Of two qualified applicants for an allotment under § 11 of the
Cherokee Agreement of 1902 (Act of July 1, 1902, c. 1375, 32 Stat.
716), the one owning the improvements on the tract in question,
though junior in time of application, is entitled to prevail.
In such case, a substantial equity in the improvements will
suffice to hold the tract against a claimant whose interest in them
is nil.
A decision of the Secretary of the Interior that one of two
contesting claimants of an allotment under § 11 of the Cherokee
Agreement,
supra, was the owner of the improvements on the
land is conclusive unless made without evidence to support it or
otherwise the result of an error of law.
Where a community of interest in the possession and improvements
of a tract of land existed among several members of a Cherokee
family, an agreement among them that one should have a specific
part of the land for her allotment
held operative to pass
an interest in the improvements on that parcel sufficient to give a
preferential right to select it under § 11 of the Cherokee
Agreement of 1902.
Section 18 of the Cherokee Agreement of 1902 recognized in terms
the right of a tribal member to hold possession by his agent as
well as by himself of land not exceeding the allottable
quantity.
Certain proceedings before the Commissioner to the Five
Civilized Tribes, and others in the United States Court for the
Indian Territory, for the sale of the improvements upon the
allotment here in
Page 242 U. S. 387
question
held ineffectual against one who was not a
party to those proceedings and who made application for the
allotment based on ownership of the improvements before they were
instituted.
40 Okl. 341 affirmed.
The case is stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court:
This was an equity action involving the right to an allotment of
land in the Cherokee Nation containing about 77 acres. The
plaintiff in error Harnage and the defendant in error Martin are
members of the Cherokee Tribe, and rival claimants to the
allotment. The other parties are two oil companies that claim under
Harnage and Martin respectively, and admittedly have no higher
rights than theirs. Harnage brought an action in one of the
district courts of Oklahoma for the purpose of charging the legal
title to the lands in question, which stood in Mrs. Martin, with a
trust in his favor upon the ground that the Secretary of the
Interior, through a gross misapprehension of the facts or an error
of law, had awarded the land to her when, under the provisions of
the Cherokee Agreement and other acts of Congress pertaining to the
subject, it should have been awarded to him.
By the Agreement (Act of July 1, 1902, c. 1375, 32 Stat. 716,
717) it was provided as follows:
"Sec. 11. There shall be allotted by the Commission to the Five
Civilized Tribes and to each citizen of the Cherokee Tribe . . .
land equal in value to one hundred and ten acres of the average
allottable lands of
Page 242 U. S. 388
the Cherokee Nation, to conform as nearly as may be to the areas
and boundaries established by the government survey, which land may
be selected by each allottee so as to include his
improvements."
"
* * * *"
"Sec. 18. It shall be unlawful after ninety days after the
ratification of this act by the Cherokees for any member of the
Cherokee Tribe to enclose or hold possession of, in any manner, by
himself or through another, directly or indirectly, more lands in
value than that of one hundred and ten acres of average allottable
lands of the Cherokee Nation, either for himself or for his wife,
or for each of his minor children, if members of said tribe, and
any member of said tribe found in such possession of lands, or
having the same in any manner enclosed, after the expiration of
ninety days after the date of the ratification of this act shall be
deemed guilty of a misdemeanor."
By §§ 74 and 75 (p. 727), the act was to take effect upon
ratification by a majority of the legal voters of the Nation. It
was thus ratified on August 7, 1902.
On May 13, 1904, Harnage made application to the Dawes
Commission to have the land in controversy allotted to him, and his
application was granted. Thirteen days later, Mrs. Martin made a
similar application, and this was refused on the ground of the
prior allotment to Harnage; thereupon she instituted a contest
before the commission against the Harnage allotment. It came to
trial before the Dawes Commissioner in September, 1907, and
resulted in a decision in favor of Mrs. Martin. Harnage appealed to
the Commissioner of Indian Affairs, who rendered a like decision,
and this, on appeal to the Secretary of the Interior, was affirmed,
and deeds for the land in contest were made to Mrs. Martin pursuant
to the act.
Upon the trial of the equity case, plaintiffs in error
introduced a certified transcript of all proceedings and evidence
in the contest proceeding, and this was the only
Page 242 U. S. 389
evidence offered that was at all pertinent to the question we
have to decide. Defendants in error demurred to the evidence, and
the demurrer was sustained and the bill of complaint dismissed.
This judgment was affirmed by the Supreme Court of Oklahoma. 40
Okl. 341.
Harnage having admittedly filed first upon the land in
controversy, Mrs. Martin was entitled to prevail in the contest
only by showing that, at the time of the Harnage filing, she was
the owner of the improvements within the meaning of § 11 of the
Agreement, and for that reason entitled, under the provisions of
the same section, to take this particular land for her allotment.
It was found by the Commissioner to the Five Civilized Tribes who
heard the contest, and by the Commissioner of Indian Affairs and
the Secretary of the Interior who heard the successive appeals,
that Mrs. Martin was the owner of the improvements, and the only
question for our determination is whether this decision was without
evidence to support it, or was otherwise the result of some error
of law on the part of those officers.
Ross v. Stewart,
227 U. S. 530,
227 U. S. 535;
Ross v. Day, 232 U. S. 110,
232 U. S. 117;
Johnson v. Riddle, 240 U. S. 467,
240 U. S.
474.
Each of the departmental decisions was made in writing, but the
findings are somewhat informal, each appeal having resulted in
adding something to what had been found before -- a fact not
surprising, since the testimony is very voluminous, occupying more
than 500 pages of the printed transcript in this Court. The
following is an outline of the facts found: Mrs. Martin was the
granddaughter of an Indian woman known as Mary Anderson, or Anson,
afterwards Mary Thursday, and was the daughter of William Bob
Anson, otherwise known as Wild Bill. She had a brother known as Sam
Bob. All these parties were Delaware Indians, adopted into the
Cherokee Tribe, and as such were entitled to certain Delaware
payments from the government. During Mrs. Martin's childhood, she
and
Page 242 U. S. 390
her brother and their parents resided with the grandmother, who
was the head of the family, upon an improved tract of land known as
the "old home place," located south and west of the land in
controversy. Wild Bill died in 1889, and his wife about the same
time, and, after this, such payments as were due to Wild Bill as a
Delaware were paid to Mary Thursday, and also certain small
payments that were due to the contestant. About the year 1891,
contestant, then a child of about ten years, was removed by force
or undue influence to the home of a Delaware named Frenchman, and
kept there until the Delaware payments of 1891 and 1893, averaging
over $500 each, were paid to the members of the tribe. The payments
due to contestant were collected by Frenchman, who appropriated
them to his own use, this having been his object in assuming
control over the child. Later she was sent away to school at the
expense of the government, and afterwards returned to the vicinity
of her home, where she supported herself by her labor. In November,
1898, when she was about eighteen years of age, she was married to
George Martin, and shortly after this she and her husband visited
Mary Thursday, and the latter then ascertained that contestant had
not secured any land for future allotment. (This was after the
establishment of the Dawes Commission, and after the passage of the
Curtis Act of June 28, 1898 [c. 517, § 11, 30 Stat. 495-497], when
the allotment of the Indian lands in the then territory was in
contemplation;
Woodward v. De Graffenried, 238 U.
S. 284,
238 U. S.
291.) During contestant's absence, the original home
place had been added to by the purchase in 1893 of the improvements
on about 90 acres of land lying immediately north of it for $800,
the purchase price having been paid by Mary Thursday and Sam Bob
from the proceeds of the Delaware payments, and the bill of sale
for the improvements having been made to them. The entire place
then comprised about 200 acres of improvements. Mrs.
Page 242 U. S. 391
Thursday, recognizing an indebtedness to contestant on account
of having received Delaware payments due to her and to her father,
and there being sufficient land for herself and Sam Bob and
contestant, gave to contestant a right to select the land in
controversy, or at least to take as an allotment some portion of
the home place, with the understanding that she, Mary Thursday,
would hold it until the time for allotment, which was done. From
the time of the making of this arrangement, Mrs. Martin was
recognized by her grandmother and her brother as having an interest
in the place -- that is, a right to share in the improvements to
the extent necessary to entitle her to an allotment out of the
land, notwithstanding her involuntary absence from home during her
childhood. It was contended that Mary Thursday, at the time of the
transaction referred to, was of unsound mind, but this was
overruled as unsupported by the evidence.
It appears that, before Mrs. Martin filed her allotment
selection, Mrs. Thursday had located her own allotment in the
southern part of the home place, and Sam Bob had located his in the
northern part, and the land lying between these was left for Mrs.
Martin. This, in view of the previous agreement of Mrs. Thursday,
was found to be equivalent to a transfer to Mrs. Martin of the
specific improvements upon the intervening tract. The Department
found that, after the northern and southern portions of the farm
were merged into one place, there was a recognized community of
interest among the members of the family growing out of their
relationship and the commingling of their funds, whereby Mrs.
Martin had an interest in every part of the family holdings, and
that, when Sam Bob elected to take his allotment in the northern
part of the place and Mary Thursday to take hers in the southern
part, they impliedly relinquished to the contestant as the
remaining member of the family their interest in the tract of land
lying between.
Page 242 U. S. 392
An agreement that Mrs. Martin should have a part of the Thursday
place for her allotment might fairly be held to be equivalent to
giving her a sufficient interest in the improvements to support a
preferential right to the allotment, for, by Cherokee law,
ownership of improvements entitled the owner to possession of the
land, and in § 11 of the Curtis Act there was a proviso
"that, whenever it shall appear that any member of a Tribe is in
possession of lands, his allotment may be made out of the lands in
his possession, including his home, if the holder so desires."
The same general policy was afterwards carried into § 11 of the
Cherokee Agreement, with more particular recognition of ownership
of the improvements as the decisive point.
The contention that the findings were unsupported by evidence
cannot be sustained. The evidence is to some extent circumstantial,
but it is sufficient. It was contradicted by Wallace Thursday, the
husband of Mary, but his unreliability was clearly shown.
It is argued that, under § 18 of the Agreement, Mrs. Thursday's
possession, after November 5 of that year (ninety days after date
of ratification) of all lands in excess of the value of 110 acres
of average allottable lands for herself and a like amount for each
of her minor children, if any was unlawful, and that, because Mrs.
Martin reached the age of twenty-one before the ratification of the
Agreement, Mrs. Thursday could not lawfully hold for her any part
of the surplus lands. This is based upon a clear misinterpretation
of § 18, the very terms of which permitted Mrs. Martin, as a member
of the Cherokee Tribe, to hold possession, by herself or "through
another," of lands not exceeding in value 110 acres of average
allottable lands, and thus authorized her to hold the lands by her
grandmother as her agent.
There is no question that the improvements upon the allotment in
question, as well as upon the adjoining lands,
Page 242 U. S. 393
were substantial in value, and were such as, under the tribal
law, carried a right of occupancy, and such as were recognized in §
11 of the Curtis Act and § 11 of the Agreement. There is nothing
inconsistent with the policy of the latter act in giving to Mrs.
Martin, as owner of a substantial equitable interest in the
improvements that were upon the tract in question when the act was
passed, a preferential right to select that as her allotment. The
policy was to give recognition to the established laws and customs
of the Cherokees (Const. Art. I, § 2; Laws 1892, §§ 706, 761, 762)
under which citizens of the Nation might and did enclose and
improve portions of their common domain and thereby establish a
prior right to the possession of those lands, transferable to
another citizen by a sale of the improvements. The Agreement
substituted a system of allotments with ownership of the soil in
the place of a mere possessory right, and its provisions were
intended to limit the quantity of land that might be held by or for
a single citizen, but they recognized the superior equity of an
owner of improvements over that of citizen who had no such
ownership, and the precise character of the ownership was of little
consequence as against a party having none at all.
Among the records that were introduced in evidence in the equity
suit was an application made in the year 1905 to the Commissioner
to the Five Civilized Tribes by Wallace Thursday, acting as
guardian of the person and estate of Sam Bob, a minor and of Mary
Thursday, an insane person, for the sale of the improvements upon
the allotment in controversy as surplus holdings of those Indians,
and certain orders made in the same year by the United States Court
for the Northern District of the Indian Territory upon the
application of Wallace Thursday, authorizing him in the same
capacity to sell the improvements of Harnage. But as Mrs. Martin
was not a party to these proceedings, and they were taken long
after
Page 242 U. S. 394
the filing of her application for allotment, they can have no
effect as against her.
Since we are convinced that the decision of the Supreme Court of
Oklahoma deprived plaintiffs in error of no right to which they
were entitled under the laws of the United States, it results that
the judgment must be and it is,
Affirmed.