The opinion of the court was delivered by
Horton, C. J.:
This was an action in the nature of ejectment. John J. O’Brien claims to be the owner of and entitled [7]*7to the immediate possession of 200 acres of land in Johnson county. David Updegraff, one of the defendants, in his separate answer claims to be the owner of and entitled to the immediate possession of an undivided one-half of the land. Thomas JBugbee and Henry W. Cresswell claim both title and possession. Polly Manture, a Shawnee Indian woman, was the common source of title. The land was patented to her by the United States on the 28th day of December, 1859, as her allotment under the provisions of a treaty between the United States and the Shawnee Indians concluded on the 10th day of May, 1854, and the act of congress approved March 3, 1859. This patent contained the following restriction upon the alienation of the land by Polly Manture and her heirs, to wit:
“Have given and granted, and by these presents do give and grant unto the said Polly Manture and to her heirs, the tracts of land above described, but with the stipulation, prescribed by the secretary of the interior, under the act of congress aforesaid of March 3, 1859, that the said tract shall never be conveyed by the grantee or her heirs without the consent of the secretary of the interior for the time being.”
In the spring of 1855, Polly Manture was joined in marriage to one George Buchannan, a white man, in Johnson county, in this state. Buchannan and wife took actual possession, in 1856, of and improved the lands, and cultivated them until their deaths, respectively. They had one child born unto them, named Sally Buchannan, who married Gotlieb Zeigler. Polly died on the farm in 1860, leaving surviving her a husband and the child, Sally. Buchannan remained on the farm, cultivated it all, except a few acres he used for pasture; what he did not use he leased to others. After the death of his wife, Polly, he married a widow by the name of Gibbs, with whom he continued to live upon the land until August, 1879, at which time he died, leaving a will, which was probated, by which he attempted to bequeath all of the land to Marow Gibbs, a son of his last wife by a [8]*8former husband. George Buchannan had no children by his last wife.
The plaintiff, John J. O’Brien, claims the land through a conveyance from Marow Gibbs and wife, dated February 9, 1883, and recorded February 26, 1883. Gibbs was a white man. Sally Buchannan, the only child of Polly and George Buchannan, was married to Gotlieb Zeigler, a white man, in 1874, and died within three or four months after her marriage, leaving no issue, and without having disposed of her interest in the land. Gotlieb Zeigler conveyed an undivided one-half of the land to James H. McCartney on the 10th day of June, 1875, and David Updegraff claims this undivided one-half through a conveyance from McCartney. On the 2d day of April, 1866, George Buchannan and his then wife conveyed eighty acres of the land in controversy to Joachim Rathjen, who afterward conveyed the same to the defendant John C. McCoy, sr. Neither the will of George Buchannan nor any of the conveyances above mentioned were approved by the secretary of the interior. On the 3d day of February, 1882, Charles Bluejacket and Charles Tucker, chiefs of the Shawnee tribe of Indians, in consideration of $1,500, by deed of general warranty conveyed all the lands to John C. McCoy, sr., which deed was on the same day duly acknowledged before John D. Tufts, United States Indian agent, and on the 27th day of October, 1882, was approved by the secretary of the interior, and recorded in the records of the county of Johnson on the 13th day of November, 1882. The defendant, John C. McCoy, sr., on the 3d day of March, 1883, took possession of the land under the two last-mentioned deeds, and continued in the uninterrupted possession thereof until he conveyed the same through his sons, on the 1st of March, 1887, in consideration of the sum of $14,662.50, to the defendants Thomas Bugbee and Henry W. Cresswell, and delivered possession thereof to them; and Bugbee and Cresswell have continued in the possession of the land until the present time. The trial court decided against O’Brien and Updegraff, [9]*9and in favor of Bugbee and Cresswell. The former excepted, and complain of tbe judgment of the court.
The 200 acres in controversy are known as “ Shawnee Indian lands,” and are included in the 200,000 acres or more ceded by the United States government to the tribe of Shawnee Indians by treaty of May 10, 1854, between the government and the Indians. (See 10 U. S. Stat. at Large, p. 1053.) One of the articles of the treaty provides for the issuing of patents to the several members of the tribes and “heads of families,” as follows: “ Congress may hereafter provide for the issuing to such Shawnees as may make separate selections, patents for the same, with such guards and restrictions as may seem advisable for their protection therein.” By an act approved March 3, 1859, congress authorized the secretary of the interior to issue patents to certain Indians, including the Shawnees, “ under such conditions and limitations, and under such guards and restrictions, as may be prescribed by the secretary.”
The principal question in this case is, Was descent cast upon-George Buchannan, the husband, and upon Sally, the child, when Polly Buchannan, née Manture, died in 1860, in possession of the land ? The trial court made the following special findings of fact:
“In the year 1861, and while James B. Abbott was United States local agent for the tribe of Shawnee Indians in Kansas, the said tribe of Indians, through its chiefs and councilmen, adopted orally the written laws of the state of Kansas, then in force, relating to descent, distribution and inheritance of real and personal property, and thenceforth until said tribe left the state the said laws were their guidance; and that prior to said period the said tribe of Indians had no law, written or unwritten, nor any custom or usage of their own regulating the descent, distribution and inheritance of real property of which any member of the tribe died seized.”
“That from 1864 up the year 1868, the tribe of Shawnee Indians operated under the laws of Kansas relative to and governing the descent, distribution and inheriting of the lands of individual Shawnees, deceased, by the council and chiefs adopting for the tribe the said laws of Kansas.”
James B. Abbott, United States local agent for the tribe [10]*10of the Shawnees from June, 1861, to 1868, testified upon the trial that some time in the year 1868 he understood that the Shawnee tribe passed a resolution about descents, distributions, and inheritance of lands, differing from the laws of the state of Kansas. In view of the evidence and the findings of the trial court, it cannot be said that at the time Polly Buchannan, née Manture, died, the laws of Kansas concerning descent or distribution of the lands of the Shawnee tribe had any operation; nor can any presumption be indulged in that the customs or laws of the Shawnees in this matter followed the Kansas law, or were similar to it. The evidence and the findings are against any such presumption.
In Brown v. Steele, 23 Kas. 672, it was said:
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in the nature of ejectment. John J. O’Brien claims to be the owner of and entitled [7]*7to the immediate possession of 200 acres of land in Johnson county. David Updegraff, one of the defendants, in his separate answer claims to be the owner of and entitled to the immediate possession of an undivided one-half of the land. Thomas JBugbee and Henry W. Cresswell claim both title and possession. Polly Manture, a Shawnee Indian woman, was the common source of title. The land was patented to her by the United States on the 28th day of December, 1859, as her allotment under the provisions of a treaty between the United States and the Shawnee Indians concluded on the 10th day of May, 1854, and the act of congress approved March 3, 1859. This patent contained the following restriction upon the alienation of the land by Polly Manture and her heirs, to wit:
“Have given and granted, and by these presents do give and grant unto the said Polly Manture and to her heirs, the tracts of land above described, but with the stipulation, prescribed by the secretary of the interior, under the act of congress aforesaid of March 3, 1859, that the said tract shall never be conveyed by the grantee or her heirs without the consent of the secretary of the interior for the time being.”
In the spring of 1855, Polly Manture was joined in marriage to one George Buchannan, a white man, in Johnson county, in this state. Buchannan and wife took actual possession, in 1856, of and improved the lands, and cultivated them until their deaths, respectively. They had one child born unto them, named Sally Buchannan, who married Gotlieb Zeigler. Polly died on the farm in 1860, leaving surviving her a husband and the child, Sally. Buchannan remained on the farm, cultivated it all, except a few acres he used for pasture; what he did not use he leased to others. After the death of his wife, Polly, he married a widow by the name of Gibbs, with whom he continued to live upon the land until August, 1879, at which time he died, leaving a will, which was probated, by which he attempted to bequeath all of the land to Marow Gibbs, a son of his last wife by a [8]*8former husband. George Buchannan had no children by his last wife.
The plaintiff, John J. O’Brien, claims the land through a conveyance from Marow Gibbs and wife, dated February 9, 1883, and recorded February 26, 1883. Gibbs was a white man. Sally Buchannan, the only child of Polly and George Buchannan, was married to Gotlieb Zeigler, a white man, in 1874, and died within three or four months after her marriage, leaving no issue, and without having disposed of her interest in the land. Gotlieb Zeigler conveyed an undivided one-half of the land to James H. McCartney on the 10th day of June, 1875, and David Updegraff claims this undivided one-half through a conveyance from McCartney. On the 2d day of April, 1866, George Buchannan and his then wife conveyed eighty acres of the land in controversy to Joachim Rathjen, who afterward conveyed the same to the defendant John C. McCoy, sr. Neither the will of George Buchannan nor any of the conveyances above mentioned were approved by the secretary of the interior. On the 3d day of February, 1882, Charles Bluejacket and Charles Tucker, chiefs of the Shawnee tribe of Indians, in consideration of $1,500, by deed of general warranty conveyed all the lands to John C. McCoy, sr., which deed was on the same day duly acknowledged before John D. Tufts, United States Indian agent, and on the 27th day of October, 1882, was approved by the secretary of the interior, and recorded in the records of the county of Johnson on the 13th day of November, 1882. The defendant, John C. McCoy, sr., on the 3d day of March, 1883, took possession of the land under the two last-mentioned deeds, and continued in the uninterrupted possession thereof until he conveyed the same through his sons, on the 1st of March, 1887, in consideration of the sum of $14,662.50, to the defendants Thomas Bugbee and Henry W. Cresswell, and delivered possession thereof to them; and Bugbee and Cresswell have continued in the possession of the land until the present time. The trial court decided against O’Brien and Updegraff, [9]*9and in favor of Bugbee and Cresswell. The former excepted, and complain of tbe judgment of the court.
The 200 acres in controversy are known as “ Shawnee Indian lands,” and are included in the 200,000 acres or more ceded by the United States government to the tribe of Shawnee Indians by treaty of May 10, 1854, between the government and the Indians. (See 10 U. S. Stat. at Large, p. 1053.) One of the articles of the treaty provides for the issuing of patents to the several members of the tribes and “heads of families,” as follows: “ Congress may hereafter provide for the issuing to such Shawnees as may make separate selections, patents for the same, with such guards and restrictions as may seem advisable for their protection therein.” By an act approved March 3, 1859, congress authorized the secretary of the interior to issue patents to certain Indians, including the Shawnees, “ under such conditions and limitations, and under such guards and restrictions, as may be prescribed by the secretary.”
The principal question in this case is, Was descent cast upon-George Buchannan, the husband, and upon Sally, the child, when Polly Buchannan, née Manture, died in 1860, in possession of the land ? The trial court made the following special findings of fact:
“In the year 1861, and while James B. Abbott was United States local agent for the tribe of Shawnee Indians in Kansas, the said tribe of Indians, through its chiefs and councilmen, adopted orally the written laws of the state of Kansas, then in force, relating to descent, distribution and inheritance of real and personal property, and thenceforth until said tribe left the state the said laws were their guidance; and that prior to said period the said tribe of Indians had no law, written or unwritten, nor any custom or usage of their own regulating the descent, distribution and inheritance of real property of which any member of the tribe died seized.”
“That from 1864 up the year 1868, the tribe of Shawnee Indians operated under the laws of Kansas relative to and governing the descent, distribution and inheriting of the lands of individual Shawnees, deceased, by the council and chiefs adopting for the tribe the said laws of Kansas.”
James B. Abbott, United States local agent for the tribe [10]*10of the Shawnees from June, 1861, to 1868, testified upon the trial that some time in the year 1868 he understood that the Shawnee tribe passed a resolution about descents, distributions, and inheritance of lands, differing from the laws of the state of Kansas. In view of the evidence and the findings of the trial court, it cannot be said that at the time Polly Buchannan, née Manture, died, the laws of Kansas concerning descent or distribution of the lands of the Shawnee tribe had any operation; nor can any presumption be indulged in that the customs or laws of the Shawnees in this matter followed the Kansas law, or were similar to it. The evidence and the findings are against any such presumption.
In Brown v. Steele, 23 Kas. 672, it was said:
“ That it appearing that the tribal organization of the Shawnee Indians was still recognized by the political department of the United States government, under the decision of the supreme court of the United States in the ease of The Kansas Indians, 5 Wall. 737, the descent is cast, not under the Kansas law, but in accordance with the Shawnee law and decision.”
3. evidence custom of tribe. Sally Zeigler, née Buchannan, died in 1874, and there is no evidence or finding showing, or tending to show, that the laws of Kansas concerning descent or distribution had any operation among the Shawnee tribe at that time. As O’Brien, in order to have any title or possession to the land in dispute, must have established heirship or title to the land in George Buchannan, he is not entitled to recover the land or any part thereof, if he failed to make satisfactory proof thereof. The same may be said concerning the alleged title of David Updegraff, who claimed through a conveyance from Gotleib Zeigler, who married Sallie Buchannan, even if we assume that Sallie Zeigler, née Buchannan, inherited anything from her mother, Polly Buchannan, née Manture.
In the case of The Kansas Indians, 5 Wall. 737, Mr. Justice Davis, for the court, said:
“This people [the Shawnees] have their own customs and laws by which they are governed. Because some of these [11]*11customs have been abandoned, owing to the proximity of their white neighbors, may be an evidence of the superior influence of our race, it does not tend to prove that their tribal organization is not preserved. There is no evidence in the record to show that the Indians with separate estates have not the same rights in the tribe as those whose estates are held in common. Their machinery of government, though simple, is adapted to their intelligence and wants, and effective, with faithful agents to watch over them. ... It may be that they cannot exist much longer as a distinct people in the presence of the civilization of Kansas, ‘but until they are clothed with the rights and bound to all the duties of citizens/ they enjoy the privilege of total immunity from state taxation. . . . While the general government has a superintending care over their interests, and continues to treat with them as a nation, the state of Kansas is estopped from denying their title to it. . . . As long as the United States recognizes their national character, they are under the protection of treaties and the laws of congress, and their property is withdrawn from the operation of state laws.”
1. ejectment title of cliamant. At the time that this action was brought, Bugbee and Cresswell were in the actual possession of the land. John C. McCoy, sr., under whom they claim title, took actual possession on the 3d day of March, 1883; therefore, the defendants, through themselves and their grantors, had been in possession of the land when this action was brought for more than four years. It is elementary, that a party seeking to recover possession of real property must do so upon the strength of his own title, not upon the weakness of the title of his adversary. Therefore, as there is no evidence in the record showing, or tending to show, that George Buchannan or Sally Buchannan inherited any interest in the land from Polly Buchannan, née Manture, the judgment of the trial court refusing possession to O’Brien and Updegraff, who claim through these parties, must be sustained.
[12]*122. Indian descent of real estate. [11]*11O’Brien and Updegraff claim that George Buchannan and Sally Buchannan were the heirs at law of Polly Buchannan. On the other hand, Bugbee and Cresswell claim that, by the [12]*12law and decision of the Shawnees, the title escheated to the tribe, and therefore that the chiefs of the tribe had full authority to execute, with the approval of the secretary of the interior, the deed of February 3, 1882, to John C. McCoy, sr. The burden of proof in this matter was upon O’Brien and Updegraff. They ought to have shown that in 1860, at the death of Polly Buchannan, the descent was cast upon George Buchannan or Sally Buchannan, or both, under the law and decision of the Shawnee tribe. This was not done. The law or decision • of a country, a state or an Indian tribe may make any person an heir. An heir at law is simply one who succeeds to the estate of a deceased person under the statute of a country, a state, or the decision of an Indian tribe. (McKinney v. Stewart, 5 Kas. 384; Delashmutt v. Parrent, 40 id. 641; Caldwell v. Miller, 44 id. 12; Brown v. Steele, 23 id. 672.)
The probabilities are, from some of the evidence offered, that under the law and decision of the Shawnee tribe of Indians in force in 1860, when Polly Buchannan died, and in force in 1874, when Sally Zeigler died, that, as George Buchannan and Gotleib Zeigler were white men, they could not inherit from either Polly Buchannan or Sally Zeigler, and that after the death of Polly Buchannan and Sally Zeigler no one, excepting the Shawnee tribe, or their chiefs, or the government, could confer legal title to the land upon anyone-But this was not established, unless we indulge in presumptions. In the absence of any evidence tending to show the law or decision of the Shawnee tribe of Indians relating to descent or distribution of lands in 1860, we cannot say what person, if any, succeeded to the estate of Polly Buchannan, deceased. It is shown by the record that Bugbee and Cress-well hold under a deed from the chiefs of the Shawnee tribe, dated February 3, 1882. This deed was approved by the secretary of the interior on October 27, 1882. If any presumptions are to be indulged in, as the general government has the superintending care over the interests of the Shawnee Indians, and as their property is withdrawn from the opera[13]*13tion of the state laws, we might presume that the deed of February 3, 1882, approved by the secretary of the interior, was made in accordance with the Shawnee law, and conferred title. We need not go that far in this case.
Clearly John C. McCoy, sr., and his grantees were not and are not trespassers upon the land. John C. McCoy, sr., took possession of the land on the 3d day of March, 1883, after he had obtained his deed from the chiefs of the Shawnee tribe, and after it had been approved by the secretary of the interior, and properly recorded in the office of the register of deeds in Johnson county; therefore his. possession was with color and claim of title. His grantees, including Bugbee and Cresswell, held and now hold possession with color and claim of title. Even if the chiefs of the Shawnee tribe, with the approval of the secretary of the interior, could not confer title, we think it is clearly evident, from the control that the government exercises over the Shawnees and their lands, that they had authority, with the consent of the secretary of the interior, to give John C. McCoy, sr., possession of the land, in the absence of proof showing that any other person had any legal title, or the right of possession.
The case of Douglass v. Ruffin, 38 Kas. 530, in this view,, does not militate against the judgment of the court below. The case of Hale v. Wilder, 8 Kas. 545, has no application, because this court held in that case that the secretary of the interior was not authorized to approve a deed to the land therein referred to:
4. Possesion of indian land-ejectment not maintained. Neither O’Brien nor Updegraff is, or has been, in the possession of the land, and both have failed to establish better title than Bugbee and Cresswell, who are in actual possession. 'Neither can O’Brien nor Updegraff claim any title under the statute of limitations on account of the p0ssessj0n 0f their grantors, or the parties through whom they claim, because the title or possession of Polly Manture was so restricted and limited that adverse possession could not give title without the consent of the secretary of the interior. Again, the deed from George Buchannan to [14]*14Joachim Rathjen, who quitclaimed to John C. McCoy, sr., on the 12th of August, 1881, counts for nothing. It was never approved by the secretary of the interior, and was void; therefore, neither McCoy nor his grantees are estopped by any recitations therein contained. (7 Am. & Eng. Encyc. of Law, p. 5, note 2; Merriam v. Railroad Co., 117 Mass. 241; 3 Washb., Real Prop., p. 106.)
Further, if George Buchannan had inherited, under the Kansas laws, one-half of the land free from the restrictions of the patent, eighty acres of it would have gone to John C. McCoy, sr., under his deed of April 2, 1866, although not approved by the secretary of the interior, as he did not die until August, 1879. O’Brien only claims from Marow Gibbs under the will of George Buchannan. Clearly, Buchannan’s deed of April 2, 1866, is as valid to eighty acres as his will of 1879 to any other part. So, upon any legal view of the case, O’Brien has no claim or title to eighty acres of the land in dispute. But the actual possession of all the land being in Bugbee and Cresswell under color and claim of title, and their right of possession not having been overthrown by any facts disclosed in the record, the judgment of the district court will be affirmed.
All the Justices concurring.