The Kansas Indians,
72 U.S. 737 (1866)

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U.S. Supreme Court

The Kansas Indians, 72 U.S. 5 Wall. 737 737 (1866)

The Kansas Indians

72 U.S. (5 Wall.) 737


1. The State of Kansas has no right to tax lands held in severalty by individual Indians of the Shawnee, Miami, and Wea tribes, under patents issued to them by virtue of the treaties made with those tribes respectively in 1854 and in pursuance of the provisions of the 11th section of the Act of June 30, 1859, 11 Stat. at Large p. 431.

2. If the tribal organization of Indian bands is recognized by the political department of the national government as existing -- that is to say if the national government makes treaties with and has its Indian agent among them, paying annuities and dealing otherwise with "head men" in its behalf, the fact that the primitive habits and customs of the tribe when in a savage state have been largely broken into by their intercourse with the whites -- in the midst of whom, by the advance of civilization, they have come to find themselves -- does not authorize a state government to regard the tribal organization as gone and the Indians as citizens of the state where they are and subject to its laws.

5. Rules of interpretation favorable to the Indian tribes are to be adopted in construing our treaties with them. Hence a provision in an Indian treaty which exempts their lands from "levy, sale, and forfeiture" is not, in the absence of expressions so to limit it, to be confined to levy and sale under ordinary judicial proceedings only, but is to be extended to levy and sale by county officers also for nonpayment of taxes.

These were three distinct cases involving, however, with certain differences, essentially the same question, argued on the same day and by the same counsel.

The specific question was whether the State of Kansas had a right to tax lands in that state held in severalty by individual Indians of the Shawnee, Wea, and Miami tribes under patents issued to them pursuant to certain treaties of the United States, the tribal organization of these tribes having to a certain extent, as was alleged, been broken in upon by their intercourse with the whites in the midst of

Page 72 U. S. 738

whom the Indians were and by their enjoyment, to some extent, of the social and other advantages of our own people.

The question was raised on bills filed in equity in the county courts of Kansas by different Indian chiefs -- Blue Jacket as representing the Shawnees; Yellow Beaver representing the Wea tribe, and Wan-zop-e-ah the Miamis -- against the County Commissioners of Johnson County and Miami County to restrain these commissioners from selling for nonpayment of taxes lands held by these Indians in their individual characters. The county court dismissed the bills, conceiving that the lands were rightly taxed, and on an affirmance of such dismissals in the supreme court of the state, the cases were brought here. They were, respectively, thus:



In 1817, a portion of the Shawnees were living in Missouri, others in Ohio; those in Missouri were upon lands given to them by the United States, and which, by treaty, was declared should not be liable to taxes so long as they continued to be the property of the Indians. [Footnote 1]

In 1825, the Shawnees in Missouri gave up their lands there to the United States, and in consideration for the surrender received for themselves, and such of their brethren in Ohio as might choose to follow them, a tract in Kansas -- then a wild -- of 50,000 square miles or 1,600,000 acres. [Footnote 2]

In 1831, the Shawnees in Ohio resolved to join their Missouri brethren who had gone to Kansas. A treaty was accordingly concluded in that year by the United States with the Ohio Shawnees. By the terms of it, the President was to cause the said tribe from Ohio to be protected at their intended residence against all interruption or disturbance from any other tribe or nation of Indians or from any other person or persons whatsoever, and he was to have the same care

Page 72 U. S. 739

and superintendence over them in the country to which they were to remove that heretofore he had over them at their then place of residence. 100,000 acres of land within the 50,000 square miles, above mentioned, were granted to them in fee by patent so long as they should exist as a nation. These lands were not to be ceded by them except to the United States, and were never to be included within the bounds of any state or territory, nor to be subject to its laws. [Footnote 3]

The Ohio Shawnees were thus transferred to Kansas, and were there resident with the rest of their tribe from the time they went there continuously up to 1854. In the course of this term of years, the progress of civilization westward carried numbers of white men to, around, among, and beyond them. They were thus in the midst of whites. In May of the year just mentioned, 1854, Kansas became a "territory" of the United States, with an organic law from Congress. By this law it was ordained

"That all treaties, laws, and other engagements made by the government of the United States with the Indian tribes inhabiting the territories embraced therein should be faithfully and rigidly observed,"

and also that all such

"territory as by treaty with any Indian tribe was not to be included within the territorial limits or jurisdiction of any state or territory should be excepted out of the boundaries and constitute no part of the same until said tribe should signify their assent to the President of the United States to be included therein."

In November of this same year, 1854, the Shawnees -- holding their lands in common in fee by patent, no partition having been made among themselves, and they proposing to divide them to the extent of 200 acres each among themselves, but having no mode to effect this except by parole -- ceded to the United States the whole tract of 1,600,000 acres. A retrocession of a part (200,000 acres) was made in the same instrument to carry out this purpose, with a stipulation that these retroceded lands should cover the lands where improvements of individuals had been made, and that the

Page 72 U. S. 740

restriction before annexed to their title should be as to the power of alienation, regulated as Congress might provide for. In one article of the agreement now made with these Indians,

"the care and protection of the United States are invoked, and they agree to comply with the laws of the United States and expect to be protected and have their rights vindicated by them. [Footnote 4]"

A sum of $829,000 was agreed to be paid to the Shawnee Indians for the cession to the United States. One article of the treaty provides that this sum

"shall be in full satisfaction not only of such claim, of all others of what kind soever, and in release of all demands and stipulations arising under former treaties."

From this re-ceded or reserved tract 200 acres were to be selected for each individual, except as to certain bands, who were to have their lands in common and in a compact body. The lands assigned to individuals were to be patented, under such restrictions as Congress -- or, as that body afterwards enacted [Footnote 5] -- such restrictions as the Secretary of the Interior might impose. This officer afterwards made rules, and patents were issued in fee simple, with the restriction that "the said lands shall never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior."

In July, 1859, a constitution was formed for the State of Kansas in which it was provided that all rights of individuals should continue as if no state had been formed or change in the government made.

In January, 1861, an act for the admission of the state was passed by Congress. [Footnote 6] In this it was provided

"That nothing contained in this said constitution respecting the boundaries of said state shall be construed to impair the rights of person or property now pertaining to the Indians of said territory so long as such rights shall remain unextinguished by treaty with such Indians."

And also

"That no territory should be included which, by treaty with such Indian tribes, was not (without the consent of such tribe) to be included within the territorial limits or jurisdiction of any state or

Page 72 U. S. 741

territory, but that all such territory shall be excepted out of the boundaries and constitute no part of the State of Kansas until said tribe shall signify their assent to the President of the United States to be included in said state."

No treaty had been made by this tribe in which such consent was given by them. Nor was such assent shown by the record to have been given to the President.



Was similar in the outlines to that of the Shawnees. It was a small tribe -- a mere band -- who joining with other small tribes surrendered to the United States, by Treaty of 10 August, 1854, [Footnote 7] lands which had been ceded to them in earlier times while the region was wild. One hundred and sixty acres were reserved for each individual, to be selected, not in a body, by the heads of families. Ten sections were reserved for the common property of the tribe, and one section for the American Indian Mission Association. The unselected lands were to be sold and the proceeds given to the Indians. The patents were like those given to the Shawnees.



Was, in its main aspect, like the others. By the treaty of 1854, [Footnote 8] it was provided,

"Should difficulties at any time arise, that these Indians would abide by the laws of the United States, and as they expected to be protected and have their rights vindicated by those laws."

And also in the 11th article of the same treaty it was provided

"That the President, with the advice and consent of the Senate, might adopt such policy in the management of their affairs as in his judgment might be most beneficent to them, or Congress might thereafter make such provision by law as experience

Page 72 U. S. 742

should prove to be necessary."

Like the Indians of the other two tribes, this tribe held their rights in severalty, with the conditions against alienation except on approval &c. The patents in the case of this tribe declared, however:

"That the lands now patented shall not be liable to levy, sale, or execution, or forfeiture, PROVIDED that the legislature of a state within which the ceded county may be hereafter embraced may, with the assent of Congress, remove the restriction."

IN THE CASE OF THE SHAWNEE TRIBE, the Commissioners of the County of Johnson which had laid the tax answered the bill as follows:

"That the aggregate of the lands selected by the said Indians and from which it is sought to enjoin the levy of taxes is about one hundred thousand acres; that they do not lie in a contiguous body, but are scattered over the entire area of the lands ceded by said tribe of Indians to the United States -- in fact, over the whole body of the said County of Johnson; that interspersed with the selected lands are farm lands and roads and school districts and municipal townships (the said districts and townships exercising their jurisdiction and functions over the said lands) of the white citizens of the county; that the lands are traversed by the white citizens as well as by Indians in visiting each other, in going to mill and to various business centers of the county; that highways have been laid across the lands by different county tribunals, and frequently at the instance and request of the grantees of the lands; that since the lands have been patented to the Indians, many of them have sold to their white neighbors and to each other such portions as they were allowed to do by the Secretary of the Interior; that the Indians traffic and live with their white neighbors as they do with each other and as such white neighbors do with each other; that many of the Indians have intermarried with their white neighbors and friends; that their marriage ceremony conforms to the laws of the state; that many of the members of the said tribe of Indians, and who are the complainants in the bill, and who are grantees of the selected lands, are white

Page 72 U. S. 743

men and women; that the said white men are entitled to and do exercise the elective franchise at all elections; that the Indians appeal to the different courts of justice of the county to protect their rights not only as against their white neighbors, but as against each other; that offenders among them are brought by them before the courts of justice for trial and punishment; that the Indians invoke the aid and shield of the laws, courts, and institutions of the state as administered and enforced in the said county to preserve order, maintain justice, protect rights, and redress wrongs among themselves as well as among their white neighbors and themselves; that they use the common schools established in said county, and their children are entitled to the benefit of the different school funds; that on the decease of any of the said Indians, their estates are subject to the laws of descent, inheritance, and distribution of the state and are in fact administered upon and disposed of by their request and application in the probate court of said county; that many of the said Indians have paid the taxes levied upon their lands into the treasury of the county, and that commercial business and social intercourse prevail throughout said county between the complainants and the citizens and residents of said county."

AS RESPECTED THE WEA TRIBE, it was admitted in a case agreed on,

"That guardians are appointed by the probate court of said county for minors, and their lands sold by order of the probate court under the like regulations of the Secretary of the Interior; that the members of said tribe sue and are sued in the various courts in the said county of Miami; that the said Indians trade and traffic with the whites, and the whites with them the same as the whites do with each other; that the tribe exercise no control over the head rights, and do not punish for offenses among themselves, but that the Indians go to the criminal courts for redress; that eight of the persons for whose use this suit is brought are white men, adopted into the said tribe, and own head rights under the treaty; that some of the adopted whites exercise the elective franchise; that highways are laid out over and across said lands under the authority of the laws of Kansas; that farms of the whites are interspersed more or less among these Indian lands; that municipal townships of the county

Page 72 U. S. 744

embrace the said Indian lands, and have done so since the organization of the county. That annuities of the United States are not received by the chiefs, but are paid over to each Indian who signs the payroll. The chiefs only receive those funds that are used and expended for tribal purposes. The said tribe does not enforce the collection of debts among the members of said tribe."

AS RESPECTED THE MIAMIS, the case was admitted to be essentially similar.

In 1860, a law was passed by the territorial authorities of Kansas [Footnote 9] to the effect

"That all Indians in Kansas Territory to whom lands have been set apart in severalty or by families and who shall receive patents therefor from the United States are hereby declared to be, and are, made citizens of the Territory of Kansas."

Notwithstanding all this, however, it was plain that a tribal organization in all three of the tribes was, to a greater or less extent, kept up. Blue Jacket, who filed the bill on behalf of the Shawnees, was himself the Shawnee head chief. There was also a second chief. These Indians had a council, elected for a year, and a clerk of council, and a sheriff, of their own. Also a place where the council and head men met to transact business once in each month. The number of Indians belonging to the tribe was 860, not including absentees, of whom there were about 250.

The clerk of the council, a white man apparently, who was a member of the Shawnee tribe of Indians by adoption, gave the following account of them:

"I have resided among them since the year 1849. I was the head of a family. I got eight hundred acres of land as a head right. I have been clerk of the Shawnee council since 1856. I attend the meetings of the council regularly. I keep a record of the business transacted in the council. Any difficulties between members of the tribe they sit as a council to determine the same. Since I have been clerk there have been quite a number

Page 72 U. S. 745

of difficulties settled by the council. Shawnees who die, the council appoint persons to sell the personal property and pay the debts. They appoint the men to sell; order the sale to pay the debts. We keep a record in the council in relation to all the transactions relating to orphans and the disposal of property of deceased persons &c. The last estate settled in the council was the estate of Eliza Flint, a woman who died in the fall of 1864. She had but a few things to administer on. There is one estate which is not yet settled up. It is of a man who died in the fall of 1864. The council do not order the sale of real estate, and do not take control of our lands. I am administering, through the Probate Court of Johnson County, the estate of James Suggott, who was a member of the Shawnee tribe. There is one minor, and I am the guardian appointed by the Probate Court of Johnson County. I was curator of an incompetent Indian, appointed by the Probate Court of Wyandotte County, in Kansas. The council takes cognizance of offenses committed by one Shawnee against another Shawnee. They determine the punishment for offenses of Shawnees against Shawnees. The party found guilty is fined. He is fined the value of the thing stolen, which is paid to the owner, and a like value paid to the council, which goes into the council fund. There have been cases of this kind since I have been clerk, but not a very great many. The last man that was fined was in 1863; he had stolen something. Within the last five years there have been a number of persons punished. There was one case where a Shawnee was charged with manslaughter. The council found him guilty and sentenced him to one hundred lashes, and to be expelled from the tribe, and to lose his annuity, but that sentence was not executed, owing to the opposition of some of the tribe. This took place in 1860 or 1861. It was just before the war, and the defendant went into the service. They have hung one man for murder since I was clerk. In the case of William Fish, arrested by the Sheriff of Johnson County for shooting Robert Bluejacket, the council directed me and the Shawnee Sheriff to demand him of the Sheriff of Johnson County to be delivered over to the council for trial. We did so, and he was delivered up to us. Fish and Bluejacket were both Shawnee Indians. This took place in 1858 in the fall. He was tried before the council, and acquitted. The Shawnees have a custom of their own with regard to marriage. Some marry according to the

Page 72 U. S. 746

old custom, and some marry by the minister. Charles Bluejacket is our minister. The more enlightened portion go to him to perform the ceremony. He has a ceremony of his own. Some are still married according to the old custom. Each mode of getting married is considered by the Shawnees as valid. I never was present at an Indian marriage according to the old custom. The Charles Bluejacket who is minister is the same who is complainant in this case, and head chief. We are a church body alone. We are not connected to any other church. Charles Bluejacket is an exhorter, but nothing more. We sell head rights to white men, according to the rules prescribed by the Secretary of the Interior. White men have bought parts of head rights, made farms, and planted orchards on the lands they have bought. I know of two or three cases of this kind. I never voted but once that I recollect of. A number of Shawnees voted at the election for county seat in 1858. Shawneetown was a candidate. I was judge of township election in 1863. There are state and county roads and town roads leading out through Shawnee lands. There is a road laid out by the county through my land. I sent my children, at one time, to Mr. Bladget to school."

Blue Jacket himself testified:

"The Sheriff of the Shawnees executed the sentence of death for the murder referred to by the last witness. This was in the year 1856 or 1857. They are still in the habit of punishing Shawnees for offenses against Shawnees. We have a national school fund and a school fund of our own. The interest on the national school fund is about $5,000 per annum. We have what is called the mission school, carried on under the direction of the Society of Friends or Quakers. There is a Sunday school for the Shawnees still kept up at the Quaker Shawnee mission. The United States have a Shawnee Indian agent for the Shawnees, who resides amongst us. The Shawnees have a treaty now pending with the United States. In 1863, the Shawnees, by their head men, signed a treaty with the United States, and it was sent to Washington City. It was signed by the men who were appointed by the nation to make a treaty. It has never been acted on by the Senate. This treaty was drawn up in 1864, and is still pending. I was one of the delegates from the Shawnee nation to make the treaty. "

Page 72 U. S. 747

On in regard to THE WEA AND MIAMI TRIBES, it appeared that each tribe had its "head men," who represented it and transacted its business, receiving funds from the United States and disbursing them for tribal purposes, the government of the United States having an Indian agent for both tribes, who transacted business with them through their chiefs and head men at his office.

On the cases coming from the county court to the Supreme Court of Kansas, the principal case, that of the Shawnees, was twice fully argued. And the court, through its chief justice, gave an extended and able opinion. No more of it can be here presented than short and much-mutilated extracts. Even these, however, will serve to convey some idea of the line of view had by that tribunal:

"What is the nature of the plaintiffs' title? Have the patentees but a portion of the title, the remainder being in the government, or have they the whole title?"

"It is not material to inquire whether the title of the Shawnees would be correctly described by the technical term 'fee simple.' The true test is what was the intention of the parties, as derivable from the treaty and the provisions of the patent, all taken together, considered with reference to circumstances existing at the time they were made and issued."

"The policy of the government has been to induce the Indians to abandon their mode of life as hunters and warriors and to cultivate in them a taste for and aid them in adopting the pursuits and manners of civilization. To this end, enlightened missionaries have been encouraged to live among them as teachers, and the vicious of the white race have, so far as was practicable, been excluded from their country. They have been furnished with agricultural implements and taught the use of them. Traders and merchants have been permitted to live among them and furnish them with supplies, so that they need not depend upon the spoils of war or rely upon the uncertain success of the chase for the necessaries of life. The effect of this policy is seen in many instances. The nationalities of some of the tribes most ferocious in history have become extinct, the members thereof constituting a worthy portion of the great body politic, undistinguishable from the great mass except in color or texture. "

Page 72 U. S. 748

"The Shawnees, for the last third of a century, have lived upon the very borders of civilization, and much of the time in actual contact with the white race. Many of them have been gradually losing the distinctive characters of the red man, adopting the habits and modes of life of their fairer-skinned neighbors, and are, and have been for years, thrifty, substantial, industrious husbandmen. On the other hand, others of them still live the nomadic lives of their fathers, preferring to remain in habits, mode of life, and in name Indians. In the country ceded by them by the treaty of 1854, the former class, under tribal regulations, were occupying particular portions of their country, having made thereon farms and other improvements pertaining to a fixed mode of life. Their reservation would soon be surrounded by white settlements and be useless to the nomadic portion as hunting grounds. There was vastly more of it than would be necessary for agricultural purposes if every member of the tribe were to become an independent tiller of the soil. Good policy dictated that the portion of these lands which under the circumstances must soon become wholly useless to the Indians as homes should be placed in a situation to be occupied by the whites. Upon consultation with the Indians, it was ascertained that their views and those of the government coincided, and immediate steps were taken for an amicable arrangement."

"It was competent for the Indians, had they seen proper so to do, to have selected the whole in a compact body and held them in common. Had they done so, no patents would have been issued to them and their title would have been at least the 'Indian title.' But it was not expected that course would be taken by them. It is apparent from the provision of the treaty that some of them desired to hold their shares in severalty. Among the more civilized and thrifty of them, such a desire was a very natural one. When the Indian, in pursuance of the treaty, made his selection of lands to be held by himself in severalty, the title of the tribe, so far as the lands selected were concerned, vested in him -- that is he took the right of perpetual use and occupation. Had it been the intention of the framers of the treaty that he should not acquire a greater title, further provision was wholly unnecessary, but further provision was in fact made. The tribe agreed that, under proper restrictions for the protection of the patentees, the government might issue patents

Page 72 U. S. 749

for the lands. It was feared, probably, that some of the patentees might be overreached by their more shrewd and better-educated white neighbors, and be deprived of their lands without adequate compensation. Hence the stipulation. Nothing remained in the government but the ultimate titles, and the ordinary mode adopted by the government for conveying that to individuals is by patent in fee simple. Must not the conclusion be that the object of these patents was to convey to the Indians the ultimate title? It seems so to the court. But the correctness of this conclusion is confirmed by the fact that when any of these lands are sold by the grantees with the consent of the government, the whole consideration of the sale goes to the Indian."

"The effect of the restrictions in the patent remains to be considered."

"It need not be argued that it does not operate as a condition. An attempt by the Indian to convey without the assent of the Secretary of the Interior does not forfeit his right to the land."

"His act would be wholly void, not affecting his title in any way. It is not a limitation upon the title, because the whole title of the government passed when the patent issued."

"The conclusion of the court upon the first point is that the absolute title to the lands in question was intended to be and is in the Indians, and not in the government, and that they must be held to be taxable if there be no other reason for adjudging them exempt."

"Second. Are these lands exempt from taxation on the ground that they belong to the Shawnees? For some purposes, at least, the tribal organization of the Shawnees is still maintained, but it nowhere appears that as a tribe they have a right to or that they attempt to control in any manner the lands held in severalty by the patentees. The lands not only do not lie in a compact body, but they are widely scattered, being thickly interspersed with the lands and settlements of white persons."

"There is no express prohibition against taxing these lands or the personal property of the Indians residing upon them. The treaty does not contain it, nor is it contained in any act of Congress to which our attention has been directed. In disposing of these lands to the Indians, it doubtless was competent for the proper branch of the government to have prohibited their

Page 72 U. S. 750

taxation by the state, at least so long as they might remain the property of the members of an Indian tribe. The exercise of such power in this instance must be sought elsewhere than in express provisions of law or treaty."

The court then distinguished the case from Goodell v. Jackson, [Footnote 10] decided by Chancellor Kent and from The Cherokee Nation v. Georgia and Worcester v. Georgia in this Court, [Footnote 11] which last cases went, the court below observed, on the ground that the Indians concerned were recognized by the general government as occupying exclusively a district of country, in the enjoyment of which they were promised the protection of the United States; the Court in the latter case said (page 31 U. S. 557): "The treaties and the laws of the United States contemplate the Indian territory as completely separate from that of the states." His honor proceeded:

"The Shawnees do not hold their lands in common, nor are they contiguously located. It is difficult to conceive of a national existence without a national domain upon which to maintain it. It may be competent for the general government, for some purposes, to recognize the continued tribal existence of the Indians, but it never has recognized them as distinct nationalities except in connection with the country they occupied. It never has treated with them or legislated in regard to their affairs except as the owners and exclusive occupants of a particular district of country. The Shawnees who own and occupy these selected and patented lands are in precisely the same situation they would have been in if, instead of giving them two hundred acres of land apiece, the government had given each two hundred dollars, which they had used in purchasing each a quarter of a section of the public lands wherever it could be found within the state."

On the whole case, the conclusion of the Supreme Court of Kansas was:

"That the Shawnees who hold their lands in severalty under patents from the government have the abstract title thereto;

Page 72 U. S. 751

that the lands are subject to taxation unless exempted specifically by the Constitution of this state or by some paramount law, and that they are not so exempt."

As respected the MIAMIS, that learned tribunal, on a comparison of the treaty made with them with treaties with other Indians made at about the same time and penned by the same person -- in which last treaties it was stipulated that the lands should "not be liable to levy, sale, or execution or forfeiture," and at the same time stipulated that they should not be taxed for a certain term of years &c. -- held that the words above quoted had reference to "judicial proceedings alone."

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