Stevens v. Smith , 2 Kan. 243 ( 1864 )

By the Court,

Kingman J.

The defendant in error brought suit to recover possession of a part of the tract of land reserved to the half-breeds of the Kansas tribe of Indians, by the 6th Section of the treaty of June 3d, 1825.

It was admitted on the trial that the plaintiff below was one of the reservees mentioned in that section, and that the premises sought to be recovered in the action were part and parcel of the special tract so reserved to the plaintiff by said treaty, and that said plaintiff was in possession of said premises on the 14th day of August, 1860.

The defendant below, (plaintiff in error,) then produced in Court and offered to read in evidence a deed from the plaintiff below, to the defendant, conveying to the defendant the premises in controversy. The deed bore date August 14-th, 1860, and was properly acknowledged on that day.

Plaintiff objected to the reading of the deed, and the objection was sustained.

The only question presented in this case is, whether the Court erred in refusing to permit the deed to be read.

Congress, in legislating upon these lands by Act of May 26th, 1860, had declared in the first section, “ That all the title, interest and estate of the United States is hereby vested in the said reservees, who are now living, to the j.and reserved, set apart and allotted to them respectively by the sixth Article of said treaty.”

The second section provides further:

“ That in case any of the reservees now living, or the heirs of any deceased reservees, shall not desire to reside upon or occupy the lands to which such reservees or such heirs are entitled by the provisions of this Act, the Secretary of the Interior, when requested by them or either of them so to do, is hereby authorized to sell such lands belonging to those so requesting him, for the benefit of such reservees or such heirs.”

The third section provides:

“ That the proceeds of the land, the sale of which is provided for by this Act, shall be paid to the parties entitled thereto, or applied by the Secretary of the Interior for their benefit in such manner as he may think most advantageous to their interest.”

This was the law in force at the time the deed effered was made, and its construction presents no great ¡ difficulty.

The treaty of 1825 and the Act of cession of May 1860, were intended to give to the plaintiff the full and complete title to the land in controversy. But Congress in the exercise of a guardian care over the interests of this race, and knowing how liable they would be to become the prey of their more covetous neighbors, made such provision in the same law as they deemed would be likely to secure to the reservees the benefit of the lands ceded to them. If they retained possession and made improvements, they and theirs got the benefit of their labors. If they did not desire to occupy and own the lands, then the Secretary of the Interior, at their request, was authorized to sell the same and either pay over the proceeds to the parties entitled thereto or otherwise apply the same for their benefit, as in his discretion might seem best. So that the benefit of it inured to the reservee for whom it was sold. It is evident that Congress 'intended by the Act of cession to pass the land to the reservees with such restrictions as would prevent the property from being squandered, or the reservees made the victims of the cupidity and adroitness of their more civilized neighbors.

Having designated the particular mode in which the reservees could dispose of their lands, and the guardianship which should be exercised over the disposition of the proceeds, in the same law which ceded the lands, can a sale and conveyance made in any other way be valid ? If so, then it was in the power of the reservees to entirely defeat the beneficial provisions engrafted into the law for their protection. The barriers erected by the law to protect and guard the interests of the reservees, would fail of their purpose. The restrictions which entered into- and formed part of the grant, would be entirely avoided.

¥e think that any other conveyance than one made as prescribed by the act of Congress quoted would violate important and essential provisions of that law and would therefore be invalid and void.

By joint resolutions of Congress, of July 17th, 1862, the second and third Sections of the law of 1860 were repealed—thus removing the restrictions upon the alienation of the property. The first Section of the law being a grant eonld not be repealed, and no attempt is made to do so.

But this removal of the restriction can by no means be construed to make a void conveyance valid. The deed from Victoria Smith to Stevens was therefore properly rejected.

Judgment below affirmed.

All the justices concurring.