This is a writ of error to the Supreme Court of the State of Kansas.
It is an action in the nature of ejectment brought by Libby against Clark.
Both parties assert title through William Hurr, who is by birth and descent an Indian of the Ottawa tribe, and was one of the chiefs and headmen of the tribe. On the trial the plaintiff read in evidence a patent from the United States to Hurr for the land in controversy, and offered a deed from said Hurr to J.S. Kallock, which, on objection of the defendant, the court refused to receive, and the exception to this ruling, which was affirmed by the Supreme Court, presents the question of Federal law which gives jurisdiction to this court. The patent to Hurr reads as follows:
"The United States of America to all to whom these presents shall
"Whereas there has been deposited in the General Land Office a return, dated 17th March, 1864, from the Office of Indian Affairs, containing certain lists showing the selections of allotments made for the use of certain Ottawa Indians under the treaty concluded on the 24th day of June, 1862, between the United States and the Ottawa Indians of Blanchard's Fork and Roche de Boeuf, in the State of Kansas, as ratified on the 28th day of July, 1862, which lists were duly approved by the Secretary of the Interior under date of March 9th, 1864; and whereas it appears from one of the lists aforesaid that the east half of the northwest quarter of section seven, in township seventeen, the east half of the west half of section thirty, and the east half of the northwest quarter of section thirty-one, in township sixteen, south of range twenty, east of the 6th principal meridian in Kansas, containing 320 acres, has been designated as the allotment of William Hurr: Now, know ye that the United States of America, in consideration of the premises, and pursuant to the 3d and 7th articles of the treaty aforesaid, have given and granted, and by these presents do give and grant unto the said William Hurr and to his heirs the tract of
"In testimony whereof I, Andrew Johnson, President of the United States, have caused these letters to be made patent, and the seal of the General Land Office to be hereunto affixed.
"Given under my hand at the city of Washington, this first day of December, in the year of our Lord one thousand eight hundred and sixty-five, and of the Independence of the United States the ninetieth.
The deed from Hurr to Kallock is dated December 1, 1865, and was unaccompanied by any consent of the Secretary of the Interior, or any evidence that Hurr had become a citizen of the United States, and it was for that reason rejected.
Whether Hurr could make a valid conveyance of the land at the time he made the deed to Kallock depends upon the construction to be given to the treaty mentioned in the patent to Hurr, the third and seventh Articles of which are as follows:
"ARTICLE III. It being the wish of said tribe of Ottawas to remunerate several of the chiefs, councilmen, and headmen of the tribe for their services to them many years without pay, it is hereby stipulated that five sections of land is [are] reserved and set apart for that purpose, to be apportioned among the said chiefs, councilmen, and headmen as the members of the
"ARTICLE VII. There shall be set apart ten acres of land for the benefit of the Ottawa Baptist Church, and said land shall include the church buildings, mission-house, and graveyard, and the title to said property shall be vested in a board of five trustees, to be appointed by said church in accordance with the laws of the State of Kansas.
"And in respect for the memory of Rev. J. Meeker, deceased, who labored with unselfish zeal for nearly twenty years among said Ottawas, greatly to their spiritual and temporal welfare, it is stipulated that 80 acres of good land shall be, and hereby is, given, in fee simple, to each of the two children of said Meeker, viz., Emmeline and Eliza; their lands to be selected and located as the other allotments herein provided are to be selected and located, which lands shall be inalienable the same as the lands allotted to the Ottawas.
"And all the above-mentioned selections of lands shall be made by the agent of the tribe under the direction of the Secretary of the Interior. And plats and records of all the Selections and locations shall be made, and, upon their completion and approval, 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
"And forty acres, including the houses and improvements of the allottee, shall be inalienable during the natural lifetime of the party receiving the title: Provided, That such of said Indians as are not under legal disabilities by the local laws may sell to each other such portions of the lands as are subject to sale, with the consent of the Secretary of the Interior, at any time." Ib., 1239-40.
By the first Article of the Treaty, it was declared that this branch of the Ottawa tribe of Indians, and each one of them, should become citizens of the United States, and their tribal relations be dissolved, at the end of five years from the ratification of the treaty, which was July 18, 1862. Hurr, therefore, lacked nearly two years of being a citizen when he attempted to convey to Kallock.
It is to be added that the records of the land office show that the land named in that deed was part of the allotment to Hurr as one of the chiefs and headmen of the tribe, under Article three of the Treaty, and not lands certified to him in common with all others of the tribe under Article seven. The question thus presented is whether Hurr held this land after the patent was delivered to him, subject to the stipulations found in it and prescribed by the seventh Article, namely: "And plats and records of all the selections and locations shall be made, and, upon their completion and approval, 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, of the lands allotted to him or her, made before they shall become a citizen, shall be null and void."
In support of this view much stress is laid upon the use of the words "fee simple," in describing the estate conferred upon these headmen by the third Article, which is not used in that conferring title on the others in Article seven.
The title conveyed to Hurr by the patent was a fee simple; that is, it was all the title or interest in the land. No one shared this title, or had any interest in it, and it descended, or would have descended, to his heirs. The restriction on his right to convey did not deprive the title of the character of a fee simple estate. "An estate in fee simple is where a man has an estate in lands or tenements to him and his heirs forever." 4 Com. Dig., Estates, 1. The limitation of the power of sale for five years is not inconsistent with a fee simple estate. Such, also, seems to have been the practice of the government in other treaties referred to by counsel in their brief. 7 Stat. 348 et seq.
The embodiment of the stipulation required by the seventh Article of the Treaty in the patent to Hurr, shows the construction of the executive department of the government, that it was applicable to the land granted by the third section, as Hurr's acceptance of it seems to imply his acquiescence in it.
Two decisions of the Supreme Court of Kansas on the same subject give this construction to the treaty. The opinion of that court in the present case, Libbey v. Clark, 14 Kansas, 435, is an able examination of the question, and we concur in the views there stated.
The judgment of that court is