The Treaty of February 23, 1867, 15 Stat. 513, with the Ottawas
and other Indians, introduced the limit of minority upon the
inalienability of lands patented to a minor allottee, in that
respect changing the provisions of the Treaty of July 16, 1862, 12
Stat. 1237, and this limitation was applicable to lands then
patented to minors under the treaty of 1867, and cut off the right
of guardians to dispose of their real estate during their minority,
even under direction of the court of the state in which the land
was situated.
By the first article of the treaty of 1862, negotiated June
24th, ratified July 16th, and proclaimed July 28th, 12 Stat. 1237,
it was provided that:
"The Ottawa Indians of the United Bands of Blanchard's Fork and
of Roche de Boeuf, having become sufficiently advanced in
civilization and being desirous of becoming citizens of the United
States, it is hereby agreed and stipulated that their organization
and their relations with the United States as an Indian tribe shall
be dissolved and terminated at the expiration of five years from
the ratification of this treaty, and from and after that time the
said Ottawas, and each and every one of them, shall be deemed and
declared to be citizens of the United States to all intents and
purposes, and shall be entitled to all the rights, privileges, and
immunities of such citizens, and shall in all respects be subject
to the laws of the United States and of the state or states thereof
in which they may reside. "
Page 163 U. S. 57
The seventh article reads that:
"Proper patents by the United States shall be issued to each
individual member of the tribe and person entitled for the lands
selected and allotted to them, in which it shall be stipulated that
no Indian, except as herein provided, to whom the same may be
issued, shall alienate or encumber the land allotted to him or her
in any manner until they shall, by the terms of this treaty, become
a citizen of the United States, and any conveyance or encumbrance
of said lands, done or suffered, except as aforesaid, by any Ottawa
Indian, or the lands allotted to him or her, made before they shall
become a citizen shall be null and void. And forty acres, including
the houses and improvements of the allottee, shall be inalienable
during the natural lifetime of the party receiving the title."
Esther Wilson as appears by the census roll, duly certified by
the Commissioner of Indian Affairs and the Secretary of the
Interior, of date March 30, 1864, was an allottee under this
treaty, and at that time a girl of the age of seven years. On
December 1, 1865, a patent was issued to her for the land in
controversy, the granting words of which are as follows:
"Now know ye that the United States of America, in consideration
of the premises, and pursuant to the third and seventh articles of
the treaty aforesaid, have given and granted, and by these presents
do give and grant, unto the said Esther Wilson and to her heirs,
the tract of land above described:
provided however, and
these presents are upon the express condition, and with the
limitation as required by the treaty aforesaid, that the said
Esther Wilson shall not alienate or encumber the aforesaid tracts
of land until she shall become, by the terms of said treaty, a
citizen of the United States, and any conveyance or encumbrance of
said lands, done or suffered by said Esther Wilson, made before she
shall become a citizen, shall be null and void; to have and to hold
the said tracts of land, with the appurtenances, unto the said
Esther Wilson and to her heirs and assigns, forever, subject to the
limitation and condition aforesaid."
On February 23, 1867, a treaty was negotiated between the United
States and several Indian tribes, 15 Stat. 513, the scope
Page 163 U. S. 58
and purpose of which is disclosed by this recital in the
preamble:
"Whereas it is desirable that arrangements should be made by
which portions of certain tribes, parties hereto, now residing in
Kansas, should be enabled to remove to other lands in the Indian
country south of that state, while other portions of said tribes
desire to dissolve their tribal relations and become citizens."
Among the parties to this treaty were the Ottawa Indians.
Certain amendments were suggested by the Senate on June 18, 1868,
which were accepted by the Indians September 30, 1868, and the
treaty proclaimed October 14th following. The third section
provides for a cession by the Shawnees of a part of their
reservation in the Indian Territory to the United States. The
sixteenth recites that this ceded territory "is hereby sold to the
Ottawas at one dollar per acre," while the seventeenth section
reads as follows:
"The provisions of the Ottawa treaty of one thousand eight
hundred and sixty-two, under which all the tribe were to become
citizens upon the sixteenth of July, one thousand eight hundred and
sixty-seven, are hereby extended for two years, or until July
sixteenth, one thousand eight hundred and sixty-nine; but at any
time previous to that date any member of the tribe may appear
before the United States District Court for Kansas, and declare his
intention to become a citizen, when he shall receive a certificate
of citizenship, which shall include his family, and thereafter, be
disconnected with the tribe, and shall be entitled to his
proportion of the tribal fund, and all who shall not have made such
declaration previous to the last-mentioned date shall be still
considered members of the tribe. In order to enable the tribe to
dispose of their property in Kansas, and remove to their new homes
and establish themselves thereon, patents in fee simple shall be
given to the heads of families, and to all who have come of age
among the allottees under the treaties of one thousand eight
hundred and sixty-two, so that they may sell their lands without
restriction, but the said lands shall remain exempt from taxation
so long as they may be retained by members of the tribe, down
to
Page 163 U. S. 59
the said sixteenth of July, one thousand eight hundred and
sixty-nine."
On October 26, 1872, Benjamin Esterly, as the guardian of Esther
Wilson, appointed such guardian by the Probate Court of Franklin
County, State of Kansas (in which county the lands in controversy
are situated) executed a deed to John Wiggan, which deed recites a
sale of the entire 80 acres at private sale for the sum of $60, the
confirmation of such sale by the probate court, and an order on the
guardian to execute a deed. Subsequently the grantee therein, John
Wiggan, conveyed to Horace Wiggan and Albert E. Wiggan. On February
17, 1881, the allottee, she having in the meantime been married,
under the name of Esther King, commenced an action in the district
court of Franklin County against said last-named grantees for the
recovery of the possession of the lands. Trial being had, a
judgment was rendered in her favor, which, on June 4, 1886, was
affirmed by the supreme court of the state. On May 6, 1891, the
death of Esther King was suggested, and an order of revivor entered
by the supreme court in the names of her heirs at law, Alexander
Conolly and John King, her husband and only child. On May 26, 1892,
a writ of error was allowed by the chief justice of that court, and
on June 20, 1892, there was filed an affidavit that one of the
defendants, now plaintiff in error, Albert E. Wiggan, was a minor
at the time of the judgment of affirmance, and had not attained his
majority until within less than two years prior to the suing out of
the writ of error. The case therefore in this Court is pending
between one of the original defendants and the heirs of the
original plaintiff.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The first question presented by counsel for plaintiff in
error
Page 163 U. S. 60
is whether the treaty of 1867 was of any validity so far as
respects the Ottawa Indians. The treaty of 1862 provided that at
the expiration of five years from the date of its ratification --
that is, on July 16, 1867 -- the Ottawas should become citizens of
the Unites states, and the tribal organization and relations with
the United States should be dissolved.
The treaty of 1867, though originally negotiated in February,
was not concluded in that year, but was amended in 1868, and not
ratified and proclaimed until October 14, 1868, and more than five
years after the ratification of the treaty of 1862. At the time
therefore that the later treaty took effect, the Ottawa Indians
had, it is contended, under and by virtue of the earlier treaty,
become citizens, not only of the United States, but also of the
State of Kansas, and hence the United States had no power to enter
into treaty with them, citizens of a state, without the consent of
that state. The Nation could not, without the consent of the state,
withdraw citizens of the state from its jurisdiction.
We cannot yield our assent to this contention. The negotiations
in February, 1867, were while the tribal organization and relations
to the United States continued. They amounted substantially to a
proposition by the tribe to change the treaty of 1862, and continue
the tribal organization and relations with the United States. This
was a valid act on the part of the tribe; and, though the
proposition was not accepted by the United States until after July
16, 1867, yet, when accepted, the acceptance related back to the
date of the proposition. That some modifications were made in
matters of detail did not affect the substantial character of the
transaction. The tribe proposed to continue its organization and
relations to the United States, and the government accepted the
proposition. The State of Kansas has never objected, even if it has
any right to object, and it does not lie in the power of an
individual to assert any supposed political rights of the state or
challenge the action of the Nation and the Indians in this behalf.
The treaty of 1867 was valid, and determined the status and rights
of the Indians politically and in respect to their property.
Page 163 U. S. 61
The second proposition of counsel is that under the treaty of
1867 all the Ottawas became citizens on June 16, 1869; that the
allottee Esther Wilson and her property became then subject to the
jurisdiction and laws of the State of Kansas, and that a guardian's
sale of her property, made thereafter in conformity with the
provisions of the laws of that state, passed a valid title.
If the only provision in the treaty of 1867 affecting this
question was the first clause of the seventeenth section, there
might be force in this contention, for that simply extends to July
16, 1869, the time for terminating the tribal existence and
transforming all the members thereof into individual citizens of
the United States and of the state in which they reside. Even then
we should be confronted with the proposition that under the seventh
article of the treaty of 1862 it was provided that forty acres,
including therein the houses and improvements of the allottee,
should be inalienable during his or her life. While that provision
continued in force, it may well be doubted whether a deed of the
entire allotment, whether made by the individual or a guardian,
would be sufficient to transfer a legal title to any portion of the
allotment, and whether, prior to any such deed, there must not be a
setting off to the allottee according to the demand of the treaty
of the inalienable forty acres. It must be borne in mind that the
proceeding in the state court was not in any sense one in
partition, or an equitable suit to determine relative rights in a
single tract, but was a legal action to recover possession, against
which was set up simply an alleged legal title in defeat
thereof.
But we do not care to rest our decision upon this suggestion. We
think there is something more vital. The treaty of 1867 must be
considered as an entirety in its relations to the treaty of 1862.
By the treaty of 1862, the tribal organization was to disappear on
July 16, 1867. If nothing has transpired after that, on that date
the relations of the tribe to the United States would have ended;
the members of the tribe would have had title to their lands, and
they would have become, and been treated thereafter, as individual
citizens of the United States
Page 163 U. S. 62
and of the state in which they resided. But the treaty of 1867
contemplated a different outcome. It proceeded upon the
understanding that some at least, of the Ottawas, as of the other
tribes, desired to remove from the State of Kansas to the Indian
Territory, and there continue tribal relations with the national
government. That is evidently the thought expressed in the recital
to the treaty of 1867. Some of the Indians desired to be citizens;
some wanted to retain their tribal relations. In carrying out that
express purpose, the time for the dissolution of the Ottawa tribe
was postponed until July 16, 1869, with the proviso that at any
time prior thereto any individual member could become a citizen at
his election, and a further provision as to those who did not so
elect, as thus expressed in the seventeenth section: "All who shall
not have made such declaration previous to the last-mentioned date
shall be still considered members of the tribe." For what purpose
"still considered members"? Simply to be at that instant changed
into citizens, and to lose their tribal relation? Obviously not;
but that they might, if they had not elected to become citizens,
remove to the Indian Territory, and continue their tribal
relations. Emphasizing this thought is the subsequent sentence, to
the effect that, in order to enable the tribe to dispose of their
property in Kansas, and remove to their new homes, patents should
be issued under certain conditions. In other words, the idea was
that those Indians who did not elect to become citizens should
receive patents for their lands under such circumstances and
conditions as to enable them to dispose of the lands and remove to
the Indian Territory, and there, as a fragment of the original
Ottawa tribe, continue tribal relations with the government. The
provision in reference to patents must be considered as superseding
those of the treaty of 1862; and, by its terms, patents were to
issue to the heads of families, and to all among the allottees
coming of age, in the language of the treaty, "so that they may
sell their lands without restriction." It does not appear that the
allottee in this case was the head of a family, and, according to
the testimony, she was a minor. This treaty of 1867 introduced a
new limitation upon the inalienability of lands patented to a
minor
Page 163 U. S. 63
allottee -- that is, the limit of minority. And such limit must
be applied to sales voluntary and involuntary, and cut off the
right of a guardian to dispose of the estate. The fact that the
patent to this allottee had already been issued did not abridge the
right of the United States to add, with the consent of the tribe, a
new limitation to the power of the individual Indian in respect to
alienation. The land and the allottee were both still under the
charge and care of the Nation and the tribe, and they could agree
for still further protection -- a protection which no individual
was at liberty to challenge.
It follows, therefore, that at the time of this assumed power of
the guardian of Esther Wilson to dispose of her realty, such realty
was inalienable, and a deed made by the guardian, though under the
authority of the probate court of the county of the state in which
the lands were situated, conveyed no title. That this conclusion
renders ineffective an attempt to dispose of the lands of an Indian
girl at the price of 75 cents an acre does not any the less commend
it to one's sense of justice.
The judgment is
Affirmed.
