By the treaty of 1842, proclaimed in 1843, 7 Stat. 591, the Lake
Superior Chippewas ceded lands in Wisconsin, reserving privileges
of occupancy until removed by the President. Wisconsin was admitted
in 1848. The treaty of 1854, proclaimed in 1855, 10 Stat. 1109, set
apart from the ceded lands a reservation for the Indians, their
occupancy not having been disturbed in the meantime, and provided
for surveying this reserved land and for allotting it in severalty
at the discretion of the President. Allotment patents were issued
accordingly in 1907, withholding all right of alienation without
the President's consent, and under them the allottees resided on
and claimed their several tracts. The lands in controversy,
comprised by the original occupancy, the reservation, and
allotments, were surveyed as sections numbered 16, but not until
1864 and 1873.
Held that, as the treaty and reservation
operated to withdraw the sections before survey and the allotments
merely provided a home for the Indians as promised by the treaty,
in furtherance of the purpose of
Page 245 U. S. 437
the reservation, the sections were disposed of within the
meaning of the school section grant in the Wisconsin enabling act,
and title did not pass to the state either before or after the
allotments.
Wisconsin v. Lane, ante, 245 U. S. 427.
Reversed.
The case is stated in the opinion.
MR. JUSTICE DAY delivered the opinion of the court.
The United States brought its bill to cancel patents from the
State of Wisconsin held by the J. S. Stearns Lumber Company and
covering certain lands in the Bad River or La Pointe Indian
Reservation in the State of Wisconsin. The district court dismissed
the bill for want of equity. There is no controversy as to the
facts, and it appears that the Lake Superior Chippewas, by treaty
of October 4, 1842, proclaimed March 23, 1843, 7 Stat. 591, ceded
large tracts of land in Wisconsin and Michigan to the United
States, reserving the right of hunting on the ceded territory, and
other usual privileges of occupancy until removed by the President.
Within the Wisconsin territory were included the sections 16 in
question, lying in Township 46 North, Ranges 2 and 3 West, and
Township 47 North, in Range 2 West.
Wisconsin was admitted to the Union in 1848. The Enabling Act
contained the provision as to the school sections recited in
Wisconsin v. Lane, ante, 245 U. S. 427. The
President did not remove the Indians, and on September 30, 1854, a
treaty was made with them, proclaimed January 29, 1855, 10 Stat.
1109, whereby the
Page 245 U. S. 438
United States set apart the La Pointe Reservation in Wisconsin
and provided for surveys and allotments in severalty from time to
time of such reserved lands in the discretion of the President.
This reservation embraces the land in controversy; nothing was
said in the treaty about sections numbered 16. The sectional survey
identifying sections 16 as to one of the townships was made in
1864; as to the other two in 1873. From 1881 to 1887, the State of
Wisconsin, claiming to own these lands under its school land grant,
patented them to various persons, under whom the lumber company
claims title.
In 1907, allotment patents were issued by the President of the
United States to the Indians in severalty under article 3 of the
treaty of 1854, the allottees have since resided on the
reservation, and claim the lands allotted and patented to them. The
patents in each case contained a provision that the allottee and
his heirs shall not sell, lease, or in any manner alienate the
lands except with the consent of the President. From 1909 to 1912,
timber on the lands in dispute, which had been damaged by fire, was
cut for sale by the lumber company under stipulation made with
approval of the United States, and the value of the lumber so
realized was deposited in banks for the benefit of the parties
entitled thereto; the amount so deposited was $66,833.56.
This case does not need extended discussion, as in our opinion
it is controlled by the decision of this Court just rendered in
Wisconsin v. Lane. The treaty of 1854 authorized the
ultimate allotment in severalty to the Indians of the lands
reserved by it. Afterwards, such allotment of the sections in
question was made by the President of the United States in carrying
out the purposes of the treaty. Considering the obligations of the
United States in favor of its Indian wards imposed by this treaty,
and the purpose for which these lands were
Page 245 U. S. 439
reserved, we are of opinion that the treaty with these
provisions in favor of the Indians amounts to a disposition of the
lands within the authority of Congress, and is not inconsistent
with the Enabling Act, under which the school lands were provided
for the state.
Considering that the lands were reserved by the treaty long
before they were surveyed and the sections identified, the fact
that they were, after survey, allotted in severalty to the Indians
does not, in our view, enable the state to claim the sixteenth
sections under the school lands grant. What was ultimately done in
the process of allotment was merely to provide a home for these
Indians in furtherance of the purpose with which the reservation
was made.
See, Missouri, Kansas and Texas R. Co. v. United
States, 235 U. S. 37,
235 U. S.
40.
We are of opinion that the disposition of the lands by treaty in
favor of the Indians, before the survey identifying the school
sections, was but an exercise of the right of the United States to
make other disposition of the lands, and the State of Wisconsin
must seek indemnity elsewhere, as provided by law. It follows that
the judgment of the United States District Court for the Western
District of Wisconsin must be reversed, and the cause is remanded
for further proceedings in conformity with this opinion.
Reversed.
MR. JUSTICE McREYNOLDS took no part in the consideration or
disposition of this case.