The original jurisdiction, vested by the Constitution in this
Court over controversies in which a state is a party, is not
affected by the question whether the state is a party plaintiff or
party defendant.
A dispute as to the title to real estate is a question of a
justiciable nature, and can properly be determined in a judicial
proceeding.
The United States are to be taken, for the purposes of this
case, as the real party in interest adverse to the state.
This Court has jurisdiction of this controversy, and is called
upon to determine the case on its merits.
Not only the technical rules of statutory construction, but also
the general scope of the legislation in these matters and the
policy of the United States in respect to public schools, and also
to Indians, concur in sustaining the contention of the government
that none of these ceded lands passed under the school grant to the
state.
The Court is of opinion that the claim of Minnesota to these
lands cannot be sustained, and that the bill should be
dismissed.
This is a suit in equity commenced in this Court by the State of
Minnesota to enjoin the Secretary of the Interior and the
Commissioner of the General Land Office from selling any sections
16 and 36 in what was on January 14, 1889, known as the Red Lake
Indian Reservation.
By the bill, answer, and an agreed statement, the following
facts appear: by section 18 of the act to establish the territorial
government of Minnesota, approved March 3, 1849, 9 Stat. 403, it
was enacted
"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 16
and 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."
On February 26, 1856, the Legislature of the Territory of
Minnesota sent a memorial to Congress for the relief of settlers
upon school lands, Laws, Minn. 1856, p. 368, which reads:
Page 185 U. S. 374
"To the Honorable the Senate and House of Representatives of the
United States in Congress assembled:"
"The memorial of the Legislative Assembly of the Territory of
Minnesota respectfully represents:"
"That, under the provisions of the act of Congress extending the
provisions of the preemption law of 1841 over the unsurveyed lands
of Minnesota, many of our settlers have heavy investments, both of
money and labor, in the opening of farms, erection of buildings,
and the laying out and improving of town sites (lots in which said
town sites were frequently transferred before the government survey
at high prices, to the occupants thereof), who were found, when the
government survey was made, to be upon the school sections, and
that the said settler had no means of ascertaining previous to the
survey where the school sections would come."
"That it is a great injustice and hardship to compel such
persons to repurchase or lose entirely the improvements and homes
made by themselves in good faith in the expectation of preempting
or entering them according to the provisions of the statute.
Therefore, your memorialists would respectfully request your
honorable body to pass an act giving such persons in this territory
as have, previously to the government survey, settled upon the
school sections (and have otherwise the right of preemption) the
right to preempt the same as other government lands are preempted.
And also providing for the entry of the town sites in this
territory which are on school sections and were occupied as such
previous to the government survey, as other town sites upon
unoffered government lands are entered."
"And also allowing the county commissioners of the county in
which such lands may be situate to enter in lieu thereof, for the
benefit of the school fund of the township in which such land so as
aforesaid settled or occupied may be, and without charge, an equal
amount of such surveyed lands, subject either to private entry or
preemption, in the same land district as they may select."
"And as in duty bound your memorialists will ever pray."
In response to this memorial, Congress passed the following
joint resolution March 3, 1857, 11 Stat. 254:
Page 185 U. S. 375
"That where any settlements, by the erection of a dwelling house
or the cultivation of any portion of the land, shall have been or
shall be made upon the sixteenth or thirty-sixth sections (which
sections have been reserved by law for the purpose of being applied
to the support of schools in the Territories of Minnesota, Kansas,
and Nebraska, and in the states and territories hereafter to be
erected out of the same) before the said sections shall have been
or shall be surveyed; or when such sections have been or may be
selected or occupied as town sites under and by virtue of the Act
of Congress approved twenty-third of May, eighteen hundred and
forty-four, or reserved for public uses before the survey, then
other lands shall be selected by the proper authorities, in lieu
thereof, agreeably to the provisions of the act of Congress
approved twentieth May, eighteen hundred and twenty-six, entitled
'An act to Appropriate Lands for the Support of Schools in Certain
Townships and Fractional Townships not Before Provided for.' And if
such settler can bring himself or herself within the provisions of
the act of fourth of September, eighteen hundred and forty-one, or
the occupants of the town site be enabled to show a compliance with
the provisions of the law of twenty-third of May, eighteen hundred
and forty-four, then the right of preference granted by the said
acts, in the purchase of such portion of the sixteenth or
thirty-sixth sections so settled and occupied, shall be in them
respectively, as if such sections had not been previously reserved
for school purposes."
On February 26, 1857, Congress passed an act authorizing the
formation of a state government. 11 Stat. 166. Section 5, so far as
is applicable, is as follows:
"And be it further enacted that the following propositions be,
and the same are hereby, offered to the said convention of the
people of Minnesota for their free acceptance or rejection, which,
it accepted by the convention, shall be obligatory on the United
States and upon and said State of Minnesota, to-wit:"
"First, 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 as
may be, shall be granted to said state for the use of schools.
"
Page 185 U. S. 376
On October 13, 1857, a Constitution was formed in which, by
section 3 of article 2, the foregoing proposition was accepted in
this language:
"The propositions contained in the act of Congress entitled"
"An Act to Authorize the the Territory of Minnesota to Form a
Constitution and state government, Preparatory to Their Admission
into the Union on Equal Footing with the Original States"
"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, and in no case shall nonresident proprietors be taxed
higher than residents."
By an act of date May 11, 1858, Minnesota was admitted into the
Union. In that it was recited
"that the State of Minnesota shall be one, and is hereby
declared to be one, of the United States of America, and admitted
into the Union on an equal footing with the original states in all
respects whatever."
At the date of this admission, a large part of the territory in
the northwestern part of the state, including the tracts in
controversy, was and for a long time thereafter remained unceded
Indian lands, subject to the Indian title of occupancy. It was,
among other things, stipulated in the agreed statement:
"That, except as its status may have been affected or changed by
the treaty of October 2, 1863, 13 Stat. 667, by the President's
order of March 18, 1879, enlarging what was then known as the White
Earth Indian Reservation, by the act of Congress of January 14,
1889, 25 Stat. 642, or by the act of Congress of June 2, 1890, 26
Stat. 126, or by one or more of these, the district or country
embracing the lands in controversy continued to be unceded Indian
lands subject to the original right of occupancy of the Chippewa
Indians up to the time of the action had on March 4, 1890, under
the said Act of January 14, 1889."
Referring to the matter stated in this stipulation, it may
be
Page 185 U. S. 377
noticed that, by the treaty of October 2, 1863, the Red Lake and
Pembina Bands of Chippewa Indians dwelling in northwestern
Minnesota ceded lands within certain defined boundaries to the
United States, and in article 6 of the treaty the portion of the
territory occupied by them and not ceded is spoken of as a
reservation, for by it the President was required to appoint a
board of visitors,
"whose duty it shall be to attend at all annuity payments of the
said Chippewa Indians, to inspect their fields and other
improvements, and to report annually thereon on or before the first
day of November, and also as to the qualifications and moral
deportment of all persons residing upon the reservation under the
authority of law."
This tract was thereafter known as the Red Lake Indian
Reservation, and is referred to in the President's order of March
18, 1879, in which he bounds a proposed reservation on one side by
the "Red Lake Indian Reservation." The Act of June 2, 1890, 26
Stat. 126, grants to the Duluth & Winnipeg Railroad Company a
right of way through the "Red Lake (and other) reservations." The
second section of the act provides the mode of fixing the
compensation to be paid the Indians for the right of way, and that
no right of way shall vest in the company until, among other
things,
"the consent of the Indians on said reservation as to the amount
of said compensation and right of way shall have been first
obtained in a manner satisfactory to the President of the United
States."
On January 14, 1889, an act was passed, 25 Stat. 642, providing
for a commission to negotiate with all the bands or tribes of
Chippewa Indians in Minnesota for the cession and relinquishment,
"for the purposes and upon the terms" stated in the act, and
subject to the approval of the President,
"of all their title and interest in and to all the reservations
of said Indians in the State of Minnesota, except the White Earth
and Red Lake Reservations, and to all and so much of these two
reservations as in the judgment of said commission is not required
to make and fill the allotments required by this and existing
acts."
That act directed that all the Chippewa Indians in Minnesota,
"except those on the Red Lake Reservation," were to be removed to
and allotted lands in the White Earth Reservation,
Page 185 U. S. 378
and those on the Red Lake Reservation were to be allotted lands
on so much of that reservation as should be reserved by the
commission for that purpose. The ceded lands were thereafter to be
surveyed, inspected, classified as agricultural or pine lands, the
latter appraised by 40-acre tracts and sold at vendue, and the
agricultural lands disposed of to actual settlers at $1.25 per
acre. The proceeds arising from the disposition of the two classes
of land were to be held and applied as directed in section 7, which
reads:
"That all money accruing from the disposal of said lands in
conformity with the provisions of this act shall, after deducting
all the expenses of making the census, of obtaining the cession and
relinquishment, of making the removal and allotments, and of
completing the surveys and appraisals in this act provided, be
placed in the Treasury of the United States to the credit of all
the Chippewa Indians in the State of Minnesota as a permanent fund,
which shall draw interest at the rate of five percentum per annum,
payable annually for the period of fifty years, after the
allotments provided for in this act have been made, and which
interest and permanent fund shall be expended for the benefit of
said Indians in manner following: one-half of said interest shall,
during the said period of fifty years, except in the cases
hereinafter otherwise provided, be annually paid in cash in equal
shares to the heads of families and guardians of orphan minors for
their use, and one-fourth of said interest shall, during the same
period and with the like exception, be annually paid in cash in
equal shares per capita to all other classes of said Indians, and
the remaining one-fourth of said interest shall, during the said
period of fifty years, under the direction of the Secretary of the
Interior, be devoted exclusively to the establishment and
maintenance of a system of free schools among said Indians, in
their midst and for their benefit, and at the expiration of the
said fifty years the said permanent fund shall be divided and paid
to all of said Chippewa Indians and their issue then living, in
cash, in equal shares:
Provided, that Congress may, in its
discretion, from time to time, during the said period of fifty
years, appropriate, for the purpose of promoting civilization and
self-support among the said Indians,
Page 185 U. S. 379
a portion of said principal sum not exceeding five percentum
thereof. The United States shall, for the benefit of said Indians,
advance to them as such interest as aforesaid the sum of ninety
thousand dollars annually, counting from the time when the removal
and allotments provided for in this act shall have been made until
such time as said permanent fund, exclusive of the deductions
hereinbefore provided for, shall equal or exceed the sum of three
million dollars, less any actual interest that may in the meantime
accrue from accumulations of said permanent fund, the payments of
such interest to be made yearly in advance, and, in the discretion
of the Secretary of the Interior, may, as to three-fourths thereof,
during the first five years, be expended in procuring livestock,
teams, farming implements, and seed for such of the Indians, to the
extent of their shares, as are fit and desire to engage in farming,
but as to the rest, in cash, and whenever said permanent fund shall
exceed the sum of three million dollars the United States shall be
fully reimbursed out of such excess for all the advances of
interest made as herein contemplated and other expenses
hereunder."
Under this act, a commission was appointed and an agreement made
with the Indians for a cession of a large part of the Red Lake
Indian Reservation, which agreement was approved by the President
March 4, 1890, the unceded portion being reserved by the
commissioners "for the purpose of making and filling the
allotments" provided for in the act.
According to the agreed statement of facts, the lands in the
reservation were wholly unsurveyed at the time of the passage of
this last act, January 14, 1889, and until after the approval of
the agreement for this cession, March 4, 1890.
On February 28, 1891, 26 Stat. 796, Congress passed this
act:
"Where settlements with a view to preemption or homestead have
been or shall hereafter be made, before the survey of the lands in
the field, which are found to have been made on sections sixteen or
thirty-six, those sections shall be subject to the claims of such
settlers, and if such sections, or either of them, have been or
shall be granted, reserved, or pledged for the use of schools or
colleges in the state or territory in which they lie, other lands
of equal acreage are hereby appropriated and
Page 185 U. S. 380
granted, and may be selected by said state or territory, in lieu
of such as may be thus taken by preemption or homestead settlers.
And other lands of equal acreage are also hereby appropriated and
granted, and may be selected by said state or territory, where
sections sixteen or thirty-six are mineral land, or are included
within any Indian, military, or other reservation, or are otherwise
disposed of by the United States:
Provided, where any
state is entitled to said sections sixteen and thirty-six, or where
said sections are reserved to any territory, notwithstanding the
same may be mineral land or embraced within a military, Indian, or
other reservation, the selection of such lands in lieu thereof by
said state or territory shall be a waiver of its right to said
sections. And other lands of equal acreage are also hereby
appropriated and granted, and may be selected by said state or
territory to compensate deficiencies for school purposes, where
sections sixteen or thirty-six are fractional in quantity, or where
one or both are wanting by reason of the township's being
fractional, or from any natural cause whatever. And it shall be the
duty of the Secretary of the Interior, without awaiting the
extension of the public surveys, to ascertain and determine, by
protraction or otherwise, the number of townships that will be
included within such Indian, military, or other reservations, and
thereupon the state or territory shall be entitled to select
indemnity lands to the extent of two sections for each of said
townships in lieu of sections sixteen and thirty-six therein; but
such selections may not be made within the boundaries of said
reservations:
Provided, however, that nothing herein
contained shall prevent any state or territory from awaiting the
extinguishment of any such military, Indian, or other reservation
and the restoration of the lands therein embraced to the public
domain and then taking the sections sixteen and thirty-six in place
therein; but nothing in this proviso shall be construed as
conferring any right not now existing."
Upon these facts, the state contends that the territory in
question was not an Indian reservation, but what is known as
unceded Indian country, subject to the original right of occupancy
by the Chippewa Indians, and also that, whether the country
Page 185 U. S. 381
was an Indian reservation or unceded Indian country, it was
subject to the grant of sections 16 and 36 to the state when the
Indian right of occupancy was extinguished.
Defendant's contentions are:
1. That this tract of country was a reservation, set apart and
appropriated to the uses of the civilization and support of the
Indians.
2. That these lands never became "public lands," and so never
became subject to the state's school land grant.
3. That the school land grant attached to no particular lands
until surveyed. Until then, the specific sections remained subject
to disposition by Congress, the state, in the event of such
disposition, being remitted to the selection of other lands as
indemnity. Especially did the joint resolution of March 3, 1857,
subject these sections in Minnesota to reservation for public uses
at any time before survey, and, in the event of any such
reservation, make the state's grant, to that extent, one of
indemnity lands.
4. That the Act of January 14, 1889, and the agreement
negotiated thereunder with the Indians, dedicated and appropriated
all the lands in the Red Lake Reservation exclusively to the
civilization, education, and support of the Indians. This was a
disposal of the lands within the meaning of the Enabling Act of
February 26, 1857, and in any event was a reservation of them for
public uses under the joint resolution of March 3, 1857.
5. That, in interpreting the act of 1889, it is of no moment
that the state has a system of common schools aided by a grant of
lands from the general government. That act in terms keeps the
education of these Indians under national control, and dedicates a
portion of the proceeds of the sale of these lands "exclusively to
the establishment and maintenance of a system of free schools among
said Indians, in their midst, and for their benefit."
6. That, in determining whether the act of 1889 and the
agreement negotiated thereunder were intended to appropriate
sections 16 and 36, along with the other lands, to the
civilization, education, and support of the Indians, inquiry must
be made as to how the act and agreement were understood by the
Indians.
Page 185 U. S. 382
MR. JUSTICE BREWER delivered the opinion of the Court.
A preliminary question is one of jurisdiction. It is true
counsel for defendants did not raise the question, and evidently
both parties desire that the court should ignore it and dispose of
the case on the merits. But the silence of counsel does not waive
the question, nor would the express consent of the parties give to
this Court a jurisdiction which was not warranted by the
Constitution and laws. It is the duty of every court of its own
motion to inquire into the matter, irrespective of the wishes of
the parties, and be careful that it exercises no powers save those
conferred by law. Consent may waive an objection so far as respects
the person, but it cannot invest a court with a jurisdiction which
it does not by law possess over the subject matter. The question
having been suggested by the Court, a brief has been presented, and
our jurisdiction sought to be sustained on several grounds. The
question is one of the original, and not of the appellate,
jurisdiction. The pertinent constitutional provisions are found in
Section 2 of Article III as follows:
"The judicial power shall extend to all cases in law and equity
arising under this Constitution, the laws of the United States, and
treaties made, or which shall be made, under their authority; to
all cases affecting ambassadors, other public ministers, and
consuls; to all cases of admiralty and maritime jurisdiction; to
controversies to which the United States shall be a party; to
controversies between two or more states; between a state and
citizens of another state; between citizens of different states;
between citizens of the same state claiming lands under grants of
different states, and between a State of the citizens thereof and
foreign states, citizens, or subjects."
"In all cases affecting ambassadors, other public ministers,
Page 185 U. S. 383
and consuls, and those in which a state shall be party, the
Supreme Court shall have original jurisdiction. In all the other
cases before mentioned, the Supreme Court shall have appellate
jurisdiction, both as to law and fact, with such exceptions and
under such regulations as the Congress shall make."
The first of these paragraphs defines the matters to which the
judicial power of the United States extends, and the second divides
the original and appellate jurisdiction of this Court. By the
latter paragraph, this Court is given original jurisdiction of
those cases "in which a state shall be party." This paragraph
distributing the original and appellate jurisdiction of this Court
is not to be taken as enlarging the judicial power of the United
States or adding to the cases or matters to which by the first
paragraph the judicial power is declared to extend. The question is
therefore not finally settled by the fact that the State of
Minnesota is a party to this litigation. It must also appear that
the case is one to which by the first paragraph the judicial power
of the United States extends. There are three clauses in the first
paragraph which call for notice -- one, that which extends the
judicial power of the United States to controversies "between a
state and citizens of another state;" second, that which extends it
"to all cases in law and equity arising under this Constitution,
the laws of the United States, and treaties made, or which shall be
made, under their authority;" and third, that which extends it to
controversies "to which the United States shall be a party." To
bring the case within the first clause referred to, the bill
alleges that the defendant, Ethan Allen Hitchcock, Secretary of the
Interior, is a citizen of Missouri, and the defendant, Binger
Herman, Commissioner of the General Land Office, a citizen of
Oregon, and therefore it is said the case comes strictly within the
language of the first paragraph in that there is presented a
controversy between a state -- Minnesota -- and citizens of other
states. To that it may be replied that there is no real controversy
between the state, the plaintiff, and the defendants as
individuals; that the latter, merely as citizens, have no interest
in the controversy for or against the plaintiff; that in case
either of the defendants should die or resign and a citizen of
Minnesota be
Page 185 U. S. 384
appointed in his place, the jurisdiction of the court would
cease, and this although the real parties in interest remain the
same. In respect to the second, it may be said that if it were held
that this Court had original jurisdiction of every case of a
justiciable nature in which a state was a party and in which was
presented some question arising under the Constitution, laws of the
United States, or treaties made under their authority, many cases,
both of a legal and an equitable nature, in respect to which
Congress has provided no suitable procedure would be brought within
its cognizance. To this it may be replied that this Court cannot
deny its jurisdiction in a case to which it is extended by the
Constitution. As to the third, it may be objected that the United
States is not in terms a party to the litigation, and has no
pecuniary interest in the controversy, it being in reality one
between the state and the Indians.
We omit as unnecessary to the disposition of this case any
consideration of the applicability of the first two clauses,
because we think the case comes within the scope of the third
clause, and we need not now go farther. This is a controversy to
which to United States may be regarded as a party. It is one,
therefore, to which the judicial power of the United States
extends. It is, of course, under that clause, a matter of
indifference whether the United States is a party plaintiff or
defendant. It could not fairly be adjudged that the judicial power
of the United States extends to those cases in which the United
States is a party plaintiff, and does not extend to those cases in
which it is a party defendant.
The case of
United States v. Texas, 143 U.
S. 621, is in point, and upon many aspects of the
question very suggestive. That was a suit brought by the United
States against the State of Texas to determine the title to a
tract, called the County of Greer, which was claimed by the state
to be within its limits and a part of its territory, and by the
United States to be outside the State of Texas and belonging to the
United States. The jurisdiction of this Court was challenged, but
was sustained. After referring to the provisions of the
Constitution and the Judiciary Act of 1789, MR. JUSTICE HARLAN,
speaking for the Court, said:
Page 185 U. S. 385
"The words in the Constitution 'in all cases . . . in which a
state shall be a party, the Supreme Court shall have original
jurisdiction' necessarily refer to all cases mentioned in the
preceding clause in which a state may be made, of right, a party
defendant, or in which a state may, of right, be a party
plaintiff."
"
* * * *"
"It is, however, said that the words last quoted refer only to
suits in which a state is a party, and in which also the opposite
party is another state of the Union or a foreign state. This cannot
be correct, for it must be conceded that a state can bring an
original suit in this Court against a citizen of another state.
Wisconsin v. Pelican Ins. Co., 127 U. S.
265,
127 U. S. 287. Besides,
unless a state is exempt altogether from suit by the United States,
we do not perceive upon what sound rule of construction suits
brought by the United States in this Court -- especially if they be
suits the correct decision of which depends upon the Constitution,
laws, or treaties of the United States -- are to be excluded from
its original jurisdiction as defined in the Constitution. That
instrument extends the judicial power of the United States 'to all
cases,' in law and equity, arising under the Constitution, laws,
and treaties of the United States, and to controversies in which
the United States shall be a party, and confers upon this Court
original jurisdiction 'in
all cases' 'in which a state
shall be party' -- that is, in all cases mentioned in the preceding
clause in which a state may, of right, be made a party defendant,
as well as in all cases in which a state may, of right, institute a
suit in a court of the United States. The present case is of the
former class. We cannot assume that the framers of the
Constitution, while extending the judicial power of the United
States to controversies between two or more states of the Union,
and between a State of the Union and foreign states, intended to
exempt a state altogether from suit by the general government. They
could not have overlooked the possibility that controversies
capable of judicial solution might arise between the United States
and some of the states, and that the permanence of the Union might
be endangered if to some tribunal was not entrusted the power to
determine
Page 185 U. S. 386
them according to the recognized principles of law. And to what
tribunal could a trust so momentous be more appropriately committed
than to that which the people of the United States, in order to
form a more perfect union, establish justice, and insure domestic
tranquillity, have constituted with authority to speak for all the
people and all the states, upon questions before it to which the
judicial power of the nation extends? It would be difficult to
suggest any reason why this Court should have jurisdiction to
determine questions of boundary between two or more states, but not
jurisdiction of controversies of like character between the United
States and a state."
P.
143 U. S.
643.
While the United States as a government may not be sued without
its consent, yet with its consent, it may be sued, and the judicial
power of the United States extends to such a controversy. Indeed,
the whole jurisdiction of the Court of Claims rests upon this
proposition.
It may be said that the United States is not named as defendant,
and therefore it cannot be considered a party to the controversy.
It is true that it was at one time held that the Eleventh Amendment
to the Constitution of the United States, which provides that
"the judicial power of the United States shall not be construed
to extend to any suit in law or equity commenced or prosecuted
against one of the United States by citizens of another state, or
by citizens or subjects of any foreign state,"
was applicable only to cases in which the state was named in the
record as a party defendant.
Osborn v. Bank of United
States, 9 Wheat. 738. But later rulings have
modified that decision, and held that the amendment applies to any
suit brought in name against an officer of the state, when "the
state, though not named, is the real party against which the relief
is asked, and the judgment will operate."
In re Ayers,
123 U. S. 443. Of
course, this statement has no reference to and does not include
those cases in which officers of the United States are sued, in
appropriate form, to compel them to perform some ministerial duty
imposed upon them by law, and which they wrongfully neglect or
refuse to perform. Such suits would not be deemed suits against the
United States within the rule that the government cannot be sued
except by its consent, nor within the rule established in the
Ayers case.
Page 185 U. S. 387
Now, the legal title to these lands is in the United States. The
officers named as defendants have no interest in the lands or the
proceeds thereof. The United States is proposing to sell them. This
suit seeks to restrain the United States from such sale, to divest
the government of its title and vest it in the state. The United
States is therefore the real party affected by the judgment and
against which in fact it will operate, and the officers have no
pecuniary interest in the matter. If whether a suit is one against
a state is to be determined not by the fact of the party named as
defendant on the record, but by the result of the judgment or
decree which may be entered, the same rule must apply to the United
States. The question whether the United States is a party to a
controversy is not determined by the merely nominal party on the
record, but by the question of the effect of the judgment or decree
which can be entered.
But it may be said that the United States has no substantial
interest in the lands; that it holds the legal title under a
contract with the Indians, and in trust for their benefit. This is
undoubtedly true, and if the case stood alone upon the construction
of the treaty between the United States and the Indians, there
might be substantial force in this suggestion. But Congress has,
for the government, assumed a personal responsibility. On March 2,
1901, it passed the following act:
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That in
any suit heretofore or hereafter instituted in the Supreme Court of
the United States to determine the right of a state to what are
commonly known as school lands within any Indian reservation or any
Indian cession where an Indian tribe claims any right to or
interest in the lands in controversy, or in the disposition thereof
by the United States, the right of such state may be fully tested
and determined without making the Indian tribe, or any portion
thereof, a party to the suit if the Secretary of the Interior is
made a party thereto and the duty of representing and defending the
right or interest of the Indian tribe, or any portion thereof, in
the matter shall devolve upon the Attorney General upon the request
of such Secretary."
31 Stat. 950.
Page 185 U. S. 388
It has by this legislation in effect declared that the Indians,
although the real parties in interest, need not be made parties to
the suit; that the United States will, for the purposes of the
litigation, stand as the real party in interest, and, so far as it
could within constitutional limits, has expressed the consent of
the government to the maintenance of this suit in this Court. By
the act, it in effect declares that it waives all objections on the
ground that it is a mere trustee, that it assumes the full
responsibilities of ownership, and that it will, whatever may be
the outcome of any litigation, stand responsible to the Indians for
the full value of the lands in controversy. Can the Court say that
the United States may not assume such responsibility; may not waive
all objections on account of the mere matter of trusteeship, and
stand in court as the responsible owner, against whom all
litigation may be directed? If it stands as such owner, then,
within the proposition heretofore referred to, a suit which is
against its agents, not affecting them individually, but affecting
only its title to the real estate, is in substance and effect a
suit against the United States. The controversy is made by the act
of 1901 one to which the United States is a party in interest, to
be directly affected by the result, and therefore the case is
within the first paragraph as one to which the judicial power of
the United States extends.
Our conclusion therefore is that the original jurisdiction
vested by the Constitution in this Court over controversies in
which a state is a party is not affected by the question whether
the state is party plaintiff or party defendant, that a dispute as
to the title to real estate is a question of a justiciable nature,
and can properly be determined in a judicial proceeding, and that
the United States is to be taken, for the purposes of this case, as
the real party in interest adverse to the state. We are of opinion,
therefore, that this Court has jurisdiction of this controversy,
and is called upon to determine the case upon its merits.
We pass, therefore, to a consideration of such merits.
Whether this tract, which was known as the Red Lake Indian
Reservation, was properly called a reservation, as the defendant
contends, or unceded Indian country, as the plaintiff insists,
is
Page 185 U. S. 389
a matter of little moment. Confessedly the fee of the land was
in the United States, subject to a right of occupancy by the
Indians. That fee the government might convey, and whenever the
Indian right of occupancy was terminated (if such termination was
absolute and unconditional), the grantee of the fee would acquire a
perfect and unburdened title and right of possession. At the same
time, the Indians' right of occupancy has always been held to be
sacred -- something not to be taken from him except by his consent,
and then upon such consideration as should be agreed upon.
It is true that in the third division of the agreed statement
there is a stipulation that the territory embraced within the
so-called Red Lake Indian Reservation remained unceded Indian lands
up to the action had on March 4, 1890, unless its status was
affected by certain matters named. Doubtless its status, if by that
is meant simply the character of the title, was not affected by
those matters. While its boundaries were indicated, while it was
called the Red Lake Indian Reservation, yet the acts referred to
did not purport to change the rights of the Indians or the
government, neither did they in fact change them. The land remained
on March 4, 1890, land the fee of which was in the United States,
but subject to the Chippewa Indians' right of occupancy. No patent
had ever been executed by the United States to the Indians in
severalty or to the tribe at large. The mere calling of the tract a
reservation, instead of unceded Indian lands, did not change the
title. It was simply a convenient way of designating the tract.
Yet if it was necessary to determine the question, we should
have little doubt that this was a reservation within the accepted
meaning of the term. Prior to the Treaty of October 2, 1863, the
boundaries of the lands occupied by the Chippewa Indians had been
defined by sundry treaties, and by that treaty, a large portion of
the lands thus occupied were ceded by the Indians -- that is, the
Indians ceded to the United States all their interest and right of
possession. While there was no formal action in respect to the
remaining tract, the effect was to leave the Indians in a distinct
tract reserved for their occupation, and in the same act this tract
was spoken of as a reservation. Now
Page 185 U. S. 390
in order to create a reservation, it is not necessary that there
should be a formal cession or a formal act setting apart a
particular tract. It is enough that from what has been done there
results a certain defined tract appropriated to certain purposes.
Here, the Indian occupation was confined by the treaty to a certain
specified tract. That became, in effect, an Indian reservation.
Spalding v. Chandler, 160 U. S. 394, is
in point. There, as here, was presented the question of the origin
of a reservation, and in respect thereto it was said (pp.
160 U. S.
403-404):
"It is not necessary to determine how the reservation of the
particular tract, subsequently known as the 'Indian reserve,' came
to be made. It is clearly inferable from the evidence contained in
the record that, at the time of the making of the Treaty of June
16, 1820, the Chippewa tribe of Indians were in the actual
occupation and use of this Indian reserve as an encampment for the
pursuit of fishing. . . . But whether the Indians simply continued
to encamp where they had been accustomed to prior to making the
treaty of 1820, whether a selection of the tract afterwards known
as the Indian reserve was made by the Indians subsequent to the
making of the treaty, and acquiesced in by the United States
government, or whether the selection was made by the government and
acquiesced in by the Indians, is immaterial. . . . If the
reservation was free from objection by the government, it was as
effectual as though the particular tract to be used was
specifically designated by boundaries in the treaty itself. The
reservation thus created stood precisely in the same category as
other Indian reservations, whether established for general or
limited uses and whether made by the direct authority of Congress
in the ratification of a treaty or indirectly through the medium of
a duly authorized executive officer."
Turning to the legislation of Congress in respect to school
lands in Minnesota, the clause in the act establishing the
territorial government has only this significance. It provided
that, when the lands in the territory should be surveyed, sections
Nos. 16 and 36 "shall be and the same are hereby reserved" for the
purpose of being applied to schools. But the agreed statement shows
that these lands were not surveyed until after
Page 185 U. S. 391
the Act of January 14, 1889, and the agreement with the Indians
made in pursuance thereof and approved by the President March 4,
1900. Further, the state had been admitted into the Union, and the
rights of the state are to be determined by the act of admission,
rather than by any prior declaration by Congress of its purpose in
respect to certain lands. The act of admission provided:
"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 as may be, shall be
granted to said state for the use of schools."
It will be perceived that this grant was of "public lands." It
was held in
Newhall v. Sanger, 92 U. S.
761,
92 U. S. 763,
that --
"The words 'public lands' are habitually used in our legislation
to describe such as are subject to sale or other disposal under
general laws."
In
Leavenworth &c. Railroad Co. v. United States,
92 U. S. 733,
92 U. S. 741,
speaking of a grant to the State of Kansas in aid of the
construction of a railway as affecting lands within an Indian
reservation, it was said:
"But did Congress intend that it should reach these lands? Its
general terms neither include nor exclude them. Every alternate
section designated by odd numbers, within certain defined limits,
is granted, but only the public lands owned absolutely by the
United States are subject to survey and division into sections, and
to them alone this grant is applicable. It embraces such as could
be sold and enjoyed, and not those which the Indians, pursuant to
treaty stipulations, were left free to occupy."
In
Missouri, Kansas & Texas Railway Co. v. Roberts,
152 U. S. 114,
152 U. S. 119,
are these words, referring to the reservation of sections 16 and 36
to Kansas as school lands:
"If the reservation named was intended as a grant of the
sections sixteen (16) and thirty-six (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
Page 185 U. S. 392
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."
See also Doolan v. Carr, 125 U.
S. 618,
125 U. S. 632;
Bardon v. Northern Pacific Railroad Co., 145 U.
S. 535,
145 U. S. 538;
Mann v. Tacoma Land Co., 153 U. S. 273,
153 U. S. 284;
Barker v. Harvey, 181 U. S. 481,
181 U. S.
490.
Again, the language of the section does not imply a grant
in
praesenti. It is "
shall be granted." Doubtless under
that promise, whenever lands became public lands, they came within
the scope of the grant. As said in
Beecher v. Wetherby,
95 U. S. 517,
95 U. S. 523,
with reference to a similar clause in the act for the admission of
Wisconsin into the Union:
"It was therefore an unalterable condition of the admission,
obligatory upon the United States, that section sixteen (16) in
every township of the public lands in the state, which had not been
sold or otherwise disposed of, should be granted to the state for
the use of schools. It matters not whether the words of the compact
be considered as merely promissory on the part of the United
States, and constituting only a pledge of a grant in future, or as
operating to transfer the title to the state upon her acceptance of
the propositions as soon as the sections could be afterwards
identified by the public surveys. In either case, the lands which
might be embraced within those sections were appropriated to the
state. They were withdrawn from any other disposition, and set
apart from the public domain, so that no subsequent law authorizing
a sale of it could be construed to embrace them, although they were
not specially excepted."
And again, in
United States v. Thomas, 151 U.
S. 577,
151 U. S.
583:
"Mr. Justice Lamar, while Secretary of the Interior, had
frequent occasion to consider the nature and effect of the grant of
school lands where the title was at all encumbered or doubtful, and
on this subject he said (6 L.D. 418) that the true theory was
this:"
"That where the fee is in the United States at the date of
survey, and the land is so encumbered that full and complete title
and right of possession cannot then vest in
Page 185 U. S. 393
the state, the state may, if it so desires, elect to take
equivalent lands in fulfillment of the compact, or it may wait
until the right and title of possession unite in the government,
and then satisfy its grant by taking the lands specifically
granted."
"And this view he considered 'as fully sustained by the decision
of the courts and the opinions of the Attorneys General,' and cited
in support of it
Cooper v. Roberts, 18 How.
173; 3 Opins. 56; 8 Opins. 255; 9 Opins. 346; 16 Opins. 430;
Ham v.
Missouri, 18 How. 126."
So, also, in
Cooper v.
Roberts, 18 How. 173,
59 U. S. 179,
the question presented was whether certain mineral lands were
excepted from the grant of school lands to the state. The words of
the school land grant were, as here, "shall be granted," and it was
said:
"We agree that, until the survey of the township and the
designation of the specific section, the right of the state rests
in compact -- binding, it is true, the public faith, and dependent
for execution upon the political authorities. Courts of justice
have no authority to mark out and define the land which shall be
subject to the grant. But when the political authorities have
performed this duty, the compact has an object upon which it can
attach, and if there is no legal impediment, the title of the state
becomes a legal title. The
jus ad rem by the performance
of that executive act becomes a
jus in re, judicial in its
nature, and under the cognizance and protection of the judicial
authorities, as well as the others.
Gaines v.
Nicholson, 9 How. 356."
But while this is true, it is also true that Congress does not,
by the section making the school land grant, either in letter or
spirit, bind itself to remove all burdens which may rest upon lands
belonging to the government within the state, or to transform all
from their existing status to that of public lands, strictly so
called, in order that the school grant may operate upon the
sections named. It is, of course, to be presumed that Congress will
act in good faith; that it will not attempt to impair the scope of
the school grant; that it intends that the state shall receive the
particular sections or their equivalent in aid of its public school
system. But considerations may arise which will
Page 185 U. S. 394
justify an appropriation of a body of lands within the state to
other purposes, and if those lands have never become public lands
the power of Congress to deal with them is not restricted by the
school grant, and the state must seek relief in the clause which
gives it equivalent sections. If, for instance, Congress in its
judgment believes that within the limits of an Indian reservation
or unceded Indian country -- that is, within a tract which is not
strictly public lands -- certain lands should be set apart for a
public park, or as a reservation for military purposes, or for any
other public uses, it has the power notwithstanding the provisions
of the school grant section. So it is that, when Congress came in
1889 to make provision for this body of lands it could have by
treaty taken simply a cession of the Indian rights of occupancy,
and thereupon the lands would have become public lands and within
the scope of the school grant. But it also had the power to make
arrangements with the Indians by which the entire tract would be
otherwise appropriated.
What was in fact done? The Act of January 14, 1889, provided for
a commission to negotiate for the cession and relinquishment of
"all and so much of" the White Earth and Red Lake Reservations as
in the judgment of the commission should not be required to satisfy
the allotments required by the existing acts, the cession to be
"for the purposes and upon the terms hereinafter stated." The
allotments referred to were allotments in severalty, made in
conformity to the provisions of the Act of February 8, 1887. 24
Stat. 388. The ceded lands were to be divided into two classes, one
appraised and sold at auction, and the other disposed of the actual
settlers at $1.25 per acre. The proceeds of these sales were to be
placed in the Treasury of the United States as a permanent fund to
the credit of the Indians, drawing interest at five percentum for
fifty years, the interest to be expended, three-fourths paid in
cash to the Indians severally and the remaining one-fourth devoted,
under the direction of the Secretary of the Interior, "exclusively
to the establishment and maintenance of a system of free schools
among said Indians, in their midst and for their benefit." The
cession was not to the United States absolutely,
Page 185 U. S. 395
but in trust. It was a cession of all of the unallotted lands.
The trust was to be executed by the sale of the ceded lands and a
deposit of the proceeds in the Treasury of the United States to the
credit of the Indians, such sum to draw interest at five percent,
and one-fourth of the interest to be devoted exclusively to the
maintenance of free schools among the Indians and for their
benefit.
Now it is contended that this legislation, though dealing with,
in terms, all the unallotted lands, is subordinated to the prior
promise of the government to grant sections 16 and 36 to the state
for school purposes. In other words, the cession and relinquishment
by the Indians, it is said, extend to all the unallotted lands, but
that cession and relinquishment having been accomplished, the trust
which by the same legislation is created in respect to the same
lands is limited, and restricted by the prior promise of the
government, and this notwithstanding the fact that the government
had provided that the state might take other lands in case any
particular sections 16 and 36 had become appropriated to other
public uses. We are not disposed to belittle this contention. The
arguments in favor of it, both those founded on technical rules of
statutory construction and those based upon the long established
policies of the government in respect to both the Indians and the
public schools, are presented by counsel for the state with
exceeding force and ability. Notwithstanding this, we are
constrained to believe that not only the technical rules of
statutory construction, but also the general scope of the
legislation in these matters and the policy of the United States in
respect to public schools, and also to Indians, as the wards of
government, concur in sustaining the contention of the government
that none of these ceded lands passed under the school grant to the
state.
And first in reference to technical rules of statutory
construction. The cession was, as we have seen, of all the
unallotted lands, and the cession was of those lands "for the
purposes and upon the terms hereinafter stated." It was a distinct
conveyance by the Indians of certain lands for a named purpose. Now
if the United States, the recipient of this cession, was competent
to carry into execution the expressed purposes, does
Page 185 U. S. 396
it not follow that the cession subjected all the lands to them?
Can it be said that the Indians making the cession for a moment
supposed that the lands ceded were not to be used for the purposes
named, and if the language carries upon its face one obvious
meaning, and would naturally be so understood by the Indians, that
construction, within all the rules respecting Indian treaties, must
be enforced. As said in
Worcester v.
Georgia, 6 Pet. 515,
31 U. S.
582:
"The language used in treaties with the Indians should never be
construed to their prejudice. If words be made use of which are
susceptible of a more extended meaning than their plain import, as
connected with the tenor of the treaty, they should be considered
as used only in the latter sense. To contend that the word
'allotted,' in reference to the land guaranteed to the Indians in
certain treaties, indicates a favor conferred, rather than a right
acknowledged, would, it would seem to me, do injustice to the
understanding of the parties. How the words of the treaty were
understood by this unlettered people, rather than their critical
meaning, should form the rule of construction."
And in
Choctaw Nation v. United States, 119 U. S.
1,
119 U. S. 28:
"The recognized relation between the parties to this controversy
therefore is that, between a superior and an inferior, whereby the
latter is placed under the care and control of the former, and
which, while it authorizes the adoption on the part of the United
States of such policy as their own public interests may dictate,
recognizes, on the other hand, such an interpretation of their acts
and promises as justice and reason demand in all cases where power
is exerted by the strong over those to whom they owe care and
protection. The parties are not on an equal footing, and that
inequality is to be made good by the superior justice which looks
only to the substance of the right, without regard to technical
rules framed under a system of municipal jurisprudence formulating
the rights and obligations of private persons equally subject to
the same laws."
But reliance is placed upon the doctrine that a later general
statute does not repeal by implication a prior special statute
unless there is an absolute incompatibility between the two,
Page 185 U. S. 397
and the earlier will remain as an exception to the later. It is
said that here, the earlier statute was a special grant or promise
to grant two particular sections in each township, the later a
general statute in respect to all of a large body of lands. There
is no necessary incompatibility between the two, and the earlier
should be taken as an exception to the later, and the later held
applicable to all the lands except the specially named sections.
Beecher v. Wetherby, supra, is referred to as an
illustration of the doctrine and in point in reference to school
lands. But in that case, the cession from the Indians was not
subject to any trust. The facts were these: the action was replevin
to recover logs cut upon a particular section, and the title to the
logs depended on the title to the land. The Wisconsin school grant,
in 1846, though of only section 16, was in form similar to that to
Minnesota, and the defendant claimed under that grant. A treaty had
been concluded with the Menomonees February 8, 1831, containing a
provision that two specified townships should be set apart for the
use of the Stockbridge and Munsee Indians. In these townships was
the section 16 in controversy. By treaty, ratified January 23,
1849, the Menomonees, in consideration of the sum of $350,000 and a
reservation west of the Mississippi, agreed to cede all their lands
in Wisconsin. The eighth article of the treaty stipulated that they
should be permitted to remain on the ceded lands for two years, and
until notified by the President that the lands were wanted. By
treaty of May 12, 1854, this proposed reservation west of the
Mississippi River was retroceded by the Indians to the United
States, and in consideration of such cession, the United States
agreed to give them a home, "to be held as Indian lands are held,"
upon Wolf River, in Wisconsin, which tract included the townships
set apart for the benefit of the Stockbridge and Munsee Indians. On
February 6, 1871, Congress passed an act for the sale of these two
townships, except eighteen contiguous sections thereof, and the
appropriation of the proceeds for the benefit of the Stockbridge
and Munsee Indians, and in pursuance of that act, the United States
sold the land in controversy to the plaintiff. The Court held that
the title of the defendant under the school grant was superior to
that of the plaintiff under the
Page 185 U. S. 398
sale by the United States. Two facts are apparent: first, the
Menomonee Indians in the first instance received a cash and real
estate consideration for the large reservation which they conveyed
to the United States; second, that, while thereafter a tract was
ceded to them to be held as Indian lands are held -- a tract which
included the section in controversy -- and while by an earlier
treaty with the Menomonees, two townships of such tract (including
this particular section 16) had been set apart for the use and
benefit of the Stockbridge and Munsee Indians, yet there appears no
treaty or agreement with either the Menomonee or Stockbridge or
Munsee Indians in reference to the sale of these two townships.
Yet, as stated by the Court, "when the logs in suit were cut, those
tribes had removed from the land in controversy, and other sections
had been set apart for their occupation." The ruling was that the
United States held the fee, subject only to the Indian right of
occupancy; that, by the school land section in the Enabling Act,
there was a grant, or promise to grant -- in either event to be
taken as an appropriation of the fee to the state, subject to the
Indian right of occupancy; that the Indians had removed from the
lands and had received other lands for their occupation; that hence
all Indian rights had ceased. The Court, quoting in its opinion
from
United States v.
Cook, 19 Wall. 591, said (p.
95 U. S.
526):
"The right of the Indians to their occupancy is as sacred as
that of the United States to the fee, but it is only a right of
occupancy. The possession, when abandoned by the Indians, attaches
itself to the fee without further grant."
Hence, applying the doctrine in respect to earlier special and
later general statutes, the government having received from the
Indians their right of occupancy, without any stipulation or
agreement or trust in respect thereto, it was held that the act
providing for the sale of the two townships could not have been
intended to authorize a sale of specific sections therein which had
been already conveyed or promised to the state. But this case
stands on entirely different grounds. Before any survey of the
lands, before the state right had attached to any particular
sections, the United States made a treaty or agreement with the
Indians by which they accepted a cession of the
Page 185 U. S. 399
entire tract under a trust for its disposition in a particular
way. The question is not as to the construction of two separate
statutes, but as to the scope and effect to be given to a treaty or
agreement with the Indians, and whether it is to be narrowed in its
scope by any rules applicable to the construction of statutes --
rules with which it is not to be supposed the Indians were
familiar.
Buttz v. Northern Pacific Railroad, 119 U. S.
55, is also referred to. In that case, the controversy
was in respect to a tract of land within the place limits of the
grant to the Northern Pacific Railroad Company, 13 Stat. 365, and
which at the time of the filing of the map of definite location was
within the limits of an Indian reservation. By the second section
of the granting act, it was provided that
"the United States shall extinguish, as rapidly as may be
consistent with public policy and the welfare of the said Indians,
the Indian titles to all lands falling under the operation of this
act and acquired in the donation to the [road] named in this
bill."
In 1872, the United States entered into a treaty with the
Indians by which, for a cash consideration, so much of the
reservation as covered the land in controversy was ceded to the
United States. It was held that, by the original act, the fee which
was in the United States passed to the railroad company, subject to
the Indian right of occupancy, which was afterwards, in pursuance
of the promise to the company in the granting act, extinguished for
a cash consideration, and immediately there was vested in the
company a title paramount to that of one attempting a preemption.
Here, then, as in the prior case, the cession by the Indians was
subject to no trust or condition, and the question was simply as to
the effect to be given to various statutes.
Heydenfeldt v. Daney Gold & Silver Mining Company,
93 U. S. 634, while
not involving any question of Indian rights, is worthy of notice as
affecting a state's claim to school lands. The Nevada Enabling Act,
approved March 21, 1864, 13 Stat. 30, 32, contained this
provision:
"That sections numbered sixteen and thirty-six in every
township, and where such sections have been sold or otherwise
disposed of by any act of Congress, other lands equivalent thereto,
in legal subdivisions of not less
Page 185 U. S. 400
than one quarter section, and as contiguous as may be, shall be,
and are hereby, granted to said state for the support of common
schools."
The plaintiff claimed title by conveyance from the state of a
part of a section sixteen. The defendant rested upon a mineral
patent from the United States, his entry upon the lands having been
prior to any survey, and in conformity to the miners' laws,
customs, and usages of the district. Although the terms of the
school land section were terms of present grant, and although the
entry by the defendant was after the state had been admitted, yet
his title was adjudged superior to that obtained from the state,
the Court holding that the United States had full power to dispose
of the land until after a survey and the identification
thereby.
Again, it is well to bear in mind the joint resolution passed by
Congress on March 3, 1857, a resolution which was prompted by a
memorial from the Legislature of the Territory of Minnesota, and
which, recognizing the possibility of settlements or town site
entries before the public surveys on lands which by such surveys
were afterwards found to be school sections, provided that, when
any such sections should be occupied by settlers or selected as
town sites "or reserved for public uses before the survey," then
other lands might be selected in lieu thereof. That the sale of the
ceded lands for the purpose of creating a fund for the benefit of
the Indians was a use of them for a public purpose cannot be
doubted. But the contention of counsel for the state is
"that the public uses which were intended to operate as an
appropriation prior to the services were uses to which the land
itself might be put or employed for governmental uses."
It is unnecessary to rest upon a determination of this question.
We refer to the resolution as an express declaration by Congress
that the school sections were not granted to the state absolutely,
and beyond any further control by Congress, or any further action
under the general land laws. As in
Heydenfeldt v. Daney Gold
& Silver Mining Co., supra,, priority was given to a
mining entry over the state's school right, so here, in terms,
preference is given to private entries, town site entries, or
reservations for public uses. In other words, the act of admission,
with its clause in respect to school
Page 185 U. S. 401
lands, was not a promise by Congress that, under all
circumstances, either then or in the future, these specific school
sections were or should become the property of the state. The
possibility of other disposition was contemplated, the right of
Congress to make it was recognized, and provision made for a
selection of other lands in lieu thereof. In this connection may
also be noticed the Act of February 28, 1891, although passed after
the approval of the agreement for the cession of these lands by the
Indians. That act in terms authorized the selection of other
lands
"where sections sixteen or thirty-six are mineral land, or are
included within any Indian, military, or other reservation, or are
otherwise disposed of by the United States."
We come finally to a consideration of the policy of the
government both in respect to schools and to Indians. It is
undoubtedly true that such policy, from the beginning, has been
liberal in the appropriation of lands for school purposes.
See a review of the legislation in respect thereto in the
opinion in
Cooper v.
Roberts, 18 How. 173.
It is not to be supposed that Congress intended any departure
from this policy in its legislation in respect to lands within
Minnesota, and the courts are justified in any fair construction of
such legislation as will secure to the state its full quota of
lands for aid in the development of its public school system. It is
also true that much of the legislation in respect to Indians and
many of the treaties with them have contemplated simply the cession
of their lands and their removal to tracts further west. In such
cases, where there has been simply a cession by the Indian tribe of
its reservation and a removal to some new territory, it is not
strange that the school grants have been generally held operative
in the ceded reservations. The interests of public schools have
always been considered paramount to those of railroad companies in
grants made to aid in their construction. The one speaks for
intellectual, the other for material, development. Of course, when
the Indian tribe has been removed by treaty from one body of land
to another, the interest of the tribe in the land from which it has
been removed ceases, and the full obligation of the government to
the Indians is satisfied when the pecuniary or real estate
consideration for the cession is secured
Page 185 U. S. 402
to them. But in some instances, and this is one of them, the
Indians have not been removed from one reservation to another, but
the government has proceeded upon the theory that the time has come
when efforts shall be made to civilize and fit them for
citizenship. Allotments are made in severalty, and something
attempted more than provision for the material wants of the
Indians. In construing provisions designed for their education and
civilization as fully, if not more, than in construing provisions
for their material wants, is it a duty to secure to the Indians all
that, by any fair construction of treaty or statute, can be held to
have been understood by them or intended by Congress. Instead of
removing these Chippewa Indians from Minnesota, the purpose of the
legislation and agreement was to fit them for citizenship by
allotting them lands in severalty and providing a system of public
schools. Surely it could not have been understood by the Indians
that only part of the lands they ceded were to be used for these
purposes. They were dealing with the tract as an entirety, and they
had a right to expect that the entire tract would be used as
declared in the act and agreement. No provision is made for
compensating the Indians for lands which would be lost if the right
of the state was sustained, whereas, on the other hand, the right
of the state to compensation for the particular school sections
within the tract had already been secured. Contrasting the two
policies -- that in respect to public schools and that in respect
to the care of the Indians -- it would seem that we are called upon
to uphold the rights of the Indians, which otherwise would be
wholly lost without compensation, as against the claims of the
state for which satisfaction in other directions has been
provided.
For these reasons, we are of opinion that the claim of Minnesota
to these lands cannot be sustained, and a decree will be entered in
favor of the defendants dismissing the bill.
MR. JUSTICE GRAY did not hear the argument, and took no part in
the decision of this case.
