The Emporia news. [volume] (Emporia, Kan.) 1859-1881, 1874-06-12
JUDGE pILLoS's DECISION IL fHE
CELEBRATED LAMP CASE, COS
CLCDED


gUpeE pILLoH's DECISION IN TIE
CELEBRATED LAMP CASE, COS
cLCpEp.
The WyandoIte council, which is |
several hines referred to in the |
treaty of 1855, was an executive
and judicial body, and had power,
under the laws and usages of the
sc aud this body continued 10 act,
&c least to some extent after the
trea,y of 1855,
The first question arises under
the patent to be issued in the name
Of the reserves. The pateRt pf May
9, 1861, was in Tact Issued not 10
john Hicks. the re.ervee, but to the
heirs of John Hicks. II 1t had
been issued in the name of John
Hicks, though he was then dead, il
3 opld, under the act of 1886. have
Injured TO bis hsira, deVisees or as
signees, q Statutes at Large, oil.
What ia, The effect of it's being Is
sued as it was TO the heiIOof John
HIcEs? The plaintiff contends that
the patent vas rightly issued, and
that under it the heirs Of john
Hicks take by purchase. That to
ascertain who are lis heirs resort
| must be had, not to Indian laws,
bur 10 ii e laws of Kansas at the
'ime, AND 'Rst TBS tsSgl se!Etes OF
the patent is the sane as If The
children of John HICKS. Sr., had
been named therrlm,-which, ii
true, would cut of lhs rights of the
creditors, devi ees or assignees of
John Hicks, Sr.
On the other hand, the defendant
insists inasmuch as it is true, that If
1.-THE psiept is valid, the heirs OF
John Hieks take bV pn,chase, that
the patent IS void, because t was
not Issued as the treaty specifically
required, 10 the name of the
reservee.
The issuing OF 8 patent Ia minis
terial act, and patent issued with
ont authority Is void.
AM Inclined to think that the de.
pariure of a patent in respect to the
name of the grantee from the re-
IGu.rements of the treaty, is mate
rial, and thst the patent is therefore
null7ty. The eject Of This would
be that the legal tirle 10 still IN the
United States, and, of course, the
plaintiff could not recover in eject
mept.
But this point / deen undeter-
mined, preferring 10 TesI ny juag-
meHt upon the around that nndeI
the circumstances, the court mpsI
give effect to the we'll established
IaWs, customs and usages or the
Wy andetts tribe of Indians in re-
spect TO the disposition of property
by descent and will.
I JoLp Hicks, Jr., had a valuable
right given by the treaty of 1872
right 10 select and locate $50 acre
of land-nOt land bns SO 'Ioat", Oh
right 70 land. He died in 1853
within abe LIMITS OF what sitter
wards became tbs tRritQry Of Kan.
sas. There is no natural law OF de-
scent and wills, none regulating the
rights for members OF Indian tribes.
The treaty of 1856 recognizes and
provides in several places for the
|, rights of the heirs or legal TepreSea'
t6ii36S ct the reserves under the
treaty OF ISA2. These upst meaI
heirs and representatives, according
TO t6a lsWs, Rsages and custoTg o.
the tribe. [Sae articles 5 and 3 o.
the treaty of 1856,
The Government was aware that
between 1872, when the right was
given, and 1866, when the second
treaty was made, that some of the
reseFyees were dead, and it provid.
ed carefully fOr Ibis contingency by
authorizing their keirs or legal req
Tese5ltQtiues to select and locate the
|, secliou of LAND. II is hardly posi-
BILE TO suppose that Congress mean
to refer to the lay of Missouri Ter
ritory of 1915, to ascertain as to WhG
were the hei4s or legal represents
| iiyes of the deceased reserves
There Is but one way to determine
this and that IS By the laws, Gus
toms, and ussges of the Tribe. /
/ Iilia is so, then the will of JOIN
Hicks, 5r., made and allowed il
1858, was valid end gave the righ
TO his sons, john r.'ahd PrancisIA
whose death occurred previous Il
he enactpept of sta1nie OF wills oil
deseents in Kansas, but after the
ratifica' ion of the treaty of 1855.
The dates are as follows: The
| ItCdly was B4bpHCH 04GASh - 4OD1
the territorial sistHis of Ka1sss
concerning Wills, was approved
! Angus, 80. 1855; claws of Ksnsa-
1856, p 753 1919. The " i'll OF Fran.
cis A. Hicks vas admitted 10 pro-
bate ,j,y lba N,spdOtte Council
: September 90, 1855.
We're there asIy probate eoarts
then in operation ?-Examine ques'
ton.
Fl the foregoing views are correct
the will of F'rsacis A. Hicks WAS
valid when hc died, because il CON
formed to the laws and usages OF
his tribe, and there were no lkws oi
either Ia the EGited States or OF ths
Territory of Kapsss on the subject
Passing the question whether it il
necessary to valid action by an eye
cutor, Under Q will, tina, his appoint.
ment should be ratified by some
court, with probate powers, the ouly
remaining inquiry would be, musI
Indian wills, after the ratification
IOf the kresty Of 1856, be presented
to and aud allowed By iSe civil iri-
bunais, before acIs done IEePeHndeT
aud authorized thereby, can bsdreat-
| eS as valid?
! Notwithstanding the broad Ian.
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