A title in fee may pass to an individual by a treaty without the
aid of an act of Congress, and this rule, having become a rule of
property in the State of Michigan in regard to lands reserved for
Indians specified in the Chippewa Treaty of 1819, will not be
disturbed, it not appearing that the treaty has been
misinterpreted.
A patent to an Indian of land reserved to him by a treaty simply
locates the land, the title to which passed under the treaty, and
in the absence of any provision of the treaty, or any act of
Congress, a restriction in the patent against alienation without
the consent of the President is ineffectual, the President having
no authority by virtue of his office to impose such a
restriction.
Title to lands conveyed to an Indian in fee and which the Indian
has power to alienate may be acquired by prescription.
136 Mich. 288 affirmed.
The facts are stated in the opinion.
Page 203 U. S. 236
MR. JUSTICE HARLAN delivered the opinion of the Court.
This action of ejectment was brought to recover the possession
of certain lands in Bay County, Michigan, which the plaintiff, Ann
Francis, claims as tenant for her own life, and which are thus
described in the declaration:
"The east half, the Bokowtonden Reserve, excepting land
heretofore owned and occupied by F. A. Kaiser, and ten acres
heretofore owned and occupied by Edward McGuiness, being in
Township Fourteen, North Range Four East, and being a part of the
Bokowtonden Reserve, conveyed by the United States to the children
of Bokowtonden and their heirs by patent dated November sixth, A.D.
1827."
The defendants pleaded the general issue, giving notice that
they would show that, for more than twenty years next preceding the
commencement of this action, they and their grantors had been in
open, notorious, exclusive, and adverse possession
Page 203 U. S. 237
and occupancy of the lands in question under claim and color of
title.
At the conclusion of the evidence, the jury, by direction of the
court, returned a verdict for the defendants, upon which judgment
was rendered. That judgment was affirmed, upon writ of error, by
the Supreme Court of Michigan.
By the Treaty of September 24th, 1819, made at Saginaw in the
Territory of Michigan, and proclaimed March 25, 1820, between the
United States and the Chippewa Nation of Indians, the lands
comprehended within certain boundaries were forever ceded to the
United States. But from that cession certain tracts were reserved
for the use of the Chippewa Nation of Indians. And by Art. 3 of the
treaty it was provided that
"there shall be reserved, for the use of each of the persons
hereinafter mentioned and their heirs, which persons are all
Indians by descent, the following tracts of land: . . . For the use
of the children of Bokowtonden, six hundred and forty acres on the
Kawkawling River."
7 Stat. 203.
Subsequently, November 6, 1827, a patent was signed by President
Adams. It purported to have been issued pursuant to that treaty,
for a tract of 640 acres on Kawkawling River, described by metes
and bounds, "unto the said children of Bokowtonden, and their heirs
forever," the patent containing these words: "But never to be
conveyed by them or their heirs without the consent and permission
of the President of the United States."
The particular land here in question is a part of the 640 acres
reserved by the above treaty for the use of the children of
Bokowtonden and their heirs, and embraced by the patent of 1827.
What rights were acquired, under and by virtue of the treaty, by
those children? In
Jones v. Meehan, 175 U. S.
1,
175 U. S. 8,
175 U. S. 21,
where one of the questions was as to the nature of the title that
passed under an Indian treaty ceding lands to the United States,
and which required a certain number of acres to be set apart from
the ceded lands
Page 203 U. S. 238
for a named Indian chief, this Court said:
"Was it a mere right of occupancy, with no power to convey the
land except to the United States or by their consent? Or was it
substantially a title in fee simple, with full power of alienation?
Undoubtedly, the right of the Indian nations or tribes to their
lands within the United States was a right of possession or
occupancy only; the ultimate title in fee in those lands was in the
United States, and the Indian title could not be conveyed by the
Indians to anyone but the United States, without the consent of the
United States,"
citing
Johnson v.
M'Intosh, 8 Wheat. 543;
Cherokee
Nation v. Georgia, 5 Pet. 1,
30 U. S. 17;
Worcester v.
Georgia, 6 Pet. 515,
31 U. S. 544;
Doe v. Wilson,
23 How. 457,
64 U. S. 463;
United States v.
Cook, 19 Wall. 591;
United States v.
Kagama, 118 U. S. 375,
118 U. S. 381;
Buttz v. Northern Pacific Railroad, 119 U. S.
55,
119 U. S. 67.
But in that case, after an extended review of previous decisions,
this Court further said:
"The clear result of this series of decisions is that when the
United States, in a treaty with an Indian tribe and as part of the
consideration for the cession by the tribe of a tract of country to
the United States, make a reservation to a chief or other member of
the tribe of a specified number of sections of land, whether
already identified or to be surveyed and located in the future, the
treaty itself converts the reserved sections into individual
property; the reservation, unless accompanied by words limiting its
effect, is equivalent to a present grant of a complete title in fee
simple, and that title is alienable by the grantee at his pleasure
unless the United States, by a provision of the treaty or of an act
of Congress, have expressly or impliedly prohibited or restricted
its alienation."
Did an alienable title in fee simple pass to she children of
Bokowtonden by virtue of the treaty of 1819, 1820? That question
was under consideration in the courts of Michigan a long while ago,
and was answered in the affirmative, and it would seem that their
construction of the provisions in question has become a rule of
property in that state. In
Stockton v. Williams, 1 Walker's Ch. (Michigan) 120,
129, decided in 1840,
Page 203 U. S. 239
the question was elaborately discussed and fully considered. The
treaty in that case -- the same one involved here -- contained
these words:
"There shall be reserved for the use of each of the persons
hereinafter mentioned and their heirs, which persons are all
Indians by descent, the following tracts of land. . . . For the use
. . . of Mokitchenoqua . . . each, six hundred and forty acres of
land, to be located at and near the Grand Traverse of the Flint
River in such manner as the President of the United States may
direct."
7 Stat. 204. The chancellor said:
"It makes no mention of a patent, nor does it require the
President or other officer of the government, after the lands have
been located, to do any act whatever recognizing the right of the
several reservees to the different sections. All it required of the
President was to have the lands located at and near a particular
place pointed out by the treaty. To locate does not mean to patent,
but to have the several sections surveyed and marked out, and a map
made of them, showing the particular section belonging to each of
the reservees. This was done; and, when it was done, this part of
the treaty was fully executed on the part of the government.
Nothing further was required to carry it into effect, and the title
then vested in the respective reservees, unless we hold the treaty
itself to be clearly defective in not providing for the execution
of its several stipulations. A patent, although the usual, is by no
means the only, mode in which the title to the public domain can
pass from the government to an individual. It may pass by an act of
Congress, or by a treaty stipulation, as well as by a patent. The
Indian title to the land reserved did not pass to the United States
by the treaty, which operated as a release, by both the Indians and
government, of all interest either had in the lands reserved to the
respective reservees, in fee simple, and it would be a violation of
the treaty for the government to claim the land in question."
Upon appeal the Supreme Court of Michigan, 1 Dougl. 546, 558,
564, said:
"The first question to be determined is what estate passed to
the reservee
Page 203 U. S. 240
under the treaty? The third article is in the following
words:"
"there shall be reserved for the use of each of the persons
hereinafter mentioned, and their heirs, which persons are all
Indians by descent, the following tracts of land,"
"etc."
"For the use of Mokitchenoqua, six hundred and forty acres of
land, to be located at and near the Grand Traverse of the Flint
River, in such manner as the President of the United States may
direct."
"It is very clear that, if a fee simple estate was intended to
be granted, the parties to the treaty were unfortunate in the
choice of terms by which to give effect to that intention, and yet
it is difficult to conceive that any other estate was in the
contemplation of the parties at the time of its existence. Will,
then, the third article warrant such a construction? It will be
observed that the reservation is to the use of Mokitchenoqua and
her heirs. No limitation as to the time of holding, or restriction
upon the right of alienation, is contained in the grant. The use of
the word heirs clearly implies that such an estate was granted as
would, upon her death, descend to her legal representatives. Here,
then, are all the essential elements of a fee simple estate. This
construction, we think, is justified by the words of the third
article, and is strengthened by the fact that it corresponds not
only with an opinion given by the Attorney General of the United
States to the Secretary of War (Land Laws, part 2, pp. 96, 97), but
with the opinion of the Senate -- a branch of the treatymaking
power -- which is certainly entitled to great consideration. 3
Senate Doc. 1836, No.197."
Again, in the same case, the court said:
"The location of the lands became a duty devolving on the
President by the treaty. This duty he could execute without an act
of Congress; the treaty, when ratified, being the supreme law of
the land, which the President was bound to see executed. It was
impossible to describe the tract granted to any of the reservees in
the treaty, as it is matter of history that none of the lands ceded
had ever been surveyed. But locality is given to the grant by the
terms of the treaty, with an authority to locate afterwards by a
survey
Page 203 U. S. 241
making it definite.
Smith v. United States,
10 Pet. 331. This authority being executed, the grant then became
as valid to the particular section designated by the President as
though the description had been incorporated in the treaty itself.
We are therefore of opinion that a fee simple passed to the
reservee, Mokitchenoqua, by force of the treaty itself, and that
the rights of the parties could in no wise be affected by the
subsequent act of the President directing a patent to be
issued."
In
Dewey v. Campau, 4 Mich. 565, 566, the court,
interpreting the same treaty, said:
"A title in fee, under this clause of the treaty, passed, by
this language, to the reservee. The term 'reservation' was
equivalent to an absolute grant. The title passed as effectually as
if the grant had been executed. The title was conferred by the
treaty; it was not, however, perfect until the location was made;
the location was necessary to give it identity. The location was
duly made, and thus the title to the land in controversy was
consummated by giving identity to that which was before
unlocated."
In
Campau v. Dewey, 9 Mich. 381, 433, reference was
made to
Stockton v. Williams, 1 Douglas 546, above cited,
the court saying:
"This decision has, for sixteen years, been recognized as the
law governing the titles under this treaty at least, and these must
be quite numerous, many of which have doubtless been bought and
sold on the faith of this decision. We are therefore compelled to
recognize it as a rule of property which we are not at liberty to
disturb."
These cases were not, in any sense, modified by
Attorney
General v. Williams, 94 Mich. 180, which was the case of an
Indian treaty which expressly provided that the land there in
question should never be sold or alienated to any person or persons
whomsoever without the consent of the Secretary of the Interior for
the time -- manifestly a different case from the present one, in
which the treaty contained no restriction upon alienation.
The result of the cases cited is: 1. That this Court and the
highest court of Michigan concur in holding that a title in fee may
pass by a treaty without the aid of an act of Congress,
Page 203 U. S. 242
and without a patent. 2. That the construction of the treaty
here involved, whereby the respective Indians named in its third
article are held to have acquired by the treaty a title in fee to
the land reserved for the use of themselves, has become a rule of
property in the state where the land is situated. That rule of
property should not be disturbed unless it clearly involves a
misinterpretation of the words of the Treaty of 1819. We agree with
the state court in holding that a title in fee passed by the treaty
to the children of Bokowtonden, and that the patent issued in 1827
only located or made definite the boundaries of the tract reserved
to them by the treaty. It follows that the words in the patent of
1827, "but never to be conveyed by them or their heirs without the
consent and permission of the President of the United States," were
ineffectual as a restriction upon the power of alienation. The
President had no authority, in virtue of his office, to impose any
such restriction; certainly not without the authority of an act of
Congress, and no such act was ever passed. The children of
Bokowtonden having then obtained by the treaty the right to convey,
there is no reason to doubt that title could be acquired by
prescription. The evidence shows that the defendants and those
through whom they claim have had peaceable, adverse possession of
the premises in question continuously for more than half a century
prior to the commencement of this action.
Without assigning other grounds in support of the ruling below,
the judgment of the Supreme Court is
Affirmed.
MR. JUSTICE WHITE did not participate in the decision of this
case.