Smith v. Stevens,
77 U.S. 321 (1869)

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U.S. Supreme Court

Smith v. Stevens, 77 U.S. 10 Wall. 321 321 (1869)

Smith v. Stevens

77 U.S. (10 Wall.) 321


1. Under the Act of Congress of May 26, 1860, referring to the Treaty of June 3, 1825, between the United States and the nation of Kansas Indians (which reserved certain tracts of land for the benefit of particular half-breed Kansas Indians named), and granting "the title, interest, and estate of the United States" to the reservees mentioned in that treaty, and providing that the Secretary of the Interior, when requested by anyone of the Indians named, "is hereby authorized" to sell the piece reserved for such Indians; the reservees had no authority to sell the lands independently of assent by the Secretary of the Interior, and any such sale was void.

2. A statute granting pieces of lands to Indians and prescribing a specific mode in which they may sell forbids by implication a sale independently of the mode.

By Treaty of June 3, 1825, [Footnote 1] the United States concluded a treaty with the Kansas Indians containing mutual cessions of territory. The sixth article of the treaty contained a provision

Page 77 U. S. 322

that there should be reserved for the benefit of each of the half-breeds of the Kansas Indians named in it (Victoria Smith being one of them) a certain specified allotment of land out of the quantity ceded by the nation to the United States, to be located &c.

By the eleventh article of the treaty, it was stipulated that

"The said Kansas Nation shall never sell, relinquish, or in any manner dispose of the lands therein reserved to any other nation, person or persons whatever without the permission of the United States for that purpose first had and obtained, and shall ever remain under the protection of the United States and in friendship with them."

The lands were afterwards surveyed, located, and numbered according to the treaty, and the half-breed Indians took possession each of his own reservation.

Subsequently to this -- that is to say May 26, 1860, [Footnote 2] Congress passed an act which, referring to the treaty of 1825 and reciting that the land reserved

"had been surveyed and allotted to each of the said half-breeds in the order in which they are named in, and in accordance with, the provision of the said sixth article,"


"That all the title, interest, and estate of the United States is hereby vested in the said reservees, who are now living on the land reserved, set apart, and allotted to them respectively by the said sixth article of said treaty; . . . but nothing herein contained shall be construed to give any force, efficacy, or binding effect to any contract in writing or otherwise, for the sale or disposition of any lands named in this act heretofore made by any of said reservees, or their heirs."

The second section of this act provides that

"In case any of the reservees now living or any of 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

Page 77 U. S. 323

authorized to sell such lands belonging to those so requesting him for the benefit of such reservees or such heirs, . . . in accordance with such rules and regulations as may be prescribed by the Commissioner of Indian Affairs and approved by the Secretary of the Interior, and patents in the usual form shall be issued to the purchasers of the said land in accordance with the provisions of this act."

Section third provides that the proceeds of the sales

"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 the parties."

These statutes being in force, Victoria Smith, one of the half-breeds named in the treaty of 1825, being in possession of her tract, executed on the 14th of August, 1860, a deed to one Stevens, purporting to convey it to him, and Stevens went into possession.

About two years after this deed was made -- that is to say on the 17th of July, 1862{3} -- Congress by joint resolution repealed the above-mentioned second and third sections of the act of 1860.

Victoria Smith now brought an action of ejectment against Stevens in a local state court in Kansas to recover possession of the tract. Stevens in bar of the suit offered in evidence Victoria's deed of the 14th August, 1860, for the same land, but the court excluded the deed from the jury on the ground that the plaintiff by virtue of the Indian treaty of 1825 and the act of Congress on the subject, was prohibited from executing the deed. The supreme court of the state, on appeal, affirmed the ruling of the lower court, and the case was brought here to test the correctness of that decision.

Page 77 U. S. 325

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