Prior to the 9th of July, 1858, when the President set apart the
surplus of land which remained after the Shawnee Indians had
obtained their complement under the treaty of the United States
with them, ratified November 2, 1854, and opened such surplus to
preemption and settlement, an Indian of the Wyandotte tribe could
not locate "a float" held by him under the treaties of the United
States made with his tribe October 5, 1842, and lst of March,
1855.
Walker and others brought an action under the civil code of
Kansas to try title to and get possession of a section of land in
Douglas County, Kansas, being
"parcel of the lands ceded to the United States by the Shawnee
tribe of Indians by treaty ratified November 2, 1854, [
Footnote 1] and lying between the
Missouri state line and a line parallel thereto and west of the
same thirty miles distant."
The condition of these lands, as gathered from the provisions of
certain Indian treaties and the laws of Congress, was as
follows:
Page 83 U. S. 437
By articles of convention made between William Clark,
Superintendent of Indian Affairs, and the
Shawnees, of
November 7, 1825, in exchange for their lands near Cape Girardeau,
on the Mississippi, held under the authority of the Spanish
government, the Shawnees had the right to select 1,600,000 acres of
land (a tract equal to fifty miles square) on the Kansas River, to
be "laid off either south or north of that river, and west of the
boundary of Missouri."
By Act of Congress of May 28, 1830, the President was authorized
to make and exchange, [
Footnote
2] and:
"§ 3. To assure the tribe or nation . . . that the United States
will forever secure and guarantee to them, their heirs or
successors, the country so exchanged with them,"
and
"§ 6. To cause such tribe or nation to be protected, at their
new residence, against all interruption or disturbance
from any
other tribe or nation of Indians or from any other person or
persons whatsoever."
By articles of agreement and convention of August 8, 1831, the
United States agreed to grant, by patent in fee simple, 100,000
acres of land, to be located under direction of the President,
within the limits of the fifty miles square reserve, provided for
by the said treaty of 1825, [
Footnote 3] and to guarantee that said lands
"Shall never be within the bounds of any state or territory, . .
. and cause said tribe to be protected . . . against all
interruption or disturbance
from any other tribe or nation of
Indians or from any other person or persons whatever.
[
Footnote 4]"
[This fifty miles square reserve was located so as to include
the lands in question.]
These arrangements and this treaty, the reader will observe,
were with the
Shawnee Indians, and thus things with that
tribe and the United States remained A.D. 1842.
On the 17th of March in the year just named, a treaty was
concluded between the
Wyandot Indians and the United
States. [
Footnote 5] The 14th
article of it was thus:
Page 83 U. S. 438
"The United States
agree to grant, by patent in fee
simple, to each of the following named persons [Irwin Long among
others] and their heirs, all of whom are Wyandottes, one section of
land, . . . out of any lands west of the Mississippi [afterwards
changed by amendment to Missouri] River,
set apart for
Indian use,
not already claimed or occupied by any person or
tribe. The lands hereby granted to be selected by the
grantees, . . .
but never to be conveyed by them, or their
heirs, without the permission of the President of the United
States."
We now come back to the
Shawnees.
The 1,600,000 acres of land granted to them by the treaty of
1825, subject to the provisions of the treaty of August 8, 1831,
including the lands in question, remained the property of the
Shawnees until November 2, 1854. [
Footnote 6] A new treaty was then ratified between them
and the United States by which the Shawnees ceded to the United
States this 1,600,000 acres, and the United States ceded back to
the Shawnees 200,000 thereof, "to be selected between the Missouri
state line and a line parallel thereto, and west of the same thirty
miles distant,"
including the lands in question.
Out of these 200,000 acres, east of the thirty mile line, were
to be carved certain head rights, and set off certain tracts to be
occupied by Shawnees in common and for the protection of certain
absentees; the residue was to be
"Set apart in one body of land, in compact form, under the
direction of the President of the United States, and all such
Shawnees as return to and unite with the tribe within FIVE years
from the proclamation of this treaty [
Footnote 7] shall be entitled to the same quantity of land
[as their brethren &c., . . .] and whatever portion of said
surplus remains unassigned,
after the expiration of said five
years, shall be sold as hereinafter provided,"
&c., the selections to conform to the legal subdivisions of
the survey provided for in article 5.
The fifth article also,
"No
white person or citizen shall be permitted to
make locations or settlements within the thirty mile
limits until after all of the
Page 83 U. S. 439
lands shall have been surveyed, and the Shawnees shall have made
their selections and locations,
and the President shall have
set apart the surplus."
On the 22d of July, 1854, Congress passed an act extending the
preemption laws over "all the lands to which the Indian title has
been, or shall be, extinguished" within the Territories of Nebraska
and Kansas. [
Footnote 8]
We now pass back again to the Wyandottes, with whom the treaty
had been made October 5, 1842.
By a new treaty, now made March 1, 1855, it was thus provided in
a tenth article:
"That each of the individuals to whom reservations were granted
by the fourteenth article of the Treaty of March 17, 1842, or their
heirs or legal representatives, shall be permitted to
select and
locate said reservations on any
government lands west of the States of Missouri and Iowa,
subject to preemption and settlement, said reservations to
be patented by the United States in the name of the reservees as
soon as practicable after the selections are made; and the
reservees, their heirs or proper representatives, shall have the
unrestricted right to sell and convey the same whenever they may
think proper."
The lands in question were first opened for settlement,
preemption, and sale on the 9th of July, 1858.
So far as to treaties and the date of opening of these lands to
preemption &c. Now as to the facts of this particular case.
The plaintiffs claimed under Irwin Long, the Wyandotte Indian
mentioned in the treaty of 1842, who held a patent from the United
States. In support of this title it appeared that on the 8th of
May, 1857, one Stover, a white man, as agent for Long, filed in the
office of the Surveyor General of Kansas and Nebraska a written
notice that as such agent of Long he had on that day selected and
located a reserve of land to which Long was entitled,
in
pursuance of the two treaties made by the United States with the
Wyandottes on the 5th of October, 1842, and the 1st of March,
1855. On this proceeding,
Page 83 U. S. 440
a patent -- this being the patent under which the plaintiffs
claimed -- purporting to convey the lands in pursuance of the said
treaties was issued and duly delivered.
The defendants claimed title by virtue of a preemption
settlement of the 28th of July, 1858. In support of this title, it
appeared that in February, 1857, one Whaley, being personally
qualified, entered upon and made settlement in person and commenced
to improve with intent to preempt and purchase the land; that after
making such settlement and within thirty days thereafter, he went
to the proper local land office with intent to file notice of his
said settlement and intention to preempt, and offered to make such
filing, but that the register of the land office refused to allow
such filing on the ground that the said land was not preemptable;
that in April of the same year, he went to the same office and made
the same offer, which was refused by the register on the same
grounds; that on the 30th day of July, 1858, he duly filed in the
office of the register of the said land office a notice of his
settlement on said land, and of his intention to preempt the same,
dating the time of his settlement July 28, 1858;
that on the
5th day of May, 1859, he purchased the said land and paid for
the same and took the usual certificate of such purchase and
payment; that on the 10th day of August, 1860, the said preemption
and purchase was approved by the Commissioner of the General Land
Office of the United States, and the register of the local land
office was duly notified, by letter of said commissioner, of such
approval.
That afterward the said Whaley applied to the register of said
local land office, at his office, for a patent from the United
States to him for said land, and was informed by said register that
said patent had been sent from Washington to said office, and
afterwards recalled.
As already said, the land in question was first opened for
settlement, preemption, and sale, on the 9th of July, 1858.
The suit being referred to a referee to try the action, he found
as matter of law that up to the 9th of July, 1858, when, as just
mentioned, the lands were first opened for settlement,
Page 83 U. S. 441
preemption, and sale, and indeed up to May 5, 1859, when Whaley
made his payment and purchase, neither plaintiffs nor defendants
had acquired any title, but that by the purchase and payment then
made, an equitable title was vested in Whaley.
He accordingly found that the defendants were entitled to
judgment, and found further that the plaintiffs should convey the
title to the defendants &c.
This decision was declared to be right by the supreme court of
the state, and the case was now brought here for review.
MR. JUSTICE DAVIS delivered the opinion of the Court.
If the land in controversy was subject to the location of the
Wyandotte float before it was proclaimed open to preemption and
settlement, the title of the plaintiffs cannot be divested by any
supposed equity growing out of the preemption of the defendants.
If, on the contrary, neither the plaintiffs' grantor nor the
defendants could take any steps towards acquiring title to the land
until the 9th day of July, 1858, when it was first opened to
preemption settlement, the defendants having since that date
complied with all the requirements of the preemption law and
obtained the usual certificates of purchase, and the grantor of the
plaintiffs having taken no action on the subject after the 8th day
of May, 1857, are equitably entitled to the land, and the legal
title enures to their benefit.
Whether the one or the other of these categories be true depends
on the construction to be given several Indian treaties, which we
will proceed to notice.
By the fourteenth article of the treaty with the Wyandotte
nation of Indians, ratified on the 5th day of October, 1842,
[
Footnote 9] the United States
agreed to grant to each of several named
Page 83 U. S. 442
persons (among the number Irwin Long), Wyandottes by blood or
adoption, a section of land out of any lands west of the Missouri
River, set apart for Indian use, not already claimed or occupied by
any person or tribe. The privilege of selecting the lands was
conceded to the grantees, but the power of alienation was denied
them, except with the permission of the President.
Another treaty was made with this same tribe of Indians on the
first day of March, 1855, [
Footnote 10] which conferred on the reservees, under the
treaty of 1842, the right to select and locate their lands on any
government lands west of the States of Missouri and Iowa, subject
to preemption and settlement, and the restriction upon alienation
imposed in the first treaty was withdrawn, except as to certain
incompetent persons. The reserve of Long, through whom the
plaintiffs claim title, was located upon the land in dispute in
May, 1857, and the question is was the location authorized by
either of these treaties? It is contended that the lands were not,
at the time of the attempted location, subject to be taken under
the Long float, because they were then claimed or occupied by the
Shawnee Indians, and this presents the most important subject of
inquiry.
It had been, for a long time prior to the Wyandotte treaty of
1842, the well defined policy of Congress to remove the Indians
from organized states, and in execution of this policy, territory
supposed at the time to be too remote for white settlement was set
apart exclusively for the use of Indian tribes. It was this policy
that dictated the removal of the Shawnees from Missouri and Ohio,
in 1825 and 1831, to a tract of country in Kansas of large area,
ceded to them by the United States, and embracing the lands in
controversy. They held this large tract of land under the
protection of treaties and acts of Congress, from 1825 to 1854,
when the rapid decrease in their numbers, and the encroachments of
the white population, induced the government to conclude another
treaty with them, essentially lessening
Page 83 U. S. 443
their territorial limits. During this time, they were, by
express stipulation, assured of protection not only against
interruption or disturbance from any other tribe of Indians, but
from everybody else. In recognition of this guarantee, the
reservees, under the Wyandotte treaty of 1842, although in
pursuance of the policy of the government, confined in their
selections to lands west of the Missouri River set apart for Indian
use, could not appropriate the lands already claimed or occupied by
any person or tribe.
It is apparent, therefore, that Long had no right to locate his
float on the land in dispute, from 1842 to 1854, because during all
this time it was claimed or occupied by the Shawnees. Did the
treaty of 1854 with them so alter the condition of things as to
render valid the location of this float in 1857? By this treaty,
the Shawnee nation ceded to the United States all the large domain
granted to them by the treaty of 1825, with the exception of two
hundred thousand acres reserved as homes for the Shawnee people, to
be selected within certain defined limits, which included the lands
in dispute. It was contemplated that even this reservation might be
more than the wants of this people required, on account of the
paucity of their numbers and the limited quantity of land assigned
to each individual member of the tribe. Accordingly, provision was
made that the surplus which remained unassigned after the
expiration of five years, unless sooner ascertained, should be sold
by the government and the proceeds appropriated to the use of the
Indians. During this time, the privilege was conceded to the
Shawnees of selecting their lands wherever they chose within the
limits of the reservation. Indeed, until this privilege was
exhausted, the land, in any proper sense, belonged to them.
In surrendering the larger part of their immense possessions to
relieve the government from the predicament in which it was placed
by the advancing tide of white population, they did not part with
any right in the lesser part reserved by them as long as the claim
of any single member of the tribe, according to the terms of the
treaty, was unsatisfied. If one person could acquire a right to any
portion
Page 83 U. S. 444
of the lands thus reserved so could another, and in this way the
privilege of free and unrestricted selection would be frittered
away. It needed no special provision to secure this freedom of
choice, for without it the treaty could not be executed. By virtue
of the treaty itself, these lands were appropriated to a specific
purpose, and whatever interfered with the accomplishment of this
purpose was necessarily forbidden.
It is easy to see that the purpose for which the Shawnees
retained in their own hands the entire reservation could not be
effected if an entry for location and settlement by anyone else
were permitted, for the part thus taken was subject at any moment
of time to be chosen for the use and occupation of the Shawnees. In
effect, the retrocession by these Indians of the lands granted to
them in 1825 was on the condition that they should be allowed to
select, within a limited time, out of two hundred thousand acres
set apart for this purpose, a quantity of land equal to two hundred
acres for each individual member of the tribe. The performance of
this condition required, until this time expired, absolute
noninterference by any outside party. On any other theory of
interpretation, these Indians, on account of their helpless state,
could not have obtained the lands they desired. If these views be
correct, the exclusion, in section five, of white persons and
citizens from making locations or settlements was not required by
the necessities of the case. They were excluded without it. The
clause was doubtless inserted out of superabundant caution and to
satisfy the misgivings of the Indians, who, from experience, had
good reason to dread the encroachments of this class of people
notwithstanding treaty stipulations. This experience had given them
no ground to apprehend interference from the Indians on account of
the direct control exercised by the government over the affairs of
all the Indian tribes.
If, however, the government had been able, without difficulty,
to protect them against their own race, it had not, with every
effort, been always able to hold in restraint the ceaseless
activity of the white race. It was therefore natural
Page 83 U. S. 445
that on this occasion the Shawnees should want, although wholly
unnecessary, a positive stipulation against the unlawful intrusion
upon their rights by our own citizens. Indeed, this very case
affords an illustration of the quarter from which trouble has
always arisen, for Stover, a white man, located the reserve, and it
is a reasonable presumption, in the absence of any proof on the
subject, that he was interested in the location. It is enough to
say, without pursuing this branch of the case further, that we
agree with the learned Supreme Court of Kansas that the latter
clause of the fifth article of the treaty "conferred no right or
made no prohibition which the law would not raise on the treaty"
without it.
If so, the location of Long's float, under the treaty of 1842,
was an illegal act because inconsistent with the existing rights of
the Shawnees. These rights were in full force at the time of the
attempted location, and remained in this condition until the
proclamation of the President of the 9th of July, 1858, setting
apart the surplus of lands which remained after the Shawnees had
obtained their full complement and opening the lands thus
segregated for preemption and settlement.
In no respect has the United States failed to discharge the
obligation incurred by the treaty of 1842 with the Wyandotte
reservees. The Indian country to which they were invited to go had
been defined by Congress, [
Footnote 11] and they were told to locate their reserves
anywhere within it, provided they did not encroach on the rights of
others. This limitation was not only reasonable in itself, but
essential to preserve the faith of the government in its several
treaties with the different Indian tribes. Why thirteen years were
suffered to pass without these reserves being located does not
appear, but it is obvious in 1855 they had materially lessened in
value, as before that time the limits of the Indian country, by
legislation and treaty, had been very much restricted. This
restriction imposed on the government the duty of
Page 83 U. S. 446
making other provisions for these floating grants, and this duty
was performed by the Wyandotte treaty of 1855. This treaty, among
other things, allowed the reservees to locate their floats on any
government lands west of Missouri and Iowa subject to preemption
and settlement, and removed the restraint upon the power of
alienation, imposed in the former treaty. This action of the
government placed Long and the defendants, as to the lands in
question, on precisely the same grounds. Neither party could
acquire any right to them until they were thrown open to preemption
and settlement, and both, as soon as this was done, were at liberty
to take them up -- Long, by means of his float, the defendants by
reason of their qualifications as preemptors -- and whoever moved
in the matter first would have the better right. It required,
however, positive affirmative action after the lands were declared
to be public lands before any title to them, legal or equitable,
could be obtained, and all proceedings attempting to forestall the
proclamation of the President were null and void, because in
contravention of the treaty with the Shawnees. The defendants, not
relying on their prior settlement in February, 1857, to protect
them, took the proper steps after this proclamation to perfect
their preemption, and have performed all the conditions to which
they were subject by the law. They have therefore a complete
equitable title to the land, and as the patent issued to Long was
based on an unlawful entry, it ought to be transferred to the
defendants.
There is, in our opinion, no error in the judgment of the
Supreme Court of Kansas, and it is accordingly
Affirmed.
[
Footnote 1]
10 Stat. at Large 1056.
[
Footnote 2]
4 Stat. at Large 412 § 2.
[
Footnote 3]
7
id. 356, art. 2.
[
Footnote 4]
7
id. 357, art. 10.
[
Footnote 5]
11
id. 583.
[
Footnote 6]
10 Stat. at Large 1053.
[
Footnote 7]
This gave until November 2, 1859.
[
Footnote 8]
10 Stat. at Large 309.
[
Footnote 9]
11 Stat. at Large 583.
[
Footnote 10]
10 Stat. at Large 1162.
[
Footnote 11]
See 4 Stat. at Large 729, and acts extending the same.
