Inclusive, Upon Appeals From The Decisions Of The Commission To The Five Civilized Tribes And The Commissioner To The Five Civilized Tribes In Allotment Contest Cases.
Abatement and Revival
On death of party. (See DEATH, par. 1.)
Abandonment
1. What constitutes.
When a division fence was removed and placed on a certain line and the parties on each side of the new line occupied the land as so divided, and one of them, after a number of years, died, his heirs continuing to occupy the land on his side of the fence without objection : Held, That the other party must be held to have abandoned all claim to the land on that side of the fence occupied by the heirs. (Choctaw No. 331, Nash v. Locke.)
2. Same.
Absence from and noncontrol of a claim for ten years, during which time the courts were open to the claimant to obtain possession by ejectment proceedings, must be considered as abandonment. (Chickasaw No. 761, Gaines v. Daugherty. )
3. Same.
An attempted transfer of and surrender of possession of improvements on land by a citizen to a noncitizen amounts to an abandonment of the land by the citizen. (Chickasaw No. 1078, McLaughlin v. Smith.)
4. What constitutes, and effect of.
When a citizen cleared underbrush, in 1887, on 8 acres of a 140-acre tract, purchased a log house thereon, and then went out of possession and paid no attention to and did nothing on the land until 1904, and in the mean time the house burned down and the underbrush grew up, it must be held that he abandoned the land, and that it became public domain, subject to appropriation by the first citizen taking possession. (Chickasaw No. 334, Kemp v. Turnbull.)
5. What constitutes, filing by mistake.
Where a citizen filed on all of the land he is entitled to allot and there is no mistake on his part in making his selection, he abandons the balance of the land held by him under improvements and the same becomes public domain. If his filing was by mistake upon the wrong land, the land intended to be filed on is not abandoned. (Chickasaw No. 1069, Kaney v. Kemp. )
6. Of town site, reversion of title.
Upon the abandonment of a town site by noncitizen purchasers of lots therein the title will revert to the original segregator of the town site. (Cherokee No. 332, Blackwell v. Parks.) When laches will amount to. (See LACHES, par. 2.)
Acknowledgment
Of bill of sale, necessity for. (See BILL OF SALE, par. 1.)
Affidavits
1. Necessity of service.
Affidavits filed in connection with an appeal, but not served in accordance with rule 25, will be suppressed. (Cherokee No. 1439, Con., Downing v. Adair.)
Use on appeal. ( See APPEAL, par. 13. )
Administrators and Executors
Relinquishments by. (See RELINQUISHMENT, par. 1.)
Agent 1. Acting in his own name does not bind principal.
While no express words are necessary an instrument executed by an agent must in some way indicate that he is acting, not individually, but for his principal, in order that the latter may be bound. (Choctaw No. 424, Pebworth v. Wright)
2. Authority of.
In order to support an act done by one person as an agent of another, it must be shown that the latter authorized the doing of the act or subsequently ratified it; no one can become an agent except by the will of the principal. (Choctaw No. 424, Pebworth v. Wright.)
3. Authority to sell.
Evidence which shows that one person was vested with full authority to transact for another any business with relation to certain land, coupled with the evidence that he acted as agent for the other in the latters purchase of the land and was at all times subsequently in control thereof, is sufficient to establish the agent s authority to sell the land to a third party. (Chickasaw No. 19, Sealey v. Stidham.)
4. Authority of; evidence to establish; declaration of supposed agent.
The declaration of one that he is the agent of another does not create or establish the relation of principal and agent. (Choctaw No. 424, Pebworth v. Wright. )
Allotment
1. Confirmation of.
Under section 6 of the act of March 1, 1901, it is held: All allotments made to Creek citizens by the Commission prior to the ratification of said act, as to which there is no contest, and which do not include public property and are not “otherwise affected,” are confirmed. (Creek No. 700, McIntosh v. Ballard.)
2. Designation of.
When a large pasture is transferred and the grantor reserves therein the right to take an allotment and the location of the land to be so allotted is not described, the party for whom the allotment is reserved may select from any lands within the pasture. (Choctaw No. 179, Dillon v. Dillard.)
3. Inconvenience of; location; easement.
The fact that a 10-acre tract is surrounded by land belonging to parties other than contestant, is not on any highway, and to reach the same contestant would have to have an easement on the land of contestee, is an element to be taken into consideration in determining whether the land should be allotted to the contestant. (Choctaw No. 454, Mayo v. Payte.)
4. Situation of land relative to remainder of allotment.
The fact that the land in dispute is a single 10-acre tract, not contiguous to the rest of contestant s allotment, but some distance therefrom and entirely surrounded by other land belonging to contestee and other parties, is an element to be taken into consideration in making an allotment. (Choctaw No. 454, Mayo v. Payte.)
5. What considerations to control in making.
Allotments must be made in accordance with the legal rights of the par ties when they insist upon them, and the fact that a tract of land will apparently be of no utility to a contestee is no reason to refuse to award it to him if he is entitled to it. (Cherokee No. 301, Simmons v. Duckworth.)
6. Selection of fractional subdivisions.
Section 12 of the Cherokee agreement (32 Stats., 71G) does not prevent a citizen from selecting as a portion of his allotment a legal subdivision of less than 10 acres. (Cherokee No. G41, Trott v. Gilstrap.) Relinquishment of, after appeal. (See RELINQUISHMENT, par. 4.)
Appeal
1. Assignment of error.
The appeal in this case was general. No rulings, proceedings, or other acts wherein the Commission erred were set out. Held, The better practice is to set out the errors relied upon. It is not the duty of the Office of Indian Affairs to hunt through a long record in order to find a reversible error in the decision of the Commission. (Choctaw No. 404, Colbert v. McDaniels.)
2. Want of specific assignment of error; dismissal.
An assignment of error that the decision is contrary to the law and the evidence is not sufficient to sustain an appeal; it is the duty of litigants to set out the specific errors on which they rely for reversal, and they having failed to do so the appeal will be dismissed. (Cherokee No. 619, con. Kilt-cliff v. Bird.)
3. Contentions available on; assignment of errors.
A party on appeal can not make a contention not raised at the hearing and concerning which no assignment of error is made. (Choctaw No. 654, con. Halsell v. Middleton.)
4. Filed too late; jurisdiction; dismissal.
The Department has no jurisdiction to entertain an appeal which is not taken within the time prescribed by the Rules of Practice, and such an appeal will be dismissed. (Chickasaw No. 1G3, Krieger v. Latta; Chicka-saw No. 92, Stewart v. Johnson; Chickasaw No. 301, Factor v. Bryant; Chickasaw No. 498, Factor v. Minims; Chickasaw No. G39, Sullivan v. Melville; Chickasaw No. 1383, Halsell v. Quincy; Choctaw No, 251, Bilbo v. Belvin; Choctaw No. 343, Morris v. Walker.)
5. Time of taking, substantial compliance with rule.
When it appears that contestee s last day to file an appeal was February 7, that the appeal was served on the attorneys for the opposite party on February 4 and mailed on the morning of February 5 at Chickasha, from whence an afternoon mail departed which, in the natural course of events,” would bring the appeal to the Chickasaw land office on February G, but the appeal, in fact, does not reach there until February 8, a substantial compliance with the rule is shown, and the appeal will not be dismissed because not filed in time. (Chickasaw No. 23G, Hill v. Reynolds.)
6. Dismissal of, proper practice.
When a party desires to dismiss an appeal taken from the decision of the Commissioner to the Five Civilized Tribes to the Commissioner of Indian Affairs, it should be done by a motion to dismiss instead of a request for an affirmance of the decision of the Commissioner. (Chicka saw No. 912, Lawrence v. Immotichey.)
7. Dismissal of, by party, relinquishment.
When an applicant, on motion to dismiss his own appeal and relinquish land, shows that he has 120 acres of other good land lying contiguous to the remainder of his allotment, and that there is danger that some other citizen will file on the 120 acres, his motion should be granted. (Creek No. 772, Tiger v. Gooden.)
8. Dismissal of, on motion of appellant, when allowed.
Where it appears that a party who has filed a motion to dismiss his own appeal is 27 years old, less than one-quarter blood, capable of attending to his business affairs, that he has other land which he desires to select, and that he has been tied up for three years on the contest his motion for dismissal will be granted. (Cherokee No. 3, Tucker v. Blackstone. )
9. Dismissal of, on motion of appellee.
When a motion for the dismissal of an appeal is filed by the appellee on the ground that the original application was made for him when he was a minor, and that he has become of age and wishes to relinquish the land and take other land in its place, the motion will not be granted when it appears that after attaining his majority he made a deed to the land and received a portion of the consideration therefor, though said deed was absolutely void. (Cherokee No. 1439, con. Downing v. Adair. )
10. Dismissal of, by party, when allowed.
When the contestee files a motion for the dismissal of his own appeal, accompanied by an affidavit showing that he can read and write, under stands the purport and effect of his motion, and files it of his own accord, the motion will be granted. (Chickasaw No. 40, Freeny v. Dillard.)
11. Motion for dismissal of, how verified.
Where a motion to dismiss an appeal is made for a minor, said motion should be signed and sworn to by the father and natural guardian of the minor ; if the father is a full-blood Indian and unable to read the English language, the motion should he thoroughly explained to him in the presence of witnesses, and there should he attached thereto the affidavit of said parent to the effect that said motion had been fully explained to him, and that he understood the nature, contents, and effect thereof. (Chickasaw No. 912, Lawrence v. Immotichey.)
12. Evidence considered on.
The Department will not consider on appeal the evidence in another case, not by stipulation of the parties or otherwise made a part of the record in the cause under consideration. (Cherokee No. 3G1, con. Kerr v. Shell.)
13. What considered upon, affidavits.
The only office of an affidavit after the trial would be in support of some motion, and one can not be used in support of an appeal, as that would amount to putting evidence before the Department which was not presented at the original hearing. (Cherokee No. 1439, con. Downing v. Adair.)
14. Objection available on.
No objection can be raised on appeal not based upon facts which appear In the record. (Creek No. 803, Trent v. Watson.)
15. Position inconsistent with that on trial.
When upon the trial of a cause contestees claim title to the land through a purchase of all the improvements from the father of minor contestant, and admitted that that was the only right they had in the land, they can not be heard on appeal to claim that a portion of the land was public domain. (Choctaw No. 278, Harris v. Smith.)
16. Waiver of time in which to file.
The rules of practice as to time of filing an appeal can not be waived by stipulation of attorneys. (Choctaw No. 92, Stewart v. Johnson.)
17. Appealable orders.
Appeal does not lie from an order denying a motion for review. (Creek No. 203, Smith v. Cully.)
18. Same.
An order denying a motion for rehearing is an interlocutory order and is not appealable. (Chickasaw No. 29, Askew v. Sharp.)
19. Same.
No appeal lies from orders denying motions for review or rehearing, as such orders are interlocutory and not final. (Creek No. 360, Gentry v. Graves.)
20. Same.
Orders granting or denying motions for review, rehearing, and to vacate and set aside judgments are interlocutory in their nature and are not appealable. (Chickasaw No. 169, Ingram v. Wiltsey.)
21. Same.
An order denying a motion to set aside and vacate judgment as void, on the ground that no service was obtained on the minor contestee, is appeal able. (Chickasaw No. 169, Ingram v. Wiltsey, Secretary s decision.)
22. Same.
An order granting or denying a motion for rehearing or review is not appealable. The citizen s remedy is by appeal from the decision sought to be reviewed or reheard. (Chickasaw No. 446, Runton v. Merryman.) When objections available on. (See WITNESS, par. 5.)
Appearance
1. Of contestant at trial, necessity for.
The failure of contestant to appear at the trial, unless satisfactorily explained and excused, is fatal to his contest, and the same may legally be dismissed. (Choctaw No. 552, Colbert v. Lewis.)
2. General, waiver defect in service.
The general appearance of an attorney for a party, on a motion for review, constitutes a waiver of a defect in or lack of service of the motion on said party. (Chickasaw No. 187, Watkins v. Gooding.)
Applicant
1. For citizenship, rights of, transfer by.
An applicant for citizenship, until finally rejected, may hold and dispose of a good title to improvements on tribal lands. (Chickasaw No. (539, Sullivan v. Melville; Choctaw No. 413, Hudson v. McKinney ; Choctaw No. 431, Thompson v. McKinney.)
2. For citizenship, right to transfer improvements pending final determination.
A court claimant whose admission to citizenship was vacated by the citizenship court, but who afterwards had his case certified to the latter court, retains his status as an applicant for citizenship until the final determination of his rights, and a transfer made by him a month before the final determination is as effectual to convey title as would be the transfer of an enrolled citizen. (Chickasaw No. 197, Jacobs v. Townsley.)
3. For citizenship, transfer by.
An applicant for citizenship may convey a good title to improvements to the contestant subsequent to contestee s filing, although he is thereafter finally rejected. (Chickasaw No. 197, Jacobs v. Townsley.)
4. Mississippi, Choctaw, holding lands and transferring same.
An applicant for identification as a Mississippi Choctaw has a right pending determination to hold land and his transfer of the same conveys good title. (Choctaw No. 127, Jennings v. Lester.)
Arbitration and Award
1. Effect of.
Lands were indefinitely described in a transfer and a dispute arose as to the location thereof. A written agreement to arbitrate the matter was entered into between the parties, and arbitrators were appointed and after examination awarded the land to purchaser, who subsequently made application to file thereon. Held, That said purchaser had established his right to the land, and the contestee, having acquired such rights as he may have to said land subsequent to said arbitration, takes same subject thereto. (Chickasaw No. 493, Colbert v. Frazier.)
Assignment of Errors
Necessity for. (See APPEAL, pars. 1, 3.)
Must he specific. (See APPEAL, par. 2.)
Attorney and Client
1. Authority of attorney to represent client.
When it fairly appears that a litigant does not desire to institute or con tinue litigation, the case is a proper one in which to require the attorney to exhibit his authority. (Choctaw No. 431, con. Thompson v. McKinney.)
2. Privileged communication.
An attorney is incompetent to testify in regard to any information obtained by him in his professional capacity without the consent of his client. This is not a personal privilege of the attorney, but rests upon the ground of public policy. (Chickasaw No. 1069, Kaney v. Kemp.)
Bill of Sale
1. Necessity for witnesses and acknowledgment.
The fact that a bill of sale is not witnessed or acknowledged does not invalidate it if otherwise legal, and between the parties thereto it is bind ing. (Chickasaw No. 821, Folsom v. Victor.)
2. Description of property, what governs.
In determining upon what land improvements are conveyed, a description of the land by metes and bounds will govern a recital as to the acreage of the land affected by the bill of sale. (Cherokee No. 428, Baldridge v. Thornton.)
Burden of Proof
1. To establish agency.
The land was found to be in possession of Leah Robinson, who was the owner of the improvements thereon. Contestant contends that the improvements were given to him by Zack Cook, the father of Leah Robinson, and that Zack Cook had authority to dispose of the land and improvements. Held, It is incumbent upon him (contestant) to show that Zack Cook was authorized to act for Leah Robinson, and that he acted within the scope of his authority, (Creek No, 597, Deer v. Sawyer.)
2. To establish correct description.
When improvements are sold on land described other than by legal sub divisions, the burden of proof is on the purchaser to show that the land described is other than that stated by the vendor. (Cherokee No. 121, Akin v. Landrmn.)
3. On which party.
Where it is uncontroverted that contestant s father once owned and was in possession of the improvements on the land in controversy, the burden of proof shifts to the contestee to show that contestant s father sold or relinquished the land to the contestee or his grantor. (Cherokee No. 362, Garrett v. Thomas.)
To establish excessive holdings. (See EXCESSIVE HOLDINGS, par. 3.)
Of rescission of contract. (See CONTRACT, par. 2.)
Chickasaw Freedmen
1. Rights of; possession by.
Chickasaw freedmen not in the actual possession of land at the time of the Atoka agreement could not claim constructive possession by virtue of the possession of their deceased mother. (Chickasaw No. 9, Trahern v. Russell; Chickasaw No. 838, Trahern v. Russell.)
2. Right to hold and allot land.
Under the decision of the Supreme Court of the United States in the case of the United States v. The Choctaw and Chickasaw Nations, and Chicka saw Freedmen v. the same (103 U. S., 115) upon the ratification of the Choctaw and Chickasaw Supplemental Agreement on September 25, 1002, the Chickasaw freedmen became entitled to their share of the land in the Choctaw and Chickasaw nations, subject to said agreement ; and a freed man who had improved lands prior to September 25, 1002, and was in possession of them on that date, was entitled by said act to select the same in allotment. (Chickasaw No. 240, con. Love v. Rennie.)
3. Holding land by tenant.
The land in controversy was held by a Chickasaw freedman, being in the actual possession of his tenants. Contestee filed on the land as public domain, and contended that Chickasaw freedmen have only the right to occupy and hold a tract of land which, by cultivating the same personally, will enable them to support themselves and families, and have no right to hold land except for that purpose. Held, That the possession of a Chickasaw freedman by tenant secures to him the same rights in land as though he were personally hi possession of it. (Chickasaw No. 249, con. Love v. Rennie.)
4. Right to alienate.
Under the decision of the United States Supreme Court in the matter of Chickasaw freedinen (103 U. S., 115) the latter, while possessing under the act of June 28, 1808, the right to hold improvements for the allotments of themselves and families had no right under said act to transfer such improvements, and such a transfer conveys no interest in the land. (Chick asaw No. 274, Alexander v. Wright.)
5. Rights of.
By decision of the Supreme Court in the matter of the rights of Chickasaw freedmen (103 U. S., 115) it was held that such freedmen had, independently of the act of July 1, 1002 (32 Stat L., G41) no right to share in the lands of the nation. The provisions of that act, to preserve the rights of such freedmen in lands on which they owned improvements, secured to them the right to take in allotment only the lands on which they owned improvements at the date of the Atoka agreement. (Chickasaw No. 1305, Faure v. Christian.)
Rights of. (See STATUTES, par. 2.)