Whether the concession of lands in Indian Territory under § 9 of
the Land Grant Act of July 25, 1866, c. 241, 19 Stat. 236, was a
grant
in praesenti or a covenant to convey, it was
dependent upon fulfillment of the express conditions precedent that
the Indian title be extinguished, and, when extinguished, become
public lands of the United States, and those conditions have not
been fulfilled.
A statute granting public lands or Indian lands which may become
public lands will not be construed as including Indian lands
afterwards allotted in severalty under a treaty made immediately
before the enactment of the statute, as to do so would be to accuse
the government of bad faith with the Indian owners of the land.
Grants from the government are to be strictly construed against
the grantee.
47 Ct.Cl. 59 affirmed.
The facts, which involve the construction of § 9 of the Land
Grant Act of July 28, 1866, and the provisions therein contained
for grants of lands in Indian Territory on the extinguishment of
the Indian title, are stated in the opinion.
Page 235 U. S. 38
MR. JUSTICE HOLMES delivered the opinion of the Court.
This claim, as construed by the claimant and appellant, is based
upon covenants supposed to be imported by an act of Congress of
July 25, 1866, c. 241, § 9. 14 Stat. 236. Upon demurrer it was
dismissed by the Court of Claims. 47 Ct.Cl. 59. The largeness of
the demand tends to induce a correspondingly voluminous statement,
but the issue really is narrow, and the material facts are few.
The United States had made land grants to the great roads
running east and west, but had not provided for a connection
between those roads and the Gulf, through Kansas and the Indian
Territory to the south. To that end, the Act of July 25, 1866,
after granting to Kansas, for the use of a road to be built through
eastern Kansas from the eastern terminus of the Union Pacific
between Kansas and Missouri, ten alternate sections per mile on
each side of the road, § 1, authorized the company mentioned to
extend its road from the southern boundary of Kansas south, through
the Indian Territory to Red River at or near Preston, in Texas, so
as to connect with a road then being constructed from Galveston to
that point. Section 8. The appellant also had been authorized by
charter to build a road running southerly from a point on the Union
Pacific to where the southern boundary of Kansas crosses the Neosho
River, and had acquired a land grant, and the Act of July 25, 1866,
went on to provide that, if the appellant, under its former name of
Union
Page 235 U. S. 39
Pacific Railway, Southern Branch, first completed its road to
the point of crossing the southern boundary of Kansas, it should be
authorized to construct its line to the point near Preston, "with
grants of land according to the provisions of this act." The right
of way was granted in accordance with treaties with the Indians,
and is not in question here.
The appellant finished its road first, built the southern
extension, and acquired the rights to land under the Act of 1866,
and the question is what rights it has, in the event that has
happened, under § 9. That section enacted
"that the same grants of land through said Indian Territory are
hereby made as provided in the first section of this act, whenever
the Indian title shall be extinguished by treaty or otherwise, not
to exceed to ratio per mile granted in the first section of this
act;
Provided, That said lands become a part of the public
lands of the United States."
This part of the Indian Territory was occupied by the five
civilized tribes, and what has happened is that, under acts of
Congress, the land concerned has been distributed in severalty to
the members of those tribes, or sold for their benefit.
Taken literally, the grant or covenant of the United States was
subject to two conditions precedent. "Whenever the Indian title
shall be extinguished" means when, and not until, that occurs, and
contemplates it as something that may or may not come to pass. That
proviso attaches the further condition that if the Indian title
shall be extinguished, it must be extinguished in such a way that
the lands become a part of the public domain. It cannot be said
that "whenever" imports that sooner or later the Indian title will
and shall be disposed of. The Indians had to be considered, and it
could not be assumed that they would be removed to another place,
as they had been removed before. It cannot be said, either, that,
on the face of the clause, the proviso adds nothing, and means
Page 235 U. S. 40
only that, on extinction of the Indian title, the rights of the
railroad shall attach as if the land were public land. The section,
taken by itself and on its face, excludes the claimant's
interpretation that the United States made an absolute promise or
grant, and it excludes it nonetheless that certain services were to
be rendered by the road to the United States as one of the terms of
the grant of a right of way which the railroad got. On this literal
reading of the statute, the conditions have not been fulfilled. The
land has remained continuously appropriated to the use of the
Indians, or has been sold for their benefit. It never for a moment
has become a part of the public domain in the ordinary sense.
Newhall v. Sanger, 92 U. S. 761,
92 U. S. 763;
Union Pacific R. Co. v. Harris, 215 U.
S. 386,
215 U. S. 388.
It is argued that the grant attached the moment that the tribal
title ceased, whatever it was. But, still looking only at the face
of the act, and seeing the intent to respect the Indian rights, we
cannot read it as preventing the United States from making the
change from tribal to several possessions, or dealing with this
land in any way deemed most beneficial for those whose rights were
treated as paramount. The proviso that the land must become public
land shows that a mere change from tribal title was not enough.
Taken literally, the grant only applied in case the Indians were
removed or bought off the land.
The facts existing at the time confirm the literal
interpretation of the act. Less than a week before the passage of
the statute, the United States had made a treaty with the Cherokees
that contemplated the possible allotment of their share in this
land to be held in severalty. Treaty of July 19, 1866, Art. 16, 14
Stat. 799, 804. On June 14, 1866, it had agreed with the Creeks
that their lands should be forever set apart as a home for the
nation. 14 Stat. 785. And by a treaty of April 28, 1866, Art. 11,
it had agreed with the Choctaws and Chickasaws that
Page 235 U. S. 41
they might have their lands surveyed and divided up, reciting
that it was believed that the holding of the land in severalty
would promote the general civilization of said nation. 14 Stat.
769, 774. Whether or not, as the government contends, the title of
these tribes to the land in controversy was higher than the
original possessory right, the United States, as the appellant must
be taken to have known, just before its covenant with the railroad,
had been holding out to the Indians the desirableness and
possibility of dividing up their lands into individual holdings,
and it would be to accuse the government of bad faith to one party
or the other to suggest that it forthwith agreed with the appellant
that the moment such a division and allotment took place the
appellant thereby should acquire a paramount title and render the
allotment vain.
See further Kansas v. United States,
204 U. S. 331,
204 U. S.
341-342.
The action of Congress in making the allotment to individuals
shows in express terms that it did not suppose that the railroads
would, or intend that they should, acquire any new rights. Act of
March 1, 1901, c. 676, § 23, 31 Stat. 861, 868; July 1, 1902, c.
1362, 32 Stat. 641; July 1, 1902, c. 1375, 32 Stat. 716; April 26,
1906, c. 1876, § 27, 34 Stat. 137, 148. Our conclusion from the
words of the statute and the circumstances seems to us too plain to
require a reference to the rule of strict construction against the
grantee of the government in case of doubt, and seems to us
unaffected by the argument that a grant
in praesenti was
made by § 9. It appears to us that the appellant's claim stands
most strongly if based upon a covenant; but, covenant or grant, the
concession of the United States was dependent upon conditions that
have not been fulfilled.
Judgment affirmed.