The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-09-15
THE TRACT WAS SEGREGATED.
HAD BEEN LOCATED UNDER THE
TREATY WITH THE CHIPPEWA
INDIANS.
HARTMAN HAD NO PRIOR RIGHT.
Decisions Filed i'm Large Number
of Cases Included Three Origi-
mating i'm Minnesota.

/
day. Three Minnesota cases are in
volved including that Of Emil Hartman,
appellant. VS.. James H. Warren ct. al,
appellees, the famous section so case.
This is an appeal from a decree which
| sustained demurrer to bill in equity
and dismissed the bill, the theory of
which was that the land was patented
to Warren through errors of law made
by the officers of the land department,
when it would have been patented to
| Hartman if these officers had rightly
decided the legal questions presented
! to them in the case.
Warren is and always has been a cit
izen of the United States He was the
! son of a father, who was a native born
citizen of the United States. and of a
mother who was a mixed blood half
French and half Chippewa Indian of
Lake Superior. He was a married man
and resident and citizen of the State
! or California, when the treaty was
made, and never lived with or in the
vicinity of any band of Chippewa In.
dams. He nevertheless claimed that
he was mixed blood belonging to the
Chippewas of Lake Superior, and Jan
%, 1875 the commissioner Of Indian
affairs by direction of the secretary Of
the Interior so found, and issued to him
a certificate of identity, to the effect
that he was one of the persons referred
to in the clause of the treaty quoted
and that he was entitled to locate
eighty acres of land under the pro-
| visions of that treaty
| January 20, 1885, Warren sold this
certificate of identity to one Joseph H.
Sharp, and executed two powers Of
attorney to him, one to empower him to
| locate in Warren'S name the eighty
acres to which he claimed to be en-
| titled under the treaty, and the other
! to empower him to sell and convey
| this land. October Is, 1885, Sharp To-
Gated the land in dispute in this case
in the name Of Warren, under his
power of attorney for that purpose
On the same day, he sold and conveyed
it in the name of Warren to the appel
lee, Christian Kortgaard, under his
power Of SALE December %, 1894, the
| government patented the land to War
rem on this location.
Meanwhile, on March II, 1889, the APP
| pellant, Hartman, applied to the regis
ter and receiver of the proper local
! land office to locate and enter this land
with Porterfield warrants issued under
the act of congress, approved April II,
1860, which provided that the secretary
of the interior should issue these war
| rants to the executors of the last will
and testament of Robert Porterfield,
ito be by them located on any of the
| public lands which have been or may
be surveyed, and which have not been
! otherwise appropriated at the time Of
such location" IL Stat. 1886. The regis
ter and receiver rejected this applica-
tion on the ground that the land was
embraced in the entry of Warren.
March 10, 1889, Hartman appealed from
this decision to the commissioner of
/ the general land Office, and filed with
! the officers Of the local Office an appli-
| cation to contest the entry Of Warren,
on the grounds that the location of Oc-
tober Is, 1885, was not made by or for
him, that he was not entitled to locate
the land, and that he had unlawfully
parted with his certificate of identity
before the entry was made.
The commissioner affirmed the de-
cision of the register and receiver and
dismissed Harman's application to
contest. Hartman appealed to the Sec
rotary of the interior.
The secretary reversed the decision
! Of the officers below and directed the
register and receiver to hear the con-
! test.
They heard it in January, 1893. Coun-
sci for Hartman claims that the allie
cations Of his bill show that on the
hearing of this contest, Hartman
proved by uncontradicted testimony
| the facts which we have recIted, as to
/ the citizenship and residence of War
ren as to his mixed blood, as to his
relation, or, rather, want Of relation,
to the Chippewa Indians of Lake Su-
perior and the Mississippi and as to
his sale of his certificate of identity
before his location was made
For the purposes of this decision we
shall concede this to be the legal
effect of the averments Of this bill, al
though it may be that we should be
forced to the conclusion that the bill
| discloses that there was contradictory
! evidence before the officers Of the land
| department at the hearing upon the
contest sufficient to warrant their find
/ ings as matter Of fact if that cues
| ton were material in our view Of this
case The officers of the local land
office held that Warren was a benefi-
ciary under the treaty; that he had
the power to sell his right to locate
the land, and had the right to make
the two powers of attorney before he
made his location; that his entry and
| location of the land in dispute were
valid, and that Hartmans contest
should be dismissed. After a hearing
upon an appeal from this decision, the
! commissioner of the general land office
affirmed 1t. On an appeal from this
| decision of the commissioner, the Sec
rotary of the interior affirmed it, and
| the land was patented to Warren.
The appellant alleged that these de-
cisions upon the hearings upon this
contest were erroneous in law, and
that he is consequently entitled to the
relief sought by his bill.
The following is the syllabus and
opinion in this case:
The location of a tract of land by an al
legged beneficiary under the seventh clause
OF the second article of the treaty OF Sept.
30. 1854 90 Stat. 1909. between the United
States and he Chippewa Indians of Lake
| Superior segregates the tract from the pub
lie domain and appropriates it to private USE
i While such location remains in force Por-
| terfeld warrants issued under the act of
| April II. 1860 az Stat. 1867, cannot be lawfully
located on the same land because that land
has been otherwise appropriated by the prior
location, whether right or wrong
The adiudications Of the land department
upon questions within its Jurisdiction. IL
erroneous. are not void. but are valid until
| direct proceedings for that purpose
An entry of land under the seventh clause
OF the second article of the treaty of Sept
80. 1884 supra, is not a presumption entry.
| and one who contests 1t acquired thereby
| no right to be preferred in the purchase or
| acquisition OF the land under section Of
5. p. : nay = i0'O = s'a1 IL C. 49,
One who is not in privity with the United
States AMI who did not acquire any right
/ of land, before the claim to 1t upon which
| it was patented was initiated, may not main
tam a bill In equity to subject the holder
OF the legal title to trust in his favor on
the ground that the patent was issued
| through errors in law.
The decree below must be affirmed
with costs:
The lawyers who were engaged In
| this case We're: Messrs James O..
Brodhead, d. P. Dyer and William w.
Billson (P. II. Seymour, Congdon and
Il ln6kfnG0n yxyffI