The original claim of the State of Kansas to the school lands in
townships 16 and 36 in that state, was rejected by Congress and
abandoned by the state, and the right of Congress was conceded to
the absolute control of the lands thus embraced and of lands set
apart for the use of Indians until such right should be
extinguished by appropriate legislation.
By the Act of duly 26, 1866, c. 270, 14 Stat. 289, granting a
right of way to the company subsequently known as the Missouri,
Kansas and Texas Railway Company across the public lands in the
State of Kansas, the title of the lands composing that right of
way, including townships 16 and 36, when crossed by it, became
vested in that company.
The case is stated in the opinion.
MR. JUSTICE FIELD stated the case and delivered the opinion of
the Court.
This is an action of ejectment to recover possession of certain
lands situated in section 16 of township 34, in the County of
Labette, State of Kansas, occupied and used by the Missouri, Kansas
and Texas Railway Company as part of its right of way, to which it
claims title under the Act of Congress of July 26, 1866, granting
lands to the State of Kansas to aid in the construction of a
southern branch of the Union Pacific Railway and Telegraph Company
from Fort Riley, Kansas, to Fort Smith, Arkansas. Act of July 26,
1866, c. 270, 14 Stat. 289.
Page 152 U. S. 115
The act declares that, for the purpose of aiding the Union
Pacific Railway Company, southern branch, that being a corporation
then organized under the laws of Kansas to construct and operate a
railroad from Fort Riley, in that state, or near that military
reservation, thence down the valley of the Neosha River to the
southern line of the state, with a view to the extension of the
same through a portion of the Indian Territory to Fort Smith,
Arkansas, there was thereby granted to that state, for the use and
benefit of the railroad company, every alternate section of land or
parts thereof designated by odd numbers, to the extent of five
alternate sections per mile on each side of its road, and not
exceeding in all ten sections per mile, provided that in case it
should appear that the United States had, when the line of the
railroad was definitely located, sold any sections, or any part
thereof, granted as aforesaid, or that the right of preemption or
homestead settlement had attached to the same, or that it had been
reserved by the United States for any purpose whatever, then it
should be the duty of the Secretary of the Interior to cause to be
selected for the purposes stated, from the public lands of the
United States nearest to the sections specified, so much land as
should be equal to the amount of the lands sold, reserved, or
otherwise appropriated, or to which the right of a homestead
settlement or preemption had attached. But to the said act a
proviso was attached that any and all lands reserved to the United
States by any act of Congress or in any other manner by competent
authority for the purpose of aiding in any object of internal
improvement or any other purposes whatever were reserved and
excepted from the operation of the act except so far as it might be
found necessary to locate the route of said road through such
reserved lands, in which case the right of way, two hundred feet in
width, was thereby granted, subject to the approval of the
President of the United States.
The Union Pacific Railway Company, Southern Branch, the
corporation designated in the act of Congress, was organized by the
Legislature of Kansas and incorporated on the 25th day of
September, 1865, under an act providing for the incorporation
Page 152 U. S. 116
and regulation of railroad companies, and on the 3d day of
February, 1870, its name was changed to that of the Missouri,
Kansas and Texas Railway Company, under which designation it is one
of the defendants herein.
Certain lands within the present State of Kansas were reserved
while it was still a territory, and long previously, by the United
States for the use and occupation of the Osage Indians. Such
reservation was made by treaty between them and the United States,
concluded as far back as June 2, 1825, and proclaimed in December
following. 7 Stat. (Indian Treaties,) 240. From that time and
continuously thereafter, the reserved lands were occupied by those
Indians until the treaty ceding the lands, or parts thereof, to the
United States, concluded in 1866 and proclaimed in January, 1867,
14 Stat. 687, except such portion thereof as was appropriated and
used as a right of way by the Missouri, Kansas and Texas Railway
Company for its road under the grant of July 26, 1866. Prior to
June 6, 1870, that company located its railroad through these
reserved lands in Kansas, with the approval of the President, and
constructed its road in substantial conformity with the act of
Congress. The right of way for its road, two hundred feet in width,
was granted to the company unconditionally, subject only to such
approval. The title to the land for the two hundred feet in width
thus granted vested in the company, either upon the passage of the
act of Congress, July 26, 1866, or upon the construction of the
road, and, so far as the present case is concerned, it does not
matter which date be taken.
The United States had the right to authorize the construction of
the road of the Missouri, Kansas and Texas Railway Company through
the reservation of the Osage Indians, and to grant absolutely the
fee of the two hundred feet as a right of way to the company.
Though the lands of the Indians were reserved by treaty for their
occupation, the fee was always under the control of the government,
and when transferred, without reference to the possession of the
lands, and without designation of any use of them requiring the
delivery of their possession, the transfer was subject
Page 152 U. S. 117
to their right of occupancy, and the manner, time, and
conditions on which that right should be extinguished were matters
for the determination of the government, and not for legal
contestation in the courts between private parties. This doctrine
is applicable generally to the rights of Indians to lands occupied
by them under similar conditions. It was asserted in
Buttz v.
Northern Pacific Railroad Company, 119 U. S.
55, and has never, as we are aware, been seriously
controverted. In that case, the lands were within what is known as
Indian country, where the right of the Indians to the occupancy of
their lands was recognized, and in grants by the government of
portions thereof for works of internal improvement there usually
was a stipulation for its extinguishment as rapidly as might be
consistent with public policy and the welfare of the Indians. Such
a stipulation was given when the grant under consideration in the
case cited was made, showing that the government intended the grant
to take effect notwithstanding any existing right of occupancy by
the Indians, and it was deemed a sufficient expression of its
intention to that effect. No such stipulation was made when the
grant of the right of way through the Osage reservation was made,
but the uses to which the lands were to be applied necessarily
involved their possession. That grant was absolute in terms,
covering both the fee and possession, and left no rights on the
part of the Indians to be the subject of future consideration.
Though the law as stated, with reference to the power of the
government to determine the right of occupancy of the Indians to
their lands, has always been recognized, it is to be presumed, as
stated by this Court in the
Buttz case, that in its
exercise, the United States will be governed by such considerations
of justice as will control a Christian people in their treatment of
an ignorant and dependent race, the Court observing, however, that
the propriety or justice of their action towards the Indians, with
respect to their lands, is a question of governmental policy, and
is not a matter open to discussion in a controversy between third
parties, neither of whom derives title from the Indians. The right
of the United States to
Page 152 U. S. 118
dispose of the fee of land occupied by them, it added, has
always been recognized by this Court from the foundation of the
government. There are, however, certain well established doctrines
controlling the action of the government which can always be
invoked to prevent hasty and improvident action against the
Indians. It has always been held that the occupancy of lands set
apart by statute or treaty with them for their use cannot be
disturbed by claimants under other grants of the government not
indicating its intention, either in express terms or by the uses to
which the lands are to be applied, to change the possession of the
lands.
And the setting apart by statute or treaty with them of lands
for their occupancy is held to be, of itself, a withdrawal of their
character as public lands, and consequently of the lands from sale
and preemption.
The right and power of the government to dispose of the fee of
the lands in controversy occupied by the Osage Indians, with their
rights of occupancy, having been exercised, and a grant of both fee
and possession having been made to the Missouri, Kansas and Texas
Railway Company, it follows that this company, the plaintiff in
error, is entitled to a reversal of the judgment unless the claim
of the plaintiff below, the defendant in error here, rests upon
tenable grounds, and to them we will now turn our attention.
Roberts, the plaintiff below, traces his title to the premises
through a patent from the State of Kansas to his grantor dated May
25, 1871, and by conveyance from him, claiming that they
constituted a portion of the lands ceded to the state for school
purposes prior to the grant of Congress to the railway company
under the Act of July 26, 1866.
On the 30th of May, 1854, c. 59, 10 Stat. 277, 289, Congress
passed an act to organize the Territories of Nebraska and Kansas.
The sections of the act from the nineteenth to the thirty-seventh,
inclusive, relate to the Territory of Kansas. Section 34
provides
"that when the lands in the said territory shall be surveyed
under the direction of the government of the United States
preparatory to bringing the same into market, sections numbered
sixteen (16) and thirty-six
Page 152 U. S. 119
(36) in each township in said territory shall be, and the same
are hereby, reserved for the purpose of being applied to schools in
said territory and in the states and territories hereafter to be
erected out of the same."
If the reservation named was intended as a grant of sections 16
and 36 to the territory, and to the states to be created out of
them, or as a dedication of them for schools, it could only apply
to such lands as were public lands, for no other lands in our land
system are subdivided into sections, nor could it embrace lands
which had been set apart and reserved by statute or treaty with
them for the use of the Indians, as was the case with the lands
involved in this controversy, as we have already shown. As early as
1839, it was held in
Wilcox v.
Jackson, 13 Pet. 498,
"that a tract lawfully appropriated to any purpose becomes
thereafter severed from the mass of public lands, and that no
subsequent law or proclamation will be construed to embrace or
operate upon it, although no exception be made of it."
The reservation referred to there was of land for military
purposes, and in
Leavenworth, Lawrence & Galveston Railroad
v. United States, 92 U. S. 733, it
was said that this doctrine "applies with more force to Indian than
to military reservations. The latter," the Court observed,
"are the absolute property of the government. In the former,
other rights are vested. Congress cannot be supposed to grant them
in a subsequent law, general in its terms. Specific language,
leaving no room for doubt as to the legislative will, is required
for such purpose."
The present Constitution of Kansas was proposed by a convention
of people in the then territory, July 29, 1859, with specified
boundaries. An ordinance of the convention, preceding it, recites
that,
"Whereas the government of the United States is the proprietor
of a large portion of the lands included in the limits of the state
as defined by the constitution [then proposed], and whereas the
state will possess the right to tax said lands for purposes of
government and for other purposes, therefore that it be ordained by
the people of Kansas that the right of the state to said lands is
relinquished,
Page 152 U. S. 120
and that the state will not interfere with the title of the
United States to such lands nor with any regulation of Congress in
relation thereto, nor tax nonresidents higher than residents,
provided certain conditions specified be agreed to by Congress,
among which was the following: that"
"sections numbered sixteen (16) and thirty-six (36) in each
township in the state, including Indian reservations and trust
lands, shall be granted to the state for the exclusive use of
common schools, and when either of said sections or any part
thereof has been disposed of other lands of equal value, as nearly
contiguous thereto as possible, shall be substituted therefor."
1 Charters and Constitutions 629-630.
Congress did not accept the proposed constitution with the
conditions designated, but, on the contrary, in its act for the
admission of the state into the union, passed on the 29th of
January, 1861, c. 20, 12 Stat. 126-127, after declaring that the
state was admitted on an equal footing with the original states in
all respects whatever, and, describing its boundary, added a
clause, containing the following provisions among others:
"
Provided that nothing contained in the said
constitution respecting the boundary of said state shall be
construed to impair the rights of person or property now pertaining
to the Indians of said territory so long as such rights shall
remain unextinguished by treaty between the United States and such
Indians, . . . or to affect the authority of the government of the
United States to make any regulations respecting such Indians,
their lands, property, or other rights by treaty, law, or
otherwise, which it would have been competent to make if this act
had never been passed."
By this provision, Congress reserved to itself the right to make
all needful regulations for the government of the Indians and for
the use and disposition of their lands and other property. The
Indians continued thereafter, as previously, in possession of the
lands, and their rights, whatever their nature and extent, were not
extinguished by anything in the act of admission of the state into
the Union, nor at the time of the grant of a right of way by the
Act of July 26, 1866.
Page 152 U. S. 121
Congress went further and rejected in express terms the claims
of the state asserted in the ordinance accompanying the proposed
state constitution. By section 3 of the act of admission, it
declared that the act of admission should not be construed as an
assent to all or any of the propositions or claims contained in the
ordinance accompanying the proposed constitution or in the
resolutions attached, but at the same time it made certain
propositions, which it offered to the people of the state for
compliance or rejection and which, if accepted, should be held
obligatory upon the United States and upon the state.
One of these propositions declared
"that sections numbered sixteen and thirty-six in every township
of public lands in said state, and where either of said sections or
any part thereof has been sold or otherwise been disposed of, other
lands equivalent thereto and as contiguous thereto as may be, shall
be granted to said state for the use of schools."
And the several propositions were followed by the declaration
that they were offered
"on the condition that the people of Kansas shall provide by an
ordinance, irrevocable without the consent of the United States,
that said state shall never interfere with the primary disposal of
the soil within the same by the United States or with any
regulations Congress may find necessary for securing the title in
said soil to
bona fide purchasers thereof."
These several provisions were accepted by the State of Kansas,
by a joint resolution of its legislature, January 20, 1862, in this
language:
"That the propositions contained in the act of Congress entitled
'An act for the admission of Kansas into the Union' are hereby
accepted, ratified, and confirmed, and shall remain irrevocable
without the consent of the United States, and it is hereby ordained
that this state shall never interfere with the primary disposal of
the soil within the same by the United States or with any
regulations Congress may find necessary for securing the title to
said soil, to
bona fide purchasers thereof, and no tax
shall be imposed on lands belonging to the United States."
It is clear beyond any doubt from this statement of the
Page 152 U. S. 122
legislation of Congress and of Kansas and the accepted
conditions upon which that state was admitted into the Union that
her original claim to the school sections in townships 16 and 36 of
her state was rejected by Congress, and abandoned by the state, and
the right of Congress was conceded to the absolute control of the
lands thus embraced, and of lands set apart for the use of the
Indians, until such right should be extinguished by appropriate
legislation. This rejection by Congress of the original claim of
Kansas to the school lands in townships 16 and 36, and its
subsequent abandonment by the state itself, and the concession to
Congress of the right of absolute control of the lands until such
right should be extinguished by appropriate legislation,
distinguishes the case materially from that of Wisconsin, which was
considered in
Beecher v. Wetherby, 95 U. S.
517, and upon which the defendant in error principally
relies. No such right was relinquished until after the grant of the
right of way under the act of Congress of July 26, 1866, to the
Missouri, Kansas and Texas Railway, and the title of the lands
composing that right of way had become vested in that company.
It follows, therefore, that the supreme court of the state, the
court below, erred in sustaining the judgment of the inferior court
of the state in favor of the plaintiff in that court, the defendant
in error here, and the judgment of the supreme court must therefore
be
Reversed, and the cause remanded with directions to take
further proceedings in accordance with this opinion.