Hy-Yu-Tse-Mil-Kin v. Smith
This is a suit in equity, brought by the appellee, complainant below, in the circuit court of the United States, district of Oregon, against the appellant, to obtain the cancelation of an allotment of land, made by the officers of the government to the appellant, on the Umatilla Indian reservation, in Oregon, in 1891, and to have the land allotted to her (the appellee). Issue being joined in the case, it was referred to a special examiner to ascertain and report the facts, and upon his report the circuit court gave judgment in favor of appellee (110 Fed. 60), which was affirmed by the circuit court of appeals (55 C. C. A. 216, 119 Fed. 114), and the appellant thereupon appealed here.

The action was brought pursuant to the authority of an act of Congress (before amendment) passed in 1894, chapter 290. 28 Stat. at L. 286, 305; amended, 31 Stat. at L. 760, chap. 217. The right to the allotment claimed by the appellee is based on the act of March 3, 1885, chapter 319 (23 Stat. at L. 340), and grows out of the treaty of June 9, 1855, between the United States and that Walla Walla and other Indian tribles, which treaty was ratified by the Senate, March 8, 1859, and proclaimed by the President, April 11, 1859. 12 Stat. at L. 945.

A demurrer to the bill was filed by the defendant on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled and the defendant then answered, denying many of the material allegations in the bill.

Witnesses were examined before the special examiner, and he made a report and findings of facts, which findings were subsequently adopted by the circuit court and by the circuit court of appeals. Among others the following facts were found: The appellee, Philomme Smith, is a full-blooded Indian woman, and at all times mentioned in the complaint was, and is now, a member of the Walla Walla band or tribe of Indians, and resides upon the Umatilla Indian reservation, in the state of Oregon. The befendant (appellant) is also a full-blooded Indian, residing upon the reservation. Pursuant to the authority granted by the abovementioned act of March 3, 1885, the President appointed commissioners for the allotment of lands on the Umatilla reservation, and the commissioners carried out the duty devolved upon them by the President under that act, and completed the allotments on or about April 1, 1891, but refused at that time to make any allotment to the appellee, because of her absence (although but temporary) when the commissioners made a census of the Indians entitled to allotment. At the time the other allotments were made the appellee was the wife of W. A. Smith, a white man, and she was also the real head of the family, which consisted of the husband, his wife, and their eight children. The parties were married January 16, 1861, and the appellee has been recognized by the Interior Department as the head of the family in the sense mentioned in the act of Congress of 1885.

At the time the allotments were made to the other Indians by the commissioners, as above mentioned, appellee was located and actually residing with her family upon the reservation, upon a large tract of land, some 560 acres, including the land in controversy herein, and she and her family at that time were living in a house about twenty steps from the boundary line of this particular 160 acres. The land (including the 160 acres) was inclosed in one body by having a furrow plowed around the same, marking it off from the other adjacent land. The appellee had selected the land in 1888, and, with her family, was then in possession thereof, and retained such possession until the fall of 1896, with the consent of Homily, chief of the Walla Walla Indians, and Show-a-way, chief of the Cayuse Indians, and also with the consent of _ Coffee, who was at that time acting as Indian agent upon that Indian reservation.

Since 1888, and prior to the time when the allotment to defendant was made, the appellee made valuable improvements upon and around the land in question, by building upon it a small cabin and a barn, and making other improvements, and by putting a wire fence around the whole tract, the whole cost amounting to between $700 and $775, and from April, 1888 until the fall of 1896, long after the allotments were made by the commissioners, the appellee and her family had possession of the land in question with the improvements thereon, and she and her family continued to live during that time in the house, about twenty steps from the boundary line of this land. When the appellee left the land in the fall of 1896, she left it because she was ordered to do so by the then Indian agent, pursuant to a determination by the Interior Department, made in 1893, that she was not entitled to any allotment under the act of 1885.

Before the land was allotted to the defendant, and while the allotting commissioners were engaged in allotting lands in 1891, as above stated, the appellee asked to be allotted the particular 160 acres in controversy in this case by the commissioners, but they declined to do so because her name was not upon their allotting list. The defendant obtained possession of the 160 acres in October, 1896, and the land was allotted to him at that time, when appellee was ordered off the same by the Indian agent, and the defendant has never paid the appellee any money or in any manner reimbursed her for the improvements which she had made upon the lands in controversy, and the defendant had made no improvements thereon, and was aware of all that had been done by appellee when he made the selection of this land, and when it was allotted to him. There is neither allegation nor proof that appellant has since made any improvements on the land.

In April, 1897, the Department of the Interior reconsidered its former decision, and held that appellee was entitled to an allotment of land upon the reservation, and it directed one G. W. Harper, the then Indian agent of that Indian reservation, to make an allotment to her, and, pursuant to that direction, Harper called upon her to make a selection of lands for her allotment, and she thereupon selected certain lands, which were not the lands in question, the land selected amounting to 146.2 acres in all, and she was recognized by the Department as the head of a family, entitled to make selection and have an allotment. A part of this land she has since leased to a tenant, and has accepted rental from the tenant, the lease covering only 70 acres.

The land selected by the appellee after she had been forced to relinquish the possession of the 160 acres was not as valuable as the land from which she was ordered, and at the time the selection of this other land was made by her she and her husband came to the office of the Indian agent and asked him if it would affect her rights in the land in question for her to select land as directed by the Indian commissioner. She was told by the agent that he thought it would not; that she was under orders from an officer, and not under her own free will, when she left the land, and it was taken possession of by the defendant; and with that understanding the appellee made the selection of the other and less valuable land.

The particular relief asked by the appellee in her bill was a decree declaring her 'to be the allottee upon the said tract of land, and that the allotment thereof to the defendant be canceled and annulled, and that the defendant, his servants, and all persons holding under him, as tenants, lessees, or otherwise, be forever enjoined from interfering with your orator's possession thereof, and that she may have judgment against the defendant for damages,' etc.

Messrs. John C. Gittings, Samuel Herrick, and Hailey & Dowell for appellant.

Messrs. R. J. Slater and J. T. Hinkle for appellee.

Statement by Mr. Justice Peckham:   Mr. Justice Peckham, after making the above statement of facts, delivered the opinion of the court: 

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