
    Argued March 3,
    decided April 7, 1908.
    SMITH v. MOSGROVE.
    [94 Pac. 970.]
    Indians—Lands—Title—Jurisdiction of State Courts.
    1. So long as the United States recognizes the national character of Indians, and they are under the protection of treaties and laws of Congress, their property is outside the operation of state laws, and the state courts have no jurisdiction over controversies concerning the titles to Indian allotments while the same are held in trust by the United States.
    Same—Trespass.
    2. Under Const. Or. Art. 1, § 10, which declares that “every man shall have remedy by due course of law for injury done him in person, property, or reputation,” an Indian has as much right to resort to the state courts having jurisdiction of the subject-matter, to recover for a tort against his person or property, as any other suitor, and it is not material that the wrong ivas committed against the possession of land allotted to him under the acts of Congress providing for allotments of land in severalty to Indians.
    Same.
    8. The law is, that an occupant of land, the title to which is in the government, may maintain trespass against one who wrongfully interferes with his posession to his injury; and so, though the government by Act March 8,1885, c. 319, 23 Stat. 841, and Act Feb. 8, 1887, c. 119, 24 Stat. 888, and Act Feb. 28, 1891, c. 888, 26 Stat. 795, holds in trust the legal title to land allotted in severalty to an Indian, the latter, who is in the rightful possession of the land and has the beneficial use therein, may recover damages for an unlawful trespass upon it.
    Same.
    4. By Rev. St. U. S. §§ 2118, 2119, 2124, the executive branch of the government is bound to protect Indians residing on a reservation in the possession and occupancy of their land; but this affords no remedy to the Indian for an injury to his personal or property rights, and for such remedy he must go to some court of competent jurisdiction.
    Same.
    5. Where trespass has been committed on land held by an Indian through allotment from the government, the trial of an action by the Indian against the trespasser, will not interfere with any of the rights given to the Secretary of the Interior or the federal court over the Indian or his land, the action of trespass not necessarily involving the question of title.
    From Umatilla: Henry J. Bean, Judge.
    This is an action commenced in the Circuit Court of Umatilla County by Philomme Smith against James Mos-grove, William Mosgrove and Mat Mosgrove, to recover damages for trespass upon real property. On motion of defendants, an order was entered in the court below, dismissing the action for want of jurisdiction of the subject-matter, from which the plaintiff appeals.
    Beversed.
    
      For appellant there was a brief over the names of Mr. Robert J. Slater and Mr. J. T. Hinkle, with an oral argument by Mr. Slater.
    
    For respondent there was a brief with an oral argument by Mr. James A. Fee.
    
   Mr. Chief Justice Bean

delivered the opinion.

This is an action to recover damages for trespass upon real property. The pleadings are voluminous, and present important questions for ultimate determination; but for the purpose of this appeal, it is not necessary to allude to them.' It is sufficient that this is an action brought by an Indian allottee of land on the Umatilla reservation against a white man to recover damages for an alleged unlawful trespass upon such land. After issue had been joined, the court below, on motion of defendants, dismissed the action for want of jurisdiction of the subject-matter, and this presents the only question for determination at this time.

Defendants’ contention is, that the State courts have no jurisdiction over the property or property rights of Indian allottees residing within the reservation and under charge of an Indian agent. In many respects this position is sound. So long as the United States recognizes the national character of Indians, and they are under the protection of treaties and laws of congress, their property is withdrawn from the operation of state laws (Kansas Indians, 5 Wall. 757: 18 L. Ed. 667), and the state courts have not been given jurisdiction over controversies concerning the titles to Indian allotments, while the same are held in trust by the United States: McKay v. Kalyton, 204 U. S. 458: 27 Sup. Ct. 346: 51 L. Ed. 566).

It does not follow, however, that an India'n allottee may not invoke the aid of a state court for protection or enforcement of his personal or property rights when invaded by a white person; The constitution of this State declares that “every man shall have remedy by due course of law for injury done him in person, property or reputation” (Article 1, § 10), and it certainly would be a violation of both the letter and spirit of this constitutional provision for a state court to refuse its aid, when invoked to protect the rights of a suitor, on the sole ground that the party seeking its aid was an Indian. And such is not the law. There are numerous cases to be found in the books in which Indians have prosecuted actions and suits in state courts: 22 Cyc. 116; 16 Am. & Eng. Ency. Law, 216; Bem-Way-Bin-Ness v. Eshelby, 87 Minn. 108 (91 N. W. 291). In Felix v. Patrick (C. C.), 36 Fed. 457, which was a suit in a federal court by an Indian to enforce a trust in real property, the complainant’s bill was dismissed on the ground of laches, it being held that the state courts were open to him, and that he had unreasonably delayed invoking their aid, Mr. Justice Brewer remarking that “as a matter of fact Indians are frequent suitors in the courts of the various states.” On an appeal the decree was affirmed on the same ground, the Supreme Court saying: “The courts of Nebraska were open to them as they are to all persons, irrespective of race or color.” Felix v. Patrick, 145 U. S. 317 (12 Sup. Ct. 862: 36 L. Ed. 719); Y-Ta-Tah-Wah v. Rebock (C. C.), 105 Fed. 257), was an action by a tribal Indian, living on a reservation, against the agent and another to recover damages for an alleged false arrest and imprisonment for the violation of a state law regulating the practice of medicine. Subsequent to bringing the action plaintiff died, and one question in the case was whether the right of action survived under the state laws. After referring to the authorities on the right of an Indian to maintain an action for the protection of his personal or property rights, Mr. Justice Shiras says:

“These authorities clearly demonstrate that, if it be true that the defendants were guilty of a trespass to the person of the Indian, the injured party had the right to bring suit for the damages caused him in any state court within whose territorial jurisdiction the defendants reside. The defendants, being citizens and residents of Iowa, cannot question the jurisdiction of the courts of Iowa over them, and the Indian, though not a citizen, by invoking the aid of the court, submits himself to the jurisdiction thereof, and the court, having obtained jurisdiction over the parties, will apply the law, no matter what its source, that is applicable to the question in dispute, and the same rule will be followed in cases coming within federal jurisdiction. If the defendants, without right or authority so to do—a question to be solved by the laws and treaties of the United States—undertook to subject the Indians to the provisions of the state laws regulating the practice of medicine, therein, and in so doing committed a trespass on his person, then the common law-would give' a right of action therefor, and to enforce the same the courts, state and federal, were open io the injured party.”

It thus appears that an Indian has as much right to resort to the state courts having jurisdiction of the subject-matter to recover for a tort committed against his person or property as any other suitor.

And we do not understand that he is to be denied this right, because the wrong of which he complains was committed against the possession of land allotted to him under the acts of congress providing for allotments of lands in severalty to Indians. By act March 3, 1885, c. 319 (23 Stat. 341), the President was authorized to cause lands to be allotted to Indians residing on the Umatilla reservation in certain designated quantities, and to cause patent to issue to the allottee, “which shall be of the legal eifect, 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 to his heirs, according to the laws of the State of Oregon, and at the expiration of said period, the United States shall convey the same, by patént, to said Indian or his heirs as aforesaid, in fee, discharged of such trust and free of all charge or incumbrance whatsoever.” By subsequent act Feb. 8, 1887, c. 119 (24 Stat. 388), the allottees are declared to be citizens of the United States, and to have the benefit of and be subject to the laws, both civil and criminal, of the state or territory in which they may reside, but they are prohibited from alienating or incumbering the land allotted to them, or making any contract touching the same. These acts were passed by congress in furtherance of the general policy of the government to encourage Indians to abandon their tribal relations, cease their nomadic habits, and become self-supporting and useful citizens. To this end definite tracts of land were to be allotted to them in severalty, without, however, any right to make contracts in reference thereto, or do more than occupy and cultivate the land until final patent should issue; the government, in the meantime, holding the title in trust for the use and benefit of the allottee under an agreement to ultimately convey the same by patent to him or his heirs in fee, free from all charge or incumbrance. These laws, and the policy of the government, contemplate that the allottee shall himself occupy, improve, and cultivate the land allotted to him. He is only permitted to lease it when it is made to appear to the secretary of the interior “that by reason of age cr other disability” he cannot personally and with benefit to himself occupy and improve the land, and that only upon such terms, regulations, and conditions as may be prescribed by that officer and no other: Act Feb. 28, 1891, c. 383, §3 (26 Stat. 795). The government holds in trust the legal title to land allotted in severalty to an Indian, but the allottee has the beneficial use thereof and the right to occupy and cultivate the same. He is in the rightful possession of the land, and the law is, that an occupant of public land, the title to which is in the government, may maintain an action of trespass against one who wrongfully disposesses him or otherwise- interferes with his possession to his injury: Duncan v. Potts, 5 Stew. & P. 82 (24 Am. Dec. 766); Patchen v. Keeley, 19 Nev. 404 (14 Pac. 347); Colwell v. Smith, 1 Wash, T. 92.

And this rule has, and we think properly, been applied to an Indian allottee: Carter v. Wann, 6 Idaho, 556 (57 Pac. 314). Otherwise his fences could be demolished, his crops destroyed, and his improvements razed to the ground by a white person passing through the reservation or living along the boundaries thereof, and he be without remedy. He could not sue in the federal court on the ground of divers citizenship (Felix v. Patrick, 145 U. S. 317: 12 Sup. Ct. 862: 36 L. Ed. 719), and his case might not come within federal jurisdiction by reason of the questions involved. It is true that by Sections 2118, 2119, 2124, U. S. Rev. St., the duty and obligation is imposed upon the executive branch of the government to protect Indians residing on a reservation in the possession and occupancy of their land, and to take such measures and employ such force as may be necessary for that purpose: United States v. Mullin (D. C.), 71 Fed. 682. But this affords no remedy to the Indian for an injury to his personal or property rights; and he cannot obtain relief therefor through the exexcutive department. This he must do through some court of competent jurisdiction.

The action of trespass does not necessarily involve the question of title (Newcombe v. Irwin, 55 Mich. 620: 22 N. W. 66), and a trial thereof will not interfere with any of the rights given to the secretary of the interior or the federal court over the Indian or his land.

We are of the opinion that the court below was in error in dismissing the present action for want of jurisdiction, and that the cause should be remanded, with directions to proceed with the trial. Reversed.  