US SUPREME COURT DECISIONS

Although the federal right was first claimed in the state court in the petition for rehearing, if the question was raised, was necessarily involved, and was considered and decided adversely by the state court, this Court has jurisdiction under § 709, Rev.Stat.

The United States has retained such control over the allotments to Indians that, except as provided by acts of Congress, controversies involving the determination of title to and right to possession of Indian allotments while the same are held in trust by the United States are not primarily cognizable by any court, state or federal.

The Act of August 15, 1894, 28 Stat. 286, delegating to federal courts the power to determine questions involving the rights of Indians to allotments, did not confer upon state courts authority to pass upon any questions over which they did not have jurisdiction prior to the passage of such act, either as to title to the allotment or the mere possession thereof which is of necessity dependent upon the title.

This suit was commenced in the Circuit Court of Umatilla County, Oregon, by the filing of a complaint in the name of Agnes Kalyton, suing by her mother, Louise Kalyton, as guardian ad litem. Mary Kalyton and six other persons were made defendants, one such (Charles Wilkins) being sued as the acting United States Indian agent at the Umatilla reservation.

It was alleged in substance as follows: by virtue of an act of Congress approved March 3, 1885, and the amendments chanrobles.com-red

Page 204 U. S. 459

thereto, a tract of land in the Umatilla Indian reservation was duly allotted on April 21, 1891, to one Joe Kalyton, a member of the Cayuse Tribe residing on said reservation. It was alleged that, in or about the year 1893, Joe Kalyton, the allottee, in accordance with the customs of the Cayuse Tribe, married Louise _____, an Indian woman of that tribe, and the plaintiff, Agnes Kalyton, was issue of the marriage. In 1898, Joe Kalyton died intestate, leaving the plaintiff as his sole heir, and, under the laws of Oregon and the provisions of the act of Congress referred to, she became entitled to the land allotted to her father and to the possession and enjoyment thereof. It was charged that Mary Kalyton and four of the defendants, all insolvent, claiming to be the heirs of the deceased, had taken and held possession if the land in question, which had a rental value of $274.75 per annum. It was alleged that one of the defendants, named Glasscock, claimed to have some interest in the land and was confederating with the other defendants, who were wrongfully alleging themselves to be the heirs of Joe Kalyton, with the object of depriving plaintiff of the use of the land and the enjoyment of the rents and profits thereof. Averring that, under the rules and regulations of the Department of the Interior, in order that plaintiff might obtain the use and enjoyment of the land, it was requisite that her status as legal heir of the deceased should be adjudged by a court of competent jurisdiction, the court was asked to so decree and to perpetually restrain the defendants from interfering with her possession and use of the land. General relief was also prayed.

An answer was filed on behalf of the defendant Mary Kalyton. It was therein denied in substance that there had been a marriage between Joe and Louise Kalyton, and that the plaintiff was their child, and, averring that Joe Kalyton was a resident and citizen of Oregon and had died intestate, unmarried, and without any lineal descendant, it was alleged that the defendant, as the sister of Joe Kalyton, was his sole heir, and as such was the owner of, and entitled to the possession chanrobles.com-red

Page 204 U. S. 460

of, the land in controversy and to its enjoyment. A decree was prayed quieting her alleged title.

The others of the defendants, who were alleged to be confederating with Mary Kalyton, filed a disclaimer of any interest in the lands in controversy. The cause was heard by the court. Deciding that, if Joe Kalyton and Louis Kalyton had been married according to the custom of the Indians of the Cayuse Tribe, such marriage would have been void, and that there had been no marriage between the parties because none had been solemnized in accordance with the laws of the State of Oregon, the plaintiff was held to be an illegitimate child of the deceased, and to have no right, title, or interest in or to the lands in question, and a decree was entered in favor of the defendant Mary Kalyton.

The cause was appealed to the Supreme Court of the State of Oregon. That court, having found that Joe and Louise Kalyton were married according to the custom and usage of the Indian tribe to which they belonged, and that the plaintiff was the issue of such marriage, held, in view of the legislation of Congress,

"that the plaintiff herein was born in lawful wedlock, and is the sole heir of Joe Kalyton, deceased, and, as such, entitled to the possession of the real property of which he died seised."

The decree of the trial court was therefore reversed, and a decree was entered in favor of the appellant in accordance with the opinion. A motion for a rehearing was made and overruled. This motion was based upon the contention that the court had erred in taking jurisdiction of the cause, for the reason that it involved the title and right to possession of public land held in trust by the United States for the benefit of Indians, and hence the United States was a necessary party defendant, and not subject to the jurisdiction of a state court. We say the petition for a rehearing was based upon the grounds just stated, although the petition is not in the record, because it is manifest that such was the case from the opinion which the court delivered in refusing the rehearing. 45 Or. 116. In that opinion, chanrobles.com-red

Page 204 U. S. 461

the question whether the matter was one of exclusive federal cognizance was elaborately considered, and it was decided that it was not, because a decree as to the right of possession would not interfere with the title or trust interest of the United States. And the court declared that, for the purposes of determining its jurisdiction, it was wholly irrelevant to consider whether it would have the power to enforce its decree for the possession of the allotted land against the officer of the United States in charge of the Indian reservation in case that official should decline to give effect to the decree for possession.

The case was then brought to this Court. chanrobles.com-red

Page 204 U. S. 463