Catholic Bishop of Nesqually v. Gibbon
158 U.S. 155 (1895)

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U.S. Supreme Court

Catholic Bishop of Nesqually v. Gibbon, 158 U.S. 155 (1895)

Catholic Bishop of Nesqually v. Gibbon

No 277

Argued April 9-10, 1895

Decided May 6, 1895

158 U.S. 155

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF WASHINGTON

Syllabus

No question as to jurisdiction in this case having been taken in the court below or here, this court waives the inquiry whether an objection to the jurisdiction might not, if seasonably taken, have compelled a dismissal.

In the administration of the public lands, the decisions of the land department upon questions of fact are conclusive, and only questions of law can be reviewed in the courts.

In the absence of some specific provision to the contrary in respect of any particular grant of public land, its administration falls wholly and absolutely within the jurisdiction of the Commissioner of the General Land Office, under the supervision' and direction of the Secretary of the Interior.

The decision of the Secretary of the Interior of March 11, 1872, sustaining the claim of the plaintiff in error to a small tract -- less than half an acre -- of the 640 acres claimed under the Act of August 14, 1848, c. 177, 9 Stat. 323, if not conclusive upon the plaintiff in law, was right in fact.

In section 1 of the Act of Congress of August 14, 1848, establishing the territorial government of Oregon, is the following proviso:

"Provided also that the title to the land, not exceeding six hundred and forty acres, now occupied as missionary stations among the Indian tribes in said territory, together with the improvements thereon, be confirmed and established in the several religious societies to which said missionary stations respectively belong."

9 Stat. 323. Oregon, as then organized, included all that region west of the Rocky Mountains and north of the forty-second degree of north latitude, part of which became afterwards the Territory, and later the State, of Washington.

In February, 1887, the appellant, as plaintiff, commenced a suit in the District Court of the Second Judicial District of Washington Territory against the defendants, John Gibbon, T. M. Anderson, and R. T. Yeatman. In the bill then filed, the plaintiff alleged that under and by virtue of the foregoing

Page 158 U. S. 156

proviso, it was entitled to a tract of 640 acres at and adjacent to the present Town of Vancouver, 430 acres of which were in the occupancy of the defendants, as officers and soldiers of the United States, who held the same as a military reservation, and the prayer was for an injunction, a decree of title, and a surrender of possession. Under the direction of the Attorney General, the United States Attorney for the Territory of Washington entered the appearance of the United States and filed an answer in behalf of all of the defendants. While the case was pending in the territorial courts, Washington was admitted as a state, and the case was thereupon transferred to the Circuit Court of the United States for the District of Washington. In that court, upon pleadings and proof, a decree was entered in favor of the defendants, dismissing the bill. 44 F. 321. From such decree the plaintiff appealed to this Court.

MR. JUSTICE BREWER, after stating the facts in the foregoing language, delivered the opinion of the Court.

No question was raised in the pleadings or otherwise on the record as to the jurisdiction of the court below over a controversy of this character, but the case was heard and disposed of by the circuit court on the merits of the plaintiff's claim. It had been in like manner argued in this Court, and therefore waiving the inquiry whether the objection to the jurisdiction might not, if seasonably taken, have compelled a dismissal, we shall proceed to consider the merits.

In this case, a large volume of testimony has been taken which it would be a waste of time to attempt to review in detail. Notwithstanding some conflict in minor matters, there is little difficulty in determining what was the true situation of affairs at Vancouver at the time of the passage of the act of 1848. To a clear understanding of that situation a brief historical statement of preceding events is necessary. Some

Page 158 U. S. 157

years prior to 1838, the Hudson Bay Company had established a trading post at Vancouver. This was done under the assumption that it was within the British possessions. In and about this post were gathered quite a number of employees of the company. It was purely a trading post, with the buildings, appurtenances, and employees naturally attached to such a post, established far from civilization and in the middle of the Indian country. Many of these employees were Catholics. In the year 1834-35, these Catholics forwarded petitions to the Bishop of Juliopolis to send missionaries to them. To these applications the bishop, on June 6 and 8, 1835, made responses, the first being a letter to Dr. McLaughlin, of the Hudson Bay Company, reading as follows:

"Sir: I have received last winter and this spring a petition from certain free families, established on the River Willamette, requesting the help of missionaries to instruct their children and themselves. My intention is to use all my efforts to procure their request as soon as I can. I have no priests at my disposal at Red River, but I will make a trip to Europe this year. I intend to make it my business to procure these free people, and the Indians afterwards, the means of knowing God. I send together with this an answer to the petition I have received. I request that you please forward it to them. I join with it some catechisms which might be useful to those people, if anybody can read among them. Those persons say they are protected by you. Please induce them to do their best, and to deserve by a good behavior to profit by the favor they ask. I have the honor to be, sir,"

"Your most humble ob't serv't,"

"+ I.N."

"Bishop of Juliopolis"

"6 June, 1835-Red River."

The other enclosed with it commences as follows:

"To All the Families Established on the Willamette River and Other Catholic Persons beyond the Rocky Mountains, greeting and benediction: "

Page 158 U. S. 158

"I have received, my dearest brethren, your two petitions, the one dated 3rd July, 1834, and the other 23rd February, 1835. Both ask for missionaries to teach you and your children. Such a request from people deprived of all religious help could not fail to touch my heart. Indeed, if I had it in my power, I would send you some even this year, but I have no priests at my disposal at Red River. I must get some from Canada or elsewhere, which requires time. I will give it my attention during a trip I am going to make in Canada and Europe this year. If my efforts are successful, I will send you help very soon. My intention is not only to procure to you and your children the knowledge of God, but also the numerous Indian tribes among which you live. I exhort you meanwhile to deserve, by a good behavior, that God may help my undertaking."

Subsequently, and on April 17, 1838, the Bishop of Quebec sent Francis Norbert Blanchet and Modeste Demers as missionaries into this region, giving them a letter of instructions, from which we quote the following:

"Instructions for Messrs. Francis Norbert Blanchet and Modeste Demers, priests, appointed missionaries for that portion of the Diocese of Quebec which is situate between the Pacific Ocean and the Rocky Mountains:"

"1st. They must consider as the first object of their mission to draw from barbarity and the disorders which follow from it the Indian nations spread in that country."

"2d. The second object is to lend their services to the bad Christians who have there adopted the morals of the Indians, and live in licentiousness and the forgetfulness of their duties."

"3d. Convinced that the preaching of the gospel is the safest means of obtaining these happy results, they will lose no opportunity of inculcating its principles and its maxims either in their private conversations or in their public instructions."

"4th. In order more promptly to render themselves useful to the nations of the country where they are sent, they will, from the first moment of their arrival, apply themselves to the study of the Indian languages, and will endeavor to

Page 158 U. S. 159

reduce them to regular principles, so as to be able to publish a grammar of them after some years of residence."

"5th. They will prepare for baptism with all possible haste the infidel women who live in a state of concubinage with Christians, in order to replace those irregular by lawful marriages."

"6th. They will apply themselves with a particular care to the Christian education of the children, establishing for that purpose, as much as their means will afford them, schools and catechisms in all the villages which they will have occasion to visit."

"* * * *"

"9th. The territory which is particularly assigned to them is that which is comprised between the Rocky Mountains at the east, the Pacific Ocean at the west, the Russian possession at the north, and the territory of the United States at the south. It is only in that extent of territory that they will establish missions, and it is particularly recommended to them not to form any establishment on the lands the possession whereof is contested by the United States. They will be allowed, however, in conformity with the indult of the holy see dated February 28, 1836, a copy of which accompanies the present, to exercise, when needed, their faculties in the Russian possessions as well as in that part of the American territory which joins their mission. As to that part of the territory, it is probable that it does not belong to any of the dioceses of the United States, but if the missionaries were informed that it is a part of some dioceses, they will abstain from exercising any act of jurisdiction there, in obedience to the indult cited above, unless they be authorized to it by the bishop of such diocese."

"10th. As to the place where they will fix their principal residence, it will be on the River Cowlitz or Kowiltyhe, which empties into the River Columbia on the north side of this last river. On their arrival at Fort Vancouver, they will present themselves to the person who then represents the honorable Hudson Bay Company, and they will take his advice as to the precise situation of that establishment. "

Page 158 U. S. 160

"11th. They are particularly recommended to have all possible regard for the members and employees of that company, with whom it is very important, for the holy work with which they are charged, to be constantly in good intelligence."

"12th. As they cannot rely entirely upon the resources from the Association for Propagation of the Faith, established a year ago in this diocese, to provide for their sustenance and the construction of the chapels and houses which they will establish in various places of their mission, they will induce the white inhabitants and the nations of the country to contribute for these objects as much as their means will allow them."

"* * * *"

"14th. The territory where this mission is __ be established having been annexed by the indult of the 28th of February, 1836, mentioned above, to the Territory of the Northwest, the spiritual government of which is entrusted to the right reverend Bishop of Juliopolis, the new missionaries will correspond as regularly as possible with that prelate, whom they will also inform of the state of their mission, and whose orders and counsels they will receive with submission and respect."

With these instructions, the two parties named proceeded to the Territory of Oregon, and arrived at Vancouver on November 24, 1838. The former of the two was still living when this case was commenced, and his testimony was taken, he being at the time Archbishop of Oregon City. He testified that, in connection with his associate, he established a Catholic mission station at Vancouver as well as at two or three other places in Oregon; that when they established the Vancouver station, there were many Indians in the neighborhood, and that they did a great deal of missionary work among them. After describing the character of that work, and stating that the missionary station was kept up from the year 1838 to the fall of 1844 at which time he left for Europe, and did not return until August, 1847, he added this testimony:

"Int. 34. From 1838 to the time you left Oregon, in 1844, where were religious services held at Vancouver?"

"Ans. In an old store inside the pickets. "

Page 158 U. S. 161

"Int. 35. Was that room or building during that time used for any other than religious and missionary services and labors?"

"Ans. It was used only for Catholic religious services and missionary labors."

"Int. 35 1/2. State who attended services then in that building."

"Ans. Servants of the Hudson Bay Company, their wives and children, Indians of the place and neighborhood -- Dr. McLaughlin often came -- and others."

"Int. 36. Before 1844, had you purchased or obtained any place or building at Vancouver, outside of the pickets or fort of the H.B. Co., for any purpose whatsoever?"

"Ans. I had not purchased, but had obtained, a piece of ground that was intended for the building of a church for this station. The company was not willing to sell. That piece of ground was shown to me, from the sawmill west, and including the present site. We were allowed to fence it, but our means did not allow us to do so. This land was east of the present Catholic church, and near an old mill or mills, and extended thence west, but I do not well recollect now how far west it came. I think the church now stands on this land. Before I left for Europe, I recommended Rev. M. Demers to build a church on that land."

"Int. 37. By whom was this land shown to you?"

"Ans. To the best of my recollection, it was by James Douglas, Esq., chief factor of the company, and governor of the F. V. in absence of Dr. McLaughlin."

"Int. 38. Did you, or not, before leaving Oregon, in 1844, purchase any building at Vancouver?"

"Ans. Yes, I did, from one of the company's servants."

"Int. 39. What building, and for what purpose?"

"Ans. For the purpose of teaching Indians and the Indian women, and children of the company's servants outside the fort."

"Int. 40. State whether or not you used that building as a place for the instruction of the Indians at Vancouver and in its vicinity."

"Ans. Yes, we did."

"Int. 41. When did you buy that building? "

Page 158 U. S. 162

"Ans. I think in 1839 or 1840."

"Int. 42. Was it in use by you for the same purpose up to the time you left Oregon, in 1844?"

"Ans. That I can't say. I suppose it was."

"Int. 43. On your return to Vancouver in 1847, in what condition did you find this mission station, and who was, if anyone, in charge as the missionary priest?"

"Ans. I found the mission station in charge of Vicar General Demers."

"Int. 44. Where were the religious services then held?"

"Ans. In the present church building."

"Int. 45. Since then, do you know whether any repairs or improvements have been made upon this building, and, if yea, by whom and when?"

"Ans. I have been told that some repairs have been made. Of my own knowledge, I know repairs have been made of late years. These repairs have all been at the expense of the Bishop of Nesqually."

"Int. 46. State whether or not there was a Catholic mission station at Vancouver, amongst the Indian tribes, on the 14th day of August, 1848."

"Ans. There was. Father Delavand was the head of the station. He was appointed to this station in 1847 by me, after my arrival from Europe. This part of the country was not a part of my diocese, but it was under my jurisdiction."

"Int. 47. Was it the same missionary station you had founded in 1838?"

"Ans. It was the same."

"Int. 48. Whether or not there has been a Catholic church and service here since then until now?"

"Ans. Yes, sir."

He stated that no Catholic priest was ever, by contract or otherwise, a chaplain to the Hudson Bay Company at Vancouver; that the Hudson Bay Company granted them

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