June 15, 1928.
Stanley M. Ryan, U.S. Atty., of Janesville, Wis., and Harold E. Hanson, Asst. U.S. Atty., of Stoughton, Wis., for complainants.
Oliver M. Olson, of Wheaton, Ill., and O'Melia Kaye, of Rhinelander, Wis., for defendants.
At Law. Action by the United States and others against Veronica Raiche and another. Judgment for plaintiffs.
Action in the nature of ejectment, brought by the complainants above named against the defendants. Trial by jury waived, and the defendants interposed equitable defense and counterclaim to have complainants' claim of title set aside as a cloud upon the title of the defendants, and also to have a certain alleged contract of conveyance reformed.
Saw-bad-deese-once-ish, commonly known as John Frenchman, Sr., a Chippewa Indian of the Bad River Reservation, pursuant to the third article of the Treaty of September 30, 1854 ( 10 Stat. 1109) was allotted lot 5 and the northwest quarter of the northeast quarter of section 36, township 48 north, range 3 west, containing 66.86 acres, and under date of May 11, 1867, a patent was issued to him by the government, granting unto him and said heirs the said lands, "but with the stipulation that said Saw-bad-deese-once-ish and his heirs shall not sell, lease or in any manner alienate said tract without the consent of the President of the United States."
This condition is repeated in the habendum clause. This restriction upon alienation was inserted pursuant to the provision of article 3 of the treaty above referred to, which provided that he (the President) "may, at his discretion, as fast as the occupants become capable of transacting their own affairs, issue patents therefor to such occupants, with such restrictions of the power of alienation as he may see fit to impose."
For many years said John Frenchman, Sr., occupied the land, making his home upon a part thereof until his death January 3, 1910. He left, as his heirs, Ke-de-kwe Simon, an adopted daughter, and John Frenchman, Jr., a son. John Frenchman, Jr., died January 27, 1910, leaving his wife, Maggie Sharlow, and a son, Isaac Louis Frenchman, as his heirs. Isaac Louis Frenchman died May 17, 1912, leaving as his sole heir his mother, Maggie Sharlow, one of the plaintiffs.
About the year 1906 David Blackbird, another Chippewa Indian, living on the Bad River Reservation, went into possession of a 6-acre tract located in the northeast corner of the northwest quarter of the northeast quarter of said section 36, and caused a home for himself to be erected thereon. About that time, and prior to the building of the home by Blackbird on the 6-acre tract, the Indian farmer, a Mr. Walker, and a man by the name of Norbert J. Sero (sometimes referred to as the assistant farmer and at other times as the chief of police on the reservation), surveyed out the 6-acre tract upon which was later built the home of Blackbird. At that time the Stearns Lumber Company was operating, cutting timber and manufacturing lumber at the village of Odanah on said reservation, and the testimony discloses that Blackbird had a credit upon the books of that concern, but for what does not appear. The answer alleges, and it was apparently assumed by both parties in the trial of this case, without formal proof thereof, that Blackbird was a noncompetent Indian, and that there was some supervision by the Indian agent of the accounts shown upon the books of the Stearns Lumber Company with the various Indians, including Blackbird.
The testimony is to the effect that, prior to Blackbird taking possession of the 6-acre tract, his account with the Stearns Lumber Company was debited with the sum of $240, and a like amount credited to the account of John Frenchman, Sr., and later paid to him by the lumber company upon the order or orders of the Indian agent. The then clerk and cashier of the lumber company testified that this $240 was transferred to the credit of Frenchman as the purchase price of the six-acre tract of land in question, at the rate of $40 per acre. Later on, and from a similar credit on the books of the lumber company in favor of Blackbird, there was paid out upwards of $1,000, with which funds labor and materials were purchased which went into the dwelling erected by Blackbird. The testimony in this case indicates, though without written corroboration, that such purchases were made with the approval of the Indian agent in charge.
Apparently an application to permit Blackbird to make the purchase of the lands and to use sufficient funds to build a house thereon was made, through the Indian agent, to the Commissioner of Indian Affairs, and approved by him. The evidence discloses that he knew that Blackbird was purchasing such land from "another Indian"; but the evidence does not disclose that the Commissioner knew the description of the lands, who the other Indian was, nor his status — whether competent or noncompetent. On the trial there was offered in evidence by the defendants a written document, produced by the present Indian agent from his files, reciting that it was "made this ______ day of April, A.D. 1906," which paper purports to be an agreement to convey by Saw-bad-deese-once-ish to David Blackbird "six acres of land in the southeast corner of the northeast quarter of section 36," etc., upon Blackbird making payment and performing the covenants to be performed by him, which consisted of the payment of the sum of $240 when the timber on his allotment had been cut and as soon as he had the above amount to his credit at the United States Indian agent's office. The signature by Saw-bad-deese-once-ish is by mark.
The instrument is drawn in form anticipatory of execution by the vendee, as well as the vendor, but there is no signature by David Blackbird. The instrument purports to be witnessed by William J. Egbert (then the Indian farmer in charge of the reservation) and Norbert J. Sero; but the attempt of the defendants to prove the signatures of the witnesses, or either of them, failed.
The land described in this paper was something over a half mile distant from the land surveyed for and occupied by Blackbird, and was located on lands in which Frenchman, Sr., had no interest. Blackbird died, intestate, on or about February 16, 1911, leaving Francis Antoine, a grandson, as his only heir at law, who took possession of the 6 acres in controversy here shortly after his grandfather's death, rented the lands to tenants from time to time, and in the year 1919 the defendants went into possession and paid rent, amounting to about $50, and on September 13, 1920, Francis Antoine, under the name of Frank P. Antoine, executed a deed to the defendant Joseph A. Raiche, reciting a consideration of $1,400 paid to Antoine and deeding certain lands in Ashland county, Wisconsin, described as: "All the land included in an inclosure 250 paces running east and west on the highway, thence 128 paces running north and south on the road to Frost's Settlement. Six acres more or less in the southeast corner of the northeast quarter, section 36, town 48, range 3." Antoine testified upon the trial that he supposed he was conveying by this deed the 6-acre tract occupied by his grandfather, which was located near the dwellings of Ke-de-kwe Simon and Maggie Sharlow.
It is quite apparent that the description of the 6-acre tract contained in the paper which purports to be a contract of sale from Saw-bad-deese-once-ish to Blackbird was mistakenly written, and mistakenly fails to describe the 6-acre tract which Blackbird in fact entered and occupied, and that in the deed from Antoine to Joseph A. Raiche this mistake was continued.
Just what the transaction was between Antoine and the defendant Joseph A. Raiche is not left very clear by the evidence; but it is concluded that the deed was not finally delivered to Joseph A. Raiche, and that nothing has been paid by him as purchase money for the land in controversy, probably because of the controversy surrounding Antoine's title. Antoine testified that he had received but $50 from either Mr. or Mrs. Raiche, which was less than the rental which they were to pay him for the period antedating the making of the deed. The possession of defendants Raiche is in fact that of tenants holding under Antoine, rather than as purchasers of the land from Antoine.
The purported sales contract from Saw-bad-deese-once-ish to Blackbird bears filing marks of the office of the Commissioner of Indian Affairs in the years 1917 and 1921, but whether this paper was ever delivered to Blackbird or came into the possession of the Indian agent merely as part of an application for approval of the transaction, is left undetermined by the evidence.
In my opinion, the paper which purports to be a contract between Saw-bad-deese-once-ish and David Blackbird must be rejected as written evidence of a transaction of sale and purchase, first, because its age is insufficient to warrant its acceptance under the ancient document rule; second, because there was no evidence proving the signatures upon the paper; and, third, because the circumstances of its production are as consistent with nondelivery to Blackbird as with delivery. It is quite clear, also, that there has never been approval of sale of the 6 acres in controversy by the President or the Secretary of the Interior. It is contended, on behalf of the defendants, that the part taken by the Indian farmer and the reservation chief of police indicates approval of the transaction so far as John Frenchman, Sr., was concerned; but such acts were as consistent with preparations for an application for the approval of the President or Secretary of the Interior as with the carrying out of a transaction already approved, or as with an intent to approve on the part of the Indian farmer, assuming that the act of approval was or could be delegated to such a subordinate employee of the department.
It is true that the approval by the Commissioner of Indian Affairs of the expenditure of Blackbird's money, first for the purchase of the land, and later for the erection of a dwelling thereon, hints strongly of departmental approval of the entire transaction; but the proof falls short of showing that the Commissioner of Indian Affairs was advised that Blackbird intended to purchase the land and erect a dwelling upon land purchased from a noncompetent Indian. Hence, so far as the approval of the Commissioner of Indian Affairs is concerned, while it may be, and is, concluded that he gave his approval to the use of Blackbird's funds, it is also concluded that there was no approval given by the Commissioner of Indian Affairs to the sale by Frenchman, Sr., of the lands which he held under a deed containing restrictions upon alienation. Furthermore, there is no proof that the duty of approving the sale by Frenchman was ever delegated by the President of the United States or the Secretary of the Interior to any subordinate officer or employee. The fact that a record authorized by law was kept of such deeds as were approved by the President or the Secretary of the Interior, and that no record of the transaction in question appears in that book, is persuasive that no such approval was ever given.
Furthermore, the fact that the transaction apparently never proceeded beyond the point where Frenchman, Sr., signed the contract of sale, is indicative that the transaction never reached a stage where it would likely have been submitted either to the President or to the Secretary for approval of a deed. Assuming, as counsel for both sides apparently assume, though there is no proof on the subject, that the funds of Blackbird were under the supervision of the Department of Indian Affairs in the same degree as were the lands of Frenchman under the control of the President, the conclusion is unavoidable that a mistake was made in permitting the expenditure of Blackbird's funds for the purchase of the land and building of a home, without first obtaining a deed from Frenchman, approved by the President or Secretary of the Interior.
It is true, also, that neither the treaty in question, nor any statute, nor any regulation which has been brought to the attention of this court, prescribes how the permission of the President or the Secretary of the Interior to alienation by the holder of an allotment with restrictions against alienation, should be expressed. In the second appeal in the case of Lomax v. Pickering, reported in 173 U.S. 26, 19 S. Ct. 416, 43 L. Ed. 601, it is said: "How that permission should be obtained or expressed is left undetermined by the proviso. We see no reason why it might not have been by a memorandum at the foot of the petition for approval, or even by a letter to that effect. The essential fact was that permission should be obtained and expressed in some form, of which, in all probability, a record was kept in the department." Nevertheless I am unable to find from the evidence in this case that there was any approval, and the matter must be disposed of on the basis of a transaction which lacked the approval of either the President or the Secretary.
The treaty having provided that the lands allotted in severalty to the Indians might be subject to such restrictions as to the President seemed fit, there was ample authority for the restrictions inserted in the patent to Frenchman, and such restrictions have universally been upheld as a proper method by which the government of the United States may exercise that control over the lands of the Indians deemed necessary for the welfare of the latter.
In Starr v. Campbell, 208 U.S. 527, 28 S. Ct. 365, 52 L. Ed. 602, the court had under consideration the same treaty which is involved in the instant case, and the deed there involved was identical with the patent to Saw-bad-deese-once-ish (Frenchman, Sr.). The cases of Schrimpscher v. Stockton, 183 U.S. 290, 22 S. Ct. 107, 46 L. Ed. 203; Pickering v. Lomax, 145 U.S. 310, 12 S. Ct. 860, 36 L. Ed. 716; Id., 173 U.S. 26, 19 S. Ct. 416, 43 L. Ed. 601, and Lykins v. McGrath, 184 U.S. 169, 22 S. Ct. 450, 46 L. Ed. 485, all involve treaties and patents very similar to those involved here, and all, either directly or indirectly, hold that the restrictions are effective, and that conveyances made without official approval are ineffective.
The bona fides of the transaction was held to be beside the point in United States v. Brown, 8 F.2d 564 (C.C.A. 8), in which it is said: "The bona fides of these conveyances is unimportant. Whether the disposition of this land was made in good faith or upon commendable considerations cannot be made to affect this decision, which involves a public policy of far-reaching consequences."
Indeed, it seems this must be the correct rule, else the effectiveness of such restrictions would be readily frittered away. In United States v. Walters (D.C.) 17 F.2d 116, a purchase of land by another Indian from a trust allottee was held invalid, and the trust allottee was held not required to return the purchase money as a condition of setting aside his deed.
Defendants' counsel urge that, inasmuch as Blackbird was equally incompetent with Frenchman, Sr., the law should be applied as it would be between equally competent whites, and rely on the Wisconsin rule that payment of the purchase price, followed by possession of real property by the purchaser, will take an oral contract out from the condemnation of the statute of frauds (St. Wis. 1927, §§ 240.08, 240.09), and in proper case form the basis of a decree for specific performance of such oral contract. Such rule is freely applied under the Wisconsin law, in cases where the remedy at law is inadequate. Henrikson v. Henrikson, 143 Wis. 314, 127 N.W. 962, 33 L.R.A. (N.S.) 534. The argument has considerable appeal. Nevertheless, it assumes, mistakenly, the same disability on the part of Blackbird in the use of his funds as attached to Frenchman in the restriction upon alienation.
But the proof as to the status of Blackbird and his funds is extremely sketchy and informal. The testimony of the Indian agent is that there is nothing in the agency books showing payment by Blackbird for the land in question, and the only proof of such payment is the oral testimony of the cashier of the Stearns Lumber Company that such company's books show the transfer of the credit, above mentioned. The books themselves were not produced. How the lumber company became the custodian of such funds, and doled them out as a sort of subsidiary Indian agency, is not explained, except as the testimony indicates that it was actually done. Hence it is concluded that the premise upon which the argument is based is not satisfactorily established. As the proof stands, the very clear effect of the restriction upon Frenchman's right of alienation should not be offset by the unsatisfactory showing of Blackbird's alleged incapacity, even were it, if proven, sufficient to have that effect. Furthermore, assuming such incapacity on the part of Blackbird were proven, if such argument were to prevail, it would entail the grafting of an exception upon the restriction in Frenchman's deed, to the effect that a sale to another incompetent Indian was not within the purview of the restriction. This is unwarranted.
Nor are the statutes of limitation of the state of Wisconsin considered an effective defense in this case. Section 330.02, being the 20-year statute, is not applicable, inasmuch as this action was commenced in February, 1925, less than 20 years after entry by Blackbird. Sections 330.06, 330.07, and 330.10, Wis. Stats., providing limitation of 10 years where possession is based upon some written instrument, are inapplicable, inasmuch as no instrument exists describing the land in controversy under which the defendants claim. Elofrson v. Lindsay, 90 Wis. 203, 63 N.W. 89; Zuleger v. Zeh, 160 Wis. 600, 150 N.W. 406. Furthermore, the statute of limitations cannot run against these plaintiffs, who, with respect to this land, are still under disability. Schrimpscher v. Stockton, 183 U.S. 290, 22 S. Ct. 107, 46 L. Ed. 203.
From what has been said, it is apparent that the affirmative relief sought by the defendants in this action should not be granted. Other reasons for denying such relief than those already mentioned readily occur, but it is not thought necessary to deal with them specifically.
The record does not disclose why Veronica Raiche, the wife of the defendant Joseph A. Raiche, was made a party defendant. Apparently the premises are occupied by Joseph A. Raiche with his family, in the ordinary way, although the testimony indicates that Mrs. Raiche was the active one in negotiating the transaction with Antoine. No objection has been made, however, by her, and hence the judgment may go for the plaintiffs for the possession of the lands as against both of the defendants.
Plaintiffs may have judgment for the rents and profits against the defendant Joseph A. Raiche, up to the time of the commencement of this action, in the sum of $1,033.33.