The opinion of the court was delivered by: Miller, J.
Geo. R. Peck, A. T. Britton, and A. B. Browne, for plaintiff in error.
Wm. H. Clark, for himself.
This is a writ of error to the supreme court of the state of Kansas. It is an action in the nature of ejectment, brought by Libby against Clark. Both parties assert title through William Hurr, who is by birth and descent an Indian of the Ottawa tribe, and was one of the chiefs and head men of the tribe. On the trial the plaintiff read in evidence a patent from the United States to Hurr for the land in controversy, and offered a deed from said Hurr to J. S. Kallock, which, on objection of the defendant, the court refused to receive, and the exception to this ruling, which was affirmed by the supreme court, presents the qhestion of federal law which gives jurisdiction to this court. The patent to Hurr reads as follows:
'The United States of America, to all to whom these Presents shall come, Greeting: Whereas, there has been deposited in the general land-office a return, dated seventeenth March, 1864, from the office of Indian affairs, containing certain lists showing the selections of allotments made for the use of certain Ottawa Indians under the treaty concluded on the twenty-fourth day of June, 1862, between the United States and the Ottawa Indians of Blanchard's Fork and Roche de Boeuf, in the state of Kansas, as ratified on the twenty-eighth day of July, 1862, which lists were duly approved by the secretary of the interior under date of March 9, 1864; and whereas, it appears from one of the lists aforesaid that the east half of the north-west quarter or section seven, in township seventeen, the east half of the west half of section thirty, and the east half of the north-west quarter of section thirty-one, in township sixteen south, of range twenty east of the sixth principal meridian in Kansas, containing 320 acres, has been designated as the allotment of William Hurr: Now, know ye that the United States of America, in consideration of the premises, and pursuant to the third and seventh articles of the treaty aforesaid, have given and granted, and by these presents do give and grant, unto the said William Hurr, and to his heirs, the tract of land above described: provided, however, and these presents are upon the express condition, and with the limitation, as required by the treaty aforesaid, that the said William Hurr shall not alienate or incumber the aforesaid tracts of land until he shall become, by the terms of said treaty, a citizen of the United States; and any conveyance or incumbrance of said lands, done or suffered by said William Hurr, made before he shall become a citizen, shall be null and void,–to have and to hold the said tracts of land, with the appurtenances, unto the said William Hurr, and to his heirs and assigns, forever, subject to the limitation and condition aforesaid.
'In testimony whereof, I, Andrew Johnson, president of the United States, have caused these letters to be made patent, and the seal of the general land-office to be hereunto affixed.
'Given under my hand, at the city of Washington, this first day of December, A. D. 1865, and of the independence of the United States the ninetieth.
[Seal of the United States General Land-office.]
'By EDW. D. NEILL, Secretary.
'Recorder of the General Land-office.'
The deed from Hurr to Kallock is dated December 1, 1865, and was unaccompanied by any consent of the secretary of the interior, or any evidence that Hurr had become a citizen of the United States, and it was for that reason rejected. Whether Hurr could make a valid conveyance of the land at the time he made the deed to Kallock depends upon the construction to be given to the treaty mentioned in the patent to Hurr, the third and seventh articles of which are as follows:
'Art. 3. It being the wish of said tribe of Ottawas to remunerate several of the chiefs, conncilmen, and head-men of the tribe for their services to them many years without pay, it is hereby stipulated that five sections of land is [are] reserved and set apart for that purpose, to be apportioned among the said chiefs, councilmen, and head-men as the members of the tribes shall in full council determine; and it shall be the duty of the secretary of the interior to issue patents in fee-simple of said land, when located and apportioned, to said Indians. In addition thereto, said last-named persons, and each and every head of a family in said tribe, shall receive 160 acres of land, which shall include his or her house, and all improvements, so far as practicable; and all other members of the tribe shall receive 80 acres of land each, and all the ...