Buttz v. Northern Pacific Railroad,
119 U.S. 55 (1856)

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U.S. Supreme Court

Buttz v. Northern Pacific Railroad, 119 U.S. 55 (1886)

Buttz v. Northern Pacific Railroad

Argued October 26-27, 1886

Decided November 15, 1856

119 U.S. 55


The grant by the Act of Congress of July 2, 1864, to the Northern Pacific Railroad Company of lands to which the Indian title had not been extinguished operated to convey the fee to the company, subject to the right of occupancy by the Indians.

The manner, time, and conditions of extinguishing such right of occupancy were exclusively matters for the consideration of the government, and could not be interfered with nor put in contest by private parties.

The agreement of the Sisseton and Wahpeton bands of Dakota or Sioux Indians for the relinquishment of their title was accepted on the part of the United States when it was approved by the Secretary of the Interior on the 19th of June, 1873. That agreement stipulating to be binding from its date, May 19, 1873, and the Indians having retired from the lands to their reservations, the relinquishment of their title, so far as the United States are concerned, held to have then taken place.

Upon the definite location of the line of the railroad on the 26th of May, 1873, the right of the company, freed from any encumbrance of the Indian title, immediately attached to the alternate sections, and no preemptive right could be initiated to the land so long as the Indian title was unextinguished.

When the general route of the road provided for in section six of the Act of July 2, 1864, was fixed, and information thereof was given to the Land Department by the filing of a map thereof with the Secretary of the Interior, the statute withdrew from sale or preemption the odd sections to the extent of forty miles on each side thereof, and, by way of precautionary notice to the public, an Executive withdrawal was a wise exercise of authority.

The general route may be considered as fixed when its general course and direction are determined, after an actual examination of the country or from a knowledge of it, and it is designated by a line on a map, showing

Page 119 U. S. 56

the general features of the adjacent country and the places through or by which it will pass.

That part of section three of said act which excepts from the grant lands reserved, sold, granted, or otherwise appropriated, and to which a preemption and other rights and claims have not attached, when a map of definite location has been filed, does not include the Indian right of occupancy within such "other rights and claims," nor does it include preemptions where the sixth section declares that the land shall not be subject to preemption.

The following is the case as stated by the Court.

This was an action for the possession of a tract of land in the Territory of Dakota. The plaintiff below, the Northern Pacific Railroad Company, asserted title to the premises under a grant made by the Act of Congress of July 2, 1864. The defendant, Peronto, asserted a right to preempt the premises by virtue of his settlement upon them under the preemption law of September 4, 1841, and that his right thereto was superior to that of that railroad company.

The action was brought in the district court of the territory. The complaint was in the usual form in such cases, alleging the incorporation of the plaintiff, its ownership in fee of the premises (which are described), and its right to their immediate possession, and that they are withheld by the defendant, with a prayer for judgment for their possession and damages for the withholding.

The answer of the defendant admits the incorporation of the plaintiff, and that he is in possession of the premises, but denies the other allegations of the complaint. It then sets up as a further defense that he settled upon the premises on October 5, 1871, and resided thereon, and the several steps taken by him to perfect a right of preemption to them, and that he possessed the qualifications of a preemptor under the laws of the United States. It concludes with a prayer that the title of the plaintiff be declared void and that the plaintiff be enjoined from enforcing or attempting to enforce it, that the title be declared to be in the defendant, and that such other and further relief be granted as may be necessary to protect and preserve his rights.

Page 119 U. S. 57

The plaintiff replied, traversing the allegations of the answer, and the issues, by consent of the parties, were tried by the court without a jury. The court found for the plaintiff, and gave judgment in its favor for the possession of the premises, with costs. On appeal to the supreme court of the territory, the judgment was affirmed, and, by appeal from the latter judgment, the case was brought to this Court. Since it was docketed here, the defendant, who was the appellant, died, and, by leave of the court, his executor, the devisee of his estate, has been substituted as appellant in his place.

The Act of Congress of July 2, 1864, is entitled

"An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific Coast, by the northern route."

13 Stat. 365.

By the first section, the Northern Pacific Railroad Company was incorporated and authorized to equip and maintain the railroad and telegraph line mentioned, and was vested with all the powers and privileges necessary to carry into effect the purposes of the act.

By the third section, a grant of land was made to the company. Its language is:

"That there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific Coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from preemption, or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office."

By the sixth section, it was enacted

"That the President of

Page 119 U. S. 58

the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road after the general route shall be fixed, and as fast as may be required by the construction of said railroad, and the odd sections of land hereby granted shall not be liable to sale or entry or preemption before or after they are surveyed, except by said company, as provided in this act; but the provisions of the Act of September, 1841, granting preemption rights, and the acts amendatory thereof, and of the act entitled 'An act to secure homesteads to actual settlers on the public domain,' approved May 20, 1862, shall be, and the same are hereby, extended to all other lands on the line of said road when surveyed, excepting those hereby granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre when offered for sale."

At the time this act was passed, the land in controversy and other lands covered by the grant were in the occupation of the Sisseton and Wahpeton bands of Dakota or Sioux Indians, and the second section provided that the United states should extinguish, as rapidly as might be consistent with public policy and the welfare of the Indians, their title to all lands "falling under the operation of this act, and acquired in the donation to the road."

On the 19th of February, 1867, a treaty was concluded between the United States and these bands, which was ratified on the 15th of April, and proclaimed on the 2d of May of that year, 15 Stat. 505, in the second article of which the bands ceded

"to the United States the right to construct wagon roads, railroads, mail stations, telegraph lines, and such other public improvements as the interest of the government may require over and across the lands claimed by said bands (including their reservation as hereinafter designated), over any route or routes that may be selected by authority of the government, said lands so claimed being bounded on the south and east by the treaty line of 1851 and the Red River of the North to the mouth of Goose River, on the north by the Goose

Page 119 U. S. 59

River and a line running from the source thereof by the most westerly point of Devil's Lake to the Chief's Bluff at the head of James River, and on the west by the James River to the mouth of Moccasin River, and thence to Kampeska Lake."

By articles III and IV, certain lands were set apart as permanent reservations for the Indians, one of which was known as "Lake Travers Reservation" and the other as "Devil's Lake Reservation," so called because their boundary lines commenced, respectively at those lakes.

On the 7th of June, 1872, Congress passed an act "to quiet the title to certain lands in Dakota Territory," which provided that it should be the duty of the Secretary of the Interior to examine and report to Congress what title or interest the Sisseton and Wahpeton bands of Sioux Indians had to any portion of the land mentioned and described in the second article of that treaty, except the reservations named, and whether any, and if any, what, compensation ought in justice and equity to be made to said bands for the extinguishment of whatever title they might have to said lands. 17 Stat. 281.

Under this act, the Secretary of the Interior appointed three persons as commissioners to treat with the Indians for the relinquishment of their title to the land. On the 20th of September, 1872, they made an agreement or treaty with the bands for such relinquishment. This agreement recited the conclusion of the treaty of 1867, and the cession by it to the United States of certain privileges and rights supposed to belong to said bands in the territory described in the second article of the treaty, and that it was desirable that all the territory except that portion comprised in certain reservations described in articles III and IV of the treaty should be ceded absolutely to the United States upon such considerations as in justice and equity should be paid therefor, and that the lands were no longer available to the Indians for the purposes of the chase, and their value or consideration was essentially necessary to enable them to cultivate portions of the permanent reservations, and become self-supporting by the cultivation of the soil, and other pursuits of husbandry. "Therefore," the agreement continues,

"the said bands represented in said

Page 119 U. S. 60

treaty, and parties thereto, by their chiefs and headmen now assembled in council, do propose to M. N. Adams, William H. Forbes, and James Smith, Jr., commissioners on behalf of the United States, as follows:"

"First. To sell, cede, and relinquish to the United States all their right, title, and interest in and to all lands and territory particularly described in article II of said treaty, as well as all lands in the Territory of Dakota to which they have title or interest, excepting the said tracts particularly described and bounded in articles III and IV of said treaty, which last-named tracts and territory are expressly reserved as permanent reservation for occupancy and cultivation, as contemplated by articles VIII, IX, and X of said treaty."

"Second. That in consideration of said cession and relinquishment, the United States should advance and pay annually, for the term of ten years from and after the acceptance by the United States of the propositions herein submitted, eighty thousand ($80,000) dollars, to be expended, under the direction of the President of the United States, on the plan and in accordance with the provisions of the treaty aforesaid, dated February 19, 1867, for goods and provisions, for the erection of manual labor and public schools, and to the erection of mills, blacksmith shops, and other workshops, and to aid in opening farms, breaking land, and fencing the same, and in furnishing agricultural implements, oxen, and milch cows, and such other beneficial objects as may be deemed most conducive to the prosperity and happiness of the Sisseton and Wahpeton bands of Dakota or Sioux Indians, entitled thereto, according to the said Treaty of February 19, 1867."

This agreement contained seven other articles, some of which had provisions of great value to the Indians. It does not appear that it was ever presented to the Senate of the United States for ratification, but it was communicated to Congress by the Secretary of the Interior, and in the Indian Appropriation Act of February 14, 1873, and amount was conditionally appropriated to meet the first installment of the sum provided by the second article -- eighty thousand dollars. The condition was that the amount should not be expended

Page 119 U. S. 61

until that agreement, amended by the exclusion of all the articles except the first two, should be ratified by the Indians. The agreement, exclusive of those articles, was confirmed by Congress. 17 Stat. 456.

The ratification of the agreement, as amended, was obtained from the Indians at the two reservations -- from those on one reservation on May 2, 1873, and from those on the other reservation on the 19th of the same month. This ratification was accepted and approved by the Secretary of the Interior on the 19th of June, 1873, and the expenditure of the appropriation made was authorized. No approval of the agreement was had by Congress until the passage of the Indian Appropriation Act of June 22, 1874, by which it was confirmed, and an appropriation made to meet the second installment of the consideration stipulated.

It appears by the findings of the court that some time in the fall of 1871, under the act of Congress mentioned and other acts and resolutions relating to the same subject, the railroad company commenced work on that part of its line of road beginning on the westerly bank of the Red River of the North (which was the eastern boundary of Dakota), and extending westerly through and across what was afterwards shown by the public surveys to be the section of land of which the premises in controversy from a part, namely, section 7 in township 139 and range 48. It also caused all that part of its line of road thus located to be graded and prepared for its superstructure, and in June following, the superstructure and the iron rails were laid, and that part of the road was completed which crossed the section named, and ever since the road has been maintained and operated.

On the 21st of February, 1872, the company filed in the office of the Secretary of the Interior a map showing that part of the general route of the road beginning at the westerly bank of the Red River of the North, and extending westerly to James River, in Dakota Territory. On the 13th of March following, the acting Commissioner of the General Land Office forwarded to the register and receiver of the Pembina Land Office, within the limits of which the tract of land in controversy

Page 119 U. S. 62

was situated, a description of the designated route, and, by order of the Secretary of the Interior, directed them to withhold from sale or location, preemption, or homestead entry all the surveyed and unsurveyed odd-numbered sections of public lands falling within the limits of forty miles, as designated on the map, and stated that this order would take effect from the date of its receipt by them. The order, with the diagram, was received by them April 20, 1872. The diagram represented the route of the road as passing over and across the section of land in question. The order of withdrawal thus given was never afterwards revoked.

On May 26, 1873, the company filed in the office of the Commissioner of the General Land Office a map showing the definite location of that part of its line of road extending from the Red River of the North to the Missouri River in Dakota Territory. All that portion of this definite location, from the Red River to the west line of the section named, was the same as that made in 1871. On the 11th of June, 1873, the Acting Commissioner of the General Land Office addressed a letter to the local register and receiver informing them of the filing of this map of definite location and transmitted to them a diagram showing the limits of the land grant along said line and also the limits of the withdrawal ordered on March 30, 1872, upon a designated line, and directed them to withhold from sale or entry all the odd-numbered sections, both surveyed and unsurveyed, falling within those limits. This letter, with the diagram referred to, was received at the Pembina Land Office on June 24, 1873.

Soon after the execution of the amended agreement with the Indians mentioned above, which was approved by the Secretary of the Interior on the 19th of June, 1873, the government land surveys of the region embraced in it were completed, and plats thereof were filed in the local land office. Those surveys show that the premises in controversy constitute a portion of the odd section number seven, which was granted to the railroad company.

The defendant, Peronto, settled, as already stated, upon

Page 119 U. S. 63

that section on October 5, 1871. It is found by the court that he had all the qualifications of a preemptor, and entered upon the land with the intention of securing a preemption right to it under the laws of the United States, and built a house upon it, in which he resided. On the 11th of August, 1873, he presented his declaratory statement to the register and receiver of the local land office, stating his intention to claim a preemption right to a portion of the section (describing it), and his settlement thereon in October, 1871. This declaratory statement was presented within three months after the township plats showing the government surveys had been filed in the local land office. The register and receiver refused to file it, for the alleged reason that the land therein described was the land of the railroad company, as shown by its diagram filed in the Department of the Interior, February 21, 1872, and that his alleged prior settlement was illegal, the lands not being subject to preemption settlement by reason of the Indian treaty. The defendant thereupon appealed from this ruling to the Commissioner of the General Land Office, by whom, on the 14th of February, 1874, it was approved and confirmed. The defendant then appealed to the Secretary of the Interior, and he approved the decision of the Commissioner.

Page 119 U. S. 66

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