United States v. Payne

• Decision Date: 01 January 1881
• Citation: 8 F. 883
• Parties: UNITED STATES v. PAYNE.
• Court: U.S. District Court — Western District of Arkansas

8 F. 883

UNITED STATES v. PAYNE.

United States District Court, W.D. Arkansas.

1881

Wm. H H. Clayton, U.S. Dist. Atty., and D. W. C. Duncan, for plaintiff.

Thos H. Barnes, Jas. M. Baker, and Wm. Walker, for defendant.

This is a civil suit, in the nature of an action of debt, to recover from defendant a penalty of $1,000, for having violated the law of the United States by being in the Indian country contrary to said law. The complaint charges that the defendant heretofore, to-wit, on the fifth day of September A.D. 1879, being in the Indian country contrary to law, was removed by the military forces of the United States, and that afterwards, to-wit, on the tenth day of August, A.D. 1880 he, the said defendant, did return to said Indian country, and was found therein, contrary to the form of the statute in such case made and provided. For this reason plaintiff claims an action hath accrued against the defendant.

The defendant files his amended answer, in which he denies that he owes and is indebted to the plaintiff in the sum of $1,000, or any other sum, in manner and form as stated in the complaint. He denies that on the third day of May, 1880, or the tenth day of August of that year, or at any other time, he was in the Indian country, or any part thereof. He denies that he was at any time removed from the Indian country, or any part thereof. Defendant further claims that by a treaty entered into between the United States and the Seminole tribe of Indians, on March 21, 1866, they sold to the United States a large tract of land then owned by said tribe in the country known as the Indian Territory, situated between the Canadian river and the North Fork of the Canadian river, and between the ninety-seventh and ninety-eighth degrees of west longitude; that said lands have ever since been, and are now, the property of the United States by an absolute and perfect title in fee-simple, and that they are a part of the public domain of the United States; that there is no Indian nation or tribe that has any title or right to any part of the same, or any occupancy or possession thereof.

Defendant further answers that he made a settlement on section 14, in township 11 north, of range 3 west of the Indian meridian, under the pre-emption and homestead laws enacted by the congress of the United States; that said section is a part of the land so purchased and acquired by the United States from the Seminole Indians, and that it is situated within 40 miles of the line of the

Atlantic & Pacific Railroad, to-wit, about 30 miles therefrom; that said settlement was made by him on or about the first day of May, 1880; that on the fifteenth of that month an officer of the United States army and a squad of soldiers arrested him on or near said section 14, and removed him from said lands, and from said so-called Indian Territory; that he returned to his said claim and settlement on or about the fourth day of July in said year, and was again, on or about the fifteenth day of said month, arrested at or near the same place by the officers and soldiers of the United States army, and forcibly expelled from said lands and from said territory.

To this answer plaintiff files a demurrer, and for cause thereof says: (1) that said answer does not set up sufficient facts to constitute a defence to plaintiff's complaint; (2) that defendant's said answer is otherwise defective and wholly insufficient to constitute a defence to plaintiff's complaint, and does not entitle him to the relief prayed for.

PARKER, D.J.

The pleadings in this case seem to arise and present to the court for decision all the points there are in the case. The complaint alleges a state of facts which, if true, would render the defendant liable to the penalty. Sections 2147, 2148, Rev. St. 374. No white person has a right to go into the Indian country to reside without a permit; and if such person has once been put out, and returns, he becomes liable to a penalty of a thousand dollars, to be recovered in an action like the present one. The defendant denies that he is an intruder into the Indian country. He does not stop with this denial, but proceeds in his answer to set up certain facts; but says these facts do not make him liable, but that he was an American citizen, legally and rightfully in the country. The demurrer admits his facts, but says on them he is liable.

The question presented for decision in this case is, was the land upon which the defendant had attempted to make a settlement, and the place where he was arrested the first and second time, a part of, or within, the Indian country? If so, upon the other facts he is liable to the penalty, because he admits his arrest and expulsion from the country, and under the law the liability arises upon a second intrusion into the Indian country after having been once expelled. The defendant claims that the land purchased from the Seminoles by the United States, by the treaty made with them March 21, 1866, is a part of the public lands of the United States, and as such is open to homestead and pre-emption settlement; that he made a settlement thereon under the laws of the United States relating to homestead and pre-emptions. He does not show that he has taken any of the requisite steps to give him even an inchoate homestead or pre-emption right. He could not, of course, if these lands were subject to the homestead and pre-emption laws, hold what he claims to have settled on, to-wit, section 14, because, under the law, one person can only homestead or pre-empt 160 acres. Rev. St. Secs. 2259, 2289. Did he have the right to homestead or pre-empt any of the lands conveyed by the Seminole treaty of 1866?

Section 2258, Rev. St., provides--

'That lands included in any reservation by any treaty, law, or proclamation of the president, for any purpose, shall not be subject to the right of pre-emption unless otherwise specially provided by law.'

Section 2258 of the same statute provides--

'That every person who is the head of a family, or who has arrived at the age of 21 years, and is a citizen of the United States, or who has filed his declaration of intention to become such, as required by the naturalization laws, shall be entitled to enter one quarter section or less quantity of unappropriated public lands upon which such person may have filed a pre-emption claim, or which may at the time the application is made be subject to pre-emption, at one dollar and twenty-five cents an acre.'

Are these lands reserved by any treaty, law, or proclamation of the president? If so, they are not subject to pre-emption settlement. Are they unappropriated public lands? If they are appropriated for another purpose than homestead settlement, or if they are not subject to pre-emption, they cannot be settled upon and acquired under the homestead laws. If these lands are included in a reservation for any lawful purpose, made by treaty, law, or proclamation of the president, they cannot be settled upon and claimed by citizens of the United States, and the defendant would be wrongfully upon them. The lands upon which the defendant claims to have settled were originally a part of the Louisiana purchase. By such purchase the title thereto was vested in the United States. By the act of congress of May 28, 1830, the president was authorized to set apart the country now known as the Indian country or Indian Territory into certain districts for the use and occupancy of Indians to be removed there from east of the Mississippi river.

The provisions of the act of 1830 were supplemented by treaties bargaining and conveying certain tracts to certain tribes, by far the greater part of it having been conveyed to five nations, to-wit: the Cherokees, Choctaws, Chickasaws, Creeks, and Seminoles. These assignments were made to these tribes by the several treaties made with them, and the president, under the act of 1830, put them in possession thereof. The lands in controversy are a part of those which were, by the treaty of the fourteenth of February, 1833, made with the Creeks, set apart to them. By the treaty of the seventh of August, 1856, made between the United States and the Creeks, they conveyed these lands to the Seminoles; provided, however, that the same should not be sold or otherwise disposed of without the consent of both tribes legally given. The Seminoles, by the third article of the treaty made between them and the United States, March 21, 1866, provided as follows:

'In compliance with a desire of the United States to locate other Indians and freedmen thereon, the Seminoles cede and convey to the United States their entire domain, being the tract of land ceded to the Seminole Indians by the Creek nation under the provisions of article 1, treaty of the United States with the Creeks and Seminoles, made and conceded at Washington, D.C., August 7, 1856. ' This conveyance was made by the Seminoles, as is recited in the preamble to this treaty, 'in view of the urgent necessity of the United States for more land in the Indian Territory.'

The Creeks, by the seventh article of the treaty of June, 1866 consented to this session by the Seminoles. To my mind, this language, used in the third article of the Seminole treaty, amounts to a conveyance of the title of the land described to the United States. But the fact that the title of the land is in the United States does not necessarily make it that part of the public domain which is subject to settlement by citizens of the United States under the homestead and pre-emption laws, because those laws are explicit that any lands which have been reserved by any treaty, law, or proclamation of the president are no part of the public lands of the United States subject to those laws, so long as such...