A person engaged in the business of merchandising at a town located within the boundaries of an Indian reservation, but upon land to which the Indian title had been extinguished, was not trading within the Indian country, within Rev. St. U. S. § 2129, providing that no person shall be permitted to trade with any of the Indians in the Indian country without a license therefor from the superintendent of Indian affairs or Indian agent or subagent. [Ed. Note.-For other cases, see Indians, Cent. Dig. §§ 52, 59; Dec. Dig. § 33.*]

Department 1. Appeal from Superior Court, Yakima County; E. B. Preble, Judge. Action by J. W. Rider against John La Clair. Judgment for defendant, and plaintiff appeals. Remanded, with directions.

Holden & Shumate, of North Yakima, for appellant. H. A. La Berge, of North Yakima, for respondent.

CHADWICK, J. Plaintiff sets up six separate causes of action, all of which involve the validity of contracts made by a Yakima Indian who lives in the Yakima Indian reservation on patented allotted land. The land is patented under certain restrictions, and is held in trust by the government. The Indian defendant has not severed his tribal relations.

[1, 2] In the first cause of action plaintiff seeks to foreclose a chattel mortgage on certain cattle which were given to defendant for his use and subsistence by the United States government between one and two years prior to the execution of the mortgage, during all of which time the cattle were in possession of defendant on his allotment. The manner in which he had acquired the cattle was unknown to plaintiff. The United States did not consent to the mortgage. The court held that the United States was a necessary party to the contract, that the mortgage was void, and a foreclosure was denied. The ruling of the court is based upon the following statute: "The agent of each tribe of Indians, lawfully residing in the Indian country, is authorized to sell for the benefit of such Indians any cattle, horses, or other live stock belonging to the Indians, and not required for their use and subsistence, under such regulations as shall be established by the Secretary of the Interior. That where Indians are in possession or control of cattle or their increase which have been purchased by the government such cattle shall not be sold to any person not a member of the tribe to which the owners of the cattle belong or to any citizen of the United States whether intermarried with the Indians or not except with the consent in writing of the agent of the tribe to which the owner or possessor of the cattle belongs. And all sales made in violation of this provision shall be void and the offending purchaser on conviction thereof

Appellant contends that this statute prohibits sales, but not mortgages or other pledges. That a mortgage is not a sale, but only a lien, has been declared by many, if not a majority, of all the courts; but it seems to us that it can make no difference whether it is a sale or a lien within the statute. It has been so often declared by statute as well as by judicial decisions that an Indian is not sui juris; that, because of his inaptitude and congenital lack of an understanding of values, he should, so long as he maintains his tribal relations, be considered a ward of the government; that we find ready application of one of the first principles of statutory construction, that is, a consideration of the old law, the mischief and the remedy. From the time of Worcester v. Georgia, 6 Pet. 515, 582, 8 L. Ed. 483, down to United States v. Celestine, 215 U. S. 278, 30 Sup. Ct. 93, 54 L. Ed. 195, it has been the rule of all courts to construe doubtful legislation in favor of the Indian. When so considered, we have no hesitation in holding that a mortgage made by an Indian on cattle held in virtue of the statute is void when made without the sanction of the agent having supervision of the affairs of his tribe. The point is made that the statute is limited in its application to cattle in the possession of the Indian at the time of the passage of the act, because the act is not general, but was included in a bill appropriating money for the Indian department for the fiscal year 1884. Were this a state statute, there might be some merit in this contention; but it is well known that many of the general laws passed by Congress are tacked onto appropriation bills and to the sundry civil bill, there being no constitutional limitation to hamper Congress in this respect. We think, too, that the act is broad enough to cover the increase of such cattle as the government may furnish.

[3] The fourth cause of action raises the question whether an Indian can mortgage personal property purchased with the proceeds of the sale of the allotment of an incompetent Indian.

We adopt the words of the trial judge: "I think that upon the sale of an allotment of an incompetent Indian, in pursuance of Act Cong. June 25, 1910, c. 431, § 1, 36 Stat. 855; Fed. Stat. Ann. Supp. 1912, p. 96, or Act March 1, 1907, c. 2285, 34 Stat. 1018, Fed. Stat. Supp. 1909, p. 228, the purchase price received by the United States has the same legal status as the allotment itself had, and therefore is not subject to alienation by the Indian, and that property purchased (like that in question) by the United States for the Indian with said purchase price, the title being taken in the United States, also has the

legal status of the allotment, and is not subject to alienation. In other words, the purchase price of such an allotment when sold by the United States, or its proceeds when the United States uses such purchase price to purchase other property for the Indian, taking title in the name of the United States, does not become subject to alienation by the Indian. The United States taking the title in its own name in trust for the Indian is as an express and unequivocal manifestation of its intention not to relinquish the trust-not to turn the property over to the Indian to do with as he may please and it seems to me that it rests exclusively with the United States, as trustee and as guardian of the Indian, to determine when, if at all, it will relinquish the trust and turn over the property to the Indian to do therewith as he may choose."

[4] The second and third causes of action raise the question whether an Indian can mortgage crops growing on his allotment (a) when the mortgage does not provide for entry upon the allotment, and (b) when the only license to enter is that contained in the mortgage. By several statutes, all contracts made by an Indian to whom an allotment has been made "relative to the Indian's land," or "touching the land," or to any "claims growing out of or in reference to annuities," etc., are made void, unless approved by the government, acting through its proper agency. It is contended that a mortgage of growing crops falls within the prohibition of these statutes. No cases are cited where a crop mortgage given by an Indian has been passed on by the courts. Counsel for appellant say there are none. The writer has been unable to find any. It has been uniformly held that leases and other contracts going to the possession of the Indian's land are proscribed unless approved. Coey v. Low, 36 Wash. 10, 77 Pac. 1077; Smith v. Martin, 28 Okl. 836, 115 Pac. 866; Williams v. Steinmetz, 16 Okl. 104, 82 Pac. 986.

In this state our statute (section 3659, Rem. & Bal. Code) makes a crop mortgage a lien upon a chattel. It passes no interest in the land. The cases cited do not apply. As at present informed, we are disposed to hold, in the absence of a prohibition, that an Indian has power to sell and may give a mortgage upon a crop growing on his allotment. The policy of the government with reference to its Indian wards is not always certain. It seeks to promote a spirit of independence and an interest in agriculture and business pursuits. It has made the Indian a citizen subject to the general laws of the state. On the other hand, it has limited his rights and privileges both by statute and regulation. The fact that it has more often said what he might not do than what he may do, that is, saying that certain contracts shall be void, rather than all contracts shall be subject to the approval of the Indian agent, would in

dicate a purpose to allow him to contract without restraint, unless expressly prohibited by a statute or regulation so to do. Gho v. Julles, 1 Wash. T. 326; United States v. Paine Lum. Co., 206 U. S. 467, 27 Sup. Ct. 697, 51 L. Ed. 1139; Ke-tuc-e-mun-guah v. McClure, 122 Ind. 541, 23 N. E. 1080, 7 L. R. A. 782.

"Of late years a new policy has found expression in the legislation of Congress-a policy which looks to the breaking up of tribal relations, the establishing of the separate Indians in individual homes, free from national guardianship, and charged with all the rights and obligations of citizens of the United States. Of the power of the government to carry out this policy, there can be no doubt. It is under no constitutional obligation to perpetually continue the relationship of guardian and ward. It may at any time abandon its guardianship, and leave the ward to assume and be subject to all the privileges and burdens of one sui juris. And it is for Congress to determine when and how that relationship of guardianship shall be abandoned. It is not within the power of the courts to overrule the judgment of Congress. It is true there may be a presumption that no radical departure is intended, and courts may wisely insist that the purpose of Congress be made clear by its legislation; but, when that purpose is made clear, the question is at an end." Matter of Heff, 197 U. S. 499, 25 Sup. Ct. 508, 49 L. Ed. 848.

We have no hesitation in holding that the affirmative acts of Congress with reference to certain kinds of personal property, coupled with the later policy of the government to encourage agricultural pursuits among the Indians, and to encourage independence rather than dependence, are sufficient to clearly manifest the purpose of Congress to grant to the Indians a limited power to contract, unless restrained by some departmental regulation. This being so, we hold the crop mortgages to be valid liens. Whether the mortgagees can enter before severance, or enter to foreclose, is a question we cannot answer upon the record before us. It may be that the government, in aid of its avowed policy to protect the Indian from the "greed and avarice" of the white man, could prevent an entry by departmental order. The question is hardly before us, and we prefer to reserve it.

[5] The court held, and properly so, that one engaged in the business of merchandising at the town of Wapato, and who bought and sold therein, was not a trader requiring a license to trade in the Indian country. Wapato is located within the boundaries of the Yakima Indian reservation, upon land to which the Indian title has been extinguished. The extinction of the Indian title seems to be the test for determining the character of land within or adjacent to an Indian reservation. United States v. Celestine, 215

A trader or seller of merchandise upon eliminated land is not a trader within the Indian country, requiring a license under section 2129 et seq., 3 Fed. St. Ann.

The next cause of action pertains to a bill of sale of hay stacked on an allotment. What we have said with reference to crop mortgages covers this cause of action.

The case will be remanded, with directions to enter a judgment consistent with this opinion. Neither party will recover costs in this court.

The burden of showing that a divorced husband is unable to comply with an order requiring him to pay money to support minor children is upon the husband in contempt proceedings brought against him to enforce the support

order.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 799, 805; Dec. Dig. § 311.*]

Department 1. Appeal from Superior Court, King County.

Action by Lizzie Croft against L. Floyd Croft. From an order declaring defendant guilty of contempt of court for failure to pay support money, defendant appeals. Affirmed.

(77 Wash. 620)

CROFT v. CROFT.

(Supreme Court of Washington. Jan. 29, 1914.)

CEEDINGS.

1. DIVORCE (§ 311*)-SUPPORT OF CHILDREN -ORDER-ENFORCEMENT CONTEMPT PROThere was no abuse of discretion, in contempt proceedings for failure to pay support money ordered to be paid by a divorce decree, in the court's refusal to consider matters antedating the divorce decree and an order modifying it, such as that defendant had, before the divorce decree, conveyed certain property to his wife; it being presumed that such matters were considered when the decree requiring the support money to be paid was entered.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 799, 805; Dec. Dig. § 311.*] 2. CONTEMPT (§ 66*)—APPEAL-PRESENTATION OF QUESTION-FAILURE TO MAKE FINDINGS. Defendant, in contempt proceedings, cannot complain, on an appeal, of the court's failure to make findings therein, where, at the time of his hearing and commitment, he did not request any findings or except to the court's failure to find.

[Ed. Note.-For other cases, see Contempt, Cent. Dig. 88 213-215, 223-237; Dec. Dig. 66.*]

3. DIVORCE (§ 311*)-SUPPORT OF CHILDREN

-ORDER-PROCEEDINGS TO ENFORCE.

Since the court's jurisdiction is continuing in a divorce action with reference to the custody and support of minor children, the fact that an arrest was not make immediately after the making of an order of arrest to enforce an order requiring a divorced husband to pay money for the support of minor children, or until further arrears had accumulated, would not affect the court's jurisdiction to enforce such decree by arrest and contempt proceedings.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 799, 805; Dec. Dig. § 311.*] 4. DIVORCE (§ 311*)-SUPPORT MONEY-CONTEMPT PROCEEDINGS-SUFFICIENCY OF EVI

DENCE.

Evidence, in contempt proceedings to enforce an order requiring defendant to pay a certain amount for the support of his minor children pursuant to a divorce decree, held to support a judgment of contempt, not showing that he was unable to pay the amounts awarded.

[Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 799, 805; Dec. Dig. § 311.*]

ELLIS, J. This is an appeal from an order of the superior court declaring the defendant in contempt and imposing an imprisonment in the county jail for 30 days, unless he sooner pay the sum of $986. The parties to this action were formerly husband and wife, and were divorced by decree of the superior court on June 17, 1908, which decree awarded to the plaintiff, the wife, the custody of the two minor children, then aged respectively seven and eight years. On September 2, 1908, the decree was modified, on petition of the plaintiff, so as to require the defendant to pay to her for the support of these children $20 each month. On October under the decree so modified, the court, on 4, 1909, $146 being due from the defendant proceedings had upon the plaintiff's motion, ordered the defendant to pay this sum and $20 every 30 days thereafter, and, in default of such payments, that he be proceeded In the latter part against as for contempt.

of September, 1908, the defendant left Seattle, remaining away, except at rare intervals, until his arrest. On January 26, 1910, the defendant having failed to make any further payments, an order of arrest was issued by the court. On April 23, 1913, he was arrested under this order, and was, at the same time, served with a summons and a petition, setting up the fact that neither the $146 nor any of the subsequent installments of the support money had been paid, and praying that the defendant be punished as for contempt. On being arrested, the defendant answered this petition and the court ordered that this answer stand as his answer to the order of arrest. Upon the hearing, the court announced that he would consider that the defendant had testified to all of the facts set forth in his answer. The defendant was cross-examined thereon, the plaintiff's testimony was taken and thereupon the court made the order from which this appeal is

taken.

[1] It is first contended that the court erred in refusing to consider the allegations

his wife their home in Seattle, of the value of more than $5,000. We think the court did not abuse its discretion in refusing to consider matters antedating the decree and antedating the order of September 2, 1908, modifying the decree, since all such matters were presumably considered by the court at the time of the entry of the original decree and of the order modifying the decree and directing the appellant to pay $20 a month for the support of his children.

[2] It is next claimed that the court erred in that he failed to make any findings of fact or to recite in the order that the appellant has, or has had, during the term of the delinquency, financial ability to pay the sum required of him. Authorities from other jurisdictions, all of them relating to punishment for failure to pay' alimony, are cited to the effect that formal findings of ability and contumacious refusal to pay are a prerequisite to punishment for contempt. It may be conceded that, where findings are requested, the failure of the court to make them would constitute reversible error, but in this case the appellant is in no position to raise the point, since, at the time of his hearing and commitment, he neither requested any findings, nor made any objection or took exception to the failure of the court to make findings. Dyer v. Dyer, 65 Wash. 535, 118 Pac. 634.

[3] It is also urged that the appellant is now being punished for a violation of several

distinct orders and for a failure to pay arrears of support money not due when the or der of arrest of January 26, 1910, was made. In all matters relating to the custody and support of minor children contained in any decree of divorce, the jurisdiction of the trial court is a continuing one, so long as there are minor children to be provided for. Poland v. Poland, 63 Wash. 597, 116 Pac. 2; Fickett v. Fickett, 39 Wash. 38, 80 Pac. 1134; Dyer v. Dyer, supra. The accumulation of arrears all relate back to the original order of September 2, 1908, modifying the decree so as to require the appellant to pay $20 a month for the support of his children. The order of arrest was made in aid of this decree so modified. The fact that the arrest was not made immediately after the order for arrest, nor until further arrears had accumulated, in no way affected the binding force of the modified decree or the continued jurisdiction of the court to enforce it. Moreover, a complaint was then filed and served upon the appellant, setting up the continued failure to pay and the accrual of further payments. The appellant thus had full notice of the scope of the proceedings, and waived any right to object by his answer to that petition upon the merits.

[4] Finally, it is contended that the order adjudging the appellant in contempt was not sustained by sufficient evidence. After all of the many excuses set up in his answer,

he would consider as having been testified to by the appellant, the appellant, on cross-examination, admitted that he had never contributed a cent to the support of his children since he left Seattle in 1908 and went to Methow and afterwards to British Columbia. Since that time he has been in Seattle at different times, but only for short and uncertain intervals. Knowing not only the natural, but the legal, obligation which he was under to support his minor children, he incurred the additional burden of another wife. No children have been born of this second marriage. He testified that during the time since he left Seattle in September, 1908, he has been sick only once, when, as he expressed it, "I was out of commission for just one week." At the time of the hearing, he was employed at $3.50 a day. He admitted that his father, during this period, had given him more than $500. He also admitted that he is a strong, healthy, able-bodied man. The only excuse which he advanced for not paying a cent toward the support of his minor children during all of this period was that he was unable to do so. His answer shows that his credit was such that he has been able to run in debt over $1,000. As said in State ex rel. Ditmar v. Ditmar, 19 Wash. 324, 327, 53 Pac. 350, 351: "The evidence shows that the appellant here had borrowed some $1,200 since this decree had been en

tered, and, if he was able to borrow money

to pay his own debts or to invest in property, he was evidently able to obtain money to meet the demands of the decree."

As shown by the uncontradicted testimony of the wife, she has been supporting these boarders and working in a laundry. Outside children throughout this period by keeping of a few insignificant items of clothing given to the children by the appellant's parents, she has been supporting the children unaided. With the full record before us, and especially in view of the admissions of the appellant on his cross-examination, we entertain considerable sympathy with the sentiment of the trial court who, in announcing his ruling, said: "It is impossible for me to believe that any strong, healthy man, such as this defendant, with a heart in his body, could contem-. plate the condition of his children for that lengthy period, without doing something to keep them in some degree of comfort. It is impossible for me to believe that he has not had the opportunity to send them as much as $5, or $10, or something during that time. If there was ever a case of contempt of an Let the defendorder of court, this is one. ant be confined in the county jail for 30 days, unless he should make this payment within that time."

[5] The appellant, if we have caught the gist of his argument, claims that, under the evidence, there was no reasonable ground for