#### Tomkins, Respondent, vs. Campbell, Appellant.

*May 10*

June *21, 1906.*

*Indians: Bale of timber from allotted lands: Assignment of proceeds..*

The patent of lands allotted to an Indian pursuant to the treaty of' September 30, 1854, provided that he should not alienate them in any manner without the consent of the President. Rules approved by the President provided that the net proceeds of timber sold from such lands should be deposited in some national, bank subject to check of the Indian owner, countersigned by the United States Indian agent. A contract, made under said: rules, for the sale of timber from the allotted lands provided for-*94payment of tlie purchase price to the Indian agent in trust for the owner. *Held*that, although the Indian owner had by the act of Congress of February 8, 1887, become a citizen of the United States and emancipated from federal control, his power to dispose of the proceeds of the timber was still subject to the approval of the Indian agent, and hence that' an assignment thereof without such approval was invalid.

Appeal from an order of tbe circuit court for Ashland •county: JohN K. Pabish, Circuit Judge.

*Reversed.*

This is an appeal from an order overruling a general demurrer to the plaintiff’s complaint. The complaint alleges, in substance, that one Antoine Sailor is an Indian of the Bad Biver reservation, born within the jurisdiction of the United States, and that defendant *Campbell*is the Indian agent of the La Pointe Indian agency; that a treaty was made with the Chippewa Indians of Lake Superior and the Mississippi September 30, 1854, of which the third article is as follows:

“Article Three. The United States' will define the boundaries of the reserved tracts, whenever it may be necessary, by actual survey, and the President may, from time to time, at his discretion, cause the whole to be surveyed, and may assign to each head of a family, or a single person over twenty-one years of age, eighty acres of land for his or their separate use; and he 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. And he may also, at his discretion, make rules and regulations respecting the disposition of the lands in case of the death of the head of a family or single person occupying the same, or in case of its abandonment by them. And he may also assign other lands in exchange for mineral lands, if any such are found in the tracts herein set apart. And he may also make such changes in the boundaries of such reserved tracts or otherwise as shall be necessary to prevent interference with any vested rights. All necessary roads, highways, and' railroads, the lines of which may run through any of the reserved tracts, shall have the right of way through the same, compensation being made therefor as in other cases.”

*95Tbe complaint further alleges that, in accordance with tbe terms of tbis treaty, tbe President of tbe United States, on May 31, 1898, approved tbe selection by said Sailor of two forty-acre tracts of land on tbe Bad River reservation, and on August 29tb issued and delivered to said Sailor a patent covering said tracts, wbicb contained tbe proviso that neither said Sailor nor bis heirs should sell, lease, or in any manner alienate said tract without tbe consent of tbe President of the United States; that on March 31, 1899, said Sailor, with tbe consent of tbe President, sold tbe merchantable timber upon his said allotted lands to one Stearns, under a written contract by tbe terms of wbicb Stearns agreed to pay certain prices per thousand for said timber “to tbe United States Indian agent for tbe La Pointe agency, in trust for tbe said Sailor;” that Stearns immediately commenced to cut and remove said timber, and that there is now in possession of said Indian agent tbe sum of $818.83, received by him from said Stearns for such timber, in trust for said Sailor; that on tbe 30th day of June, 1905, said Sailor, for a valuable consideration, assigned said amount so due him from said agent, by an instrument in writing, to tbe plaintiff, and directed that tbe same be paid to tbe plaintiff, and that plaintiff has demanded payment of said sum to him, but the defendant has refused and still refuses to pay tbe same, and refuses to deposit tbe same in bank or countersign Sailor’s check therefor, and refuses to pay said sum to Sailor or bis assigns, except in monthly payments of $10 each. Certain rules and regulations approved by tbe President December 6, 1893, under wbicb tbe timber contract with Stearns was made, are attached to tbe complaint, among wbicb is tbe following rule:

“After deducting one half of tbe cost of tbe sealing and other necessary expenses chargeable against the same, tbe proceeds of timber sold from tbe unallotted portion of tbe reservation shall be paid to tbe Indian agent, to be expended for tbe relief and benefit of tbe Indians of the reservation under tbe direction of tbe commissioner of Indian affairs; and the *96proceeds of timber taken from tbe allotted lands of tbe reservation shall, after tbe deductions above stated, be deposited in some national bank subject to check of tbe Indian owner of tbe allotment, countersigned by tbe Indian agent of the La Pointe agency, unless otherwise stipulated in contracts with particular Indians.”

Por tbe appellant there was a brief by *William G. Wheeler*and *Henry II. Morgan,*and oral argument by *Mr. Wheeler.*

Por tbe respondent there were briefs by *Tomldns, Tomkins & Garvin,*and oral argument by *W. M. Tomkins.*

WiNsnow, J.

Tbe simple question presented is whether-Sailor has absolute control and power of disposition over tbe money received by tbe Indian agent in payment for tbe timber cut from Sailor’s allotment of land, or whether bis power of disposition is limited and subject to tbe approval of the-Indian agent. Tbe plaintiff’s claim is that, because by tbe terms of tbe so-called Dawes act of Congress of February 8,. 1887 (24 U. S. Stats, .at Large, 388, cb. 119), Sailor bad become a citizen of tbe United States and was emancipated from federal control *(In re Heff,*197 U. S. 488, 25 Sup. Ct. 506),. be is necessarily entitled to tbe full management and control of tbe proceeds of tbe timber cut from bis lands. Being so-emancipated, tbe argument is that tbe provision of tbe rules-which requires that tbe proceeds of tbe timber be deposited in a bank subject to bis check countersigned by tbe Indian agent means that be has absolute control of tbe deposit; that tbe signature of tbe Indian agent is only required as a means of identification and must be. appended by tbe agent whenever a proper check is presented. While it must be admitted that tbe Indian allottee under tbe circumstances stated has become a citizen, it does not follow therefrom that tbe government lias thereby thrown aside all tbe barriers and restrictions which it bad so carefully erected to protect him from bis natural improvidence. Notwithstanding be was .a citizen, tbe government in dealing with him and granting him. *97rights of property could, if it cbose, surround those rights with safeguards or limitations intended for his own welfare and to prevent his squandering his property. The treaty of IS54 clearly contemplates that his ownership of land shall bo subject to substantial restrictions upon the right of alienation, and these restrictions were carried into the patent issued long after the passage of the Dawes act, by provisions which deprived him of the power of alienation in any manner without the consent of the President. These restrictions upon alienation of the land, so industriously inserted in the patent, must be borne in mind when considering the intent of the government in its regulations as to the sale of the timber and the disposition of the proceeds. So, also, the pre-existing relations of guardianship which the government has always maintained toward the Indian must be kept in view.

In view of these considerations, what is the natural meaning of the provisions of the contract, that the money for the timber is to be paid to the Indian agent in trust for the Indian, and that it is to be deposited in bank by him subject to the check of the Indian countersigned by the agent ? To our minds these provisions cannot be construed as meaning that, the government intended to abolish the safeguards which it erected to guard against the Indian’s improvidence, but rather that it intended to place the proceeds of the land practically in the same position as the land itself, namely, subject to disposition only by the Indian when such disposition is approved by the government acting through its Indian • agent, instead of through the President. There is clearly no reason why the Indian should be prevented from selling or alienating his land, and should be given free disposal of the moneys arising from the sale of the timber thereon, which doubtless-constituted the principal part of its value. On the contrary,, there is every reason why there should be substantially the' same restrictions upon the disposal of his money as upon the-disposal of his land. In view of these considerations we find *98no difficulty in construing tbe provisions of tbe contract and rules above referred to as moaning that tbe Indian’s power of disposition of tbe money received from tbe sale of bis timber is subject to tbe approval of tbe agent, and bence tbat tbe plaintiff cannot recover. Tbe question seems to be a new one, •and one not yet presented to tbe United States courts. So far as tbe subject bas been approached, tbe decisions favor tbe construction we bave adopted. *Hitchcock v. U. S.*22 App. D. C. 275; *U. S. v. Thurston Co.*143 Fed. 287.

*By the Court.*— Order reversed, and action remanded witb directions to sustain tbe demurrer to tbe complaint.