ERROR TO THE SUPREME COURT OF THE STATE OF OREGON
Fuller, Harlan, Brewer, White, Peckham, McKenna, Holmes, Day, Moody
MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.
It is contended that we are without jurisdiction because no title, right or immunity was specially set up or claimed under any Federal statute and denied. But, leaving aside for a moment all other considerations, it is plain that the defendant below set up a claim of immunity from suit in the state court under the laws of the United States, and that the right to the immunity so asserted under an act or acts of Congress was expressly considered and denied by the state court. True it is that the immunity which was asserted was first claimed in a petition for rehearing, but as the question was raised, was necessarily involved and was considered and decided adversely by the state court, there is jurisdiction. Leigh v. Green, 193 U.S. 790.
At the threshold lies the question raised and decided below relative to the jurisdiction of the state court over the controversy.
Allotments of land in severalty to Indians residing upon the Umatilla reservation, in Oregon, were authorized by the act of Congress of March 3, 1885, ch. 319, 23 Stat. 340, which contained the following provision:
"The President shall cause patents to issue to all persons to whom allotments of lands shall be made under the provisions of this act, which shall be of the legal effect and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs, according to the laws of the State of Oregon, and that at the expiration of said period the United States will convey the same by patent to said Indian or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the law of alienation and descent in force in the State of Oregon shall apply thereto after patents have been executed, except as herein otherwise provided."
The allotment to Joe Kalyton was made on April 21, 1891. Before that allotment, Congress on February 8, 1887, ch. 119, 24 Stat. 388, passed what is known as the General Allotment Act. By that act, as said in United States v. Rickert, 188 U.S. 432, 435, provision was made for the allotment of lands in severalty to Indians on the various reservations, and for extending the protection of the laws of the United States and the Territories over the Indians. To that end the President was authorized, whenever, in his opinion, a reservation or any part thereof was advantageous for agricultural and grazing purposes, to cause it, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in the reservation in severalty to any Indian located thereon, in certain quantities specified in the statute, the allotments to be made by special agents appointed for that purpose, and by the
agents in charge of the special reservations on which the allotments were made. In one of the provisos of the first section of the act it was declared --
"That where the treaty or act of Congress setting apart such reservation provides for the allotment of lands in severalty in quantities in excess of those herein provided, the President, in making allotments upon such reservation, shall allot the lands to each individual Indian belonging thereon in quantity as specified in such treaty or act."
A provision of like nature to that heretofore excerpted from the act of March 3, 1885, was embodied in section 5 of the general allotment act of ...