to the laws of eminent domain of the state of Washington, and shall, when conveyed in fee simple to the allottees or their heirs, be subject to taxation as other property in said state.' 27 Stat. p. 63.

Section 8 provides as follows:

'That nothing herein contained shall be construed as recognizing title or ownership of said Indians to any part of the said Colville reservation, whether that hereby restored to the public domain or that still reserved by the government for their use and occupancy.'

Section 5 of the act approved February 8, 1887, contains the following: 'That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the United States does and will hold the land thus allotted for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the law of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: provided that the President of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void.' 24 Stat. 389.

The defendant in error contends that section 5 of the act of 1887, known as the 'General Allotment Act,' transferred the seisin and possession from the government to the allottees to all intents and purposes, and that the latter thereby acquired not merely a title, but an actual estate, which was created as effectually as if it had been done by a conveyance with livery of seisin at common law. In the recent case of the United States v. Rickert, 188 U.S. 432, 23 Sup.Ct. 478, 47 L.Ed. 532, the court was called upon to consider what interest, if any, the Indian allottee acquired in the land allotted to him under that act. Referring to the fifth se...