The Leavenworth weekly times. [volume] (Leavenworth, Kan.) 1870-1880, 1874-06-11


pursus Mt 10 directions in his will. cold the
ie,taier's undivided half of this GAO acre
s'doat' TO Jacob Uirich for 81 600, and re-
duced the con ract t. writ'rg. Ulrich located
the q ,ai on the land in qWs ion, which vas
approved. and the pst q. Issued. ~ above
mentioned, May 3. 1861, to the heirs Of John
Hieis, ST. Subsequently ccnveyancers were
made to Ulrich's estate for hi. int-reEt, and
the beirs of UIrich conveyed the l'ud in
question to the De iendant.
The pIan'iff claims title throughout coz
veyanc.s from grandchil !ren Of John
Hicke, ST., who, OF his will and the will Of
F. ancss A. Hicks, sre valid, had no title
Ia other words, the right o! the p!an'i8, to
recover, il based upon the PROF 'ition tia
these two Wills are nu li,ns-;hat. though
made, executed and p .rvad.d according II
the law, cu.io ls and u ages OF the WyaL-
dotte nation of Indians 10 which they be-
lor ged. thcs instruments have, in law, no
legal effect in detern in the righis of the
parties.
The Wysndote Ibdi ans. before their
removal from Ohio, had adopted a written
constitution law, and among other, laws
relating to desc nj ard wills Ths-e are in
the record, and are shown 10 have he, n
copied from the Laws of Oaio, and adopted
BY the Wyandot 'ribe, with certsin moii-
icatiOns, 10 adopt them to ih.ir customs
and rsiges. Ore of thts. modifica ions,
vas that on'y living children should inner
il, excluding the Children Of deceased chill
dren, or grandchildren.
The Wyaniot:e council, which is veral
times referred t. in the treaty If 1855, was
IN executive and judicial body, and had
power, under the laws and usages of The Ia
iiiop, 10 receive proof of wills. &c aud this
body continued II act. at least u zone tx
tent after the treaty OF 1855.
The first quss ton arises under the patent
The treaty OF 1855 required the patent to be-
issued in the name Of the resertee. The pat
ent Of May 3, 1861, was in fact issued not
to John Hicks, the r, servee, but to the heirs
Of John Hicks. ii it had b IN Issued in the
name of John Hicks, Though he Vas then
dead, i, would, under the sci Of 1886, have
Injured to his heira. devi-ees or assignees, o
States at Large, 81. What is the effect o!
its beirg Issued n il was TO the heir OF John
Hicks? The plaintiff contends that the pat
ent vas rightfuily sued, and that Under il
the h. ir. Of John Hicks take by purchase
That to sscert ain who sre his heir, &c ort
must be had, not to IDdian laws, hut to the
laws Of Kansas at tie time, and that the It.
gal effect Of the patent is the same 4, il the
children Of John Hickr, ST., bad been namei
therein,-which, If true, would cut of the
rights Of the creditors, devi-ees or assignees
of John Hicks, Sr.
On the othe. hand, the defendant insists,
inasmuch a it is true, that i the Pai,n,
is valid, the heirs of john Hicks take by
purcha.e. thst the patent is void, because il
vas not Issued as the treaty specifically re-
quired, in the name of the r. ssIvee.
The issuing of a patent ia a min ;stsria!
at, and pa.ent Issued without authority il
void.
l am inclined TO rhiak Tat the departure
of patent in respect TO the II iine OF the
grantee from the requirements OF the treaty,
is material, and that the patent is therefore
q nnliiiy. The effect of this would be that
he le al title is still in the Unit d States.
and, OF cour e, the plaintiff could not recov-
er 10 ejectmeLt.
But thi, point l deem undetermined, pr,
ferrirg to rest my judgment upon the ground
that under the circums. ances, the court NUT
give effect to tie well established iaws, Gus
toms and ussges OF the Wyandotfe tribe of
indians in respect TO the disposition Of prop
erty by descent and will.
Sohn Hici :, Jr, had a valuable right
given by the treaty OF lS42-s right TO s,-
lect and locate $40 acres Of l. nd-n,t laid
bu, "a float or right to land. He died In
1858, within the limits of what afterwards
became the Territory of Kars's. There Is
no natural Law Of descent and wills, none
the rights Of membt rs Of indian
tribes. The treaty Of 1856 recogr ize' and
provid. in several lla,es for the rights of
he heirs or legal representatives. Of the res
ervees urd-r The tiety Of 1872. These must
mean hsirs and n presef tatives " according
10 the Laws, usages ard customs" Of the
tribe. (S.e articles s End 3 o. the frosty Of
1861
The Government was aware that between
1912, when the ii yht was given, and 1855,
when the second treaty was made, that some
IF the reserves were dead, and il provided
carefully ior this contingency BY an horiziI g
heir heirs or legal representatives. % select AMI
locate the eectiOn o: lard. 1t is hardly pos
lille to suppose tina: Congress meant to Ie-
Ter to the law of NJ ss,uri Territory of 1915.
% ascertain, TO who were..tbe heirs OK legal
of the deceased IT'S r,c,s.
There is but ore way 10 determine this and
hat is by the Laws, customs and usases OF
he tribe. II this is 60, then the will Of j John |
Hicks. ST., made and allowed in 1858, was |
'alid and gave the right,,to his sons, John Jr. |
md Frsncis A. II the will of the Elder |
Hicks is valid, 50 likewise is the will Of
Francis A. whose death occurred previous
o the eaa ctms N, Of atuc of wills or d, scents |
1.s,A ola 10. Of
reaty Of 1855.
The dates are "a follows: Tie treaty was
ati6ed March 1, 1855; the territorial stat.
lie OF Kansas concerning Wills, was approx
d August 80, 1855; Lave Of Kansas, 1855,
!, 753-76l). The II of Francis A. Hicks |
Va, admitled TO probate by the Wyandotte
Council September %, 1855.
Were there any probate C .nrts thea in OF
rstion?-Examine question.
II the frreg0ing views are correct, tie
vii of Francis A. Hicks wzs valid when he |
lied, b C ,use it conformed to the laws and |
.susges OF his tribe, and there were no laws
f either in the United States or of the Teri. |
DRY of Kansas IN tie subject.
Passing the question whether it Is nsces-
sry TO valid action by an executor, under 4
I'll, that his appointment should be raiiil ID
y some court, with prlbate powers, the
My remaining inquiry would be, mus. in
ian wills. after the ratification of the treaty
{ 1865, be presented to and allowed by the
ivil tribunals, be ore acts done hereunder
nd auiha.ized thereby, can be treated as
aid
Notwithstanding the broad Ian mage Of
he 6rst article Of the treaty Of 1855, as to
he Iii >solutit of the tribal relstion of the
Vyandotte Indians, and az TO their bscom-
pg citizens of the United States and subject
0 it. laws sni the laws respectively OF the
). i.o,y of Ksnsas, it is evident from
lew OF The whole treaty that tier property
ignis were regulated by it. and that the
va, so;fe couI Gil, which Was uibunal of
xetu i've and Judicial functions, was s;,li to
,n,inue in fcrre, at lssst for the time
Francis A. Hicks died leaving will ma le
MI ex cuaed in due I ,rm, according 10 the
Tvs of the tribe, before there were any laws
( Kansas on the subject of the descent of
-operty or OF w'lls. The Wyandoite coun-
i, with jurisdiction over wills, continued to
Wills which would be formal ard valid
, the lava and u-sgss of the tribe, might
E, and prob,tly would be informal when
sted BY Territorial laws subss quen,ly en-
ted. The foregoing views find s.rorg. il
d, indse1. full support in the case o!
[sckay Va. Coke, Is How. 100.
l am of opinion, therefore, that both wills
-e valid, and the u intiff, whose case rests
non the nv M. hasis nj their m lifv haa M | I