This is a suit in equity, brought by the appellee, complainant below, in the circuit court of the United States, district of Oregon, against the appellant, to obtain the cancelation of an allotment of land, made by the officers of the government to the appellant, on the Umatilla Indian reservation, in Oregon, in 1891, and to have the land allotted to her (the appellee). Issue being joined in the case, it was referred to a special examiner to ascertain and report the facts, and upon his report the circuit court gave judgment in favor of appellee (110 Fed. 60), which was affirmed by the circuit court of appeals (55 C. C. A. 216, 119 Fed. 114), and the appellant thereupon appealed here.
The action was brought pursuant to the authority of an act of Congress (before amendment) passed in 1894, chapter 290. 28 Stat. at L. 286, 305; amended, 31 Stat. at L. 760, chap. 217. The right to the allotment claimed by the appellee is based on the act of March 3, 1885, chapter 319 (23 Stat. at L. 340), and grows out of the treaty of June 9, 1855, between the United States and that Walla Walla and other Indian tribles, which treaty was ratified by the Senate, March 8, 1859, and proclaimed by the President, April 11, 1859. 12 Stat. at L. 945.
A demurrer to the bill was filed by the defendant on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled and the defendant then answered, denying many of the material allegations in the bill.
Witnesses were examined before the special examiner, and he made a report and findings of facts, which findings were subsequently adopted by the circuit court and by the circuit court of appeals. Among others the following facts were found: The appellee, Philomme Smith, is a full-blooded Indian woman, and at all times mentioned in the complaint was, and is now, a member of the Walla Walla band or tribe of Indians, and resides upon the Umatilla Indian reservation, in the state of Oregon. The befendant (appellant) is also a full-blooded Indian, residing upon the reservation. Pursuant to the authority granted by the abovementioned act of March 3, 1885, the President appointed commissioners for the allotment of lands on the Umatilla reservation, and the commissioners carried out the duty devolved upon them by the President under that act, and completed the allotments on or about April 1, 1891, but refused at that time to make any allotment to the appellee, because of her absence (although but temporary) when the commissioners made a census of the Indians entitled to allotment. At the time the other allotments were made the appellee was the wife of W. A. Smith, a white man, and she was also the real head of the family, which consisted of the husband, his wife, and their eight children. The parties were married January 16, 1861, and the appellee has been recognized by the Interior Department as the head of the family in the sense mentioned in the act of Congress of 1885.
At the time the allotments were made to the other Indians by the commissioners, as above mentioned, appellee was located and actually residing with her family upon the reservation, upon a large tract of land, some 560 acres, including the land in controversy herein, and she and her family at that time were living in a house about twenty steps from the boundary line of this particular 160 acres. The land (including the 160 acres) was inclosed in one body by having a furrow plowed around the same, marking it off from the other adjacent land. The appellee had selected the land in 1888, and, with her family, was then in possession thereof, and retained such possession until the fall of 1896, with the consent of Homily, chief of the Walla Walla Indians, and Show-a-way, chief of the Cayuse Indians, and also with the consent of _ Coffee, who was at that time acting as Indian agent upon that Indian reservation.