United States v. Payne

27 F. Cas. 470, 4 Dill. 387

• Court: U.S. Circuit Court for the District of Kansas
• Decided: July 1, 1877
• Status: Published

Opinion

DILLON, Circuit Judge.

It is admitted that the several Indians for whose estates the defendant was appointed administrator by the local probate court, were, at the time of such appointment, in full life, and members of the Pottawatomie tribe of Indians, and that the money received by the defendant of the United States was due to them by the United States under treaty stipulations with the tribe.

Where Indians maintain the tribal relations, their property is not subject to the laws of the state, or their estates to be administered upon in the probate court of the state, unless by the assent of the general government. The Kansas Indians, 15 Wall. [82 U. S.) 737, 757, 759; Mackey v. Coxe, 18 How. [59 U. S.] 100; Mungosah v. Steinbrook [Case No. 9,924]; Gray v. Coffman [Case No. 5,714].

It will be conceded, for the purposes of this case, that the senate amendment to article 8 of the treaty of 1S67, gave the probate court the authority to appoint administrators and settle the estate of deceased allottees of the tribe. But it gave tbe probate court no authority to appoint administrators of an Indian, unless be bad been an allottee under tbe treaty, and was dead.

Tbe weight of judicial opinion would seem to be iu favor of tbe proposition, even if the Indians and their property were subject to tbe probate jurisdiction of tbe courts of Kansas, that tbe court bad no jurisdiction, and could have none, to make an appointment of an administrator of a person who, at the time, was alive. Jochumsen v. Suffolk Sav. Bank, 3 Allen, 87; Griffith v. Frazier, 8 Cranch [12 U. S.] 9, 23; Fisk v. Norvel, 9 Tex. 13. Contra, by tbe court of appeals of New York, in Roderigas v. East River Sav. Inst. [63 N. Y. 460], 15 Am. Law Reg. (N. S.) April, 1876, p. 205, where tbe note in disapproval, by tbe late Judge Redfield, may be found. Much may be said on both sides of tbe general proposition last stated. Roderigas v. East River Sav. Inst., just cited, may, possibly, be distinguished on solid grounds from such a ease as tbe one before us. It was there held that a payment by a debtor in good faith to an administrator was valid, and would protect tbe debtor against a second payment, although tbe supposed intestate was alive at tbe time, and tbe letters of administration were subsequently revoked for this reason. The debtor was innocent, and acted on tbe faith of tbe grant of administration of tbe proper court. It may be a different question when it arises between an innocent third party and the administrator himself, which is the present case. It is possible that the case in the court of appeals of New York may be sustained on this ground, but we need not express any opinion on this point. We place our judgment in the case at the bar on the ground that under the treaty the probate court had no jurisdiction to make an appointment of an administrator for Indians who were alive at the time, and that its decision that it had jurisdiction, evidenced by the grant of letters of administration, is not conclusive in favor of the administrator, who, perhaps, had himself appointed, and who, at all events, voluntarily assumed that character, and held himself out to the world as sustaining that relation.

As the government owed this money to these Indians; as the defendant had no right to receive it; as the payment to the defendant did not absolve the government from the liability or duty to pay the amount to the Indians entitled thereto; and as the defendant, if he did not, indeed, apply for, voluntarily accepted and undertook to act as administrator, and does not claim that he has paid the money to the Indians entitled, or that the latter have ever ratified or confirmed the receipt of the money or its disposition by him, our judgment is that the United States may maintain this action to recover back the amount unlawfully received by the defendant.

Judgment for the plaintiff.

[See Case No. 16,016.]