Beecher v. Wetherby
95 U.S. 517

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U.S. Supreme Court

Beecher v. Wetherby, 95 U.S. 517 (1877)

Beecher v. Wetherby

95 U.S. 517

Syllabus

1. It was an unalterable condition of the admission of Wisconsin into the Union that, of the public lands in the state, section 16 in every township, which had not been sold or otherwise disposed of, should be granted to her for the use of schools.

2. Whether the compact with the state constituted only a pledge of a grant in futuro or operated to transfer to her the sections as soon as they could be identified by the public surveys, the lands embraced within them were set apart from the public domain, and could not be subsequently diverted from their appropriation to the state. If any further assurance of title was required, the United States was bound to provide for the execution of proper instruments transferring to the state the naked fee, or to adopt such other legislation as would secure that result.

3. The right of the Menomonee Indians to their lands in Wisconsin was only that of occupancy, and, subject to that right, the state was entitled to every section 16 within the limits of those lands.

4. The Act of Congress approved Feb. 6, 1871, 16 Stat. 404, authorizing a sale of the townships set apart for the use of the Stockbridge and Munsee Indians, and originally forming a part of the lands of the Menomonees, does not apply to sections 16.

This was replevin by Beecher to recover from Wetherby, James, and Stille, saw logs, cut and taken by them during the winter of 1872 and 1873, from section 16, township 28, range 14 east, in Wisconsin. The plaintiff asserts title to the land under patents from the United States bearing date Oct. 10, 1872, and the defendants, under patents from that state of Dec. 15, 1865, and Sept. 26, 1870.

Under the eighth article of the Treaty of Aug. 19, 1825, 7 Stat. 272, the Menomonee lands were declared to be

"bounded on the north by the Chippewa country, on the East by Green Bay and Lake Michigan, extending as far south as Milwaukee River, and on the West they claim to Black River."

The lands in question are embraced in this tract.

Page 95 U. S. 518

A treaty concluded with the Menomonees Feb. 8, 1831, id., 342, confirming those boundaries was ratified by the Senate with a proviso that two townships on the east side of Winnebago Lake should be ceded for the use of the Stockbridge and Munsee Indians.

By a treaty concluded Oct. 18, 1848, and ratified Jan. 23, 1849, 9 id. 952, the Menomonees agreed to cede to the United States all their lands in Wisconsin. The eighth article stipulated that they should be permitted to remain on the ceded lands for the period of two years, and until the President should notify them that the same were wanted.

The act to enable the people of Wisconsin Territory to form a Constitution and state government, and for the admission of such state into the Union, approved Aug. 6, 1846, id., 56, provides

"That section numbered 16 in every township of the public lands in said state, and, when such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to said state for the use of schools."

The convention called to form a constitution, on the first day of February, 1849, accepted the proposition contained in the organic act. Rev.Stat.Wis. 1849, p. 45. By an act entitled "An Act for the admission of the State of Wisconsin into the Union," approved May 29, 1848, id., 233, such acceptance was assented to by Congress.

A joint resolution of the Legislature of Wisconsin approved Feb. 1, 1853, Gen.Laws of Wis. 1853, p. 110, gives the assent of that state

"to the Menomonee nation of Indians to remain on the tract of land set apart for them by the President of the United States on the Wolf and Oconto Rivers, and upon which they now reside, the same being within the State of Wisconsin aforesaid, and described as follows, to-wit: commencing at the southeast corner of town 28 north, range 19, running thence west thirty miles, thence north eighteen miles, thence east thirty miles, thence south eighteen miles to the place of beginning."

On the 12th of May, 1854, 10 Stat. 1064, a treaty was made with the Menomonees, "supplementary and amendatory" to that ratified Jan. 23, 1849, wherein it is recited that,

"upon manifestation

Page 95 U. S. 519

of great unwillingness on the part of said Indians to remove to the country west of the Mississippi River, &c., which had been assigned to them, and a desire to remain in the State of Wisconsin, the President consented to their locating temporarily upon the Wolf and Oconto Rivers,"

and,

"to render practicable the stipulated payments therein recited, and to make exchange of the lands given west of the Mississippi for those desired by the tribe, and for the purpose of giving them the same for a permanent home, these articles are entered into."

By the second article of said treaty, the following-described tract lying on Wolf River in the State of Wisconsin was ceded to the Indians to be held as Indian lands are held:

"Commencing at the southeast corner of town 28 N., R. 16 E., 4th principal meridian, running west twenty-four miles, thence north eighteen miles, thence east twenty-four miles, thence south eighteen miles to the place of beginning, the same being townships 28, 29, and 30 of ranges 13, 14, 15, and 16, according to public survey."

Under an Act of Congress approved Feb. 6, 1871, 16 Stat. 404, entitled "An Act for the relief of the Stockbridge and Munsee tribe of Indians in the State of Wisconsin," the two townships set apart for their use, including the section upon which the logs were cut, and forming a part of the Menomonee lands, were sold by the United States, and the plaintiff deraigns title under its patents.

The exterior lines of the township in which the land in question is situate were run in October, 1852, and the section lines in May and June, 1854.

There was a judgment for the defendants. The plaintiff then brought the case here.

Page 95 U. S. 522

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