« ForrigeFortsett »
to have been owned, held, and possessed by this Indian, subject to the control of the government, and of the value of $1,125. The answer of the defendants put in issue the averments of the complaint, and also alleged in defense that the defendant Taylor is, and was at the times in question, the duly elected, qualified, and acting sheriff of the county of Teton, state of Montana; that on the 25th day of September, 1901, one John Hall was, and from thenceforth until November 9, 1901, remained, the sole owner of the cattle mentioned. in the complaint; that thereafter, to wit, on the 25th day of September, 1901, an action was commenced by the defendant McKnight against John Hall in the district court of the Eleventh_judicial district of the state of Montana, in and for the county of Teton, to recover the sum of $603.72, with interest thereon at the rate of 1 per cent. per month from May 8, 1900, with attorney's fees and costs of suit, according to the terms of a certain promissory note of said Hall; that process was duly issued and served upon Hall in that action, and on September 25, 1901, a writ of attachment was regularly issued therein in due form, which writ of attachment was placed in the hands of the defendant Taylor, as sheriff of the county, with instructions to levy the same upon the cattle mentioned in the complaint, which was accordingly done; that on the 25th day of October, 1901, judgment was duly entered in the action of McKnight against John. Hall for the sum of $762.65, upon which execution was duly issued in due form, under which the cattle in question were sold for the sum of $1,247 on November 12, 1901; and that John Hall was the owner of and in possession of the cattle at the time of the levy. These averments of the answer were put in issue by the replication filed by the plaintiff. The case came on for trial before the court with a jury, and resulted in a verdict and judgment for the plaintiff, and is brought here by the defendants below on writ of error.
The first, and principal, contention on the part of the plaintiffs in error is that the court below was without jurisdiction of the subjectmatter of the action, "for the reason that Josephine Hall is a citizen of the United States, and this action is between citizens of the same state, and the amount involved does not exceed $2,000, and the United States is not a proper party plaintiff in this action." The case shows that some years prior to the transactions in question Josephine Hall married John Hall, who was a white man and a citizen of the United States. Josephine Hall was a member of the Blackfect tribe of Indians, and as a matter of fact lived upon its reservation and received from the government, through its agent there, issues of cattle and other things, like the other Indians of the tribe. John Hall entered upon a piece of public land, situated across a creek that separated such public land from the Indian reservation, and entered that piece of land as a homestead, and claimed his residence thereon, which was but a short distance from the house in which his Indian wife actually lived, and where he visited her, as she also did him, occasionally.
The act of Congress of February 8, 1887, entitled "An act to provide for the allotment of lands in severalty to Indians on the various
reservations, and to extend the protection of the laws of the United States and the territories over the Indians, and for other purposes" (24 Stat. 388, c. 119, 1 Supp. Rev. St. pp. 534, 536), provided in its sixth section as follows:
"Sec. 6. That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the state or territory in which they may reside; and no territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property."
The first and second sections of Act Aug. 9, 1888, c. 818, 25 Stat. 392, 1 Supp. Rev. St. p. 608, entitled "An act in relation to marriage between white men and Indian women," are as follows:
"Be it enacted," etc., "that no white man, not otherwise a member of any tribe of Indians, who may hereafter marry an Indian woman, member of any Indian tribe in the United States, or any of its territories except the five civilized tribes in the Indian Territory, shall by such marriage hereafter acquire any right to any tribal property, privilege, or interest whatever to which any member of such tribe is entitled.
"Sec. 2. That every Indian woman, member of any such tribe of Indians. who may hereafter be married to any citizen of the United States, is hereby declared to become by such marriage a citizen of the United States, with all the rights, privileges, and immunities of any such citizen, being a married woman: Provided, that nothing in this act contained shall impair or in any way affect the right or title of such married woman to any tribal property or any interest therein."
It has been held by this court, by the Circuit Court of Appeals for the Eighth Circuit, by the Supreme Court, and by other courts, that the citizenship conferred upon the allottees under and by virtue of the act of February 8, 1887, did not operate to withdraw them from the supervision, control, and protection of the government, but that such Indians still remained wards of the nation. United States v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478, 47 L. Ed. 532; Farrell v. United States, 110 Fed. 942, 49 C. C. A. 183; Eells v. Ross, 64 Fed. 417, 12 C. C. A. 205; United States v. Logan (C. C.) 105 Fed. 240; United States v. Flournoy Live Stock & Real Estate Co. (C. C.) 69 Fed. 886; State v. Columbia George (Or.) 65 Pac. 604, 610. In and by its act of August 9, 1888, declaring that every Indian woman, member of a tribe, who shall thereafter be married to a citizen of the United States, shall "become by such marriage a citizen of the United States, with all the rights, privileges, and immunities of any such citizen," Congress expressly added that nothing in the act contained "shall impair or in any way affect the right or title of such married woman to any tribal property or interest therein."
By Act May 1, 1888, entitled "An act to ratify and confirm an agreement with the Gros Ventre, Piegan, Blood, Blackfeet, and River Crow Indians in Montana, and for other purposes," the United States, in consideration of certain cessions and relinquishments on the part of those Indians, agreed
"To advance and expend annually for the period of ten years after the ratification of this agreement, under direction of the Secretary of the Interior, for the Indians now attached to and receiving rations at the Fort Peck agency, one hundred and sixty-five thousand dollars; for the Indians now attached to and receiving rations at the Fort Belknap agency, one hundred and fifteen thousand dollars, and for the Indians now attached to and receiving rations at the Blackfeet agency, one hundred and fifty thousand dollars, in the purchase of cows, bulls, and other stock, goods, clothing, subsistence, agricultural and mechanical implements, in providing employees, in the education of Indian children, procuring medicine and medical attendance, in the care and support of the aged, sick, and infirm, and helpless orphans of said Indians, in the erection of such new agency and school buildings, mills, and blacksmith, carpenter, and wagon shops as may be necessary, in assisting the Indians to build houses and inclose their farms, and in any other respect to promote their civilization, comfort, and improvement: Provided, that in the employment of farmers, artisans, and laborers, preference shall in all cases be given to Indians residing on the reservation who are well qualified for such positions: Provided further, that all cattle issued to said Indians for stockraising purposes, and their progeny, shall bear the brand of the Indian Department, and shall not be sold, exchanged, or slaughtered, except by consent or order of the agent in charge, until such time as this restriction shall be removed by the Commissioner of Indian Affairs." 25 Stat. 114, c. 213, art. 3.
And article 5 of the same act is as follows:
"In order to encourage habits of industry, and reward labor, it is further understood and agreed, that in the giving out or distribution of cattle or other stock, goods, clothing, subsistence, and agricultural implements, as provided for in article 3, preference shall be given to Indians who endeavor by honest labor to support themselves, and especially to those who in good faith undertake the cultivation of the soil, or engage in pastoral pursuits, as a means of obtaining a livelihood, and the distribution of these benefits shall be made from time to time, as shall best promote the objects specified."
By article 3 of the agreement with the Indians of the Blackfeet Indian reservation in Montana, of date September 26, 1895, it was agreed:
"That in the employment of all agency and school employees, preference in all cases be given to Indians residing on the reservation, who are well qualified for such positions; and that all cattle issued to said Indians for stock-raising purposes, and their progeny, shall bear the brand of the Indian Department, and shall not be sold, exchanged, or slaughtered except by the consent of the agent in charge until such time as this restriction shall be removed by the Commissioner of Indian Affairs." Act June 10, 1896, c. 398, 29 Stat. 355.
By Act July 4, 1884, c. 180, par. 3, 23 Stat. 76, 1 Supp. Rev. St. p. 450, it was provided:
"That where Indians are in possession or control of cattle or their increase, which have been purchased by the government, such cattle shall not be sold to any person not a member of the tribe to which the owners of the cattle belong, or to any citizen of the United States, whether intermarried with the Indians or not, except with the consent, in writing, of the agent of the tribe to which the owner or possessor of the cattle belongs. And all sales made in violation of this provision shall be void, and the offending purchaser on
conviction thereof shall be fined not less than five hundred dollars, and imprisoned not less than six months."
By Act June 7, 1897, c. 3, 30 Stat. 62, 90, it is provided:
"That all children born of a marriage heretofore solemnized between a white man and an Indian woman by blood and not by adoption, where said Indian woman is at this time or was at the time of her death recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belongs or belonged at the time of her death, by blood, as any other member of the tribe, and no prior act of Congress shall be construed as to debar such child of such right."
Sections 2127 and 2138 of the Revised Statutes are as follows:
"Sec. 2127. The agent of each tribe of Indians, lawfully residing in the Indian country, is authorized to sell for the benefit of such Indians any cattle, horses, or other live stock belonging to the Indians and not required for their use and subsistence, under such regulations as shall be established by the Secretary of the Interior. But no such sale shall be made so as to interfere with the execution of any order lawfully issued by the Secretary of War, connected with the movement or subsistence of troops. *
"Sec. 2138. Every person who drives or removes, except by authority of an order lawfully issued by the Secretary of War, connected with the movement or subsistence of troops, any cattle, horses, or other stock from the Indian country for the purposes of trade or commerce, shall be punishable by imprisonment for not more than three years, or by a fine of not more than five thousand dollars, or both."
These agreements and statutory enactments very clearly show that cattle purchased by the government and issued to the Indians of a tribe are not theirs absolutely and unconditionally, but, as is expressly provided by law, are provided and issued for the purpose of promoting "their civilization and improvement," and to "encourage habits of industry" among them, the alienation and slaughtering of which cattle, without the consent of the government's agent in charge of the reservation, is expressly forbidden. The right and duty of the government to protect such conditional ownership of the Indians does not admit of doubt. United States v. Flournoy Live Stock & Real Estate Company (C. C.) 69 Fed. 886; Id. 71 Fed. 576; United States v. Mullin (D. C.) 71 Fed. 685; United States v. Winans (C. C.) 73 Fed. 72; Beck v. Real Estate Co., 65 Fed. 30, 12 C. C. A. 497; Truscott v. Hurlbut Land & Cattle Company, 73 Fed. 64, 19 C. C. A. 374, and cases supra.
The act conferring citizenship, with its accompanying rights, upon Indian women who marry white citizens of the United States, expressly declares, as has been seen, that nothing in the act "shall impair or in any way affect the right or title of such married woman to any tribal property or interest therein." The marriage of Josephine Hall to John Hall did not, therefore, extend her rights in the cattle in question, which remained precisely as they were before such marriage.
It is provided by a statute of Montana that:
"If personal property attached be claimed by a third person, he shall give notice thereof to the sheriff and deliver to him an affidavit stating his claim, ownership, and a description of the property, and unless the plaintiff within ten days after receiving notice thereof give the sheriff a good and sufficient bond to indemnify him against loss or damage by reason of retaining said property, the sheriff shall deliver the same to such person." Section 906, Code Civ. Proc. Mont.
And it is insisted on the part of the plaintiffs in error that, if the cattle in question were the property of Josephine Hall, the giving of the notice and the making of the affidavit provided for by this statute "is a condition precedent to Josephine Hall's right of action against the sheriff for the conversion of this property." A sufficient answer to this suggestion is that this action is brought by the United States, and that its rights in a governmental matter are not affected by state enactments. Pond et al. v. United States et al., 111 Fed. 989, 49 C. C. A. 582, and cases there cited. We need not, therefore, inquire whether or not section 906 of the Montana Code, concerning the claim and delivery of personal property, could operate to defeat an action for the conversion of such property, where no notice or demand prior to the bringing of suit is alleged or shown.
Nor did the court below err, as is contended on behalf of the plaintiffs in error, in refusing to instruct the jury that, if the cattle in question were in the possession of John Hall when they were. seized, the defendant Taylor would not be liable, unless Josephine Hall had designated the cattle belonging to her, and demanded their return, with which demand the sheriff refused to comply. It appears from the evidence, as has been said, that, notwithstanding her marriage to John Hall, Josephine Hall continued to actually reside on the reservation, and received from the government its regular issues of cattle and rations, along with the other Indians of the tribe. It further appears that prior to her receipt of any cattle from the government her father gave her three head, her uncle one, and her brothers four, making eight head in all, and that in the years 1895 and 1896 eleven head were issued to her by the government, and in 1901 seven head more. Rule 360 of the Regulations of the Indian Office provides as follows:
"When cattle are issued to Indians, either for work oxen or for breeding purposes, each animal must be branded, in addition to the I. D. brand, with a private mark to indicate the person to whom it is issued. A record of such private marks must be kept in the agency office. The agent is also required to see that the increase of all issued cattle is similarly branded." Regulations of the Indian Office, 1894, p. 76.
All of the cattle issued to Josephine Hall were, in accordance with the foregoing regulations of the Indian Department, branded with the letters "I. D." (indicating "Indian Department"), and it appears that a private brand, "B. E.," signifying "Beaver Eyes" (the Indian name of Josephine Hall), was selected by the agent of the reservation for her, and also placed upon the cattle issued to her. It further appears that in the year 1897 Josephine Hall purchased from one Gardiner a brand called the "Y. G." brand, and from that time on her cattle and the increase thereof were branded with the I. D. and the Y. G. brands. John Hall, it appears, was the owner of a brand spoken of in the record as the "Reel" brand, consisting of a cross with a "T"" on each end of it; and he, also, had some cattle with his brand running on the reservation. It appears from the evidence that in making the levy the deputies of the defendant sheriff entered upon the reservation and there rounded up cattle that were herding together, including the cattle of Jose