A good title to parts of the lands of an Indian tribe may be
granted to individuals by a treaty between the United States and
the tribe, without any act of Congress, or any patent from the
Executive authority of the United States. The question in every
case is whether the terms of the treaty are such as to manifest the
intention of the parties to make a present grant to the persons
named.
A treaty between the United States and an Indian tribe must be
construed not according to the technical meaning of its words to
learned lawyers, but in the sense in which they would naturally be
understood by the Indians.
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.
Page 175 U. S. 2
The effect of the Treaty of October 2, 1863, between the United
States and the Red Lake and Pembina bands of Chippewa Indians, by
which those bands ceded to the United States all their right, title
and interest in a large tract of country, and by which
"there shall be set apart from the tract .hereby ceded a
reservation of six hundred and forty acres near the mouth of the
Thief River for the chief Moose Dung"
was to grant him an alienable title in fee in the quantity of
land at the designated place, subject only to its selection in due
form and to the definition of its boundaries by survey and
patent.
The right of inheritance at the time of the death of the grantee
in 1872 in land granted in fee by the United States by an Indian
treaty to a member of an Indian tribe, whose tribal organization
was still recognized by the government of the United States, is
controlled by the laws, usages and customs of the tribe, and not by
the law of the state in which the land lies, nor by any action of
the Secretary of the Interior.
The construction of treaties is the peculiar province of the
judiciary, and, except in cases purely political, Congress has no
constitutional power to settle the rights under a treaty or to
affect titles already granted by the treaty itself.
The case is stated in the opinion.
MR. JUSTICE GRAY delivered the opinion of the court.
This was a bill in equity filed in the Circuit Court of the
United States for the District of Minnesota by Patrick Meehan and
James Meehan, citizens of Wisconsin, against Ray W. Jones, a
citizen of Minnesota, to quiet title in a strip of land ten feet
wide along the westerly shore of the Red Lake River, in the County
of Polk and State of Minnesota, extending from the northeasterly
intersection of the plat of the Village of Thief River Falls with
the shore at a point near the junction of the two rivers, and being
a part of lot 1 in section 34, township 154, and range 43.
For convenience, the parties will be designated throughout this
opinion according to their position in the court below; the
Meehans, now appellees, as the plaintiffs, and Jones, now
appellant, as the defendant.
Page 175 U. S. 3
Each party derived title under the "reservation of six hundred
and forty acres near the mouth of the Thief River for the chief
Moose Dung," in article 9 of the treaty made at the Old Crossing of
Red Lake River in the State of Minnesota, on October 2, 1863,
between the United States, by their commissioners, Alexander
Ramsey, a senator of the United States for the State of Minnesota,
and Ashley C. Morrill, agent for the Chippewa Indians, of the one
part, and the Red Lake and Pembina bands of Chippewa Indians, by
their chiefs, headmen, and warriors, of the other part, and
afterwards ratified by the Senate, with amendments assented to by
the Indians. 13 Stat. 667-671. The material provisions of that
treaty were as follows:
By article 2, those bands of Chippewas ceded to the United
States all their right, title, and interest in a large tract of
country to the west of Thief River in the State of Minnesota,
including all the American Valley of the Red River of the
North.
By article 3:
"In consideration of the foregoing cession, the United States
agree to pay to the said Red Lake and Pembina bands of Chippewa
Indians the following sums, to-wit: twenty thousand dollars per
annum for twenty years, the said sum to be distributed among the
Chippewa Indians of the said bands in equal amounts per
capita."
By article 5:
"To encourage and aid the chiefs of said bands in preserving
order and inducing, by their example and advice, the members of
their respective bands to adopt the habits and pursuits of
civilized life, there shall be paid to each of the said chiefs
annually, out of the annuities, of the said bands, a sum not
exceeding one hundred and fifty dollars, to be determined by their
agents according to their respective merits. And for the better
promotion of the above objects, a further sum of five hundred
dollars shall be paid at the first payment to each of the said
chiefs to enable him to build for himself a house."
By article 8:
"In further consideration of the foregoing cession, it is hereby
agreed that the United States shall grant to each male adult
half-breed or mixed blood who is related
Page 175 U. S. 4
by blood to the said Chippewas of the said Red Lake or Pembina
bands, who has adopted the habits and customs of civilized life,
and who is a citizen of the United States, a homestead of one
hundred and sixty acres of land, to be selected at his option,
within the limits of the tract of country hereby ceded to the
United States, on any land not previously occupied by actual
settlers or covered by prior grants, the boundaries thereof to be
adjusted in conformity with the lines of the official surveys when
the same shall be made, and with the laws and regulations of the
United States affecting the location and entry of the same."
By one of the amendments made by the Senate with the assent of
the Indians, there was inserted at the end of article 8 the
following:
"Provided, that no scrip shall be issued under the provisions of
this article, and no assignments shall be made of any right, title,
or interest at law or in equity until a patent shall issue, and no
patent shall be issued until due proof of five years' actual
residence and cultivation, as required by the act entitled 'An Act
to Secure Homesteads on the Public Domain.'"
By article 9 of the treaty:
"Upon the urgent request of the Indians, parties to this treaty,
there shall be set apart from the tract hereby ceded a reservation
of six hundred and forty acres near the mouth of Thief River for
the chief Moose Dung, and a like reservation of six hundred and
forty acres for the chief Red Bear on the north side of Pembina
river."
Moose Dung, or Monsimoh, was one of the principal chiefs of the
Red Lake band of Chippewa Indians, and his name was the first of
the Indian signatures to the treaty, all of which were by marks
only.
The plaintiffs, against the defendant's objection, introduced in
evidence certified copies of extracts from the journal of the
proceedings at the negotiation of the treaty, annexed to the report
made by Mr. Ramsey to the Commissioner of Indian Affairs in
October, 1863. That journal stated that
"Moose Dung, who was really the most influential of all the
chiefs, stood at the head of a party embracing the large majority
of all the bands who were favorable to and even anxious for
Page 175 U. S. 5
a treaty."
It also showed that part of the discussion was as follows: Moose
Dung said:
"I have taken the mouth of Thieving River as my inheritance. I
do not ask the chiefs here where I shall go. I make my home there.
I wanted it for a reservation for myself. . . . I used to think
that this was the proper place for me to settle; that it would be
an inheritance for my children -- where all my children could have
enough to live on in the future."
Mr. Ramsey answered, "Tell him I don't care anything about the
mouth of Thieving River. He can have it if he wants it." Moose Dung
replied,
"I accept of the proposition, because I see that I am going to
be raised from want to riches -- to be raised to the level of the
white man. . . . You and the government have used every exertion
for a great many years to bring about a treaty. I do not want you
to exert yourselves in vain. I now give up the tract of
country."
The journal further stated that
"at the end of a session of three and a half hours' duration,
Moose Dung, who has stood for an hour weighing and deliberating on
every separate provision of this treaty, asking for this
explanation and that modification, appearing to labor under a
serious sense of the great responsibility he was taking, at last
touched the pen which was to affix his vicarious sign-manual to the
treaty,"
and the other chiefs followed his example.
The plaintiffs also, against the like objection, introduced
testimony of the secretary of the commission, of the official
interpreter and of other persons, Indians as well as white persons,
who were present at the negotiation of the treaty, to the same
effect.
Moose Dung selected as his reservation, under the ninth article
of the treaty, six hundred and forty acres, a part of which was lot
1 in section 34, including the strip now in controversy, and he
lived on that land at the mouth of Thief River, and made it his
home, and had a log house, a garden, and a fish trap there. He died
in 1872, before the lands were surveyed, and was succeeded as chief
by his eldest son, who had been born at Red Lake in 1828, and who
was known to the whites by the same name of Moose Dung or Monsimoh,
and to the Indians as Mayskokonoyay, meaning "The one that wears
the
Page 175 U. S. 6
red robes," and ever since the making of the treaty, his father
and himself, in succession, sustained tribal relations with the Red
Lake band of Chippewa Indians, and that band continued to be
recognized as an Indian tribe by the government of the United
States.
On June 27, 1879, the United States Indian agent at White Earth,
Minnesota, wrote to the Commissioner of Indian Affairs at
Washington that Moose Dung the younger, the only surviving son of
Moose Dung named in the treaty, requested that the land selected by
his father might be set aside for his benefit. On July 25, 1879,
the Commissioner of Indian Affairs answered that Moose Dung the
younger should at once locate the desired lands in accordance with
the description in the treaty, and that it must be shown to the
satisfaction of the Office of Indian Affairs that his father left
no other children. On September 10, 1879, the agent replied that
"the heirs of Moose Dung" had selected the lands (describing them
particularly) that had been selected by the elder Moose Dung before
his death. On September 30, 1879, the Secretary of the Interior, on
the recommendation of the Commissioner of Indian Affairs, approved
"the selection made by the heirs of Moose Dung," and directed the
Commissioner of the General Land Office to "take the necessary
steps for the protection of the said lands so reserved for the
benefit of those entitled, as contemplated by the treaty
stipulations," and they were thereupon set apart accordingly, and
were designated on all government maps as "Moose Dung's
Reservation."
From the time of this selection, Moose Dung the younger lived
upon, exercised dominion over, and claimed to own the land so
selected, and cultivated part of it, leased other parts of it for
pasturage, and sold sand off it.
On November 7, 1891, Moose Dung the younger, describing himself
as "Moose Dung, of Thief River Falls, Polk County, Minnesota," made
a lease to the plaintiffs, for ten years at an annual rent of
twenty-five dollars, of this strip of land and all shore rights for
storing logs, erecting piles and booms, and for all purposes
connected with lumbering, and he affixed to it his mark and seal,
and acknowledged it before a notary public,
Page 175 U. S. 7
after its contents had been fully explained to him through an
interpreter. On November 10, 1891, this lease was recorded in the
registry of deeds for the county. The plaintiffs accepted the lease
and paid the rent according to its terms, and in 1892 they erected
a large saw mill on the bank of Thief River, a short distance below
the strip leased, and entered upon this strip, drove piles and
strung booms in the river opposite, and stored logs there, and
thenceforth used the strip as one shore of the mill-pond
appurtenant to their saw mill.
The land selected by Moose Dung was near the village of Thief
River Falls, which, when this lease was made, contained some fifty
inhabitants and had no railroad and no important industry, and land
there was of little value. But in 1892, after the erection of the
plaintiffs' saw mill, the Great Northern Railway Company built a
railroad to the village, a large settlement sprang up there, and
the land increased in value.
On July 20, 1894, Moose Dung the younger, describing himself as
"Monsimoh (commonly called Moose Dung), heir and successor of his
father Monsimoh (also commonly called Moose Dung)," made a lease of
the whole of lot 1 in section 34, and of all appurtenances and
riparian rights thereto belonging, for twenty years, to the
defendant at an annual rent of two hundred dollars, and on July 23,
1894, this lease was recorded in the registry of deeds. The
defendant, at the time of obtaining this lease, knew of the prior
lease and possession of the plaintiffs. On August 4, 1894, Congress
passed a joint resolution authorizing the Secretary of the Interior
"to approve, if in his discretion he deems the same proper and
advisable, and upon such terms as he may impose," this lease to the
defendant. 28 Stat. 1018. On December 27, 1894, the Secretary of
the Interior approved this lease, upon condition (to which both the
lessor and the lessee assented) that the annual rent should be four
hundred dollars, and "be paid to the agent in charge of the
Chippewa Indians in Minnesota, and by him paid to the parties found
to be entitled thereto by this Department," and should be
readjusted every five years, and
"the said premises, nor any part thereof, shall not be
sublet
Page 175 U. S. 8
without the written consent of the lessor, his heirs or assigns,
and the approval of the Secretary of the Interior."
The circuit court held that the reservation in the treaty to the
elder Moose Dung was in the nature of a grant of title to him,
burdened with no restriction or condition save that of selection
and identification; that, upon the selection and location, the
title in the selected lands vested in Moose Dung the younger as his
eldest son and successor; that the latter's lease of November 9,
1891, to the plaintiffs was a valid and subsisting lease of the
strip in controversy, and needed no approval by the Secretary of
the Interior; that the lease made on July 20, 1894, to the
defendant, and approved by the Secretary of the Interior, was
subordinate to the lease to the plaintiffs, and, as against them,
conveyed no right to the occupancy or use of the strip, and that
the plaintiffs were entitled to have the rights and privileges
under the earlier lease vested and quieted in them as against the
claims of the defendant. 70 F. 453. The defendant appealed to this
Court.
The fundamental question in the case is what was the nature of
the title which the elder chief Moose Dung took under the treaty of
October 2, 1863, between the United States and the Red Lake and
Pembina bands of Chippewa Indians? 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.
Johnson v.
McIntosh, 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. In
the leading case of
Johnson v. McIntosh (1823), it was
therefore held that grants of lands
Page 175 U. S. 9
northwest of the River Ohio made in 1773 and 1775 by the chiefs
of certain Indian tribes constituting the Illinois and the
Pinkeshaw nations to private individuals conveyed no title which
could be recognized in the courts of the United States, and Chief
Justice Marshall, in delivering judgment, said:
"The usual mode adopted by the Indians for granting lands to
individuals has been to reserve them in a treaty, or to grant them
under the sanction of the commissioners with whom the treaty was
negotiated."
21 U. S. 8
Wheat. 598.
Accordingly, by several early treaties between the United
States, of the one part, and the Chippewas and other Indian
nations, of the other part, the said Indian nations acknowledged
themselves to be under the protection of the United States, and of
no other sovereign whatever; the United States relinquished and
quitclaimed to the said nations respectively all the lands lying
within certain limits, to live and hunt upon, and otherwise occupy
as they saw fit; but the said nations, or either of them, were not
to be at liberty to dispose of those lands, except to the United
States. Treaties of January 21, 1785, art. 2; January 9, 1789, art.
3; August 3, 1795, arts. 4, 5; 7 Stat. 16, 29, 52.
Soon after the adoption of the Constitution, the same doctrine
was repeatedly recognized and enforced by Congress in temporary
acts regulating trade and intercourse with the Indian tribes. By
the Act of July 22, 1790, c. 33, § 4, it was
"enacted and declared that no sale of lands made by any Indians,
or any nation or tribe of Indians, within the United States shall
be valid to any person or persons, or to any state, whether having
the right of preemption to such lands or not, unless the same shall
be made and duly executed at some public treaty held under the
authority of the United States."
1 Stat. 138. In the Act of March 1, 1793, c. 19, § 8, the
corresponding provision was that
"no purchase or grant of lands, or of any title or claim
thereto, from any Indians, or nation or tribe of Indians, within
the bounds of the United States, shall be of any validity, in law
or equity, unless the same be made by a treaty or convention
entered into pursuant to the Constitution."
1 Stat. 330. In the acts of May 19, 1796, c. 30,
Page 175 U. S. 10
§ 12, and March 3, 1799, c. 46, § 12, this provision was
reenacted, substituting for the words "purchase or grant" the words
"purchase, grant, lease, or other conveyance," and for the words
"any Indians," in the plural, the words "any Indian," in the
singular, so as to read:
"No purchase, grant, lease, or other conveyance of lands, or of
any title or claim thereto, from any Indian, or nation or tribe of
Indians, within the bounds of the United States shall be of any
validity in law or equity unless the same be made by treaty, or
convention entered into pursuant to the Constitution."
1 Stat. 472, 746. And this language of the temporary acts of
1796 and 1799 was repeated in the first permanent enactment upon
the subject, being the Act of March 30, 1802, c. 13, § 12. 2 Stat.
143.
It is well settled that a good title to parts of the lands of an
Indian tribe may be granted to individuals by a treaty between the
United States and the tribe, without any act of Congress, or any
patent from the Executive authority of the United States.
Johnson v. McIntosh, 8 Wheat., above cited;
Mitchel v. United
States, 9 Pet. 711,
34 U. S. 748;
Doe v. Beardsley, 2 McLean 417, 418;
United
States v. Brooks, 10 How. 442,
51 U. S. 460;
Doe v. Wilson,
23 How. 457,
64 U. S. 463;
Crews v.
Burcham, 1 Black 356;
Holden v.
Joy, 17 Wall. 211,
84 U. S. 247;
Best v. Polk,
18 Wall. 112,
85 U. S. 116;
New York Indians v. United States, 170 U. S.
1. The question in every case is whether the terms of
the treaty are such as to manifest the intention of the parties to
make a present grant to the persons named.
The Indian tribes within the limits of the United States are not
foreign nations; though distinct political communities, they are in
a dependent condition, and Chief Justice Marshall's description,
that "they are in a state of pupilage," and "their relation to the
United States resembles that of a ward to his guardian," has become
more and more appropriate as they have grown less powerful and more
dependent.
Cherokee Nation v.
Georgia, 5 Pet. 1,
30 U. S. 17;
Elk v. Wilkins, 112 U. S. 94,
112 U. S. 99;
United States v. Kagama, 118 U. S. 375,
118 U. S.
382-384;
Stephens v. Cherokee Nation,
174 U. S. 445,
174 U. S.
484.
In construing any treaty between the United States and an
Page 175 U. S. 11
Indian tribe, it must always (as was pointed out by the counsel
for the appellees) be borne in mined that the negotiations for the
treaty are conducted, on the part of the United States, an
enlightened and powerful nation, by representatives skilled in
diplomacy, masters of a written language, understanding the modes
and forms of creating the various technical estates known to their
law, and assisted by an interpreter employed by themselves; that
the treaty is drawn up by them and in their own language; that the
Indians, on the other hand, are a weak and dependent people, who
have no written language and are wholly unfamiliar with all the
forms of legal expression, and whose only knowledge of the terms in
which the treaty is framed is that imparted to them by the
interpreter employed by the United States, and that the treaty must
therefore be construed not according to the technical meaning of
its words to learned lawyers, but in the sense in which they would
naturally be understood by the Indians.
Worcester
v. Georgia, 6 Pet. 515;
The Kansas
Indians, 5 Wall. 737,
72 U. S. 760;
Choctaw Nation v. United States, 119 U. S.
1,
119 U. S. 27-28.
In the leading case of
Worcester v. Georgia (1832), Chief
Justice Marshall, speaking of article 4 of the Treaty of Hopewell
of November 28, 1785, between the United States and the Cherokee
Indians, which defined "the boundary allotted to the Cherokees for
their hunting grounds, between the said Indians and the citizens of
the United States," (7 Stat.19), said:
"There is the more reason for supposing that the Cherokee chiefs
were not very critical judges of the language, from the fact that
everyone makes his mark; no chief was capable of signing his name.
It is probable the treaty was interpreted to them. . . . Is it
reasonable to suppose that the Indians, who could not write, and
most probably could not read, who certainly were not critical
judges of our language, should distinguish the word 'allotted' from
the words 'marked out?'"
31 U. S. 6 Pet.
551,
31 U. S. 552.
And Mr. Justice McLean, concurring, said:
"The language used in treaties with the Indians should never be
construed to their prejudice. . . . To contend that the word
'allotted,' in reference to the lands guaranteed to the Indians in
certain treaties, indicates a favor conferred, rather than a
right
Page 175 U. S. 12
acknowledged, would, it would seem to me, do injustice to the
understanding of the parties. How the words of the treaty were
understood by this unlettered people, rather than their critical
meaning, should form the rule of construction."
6 Pet.
31 U. S.
582.
The defendant's counsel at the argument relied on an opinion
given by Chief Justice Taney, when Attorney General, under the
following circumstances: by the treaty made at Camp Tippecanoe in
the State of Illinois on October 20, 1832, between the United
States and the Pottawatomie tribe of Indians of the Prairie and
Kankaukee (while the Act of March 30, 1802, c. 13, was in force),
that tribe ceded a large tract of land in Illinois to the United
States, and it was provided that "from the cession aforesaid, the
following tracts shall be reserved, to-wit," a certain number of
sections to each of particular Indians named. 7 Stat. 378. On
September 20, 1833, Attorney General Taney gave an opinion to the
Secretary of War that
"these reservations are excepted out of the grant made by
treaty, and did not therefore pass by it; consequently, the title
remains as it was before the treaty -- that is to say, the lands
reserved are still held under the original Indian title,"
and therefore "the Indian occupants cannot convey them to
individuals, and no valid cession can be made of their interest but
to the United States." 2 Ops.Atty.Gen. 587.
But within a year after that opinion was given, and perhaps in
consequence thereof, Congress, in framing a new act regulating
trade and intercourse with the Indian tribes, omitted the
prohibition, contained in former statutes, of purchases or leases
from "any Indian," and put the provision invalidating Indian
conveyances in this altered form:
"No purchase, grant, lease, or other conveyance of lands, or of
any title or claim thereto, from any Indian nation or tribe of
Indians, shall be of any validity in law or equity unless the same
be made by treaty or convention entered into pursuant to the
Constitution."
Act of June 30, 1834, c. 161, § 12;4 Stat. 730. The declaration,
retained in this act, of the invalidity of purchases and leases
"from any nation or tribe of
Page 175 U. S. 13
Indians" might include a purchase or lease from any Indian
acting by authority derived from his tribe only.
Johnson v.
McIntosh, 8 Wheat. 543,
21 U. S. 593;
Smith v.
Stevens, 10 Wall. 321,
77 U. S. 323;
Goodell v. Jackson, 20 Johns. 693, 723. But the inference
appears to us to be irresistible that Congress did not intend that
there should thenceforth be any general restriction upon the
alienation by individual Indians of sections of land reserved to
them respectively by a treaty with the United States. And this view
is confirmed by the reenactment of the provision, in the very words
of the act of 1834, in section 2116 of the Revised Statutes, and by
the course of decision in this Court in a series of opinion which
may conveniently be considered in their chronological order.
The supplementary articles of September 28, 1830, to the Treaty
of Dancing Rabbit Creek of September 27, 1830, between the United
States and the Choctaw Nation of Indians, making provision for
"various Choctaw persons," used as synonymous expressions the
phrases "shall be entitled to a reservation of," "is allowed a
reservation of," "there shall be granted," "there is given," or "is
granted," sections of land, either including the present residence
and improvement of such persons or to be located on any unimproved
and unoccupied land. 7 Stat. 340. In
Gaines v.
Nicholson (1850), 9 How. 356, Mr. Justice Nelson,
in delivering the opinion of the Court, did say of such a
reservation:
"It was so much carved out of the territory ceded, and remained
to the Indian occupant, as he had never parted with it. He holds,
strictly speaking, not under the treaty of cession, but under his
original title confirmed by the government in the act of agreeing
to the reservation."
9 How.
50 U. S. 365.
But that treaty was made before the act of Congress of 1834; the
only question in the case was of the effect of the reservation as
against a previous grant of land by Congress to a state for the
support of schools; the Court had no occasion to define, and did
not undertake to define, the exact nature of the title granted or
confirmed by the treaty, and the suggestion, in accordance with
Attorney General Taney's opinion, above cited, that the treaty
rather confirmed the Indian right than granted a new
Page 175 U. S. 14
title, can hardly be reconciled with the later judgments of the
Court, to be presently considered, one of which was delivered by
the same learned judge.
Crews v.
Burcham, 1 Black 352.
In concluding the Treaty of July 1, 1835, between the United
States and the Caddo nation of Indians, in Louisiana, supplementary
articles were added by which, after a recital that that nation had
in 1801 granted to one Francois Grappe (who was a half-blood Caddo)
and to his three sons a league of land each, "it is agreed" that
Grappe's legal representatives and his said three sons
"shall have their right to the said four leagues of land
reserved to them and their heirs and assigns forever. The said land
to be taken out of the lands ceded to the United States by the said
Caddo nation of Indians as expressed in the treaty to which this
article is supplementary. And the said four leagues of land shall
be laid off in one body,"
at a place described, in conformity with the boundaries
"expressed in the original deed of gift" from the Caddo nation to
Grappe and his three sons. 7 Stat. 473. In
United
States v. Brooks (1850), 10 How. 442, it was argued
for the United States that the effect of this agreement was simply
that the Grappes should retain their right, whatever it might be,
under the reservation of 1801, and that that reservation was not
authorized by the laws then in force there. But it was adjudged
that its effect was to vest in the Grappes an absolute title in fee
simple, which they might convey to anyone; the Court, speaking by
Mr. Justice Wayne, saying:
"We think that the treaty gave to the Grappes a fee simple title
to all the rights which the Caddoes had in these lands as fully as
any patent from the government could make one. The reservation to
the Grappes, 'their heirs and assigns forever' creates as absolute
a fee as any subsequent act upon the part of the United States
could make. Nothing further was contemplated by the treaty to
perfect the title. Brooks being the alienee of the Grappes for the
entire reservation, he may hold it against any claim of the United
States, as his alienors would have done."
10 How.
51 U. S. 460.
In that case, therefore, an agreement that the persons named "shall
have their right"
Page 175 U. S. 15
to "certain lands reserved," and the lands "shall be laid off,"
was given the same effect as a present grant or patent. It is true
that the treaty there in question reserved the right to those
persons, "and their heirs and assigns forever." But the like
construction has since been given to reservations unaccompanied by
any words of inheritance.
By the first article of a treaty made on the Tippecanoe river in
the State of Indiana on October 27, 1832, between the United States
and the Pottawatomies of that state and of Michigan Territory, that
tribe of Indians ceded their title and interest to lands in
Indiana, Illinois, and Michigan to the United States. By article 2,
"from the cession aforesaid, the following reservations are made"
to certain bands of Indians. And by article 3,
"the United States agree to grant to each of the following
persons the quantity of land annexed to their names, which lands
shall be conveyed to them by patent. . . . The foregoing
reservations shall be selected under the direction of the President
of the United States after the lands shall have been surveyed and
the boundaries to correspond with the public surveys."
7 Stat. 399-401.
In
Doe v. Wilson
(1859), 23 How. 457, it was held, in an action of ejectment, that a
warranty deed made by Petchico (a Pottawatomie chief, one of the
persons named in the third article of that treaty), in February,
1833, to citizens of Indiana, before the lands had been surveyed or
a patent granted, passed a good title as against a deed made by his
heirs after the issue of the patent and his death. The Court,
speaking by Mr. Justice Catron, said:
"The Pottawatomie nation was the owner of the possessory right
of the country ceded, and all the subjects of the nation were joint
owners of it. The reservees took by the treaty, directly from the
nation, the Indian title, and this was the right to occupy, use,
and enjoy the lands, in common with the United States until
partition was made in the manner prescribed."
This sentence has sometimes been supposed to indicate that by
the treaty the reservees took directly from the Indian nation its
possessory right only, defined as "the right to occupy, use, and
enjoy the lands in common with the United States." But this was
qualified by
Page 175 U. S. 16
the concluding words of the same sentence "until partition was
made in the manner prescribed" -- that is to say, by the treaty.
And the Court went on to say in the most distinct terms:
"The treaty itself converted the reserved sections into
individual property. The Indians as a nation reserved no interest
in the territory ceded, but, as a part of the consideration for the
cession, certain individuals of the nation had conferred on them
portions of the land to which the United States title was either
added or promised to be added, and it matters not which for the
purposes of this controversy for possession. The United States held
the ultimate title, charged with the right of undisturbed occupancy
and perpetual possession in the Indian nation, with the exclusive
power in the government of acquiring the right. Although the
government alone can purchase lands from an Indian nation, it does
not follow that, when the rights of the nation are extinguished, an
individual of the nation who takes as private owner cannot sell his
interest. The Indian title is property, and alienable unless the
treaty had prohibited its sale. So far from this being the case in
the instance before us, it is manifest that sales of the reserved
sections were contemplated as the lands ceded were forthwith to be
surveyed, sold, and inhabited by a white population, among whom the
Indians could not remain."
23 How.
64 U. S.
463-464.
In
Crews v.
Burcham (1861), 1 Black 352, a warranty deed made
by Francis Besion, another person named in the third article of
that treaty, under like circumstances, to one Armstrong was
accordingly held to vest the legal title in him, and the scope and
effect of the decision in
Doe v. Wilson were clearly
brought out in the opinion delivered by Mr. Justice Nelson as
follows:
"It was there held that the reservation created an equitable
interest in the land to be selected under the treaty, that it was
the subject of sale and conveyance, that Petchico was competent to
convey it, and that his deed, upon the selection of the land and
the issue of the patent, operated to vest the title in his grantee.
It is true that no title to the particular lands in question could
vest in the reservee or in his grantee until the location by the
President,
Page 175 U. S. 17
and perhaps the issuing of the patent, but the obligation to
make the selection as soon as the lands were surveyed, and to issue
the patent, is absolute and imperative, and founded upon a valuable
and meritorious consideration. The lands reserved constituted a
part of the compensation received by the Pottawatomies for the
relinquishment of their right of occupancy to the government. The
agreement was one which, if entered into by an individual, a court
of chancery would have enforced by compelling the selection of the
lands and the conveyance in favor of the reservee, or, in case he
had parted with his interest, in favor of his grantees. And the
obligation is not the less imperative and binding because entered
into by the government. The equitable right, therefore, to the
lands, in the grantee of Besion, when selected, was perfect, and
the only objection of any plausibility is the technical one as to
the vesting of the legal title. . . . We think it quite clear, if
this patent had issued to Besion in his lifetime, the title would
have inured to his grantee. The deed to Armstrong recites the
reservation to the grantee of the half-section under the treaty,
and that it was to be located by the President after the lands were
surveyed, and then, for a valuable consideration, the grantee
conveys all his right and title to the same with a full covenant of
warranty. The land is sufficiently identified to which Besion had
the equitable title, which was the subject of the grant, to give
operation and effect to this covenant on the issuing of the patent,
within the meaning of this act of Congress. [Act of May 20, 1836,
c. 76; 5 Stat. 31.] The act declares the land shall inure to and
become vested in the assignee the same as if the patent had issued
to the deceased in his lifetime. . . . Some expressions in the
opinion delivered in the case of
Doe v. Wilson, the first
case that came before us arising out of this treaty, were the
subject of observations by the learned counsel for the appellant in
the argument, but which were founded on a misapprehension of their
scope and purport. It was supposed that the Court had held that the
reservee was a tenant in common with the United States after the
treaty of cession and until the survey and patent. It will be seen,
however, that the tenancy in common there mentioned
Page 175 U. S. 18
referred to the right to occupy, use, and enjoy the land in
common with the government, and had no relation to the legal
title."
1 Black
66 U. S.
356-357.
By those two decisions it was determined that the
"reservations," created by the treaty with the Pottawatomies of
October 27, 1832, in favor of individual Indians, by the words "the
United States agree to grant" to each of them sections of land,
"which lands shall be conveyed to them by patent," had the effect
of granting a present and alienable interest to each. In both those
decisions, Chief Justice Taney concurred -- which is worthy of
special notice in view of the different opinion, above cited, which
he had given, when Attorney General, upon the effect of similar
reservations in a treaty made with another band of Pottawatomies
seven days earlier, but promulgated by the President at the same
time as this treaty. 7 Stat. 378, 399. And the two decisions were
cited and approved by this Court, speaking by Mr. Justice Matthews,
in
Prentice v. Stearns (1885),
113 U.
S. 435,
113 U. S.
446-447.
See also the opinion delivered by Mr.
Justice Miller in the circuit court in
Prentice v. Northern
Pacific Railroad (1890), 43 F. 270, 275.
In the Treaty of June 3, 1825, between the United States and the
Kansas nation of Indians, it was provided by article 6 that from
the lands thereby ceded to the United States there should be made
reservations of one mile square for each of the half-breeds named,
and, by article 11, that
"the said Kansas nation shall never sell, relinquish, or in any
manner dispose of the lands herein reserved to any other nation,
person, or persons whatever without the permission of the United
States for that purpose first had and obtained."
7 Stat. 245, 247. The Act of Congress of May 26, 1860, c. 61,
after reciting that the lands so reserved had been surveyed and
allotted to each of the half-breeds in accordance with article 6 of
the treaty, enacted that
"all the title, interest, and estate of the United States is
hereby vested in the said reservees, who are now living, to the
land reserved, set apart, and allotted to them,"
and in the heirs of those deceased,
"but nothing herein contained shall be construed to give any
Page 175 U. S. 19
force, efficacy, or binding effect to any contract, in writing
or otherwise, for the sale or disposition of any lands named in
this act, heretofore made by any of said reservees or their
heirs,"
and it was further enacted that if any of the reservees or the
heirs of anyone deceased should not desire to occupy the lands to
which they were entitled by the provisions of this act, the
Secretary of the Interior, upon their request, should be authorized
to sell the lands for their benefit and to issue patents to the
purchasers. 12 Stat. 21. In
Smith v. Stevens (1870), a
deed made by one of those half-breeds, shortly after the passage of
that act, without the authority or assent of the Secretary of the
Interior, was adjudged by this Court, speaking by Mr. Justice
Davis, to be void upon the single ground "that the statute, having
provided the way in which these half-breed lands could be sold, by
necessary implication prohibited their sale in any other way." 10
Wall.
77 U. S. 321,
77 U. S.
326.
By the Treaty with the Chickasaws of May 24, 1834, it was agreed
in article 5 that "the following reservations be granted in fee: to
heads of families, being Indians or having Indian families," a
certain number of sections of land, and, by article 6, "also
reservations of a section to each shall be granted to" other
members of the tribe of the age of twenty-one years and upwards
according to a list to be made out by seven chiefs named in the
treaty, and filed with the agent, "upon whose certificate of its
believed accuracy the register and receiver shall cause said
reservations to be located upon lands fit for cultivation." 7 Stat.
451, 452. It may be observed that article 6, differing in these
respects from article 5, used the future tense "shall be granted,"
and omitted the words "in fee." Yet in
Best v.
Polk (1873), 18 Wall. 112, this Court held that the
treaty itself conferred a full title upon an Indian to whom lands
were reserved by article 6, and, again speaking by Mr. Justice
Davis, said:
"Can it be doubted that it was the intention of both parties to
the treaty to clothe the reservees with the full title? If it were
not so, there would have been some words of limitation indicating a
contrary intention. Instead of this, there is nothing to show that
a further grant, or any additional evidence of title, were
Page 175 U. S. 20
contemplated. Nor was this necessary, for the treaty proceeded
on the theory that a grant is as valid by a treaty as by an act of
Congress, and does not need a patent to perfect it. We conclude,
therefore, that the treaty conferred the title to these
reservations, which was complete when the locations were made to
identify them."
18 Wall.
85 U. S.
116.
"The treaty granted the land, but the location had to be fixed
before the grant could become operative. After this was done, the
estate became vested and the right to it perfect, as much so as if
the grant had been directly executed to the reservee."
18 Wall.
85 U. S. 118.
In support of that conclusion, this Court cited decisions of the
highest court of the State of Mississippi, in which, after quoting
the words of article 6 of the treaty, it was said:
"By this language, a title in fee passed to such persons as were
above the age of twenty-one. The term 'reservation' was equivalent
to an absolute grant. The title passed as effectually as if a grant
had been executed. . . . The treaty has not contemplated a further
grant, or other evidence of title, showing conclusively that, by
the terms used it was intended that a perfect title was thereby
intended to be secured. The Indian, then, under whom complainants
claim, had in herself an absolute and unconditional title in fee
simple. The title was conferred by the treaty; it was not, however,
perfect until the location was made; location was necessary to give
identity. The location it seems wad duly made, and thus the title
to the land in controversy was consummated by giving identity to
that which was before unlocated."
Niles v. Anderson (1841), 5 How. (Miss.) 365, 383;
Wray v. Doe (1848), 10 Sm. & Marsh.. 452, 461.
In the Treaty of June 24, 1862, between the United States and a
tribe of Ottawa Indians, article 3 provided as follows:
"It being the wish of said tribe of Ottawas to remunerate
several of the chiefs, councilmen, and headmen of the tribe for
their services to them many years without pay, it is hereby
stipulated that five sections of land is [are] reserved and set
apart for that purpose, to be apportioned among the said chiefs,
councilmen, and headmen as the members of the tribes shall in full
council determine, and it shall be the duty of the Secretary
Page 175 U. S. 21
of the Interior to issue patents in fee simple of said lands,
when located and apportioned, to said Indians."
12 Stat. 1238. In
Libby v. Clark (1886),
118 U.
S. 250, this Court, approving and affirming the judgment
of the Supreme Court of Kansas, delivered by Mr. Justice Brewer, in
14 Kan. 435, held that a deed to a white person from one of those
chiefs, of land patented to him pursuant to the treaty, but
executed before he had become a citizen of the United States, was
void for the single reason that the treaty itself, as construed by
the court, expressly provided, in article 7, that no Indian should
alien or encumber the land allotted to him until he had, according
to the terms of the treaty, become a citizen of the United
States.
In the Treaty of Prairie du Chien of July 29, 1829, between the
United States and certain nations of Chippewa, Ottawa, and
Pottawatomie Indians, article 4, by which "there shall be granted
by the United States" to each of the persons named, being
descendants from Indians, sections of land, it was provided
that
"the tracts of land herein stipulated to be granted shall never
be leased or conveyed by the grantees, or their heirs to any
persons whatever without the permission of the President of the
United States."
7 Stat. 321. Of course, under such a provision, no alienation
could be valid without the approval of the President.
Pickering
v. Lomax (1892),
145 U. S. 310;
Lomax v. Pickering (1899),
173 U. S.
26.
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 this
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.
Page 175 U. S. 22
The letters of the Commissioner of Indian Affairs, referred to
in the supplemental brief of the defendant, expressing the views
entertained in his office at sundry times as to the effect of a
reservation in an Indian treaty to particular Indians without words
of present grant, or of inheritance, were for the most part written
before the subject had been considered by this Court, and they fall
far short of establishing such a uniform practical construction of
the term by the Executive Departments as would warrant the court in
overruling its own opinions as expressed in the cases above
stated.
The Treaty of October 2, 1863, between the United States and the
Red Lake and Pembina bands of Chippewa Indians, now before the
Court, contains in itself peculiarly strong evidence that it was
intended to vest in the elder chief Moose Dung a full and complete
title in the land reserved to him.
According to the decisions above cited, such would be the
construction of the ninth article, taken by itself, by which
"upon the urgent request of the Indians, parties to this treaty,
there shall be set apart from the tract hereby ceded a reservation
of six hundred and forty acres near the mouth of Thief River for
the chief Moose Dung, and a like reservation of six hundred and
forty acres for the chief Red Bear on the north side of Pembina
river."
And this construction is fortified by other provisions of the
treaty quoted at the beginning of this opinion.
By the eighth article, it is "agreed that the United States
shall grant to" each male adult half-breed or mixed-blood who is
related by blood to these Indians, who has adopted the habits and
customs of civilized life, and who is a citizen of the United
States, a homestead of one hundred and sixty acres, to be selected
out of the tract ceded, and in conformity with the official surveys
when made. That article was amended by the Senate by providing that
no scrip should be issued under its provisions, and no assignment
should be made of any right, title, or interest before the issue of
a patent, and no patent should be issued until due proof of five
years' actual residence and cultivation, as required by the
homestead act. Act of May 20, 1862, c. 75; 12 Stat. 392; Rev.Stat.
§§ 2289, 2291.
Page 175 U. S. 23
The reservations of four times as much land to each of the
chiefs Moose Dung and Red Bear under the ninth article were not
made subject, by any provision of the original treaty or of the
Senate amendments, to the condition of adopting the habits and
customs of civilized life, or of becoming a citizen of the United
States, or of five years' actual residence and cultivation. But by
the fifth article, with the avowed objects
"to encourage and aid the chiefs of said bands in preserving
order, and inducing, by their example and advice, the members of
their respective bands to adopt the habits and pursuits of
civilized life,"
each chief was to be paid not only a certain sum annually out of
the annuities payable to the bands by the treaty, but also, at the
time of the first payment, a further sum of five hundred dollars
"to enable him to build for himself a house."
The provisions of that article are wholly inconsistent with the
theory that the title of the chiefs Moose Dung and Red Bear,
respectively, in the reservation of six hundred and forty acres
each, unconditionally set apart for them, was to be less absolute
than the title of the half-breeds in their homesteads would be
after the conditions of the treaty respecting them had been
complied with.
The only reasonable construction of all the provisions of the
treaty, taken together, is that the ninth article, by which
"there shall be set apart from the tract hereby ceded as
reservation of six hundred and forty acres near the mouth of the
Thief River for the Chief Moose Dung,"
and a reservation of a like quantity of land at another place
designated for the Chief Red Bear was intended by the United States
and was understood by the Indians, and took effect, as a present
grant to each of these two chiefs of an alienable title in fee in
that quantity of land at the designated place, subject only to its
selection in due form, and to the definition of its boundaries by
survey and patent.
Such being in our opinion the construction and effect of the
terms of the treaty itself, it is unnecessary to consider the
competency of the extrinsic evidence, offered by the plaintiffs, of
what took place between the representatives of the parties
Page 175 U. S. 24
at the negotiations which preceded its execution, for, whether
that evidence be admitted or rejected, the conclusion must be the
same.
Nor is it necessary to consider particularly the argument of the
plaintiffs, founded upon the citizenship acquired by Moose Dung the
younger under that provision of the Act of February 8, 1887, c.
119, § 6, by which
"every Indian born within the territorial limits of the United
States to whom allotments shall have been made under the provisions
of this act, or under any law or treaty,"
is
"declared to be a citizen of the United States, whether said
Indian had been or not by birth or otherwise a member of any tribe
of Indians within the territorial limits of the United States,
without in any manner impairing or otherwise affecting the rights
of any such Indian to tribal or other property."
24 Stat. 390. That provision might not enable individual Indians
to alienate lands which were not before alienable.
Beck v.
Flournoy Co., 65 F. 30;
Eells v. Ross, 64 F. 417;
Coombs, Petitioner, 127 Mass. 278. But it certainly does
not take away a power of alienation conferred by the treaty under
which the allotment was made.
Another question of importance, fully argued at the bar, is
whether Moose Dung the younger inherited all his father's rights in
the reservation. This question is presented by the record in a
peculiar aspect.
In the amended bill (which is the only one in the record
transmitted to this Court) the plaintiffs claimed title under the
lease made to them by Moose Dung the younger on November 7, 1891,
and alleged that at the date of that lease he was the owner in fee
simple of the lands in question.
In the answer filed January 15, 1895, to that bill, the
defendant denied its allegations, and claimed title under the
reservation to Moose Dung the elder in the treaty, his selection of
lands and the setting apart of them by the government as such
reservation, and the lease executed by Moose Dung the younger (so
the answer alleged, in substantial accord with the form of the
lease itself) "as his oldest son, heir at law, and successor as
chief of the Red Lake band of Chippewa Indians,"
Page 175 U. S. 25
to the defendant, on July 20, 1894, as afterwards amended and
approved by the Secretary of the Interior, and alleged that the
government, ever since its setting apart of the reservation,
"conceded, treated, and designated said selection as a
reservation which said Moose Dung was entitled to possess and
control, subject, however, to the control of the overseers and
agents of the government of the United States."
The plaintiffs filed a general replication to the answer.
The testimony in the case was taken, under order of the court,
by a special examiner, before whom (as appears by the record) the
following proceedings were had at the dates mentioned below:
On May 21, 1895, the plaintiffs introduced the deposition of
John George Morrison, who testified that he was fifty-five years
old, was a Scotch half-breed and had a quarter of Chippewa blood,
had lived with the Red Lake band of Chippewa Indians all his life,
spoke both English and Chippewa, was a special interpreter at the
negotiation of the treaty, and was acquainted with the laws,
customs, and usages of the Chippewa Indians, and that, according to
those laws, customs, and usages, a chief like the elder Moose Dung
had the right to select a piece of land and to use it as his home,
and upon his death his eldest son would inherit all his land, and
succeed to his office and powers as chief of the band, and the
witness was not cross-examined on this point.
On June 8, 1895, while the defendant was putting in evidence in
support of his title as alleged in the answer,
"it was admitted by complainants' solicitor that the living
chief Monsimoh was the eldest son and successor to all rights of
his father under the treaty of October 2, 1863, and the son of the
chief Monsimoh who signed that treaty."
On July 15, 1895, the plaintiffs put in evidence the complaint
in an action brought by this defendant against them on February 15,
1895, containing an allegation that, upon the death of the old
Chief Moose Dung,
"his son Monsimoh, commonly called and known as Moose Dung,
survived him and became the sole heir at law and successor of the
said Moose Dung, deceased, and thereby succeeded to, has ever since
held
Page 175 U. S. 26
and does now hold all the right, title, and interest in and
privileges pertaining to said premises as such heir at law and
successor of the said deceased Chief Moose Dung."
On July 23 and 24, 1895, the defendant introduced testimony of
Moose Dung the younger, and of other Indians, showing that his
father had two wives, both living at the same time, and left six
surviving descendants: three children, (1) Moose Dung the younger,
the eldest son by the first wife, (2) a daughter by the first wife,
and (3) a daughter by the second wife, and three grandchildren, (4)
a son of a deceased daughter by the first wife, (5) a daughter of a
deceased daughter by the first wife, and (6) a son of a deceased
son by the second wife.
Moose Dung the younger, when so examined as a witness for the
defendant, testified, on cross-examination that he owned the land
in question; that his father, when he died, left the land to him
alone, and that, by the customs of the Red Lake Indians he, upon
the death of his father, being his eldest son by his first wife,
succeeded him as chief, and was entitled to succeed to all his
land, and, being asked, "Who first spoke to you about these other
sisters and children having some interest in the land?," answered,
"No one said anything to me about it."
On August 1, 1895, the defendant introduced, against the
plaintiffs' objection that they were incompetent and immaterial,
and not within the issues in the case, certified copies from the
records of the Department of the Interior of certain documents
respecting the disposition of $100 deposited with the Indian agent
at White Earth, Minnesota, by the defendant as rent due under the
lease to him from Moose Dung the younger, as amended and approved
by the Secretary of the Interior, which documents were as follows:
1st., a letter dated February 4, 1895, from the Commissioner of
Indian Affairs to the Indian agent directing the agent
"to fully investigate the subject as to who are the legal heirs
of old chief Moose Dung, for the purpose of ascertaining to whom
said rent should be paid,"
to submit all the evidence in the matter in the form of
affidavits, with a full report and recommendation, to permit
Page 175 U. S. 27
Moose Dung the younger, if he so desired, to be present in
person or by attorney at the hearing, to take his affidavit as part
of the evidence, and to hold the money paid by the defendant in the
agent's hands to await the determination of the Commissioner; 2d.,
the report, dated March 30, 1895, of the Indian agent to the
Commissioner of Indian Affairs, enclosing an affidavit, taken on
that day, of Moose Dung the younger, stating that he and the two
daughters, and three grandchildren above mentioned were the only
legal heirs of his father, and that they were entitled to share
equally with him in the estate, and were all of legal age;
affidavits, taken March 5, 1895, of those daughters and
grandchildren respectively, stating their relationship and ages,
and that they were entitled to share equally with him in the
estate, and an affidavit, of the same date, of chiefs and headmen
of the tribe to the relationship of the other deponents to Moose
Dung the elder, but saying nothing as to their rights of
inheritance. Each of these affidavits was signed with the mark of
the deponent and taken by a notary public. The agent reported that
he considered this evidence reliable, and had no doubt that these
six descendants of the old chief Moose Dung were his only living
heirs and were entitled to share equally in his estate; 3d, a
letter dated April 9, 1895, from the Commissioner of Indian Affairs
to the Secretary of the Interior recommending that these six
persons
"be determined to be the heirs of old chief Moose Dung for the
purposes of this lease, and that the rents arising from leasing the
land granted him by said treaty be divided among them equally;"
4th, a letter, dated April 23, 1895, from the Secretary of the
Interior to the Commissioner of Indian Affairs concurring in the
recommendation and returning the papers; 5th, a letter dated May 4,
1895, from the Commissioner of Indian Affairs to the Indian agent,
informing him of the decision of the Secretary of the Interior and
directing him to distribute the proceeds of the lease in his hands
in accordance with that decision.
The defendant, at the same time, against the like objection,
introduced six receipts, dated May 25, 1895, respectively
Page 175 U. S. 28
signed by the mark of Moose Dung the younger, and of each of the
five other descendants of Moose Dung the elder, acknowledging the
receipt from the Indian agent of one sixth of $200, "being my share
for two quarters rental on lands leased to Ray W. Jones," and a
lease, executed July 19, 1895, by Moose Dung the younger and the
five other descendants of his father to the defendant, for twenty
years from July 20, 1894, of the lot described in the lease to the
defendant of that date, the defendant paying rent according to the
conditions of that lease, as amended and approved by the Secretary
of the Interior.
On the coming in of the court on September 3, 1895, the
defendant's solicitor -- pursuant to a notice given by him to the
plaintiffs' solicitor on August 3, 1895, after all the evidence in
the case had been taken -- moved the court for leave to file a
supplemental answer, alleging that Moose Dung the younger and the
five other descendants of his father, above mentioned, were each
entitled to one-sixth of the land in controversy and had, in
accordance with the lease made by Moose Dung the younger to the
defendant in 1894 and its approval by the Secretary of the
Interior, been paid their shares of the rent provided for in that
lease and approval, and had likewise themselves executed a lease
ratifying and confirming that lease.
On September 9, 1895, the court denied the motion for leave to
file the supplemental answer; on September 17, 1895, the cause was
argued and submitted, and on November 9, 1895, the court entered
the final decree for the plaintiffs.
The present contention of the defendant that the right of the
elder Moose Dung in the reservation passed, upon his death, not to
his eldest son alone, but to the other children and grandchildren
jointly with the eldest son, was clearly inadmissible under the
allegations of the original answer. The question whether a
supplemental answer should be allowed was a matter within the
discretion of the court, largely depending upon the circumstances
of the particular case.
Hardin v. Boyd, 113 U.
S. 756;
Smith v. Babcock, 3 Sumner 583. The
reasons for denying the motion in this case are
Page 175 U. S. 29
not stated in the record. They may have been the late stage of
the case at which the motion was made, and a failure to satisfy the
court that the facts now attempted to be set up were not known or
at least easily accessible to the defendant or his solicitor long
before. But, as this Court might, even now, if justice appeared to
require it, allow an amendment of the pleadings, this part of the
case may be more satisfactorily disposed of by considering what the
effect of those facts would have been had they been duly pleaded.
Liverpool Steam Co. v. Phenix Ins. Co., 129 U.
S. 397,
129 U. S. 447;
Wiggins Ferry v. Ohio & Mississippi Railway,
142 U. S. 396,
142 U. S.
413-414.
The Department of the Interior appears to have assumed that,
upon the death of Moose Dung the elder in 1872, the title in his
land descended by law to his heirs general, and not to his eldest
son only.
But the elder Chief Moose Dung, being a member of an Indian
tribe, whose tribal organization was still recognized by the
government of the United States, the right of inheritance in his
land at the time of his death, was controlled by the laws, usages,
and customs of the tribe, and not by the law of the State of
Minnesota, nor by any action of the Secretary of the Interior.
In
United States v. Shanks (1870), 15 Minn. 369, it was
adjudged by the Supreme Court of Minnesota that a probate court of
the state had no jurisdiction over the estate of a chief of a tribe
of Chippewa Indians to whom a section of land, to be located by the
Secretary of the Interior, had been "granted in fee simple" by the
treaty between the United States and that tribe of May 7, 1864 (13
Stat. 693), and had accordingly been located and a patent therefor
issued to him.
See also Dole v. Irish (1848), 2 Barb. 639;
Hastings v. Farmer (1850), 4 N.Y. 293, 294.
In one of the cases reported under the name of
The Kansas
Indians (1866), 5 Wall. 737, this Court, reversing
the judgment of the Supreme Court of Kansas in
Blue Jacket v.
Johnson County, 3 Kan. 299, held that lands which, pursuant to
the Treaty of May 10, 1854, between the United States
Page 175 U. S. 30
and the Shawnee nation of Indians (10 Stat. 1053), had been
patented to a chief of that nation, were not subject to taxation by
the State of Kansas so long as the tribal organization remained and
was recognized by the political department of the government, and
Mr. Justice Davis, in delivering judgment, said:
"This people have their own customs and laws by which they are
governed. Because some of those customs have been abandoned, owing
to the proximity of their white neighbors, may be an evidence of
the superior influence of our race, but does not tend to prove that
their tribal organization is not preserved. There is no evidence in
the record to show that the Indians with separate estates have not
the same rights in the tribe as those whose estates are held in
common. . . . As long as the United States recognize their national
character, they are under the protection of treaties and the laws
of Congress, and their property is withdrawn from the operation of
state laws."
5 Wall.
72 U. S.
756-757.
See also the opinion delivered by
Judge Woods, with the concurrence of MR. JUSTICE HARLAN, in the
circuit court, in
Wau-pe-man-qua v. Aldrich (1886), 28 F.
489, 495.
Following that decision of this Court, it was held by the
Supreme Court of Kansas in an opinion delivered by MR. JUSTICE
BREWER, that land patented to an Indian woman of the Shawnee tribe
under the treaty of 1854 descended, upon her death according to the
law of her tribe, and not according to the Kansas statute of
descents.
Brown v. Steele (1880), 23 Kan. 672.
In
Richardville v. Thorp (1886), 28 F. 52, which
concerned the inheritance of land patented by the United States to
a member of the confederated tribes of Kaskaskia, Peoria,
Pinkeshaw, and Wea Indians, and in which there was no evidence of
any particular law or custom of those tribes, it was held that the
rightful heirs of the patentee might maintain their title in the
Circuit Court of the United States for the District of Kansas
against one claiming under a deed from two of those heirs, approved
by the Secretary of the Interior upon a certificate of two chiefs
of the tribe that the two grantors were the sole heirs of the
patentee; MR. JUSTICE
Page 175 U. S. 31
BREWER, then circuit judge, saying that the Secretary of the
Interior "had no judicial power to adjudge a forfeiture, to decide
questions of inheritance, or to divest the owner of his title
without his knowledge or consent."
Upon the evidence contained in this record, it is quite clear
that, by the laws, usages, and customs of the Chippewa Indians, old
Moose Dung's eldest son and successor as chief inherited the land
of his father to the exclusion of other descendants. Both the
half-breed Morrison and the younger Moose Dung, being fully
examined on this point, so testified, and there was no direct
testimony to the contrary. Morrison had lived with the Red Lake
bank of Chippewas all his life, spoke their language, and knew
their laws, customs, and usages, and there is nothing whatever in
the case that throws any doubt on the trustworthiness of his
testimony. The only matters that can be supposed to lessen the
weight of Moose Dung's testimony are an affidavit, a receipt, and a
lease, each signed with his mark in 1895, more than three years
after the lease to the plaintiffs, and wholly incompetent as
independent evidence against them. That affidavit, in which he
stated that the two daughters and the three grandchildren were the
only legal heirs of his father beside himself and were entitled to
share with him in the estate, was procured from him by the Indian
agent under direction of the Secretary of the Interior, and, as
well as the receipt, was evidently considered by him as mere matter
of form with which he was obliged to comply in order to get any
part of the rent under the lease of 1894. That it made little
impression on his mind is evident from the fact that when
afterwards examined as a witness in this case in the presence of
the counsel for both parties, he testified that no one had ever
said anything to him about the daughters and grandchildren having
some interest in the land. And it is not without significance that
the other chiefs and headmen of the tribe, from whom, under the
direction of the Secretary of the Interior, affidavits were
likewise obtained to the relationship between old Moose Dung and
his six descendants, said nothing, and do not appear to have been
asked anything as to the right of inheritance or
Page 175 U. S. 32
as to the laws, customs, and usages of the Indians upon that
subject.
The title to the strip of land in controversy, having been
granted by the United States to the elder chief Moose Dung by the
treaty itself and having descended, upon his death, by the laws,
customs, and usages of the tribe, to his eldest son and successor
as Chief Moose Dung the younger, passed by the lease executed by
the latter in 1891 to the plaintiffs for the term of that lease,
and their rights under that lease could not be divested by any
subsequent action of the lessor, or of Congress, or of the
Executive Departments. The construction of treaties is the peculiar
province of the judiciary, and, except in cases purely political,
Congress has no constitutional power to settle the rights under a
treaty, or to affect titles already granted by the treaty itself.
Wilson v. Wall,
6 Wall. 83,
73 U. S. 89;
Reichart v.
Felps, 6 Wall. 160;
Smith v.
Stevens, 10 Wall. 321,
77 U. S. 327;
Holden v. Joy,
17 Wall. 211,
84 U. S.
247.
The congressional resolution of 1894, and the subsequent
proceedings in the Department of the Interior, must therefore be
held to be of no effect upon the rights previously acquired by the
plaintiffs by the lease to them from the younger chief, and the
Decree is affirmed.