United States v. Lynch

7 Alaska 643

Opinion

REED, District Judge.

I have considered the demurrer to the first affirmative defense of defendant, as set forth in the amended answer, and am of the opinion same should be overruled.

It is alleged therein that the defendant is a member of the Thlinket tribe of Indians; that her family and ancestors resided upon, used, and occupied the upland tide and shore land's on both sides of Ketchikan creek for their homes and camping places, fishing stations, and for drawing up their canoes and other water craft, at all times- since March 30, 1867, and were so in possession and use of the lands described in the answer on May 17, 1884, and from that date until August 5, 1905, and she has never surrendered or abandoned her interest therein.

These allegations bring the claim of right of the defendant to the property in dispute within the provisions of the Acts of Congress, of May 17, 1884, and June 6, 1900, in that they were claimed, used, and occupied by her ancestors, who were native Indians on those dates, and by herself since those dates and up to August 5, 1905, when she was dispossessed. These acts provide the Indians of Alaska should not be disturbed in the possession of lands which on those dates were occupied, claimed, and used by them. Section 8, Act May 17, 1884, 23 Stat. 26; section 27, Act June 6, 1900, 31 Stat. 330 (48 ,USCA § 356 [U. S. Comp. St. § 5095]); Heckman v. Sutter (C. C. A.) 119 F. 83-88; Id. (C. C. A.) 128 F. 393.

The demurrer will therefore be overruled.