Walker v. Roberson
| Decision Date | 10 September 1908 |
| Docket Number | Case Number: 782 Ind Ter T |
| Parties | WALKER v. ROBERSON. |
| Court | Oklahoma Supreme Court |
¶0 1. INDIANS -- Lands -- Allotment -- "Minor Children"--Illegitimate child. Act. Cong. June 28, 1898, c. 517, sec. 16, 30 Stat. 501, authorizing any citizen of the Five Civilized Tribes to hold possession of such amount of agricultural or grazing land as would be his just and reasonable share of the lands of his nation or tribe, and to which his wife and minor children were entitled, and to continue to use and occupy the same and receive the rents of the same until allotment was made to him, did not authorize any such citizen to hold lands as a prospective allotment for an illegitimate child.
2. SAME. A member of the Creek tribe of Indians, who in violation of Act Cong. June 28, 1898, c. 517, sections 17, 18, 30 Stat. 502, held possession of lands in excess of that to which he, his wife, and minor children were entitled as allotments, acquired no rights thereto for the benefit of a child subsequently born to him, as against a Creek citizen who had prior to the birth of such child filed upon said land.
Appeal from the United States Court for the Western District of the Indian Territory, at Muskogee; Win. R. Lawrence, Judge.
Action by Mineola Walker against Silas Roberson. Judgment for defendant, and plaintiff appeals. Affirmed.
This suit was brought in the United States Court of the Indian Territory, at Muskogee, by appellant, Mineola Walker, against appellee, Silas Roberson. Plaintiff by her bill asks for a declaration of trust. Both plaintiff and defendant are minor Creek citizens, and both appear in this action by their fathers and natural guardians. The evidence in the court below was taken before a special referee, who reported his findings of fact and conclusions of law in favor of plaintiff. The trial court set aside the referee's report and decreed that the bill of plaintiff's be dismissed for want of equity. From this judgment plaintiff appealed to the United States Court of Appeals of the Indian Territory, where the case was pending at the time of the admission of the state into the Union, and it is now in this court for final disposition under the provisions of the Enabling Act. The facts will be staked in the opinion.
Raymond, Maxey & Runyan, for appellant.
Masterson Peyton, for appellee
¶1 The subject-matter of this action is 160 acres of land, described as the E. 1/2 of the S.W. 1/4 and the S. 1/2 of the N. W. 1/4 of section 23, township 12 N., range 15 E. This tract of land was first segregated from the public domain by W. W. Bray, an intermarried Creek citizen, who occupied the same for a period of about 15 years prior to the bringing of this suit. He fenced it, and broke out a portion of same, and placed it in a state of cultivation. About January 1, 1900, Bray sold his right to the possession of the land and his interest in the improvements thereon to Edward Walker, the father of plaintiff. Walker simultaneously rented the land to Bray, who continued in possession as his tenant. Edward Walker's family, at the time he purchased the interest of Bray in the land, consisted of himself and one child, for all of whom he had already taken allotments. Shortly after he had obtained possession of the land in controversy he visited the land office at Muskogee and attempted to file on the land for one Ben Walker, who was an illegitimate child of said Edward Walker and a woman by the name of Leah Kenard. The commission refused to permit Walker to file for this illegitimate child. The exact reason for such refusal is not dearly disclosed by the record. He returned home, and became sick, and was unable to visit the land office for some time. On the 31st day of May, 1900, Bob Roberson filed on the land for his son, Silas Roberson. On January 1, 1901, Mineola Walker, plaintiff, was born to Edward Walker and his wife. Shortly thereafter Ben Walker, the illegitimate child, acting through his uncle, filed upon another tract of land some distance from the land in controversy Edward Walker was never married to the mother of Ben Walker, and Ben Walker has always resided with his mother, and not with his father. Edward Walker has assisted Ben's mother in clothing him, and testified that he recognized the boy as his son. After the birth of plaintiff, and after Ben Walker had filed upon other land, Edward Walker again visited the land office at Muskogee and endeavored to file upon the land in controversy for plaintiff; but the commission refused to permit him to do so for the reason that said land had already been filed upon. He endeavored to file a contest for plaintiff against defendant; but the commission refused to enter the contest or permit the same to be filed. The reason for this refusal is not disclosed by the record. The circumstances under which the father of defendant was permitted to file upon the land in controversy for defendant were that on the 30th day of May, 1900, he went into the locality where this land is located and inspected a tract of land that adjoins this land. The land he inspected was not in cultivation and was unimproved, and a portion of the same was timber land; whereas the land in controversy was at that time improved and consisted of prairie land. He returned to the land office at Muskogee, and on May 31, 1900, attempted to file upon the land he had inspected; but in doing so he by mistake gave the description of the land in controversy. He represented to the commission that the land upon which he was offering to file was unimproved and not claimed by any one, which was true of the land he had inspected and intended to file on, but not true as to the land he described to the commission and did file upon. Edward Walker made several efforts both to file upon the land and to enter a contest thereon against defendant, in behalf of his child, plaintiff herein, but was always refused permission by the commission to do so. A patent was issued to defendant for the land in controversy, and the commission arbitrarily filed plaintiff upon other land, which she refuses to accept. Upon these facts, which have been here stated substantially as found by the referee, plaintiff contends that defendant holds said land as a trust for her, and that the court should so decree, and direct that defendant convey all his right, title, and interest therein to her.
¶2 The report of the referee on findings of fact and conclusions of law is quite lengthy, and it will serve no useful purpose to set out the same in full. The report, was set aside by the court, and that action of the court is the basis of most of the assignments of error made by appellant; but under our view of the case there is but one question presented by the record that demands our consideration, and that question is: Did Edward Walker, on the 31st day of May, 1901, the day on which defendant filed on the land in controversy, have a right to hold said land for the illegitimate child, Ben Walker? Edward Walker, prior to that time, had taken allotments for himself, his wife, and his only legitimate child. Plaintiff had not then been born.
¶3 Congress, by Act June 28, 1898, c. 517, 30 Stat. 495, known as the "Curtis Act," provided that as soon as the roll of citizenship of any one of the Five Civilized Tribes should be completed as provided by law, and a survey of the land of said nation or tribe had been made, the Dawes Commission should proceed to allot the exclusive use and occupancy of the surface of the lands of said nation or tribe among the citizens thereof, giving to each,...
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