1. Lands definitely occupied by individual Indians were excepted
from the Central Pacific grant of July 25, 1866, c. 242, 14 Stat.
239, as lands "reserved . . . or otherwise disposed of." P.
261 U. S.
226.
2. Such possessory rights, though not recognized by any statute
or other formal governmental action of the time, were protected by
the settled policy of the government towards the Indians. P.
261 U. S.
229.
3. The Act of March 3, 1851, which required that claims of
rights in lands in California derived from Spain and Mexico be
presented for settlement within a specified time, and directed the
Commission thereby created to inquire into the tenures of certain
Indians, has no application to claims of individual Indians, not of
those classes, and based on an occupancy not shown to have been
initiated when the act was passed. P.
261 U. S.
230.
4. The United States, as guardian of individual Indians who have
occupied public land in accordance with its policy, may maintain a
bill to cancel a patent illegally issued to another for the land so
occupied. P.
261 U. S.
232.
5. The six-year limitation on suits by the United States to
annul land patents is inapplicable when the suit is to protect the
rights of Indians. P.
261 U. S.
233.
6. The acceptance by government agents of leases from a patentee
on behalf of Indian occupants cannot estop the government from
maintaining the Indian's independent right to the land occupied by
a suit against the patentee. P.
261 U. S.
234.
7. The rights of one who occupies part of a subdivision of
public land without laying claim to or exercising dominion over the
remainder are confined to the part occupied. P.
261 U. S.
234.
276 F. 78 reversed.
Page 261 U. S. 220
Appeal from a decree of the circuit court of appeals reversing a
decree of the district court and directing cancellation of a patent
as to 360 acres of land in a suit brought by the United States for
that purpose on behalf of several Indians.
Page 261 U. S. 224
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This appeal brings up for review a decree of the circuit court
of appeals, directing the cancellation of a land patent issued in
1904 by the United States to the defendant, the Central Pacific
Railway Company, insofar as it purports to convey certain legal
subdivisions of land in Sections 13 and 23, Township 43 North,
Range 8 West, M.D.M., Siskiyou County, California. 276 F. 78.
Page 261 U. S. 225
The suit was brought in the Federal District Court for the
Northern District of California by the United States, acting in
behalf of three Indians, who, it was claimed, had occupied the
lands continuously since before 1859. The Act of July 25, 1866, 14
Stat. 239, c. 242, granted to the predecessor of the defendant
company a series of odd-numbered sections of land, including those
named, but excepted from the grant such lands as "shall be found to
have been granted, sold, reserved, occupied by homestead settlers,
preempted or otherwise disposed of." [
Footnote 1] The obligations of the grant were complied
with, and patent conveying the sections mentioned above, with
others, was issued to the defendant company, as successor in
interest of the legislative grantee.
The original complaint alleged an actual occupancy by the
individual Indians, but sought cancellation of the patent primarily
on the ground that the lands formed part of an Indian reservation
provided for in a treaty which was pending for ratification when
the Act of 1866 was passed, but this last contention was abandoned
on the trial, it appearing that the treaty had been rejected by the
Senate prior to that date.
But the district court found for the plaintiff upon the issue of
actual occupancy and entered a decree confirming the right of
possession in the Indians, which, however, was confined to the land
actually inclosed, being an irregular body of about 175 acres and
which did not in terms cancel the patent.
Page 261 U. S. 226
After the submission of the case, plaintiff was allowed, over
defendants' objection, to amend its bill by reciting that, in
bringing the suit, the government proceeded in its own right and as
guardian of its Indian wards, thereafter named in the bill, by
omitting all reference to the treaty, and by making the allegations
respecting the Indian occupancy somewhat more specific.
The district court refused to reopen the case on the defendants'
application to allow further proof on the issue last stated,
holding that, as the occupation by the Indians was alleged in the
original bill, defendants should have offered their evidence on
that issue at the trial. The court found that, as early as 1859,
the Indians named lived with their parents upon the lands described
and had resided there continuously ever since; that they had under
fence between 150 and 175 acres in an irregularly shaped tract,
running diagonally through the two sections, portions of which they
had irrigated and cultivated; that they had constructed and
maintained dwelling houses and divers outbuildings, and had
actually resided upon the lands and improved them for the purpose
of making for themselves homes. These findings have support in the
evidence, and will be accepted here.
Adamson v. Gilliland,
242 U. S. 350,
242 U. S. 353.
The decree of the circuit court of appeals agreed with that of
the district court generally, but extended the right of possession
to the whole of each of the legal subdivisions which was fenced and
cultivated in part, and reversed the decree with instructions to
enter one cancelling the patent in respect of the entire 360
acres.
A reversal of this decree is now sought upon several
grounds.
1. It is urged that the occupancy of land by individual Indians
does not come within the exceptive provision of the grant.
Until the Act of March 3, 1875, 18 Stat. 402, 420, c. 131,
extending the homestead privilege to Indians, the right
Page 261 U. S. 227
of an individual Indian to acquire title to public lands by
entry was not recognized. It cannot, therefore, be said that these
lands were occupied by homestead settlers, nor were they granted,
sold, or preempted, but the question remains, were they "reserved .
. . or otherwise disposed of?" Unquestionably it has been the
policy of the federal government from the beginning to respect the
Indian right of occupancy, which could only be interfered with or
determined by the United States.
Beecher v. Wetherby,
95 U. S. 517,
95 U. S. 525;
Minnesota v. Hitchcock, 185 U. S. 373,
185 U. S. 385.
It is true that this policy has had in view the original nomadic
tribal occupancy, but it is likewise true that, in its essential
spirit, it applies to individual Indian occupancy as well, and the
reasons for maintaining it in the latter case would seem to be no
less cogent, since such occupancy, being of a fixed character,
lends support to another well understood policy -- namely that of
inducing the Indian to forsake his wandering habits and adopt those
of civilized life. That such individual occupancy is entitled to
protection finds strong support in various rulings of the Interior
Department, to which in land matters this Court has always given
much weight.
Midway Co. v. Eaton, 183 U.
S. 602,
183 U. S. 609;
Hastings & Dakota R. Co. v. Whitney, 132 U.
S. 357,
132 U. S. 366.
That department has exercised its authority by issuing instructions
from time to time to its local officers to protect the holdings of
nonreservation Indians against the efforts of white men to
dispossess them.
See 3 Land Dec. 371; 6 Land Dec. 341; 32
Land Dec. 382. In Poisal v. Fitzgerald, 15 Land Dec.19, the right
of occupancy of an individual Indian was upheld as against an
attempted homestead entry by a white man. In Wisconsin, 19 Land
Dec. 518, there had been granted to the state certain swamp lands
within an Indian reservation, but the right of Indian occupancy was
upheld, although the grant in terms was not subject
Page 261 U. S. 228
thereto. I n Ma-Gee-See v. Johnson, 30 Land Dec. 125, Johnson
had made an entry under § 2289, Revised Statutes, which applied to
"unappropriated public lands." It appeared that, at the time of the
entry and for some time thereafter, the land had been in the
possession and use of the plaintiff, an Indian. It was held that,
under the circumstances, the land was not unappropriated within the
meaning of the statute, and therefore not open to entry. In
Schumacher v. Washington, 33 L.D. 454, 456, certain lands, claimed
by the state under school grant were occupied and had been improved
by an Indian living apart from his tribe, but application for
allotment had not been made until after the state had sold the
land. It was held that the grant to the state did not attach under
the provision excepting lands "otherwise disposed of by or under
authority of an act of Congress." Secretary Hitchcock, in deciding
the case, said:
"It is true that the Indian did not give notice of his intention
to apply for an allotment of this land until after the state had
made disposal thereof, but the purchaser at said sale was bound to
take notice of the actual possession of the land by the Indian if,
as alleged, he was openly and notoriously in possession thereof at
and prior to the alleged sale, and that the act did not limit the
time within which application for allotment should be made."
Congress itself, in apparent recognition of possible individual
Indian possession, has in several of the state enabling acts
required the incoming state to disclaim all right and title to
lands "owned or held by any Indian or Indian tribes."
See
25 Stat. 676, c. 180, § 4, par. 2; 28 Stat. 107, c. 138, § 3, par.
2.
The action of these individual Indians in abandoning their
nomadic habits and attaching themselves to a definite locality,
reclaiming, cultivating, and improving the soil and establishing
fixed homes thereon, was in harmony with the well understood desire
of the government which
Page 261 U. S. 229
we have mentioned. To hold that, by so doing, they acquired no
possessory rights to which the government would accord protection
would be contrary to the whole spirit of the traditional American
policy toward these dependent wards of the nation.
The fact that such right of occupancy finds no recognition in
any statute or other formal governmental action is not conclusive.
The right, under the circumstances here disclosed, flows from a
settled governmental policy.
Broder v. Water Co.,
101 U. S. 274,
101 U. S. 276,
furnishes an analogy. There, this Court, holding that the Act of
July 26, 1866, 14 Stat. 251, c. 262, § 9, acknowledging and
confirming rights of way for the construction of ditches and
canals, was in effect declaratory of a preexisting right, said:
"It is the established doctrine of this Court that rights of . .
. persons who had constructed canals and ditches . . . are rights
which the government had, by its conduct, recognized and encouraged
and was bound to protect before the passage of the Act of 1866. We
are of opinion that the section of the act which we have quoted was
rather a voluntary
recognition of a preexisting right of
possession, constituting a valid claim to its continued use,
than the establishment of a new one."
Then, referring to the land grant to the Pacific Railroad
Companies, which was made expressly subject to "preemption,
homestead, swamp land, or other lawful claims," and which antedated
the Act of 1866, the Court held that defendant's right of way for
its canal, independent of that act, was within the excepting
provision of that grant, and said:
"We have had occasion to construe a very common clause of
reservation in grants to other railroad companies, and in aid of
other works of internal improvements, and in all of them we have
done so in the light of the general principle that Congress, in the
act of making these donations, could not be supposed to exercise
its liberality at the expense of preexisting rights, which, though
imperfect, were
Page 261 U. S. 230
still meritorious, and had just claims to legislative
protection."
We are referred to
Buttz v. Northern Pacific Railroad,
119 U. S. 55, but
that case affords no aid to the defendant. There, the railroad ran
through a section of the country where the original right of Indian
occupancy had not been extinguished, and this Court held (p.
119 U. S. 66):
"The grant conveyed the fee subject to this right of occupancy. The
railroad company took the property with this incumbrance."
The United states, however, undertook to extinguish the Indian
title as rapidly as might be consistent, etc., and, when this was
done, the right of the company, it was held, immediately attached
free from the Indian title.
In our opinion, the possession of the property in question by
these Indians was within the policy and with the implied consent of
the government. That possession was definite and substantial in
character, and open to observation when the railroad grant was
made, and, we have no doubt, falls within the clause of the grant
excepting from its operation lands "reserved . . . or otherwise
disposed of."
2. It is insisted that any rights these Indians might otherwise
have had are barred by the provisions of the Act of March 3, 1851,
9 Stat. 631, c. 41. This statute required every person claiming
lands in California by virtue of any right or title derived from
the Spanish or Mexican governments to present the same for
settlement to a commission created by the act. There was a
provision directing the commission to ascertain and report the
tenure by which the mission lands were held and those held by
civilized Indians, and other Indians described. [
Footnote 2]
Page 261 U. S. 231
The act plainly has no application. The Indians here concerned
do not belong to any of the classes described therein, and their
claims were in no way derived from the Spanish or Mexican
governments. Moreover, it does not appear that these Indians were
occupying the lands in question when the act was passed.
Barker v. Harvey, 181 U. S. 481,
does not support the defendants' contention. There, the Indians
whose claims were in dispute were Mission Indians claiming a right
of occupancy derived from the Mexican government. They had failed
to present their claims to the Commission, and this, it was held,
constituted an abandonment. The Indians here concerned have no such
claim, and are not shown to be within the terms of the Act of 1851
in any respect. It further appeared in that case that, prior to the
cession to the United States, the Mexican authorities, upon
examination, found that the Indians had abandoned
Page 261 U. S. 232
the lands and thereupon made an absolute grant to the
plaintiff's predecessors, and, this grant having been confirmed by
the Commission, a patent for the lands had issued.
3. The contention that the United States was without authority
to maintain the suit in the capacity of guardian for these Indians
is without merit. In
United States v. Kagama, 118 U.
S. 375,
118 U. S.
383-384, the general doctrine was laid down by this
Court that the Indian tribes are wards of the nation, communities
dependent on the United States.
"From their very weakness and helplessness, so largely due to
the course of dealing of the federal government with them and the
treaties in which it has been promised, there arises the duty of
protection, and with it the power."
This duty of protection and power extend to individual Indians
even though they may have become citizens.
United States v.
Nice, 241 U. S. 591,
241 U. S. 598,
and cases cited;
Heckman v. United States, 224 U.
S. 413,
224 U. S. 436;
United States v. Gray, 201 F. 291;
United States v.
Fitzgerald, 201 F. 295. In
United States v. Gray,
supra, the capacity of the United States to sue for the breach
of a lease made by an Indian allottee was asserted and upheld.
After pointing out the fact that it was the policy of the
government to protect all Indians and their property and to teach
and persuade them to abandon their nomadic habits, the court
said:
"The civil and political status of the Indians does not
condition the power of the government to protect their property or
to instruct them. Their admission to citizenship does not deprive
the United States of its power, nor relieve it of its duty. . .
."
In
United States v. Fitzgerald, supra, it was held that
the United States had capacity to sue for the taking of personal
property from an Indian held by him subject to the management of an
Indian agent, on the ground, among others, that such taking
obstructs the execution of its governmental policy. At page 296,
the
Page 261 U. S. 233
court said:
"The United States may lawfully maintain suits in its own courts
to prevent interference with the means it adopts to exercise its
powers of government and to carry into effect its policies. It may
maintain such suits, although it has no pecuniary interest in the
subject matter thereof, for the purpose of protecting and enforcing
its governmental rights and to aid in the execution of its
governmental policies."
Congress may, if it thinks fit, emancipate the Indians from
their wardship wholly or partially,
United States v.
Waller, 243 U. S. 452,
243 U. S. 459,
but, in respect of the Indians here concerned, that has not been
done. It results from the conclusion we have reached to the effect
that these Indians had occupied the lands in dispute with the
implied consent of the United States and in accordance with its
policy that the United States sustains such a relation to the
subject matter and persons that its authority to maintain the suit
cannot be questioned.
4. The suit is not barred by the Act of March 3, 1891, c. 561, §
8, 26 Stat. 1095, 1099, limiting the time within which suits may be
brought by the United States to annul patents.
The object of that statute is to extinguish any right the
government may have in the land which is the subject of
the patent, not to foreclose claims of third parties. Here, the
purpose of the annulment was not to establish the right of the
United States to the lands, but to remove a cloud upon the
possessory rights of its wards. As stated by this Court in
United States v. Winona & St. Peter R. Co.,
165 U. S. 463,
165 U. S. 475,
the statute was passed in recognition of
"the fact that, when there are no adverse individual rights, and
only the claims of the government and of the present holder of the
title to be considered, it is fitting that a time should come when
no mere errors or irregularities on the part of the officers of the
land department should be open for consideration."
After the
Page 261 U. S. 234
lapse of the statutory period, the patent becomes conclusive
against the government, but not as against claims and rights of
others, merely because the relation of the government to them is
such as to justify or require its affirmative intervention.
See
Northern Pacific Ry. Co. v. United States, 227 U.
S. 355,
227 U. S. 367;
La Roque v. United States, 239 U. S.
62,
239 U. S.
68.
5. Neither is the government estopped from maintaining this suit
by reason of any act or declaration of its officers or agents.
Since these Indians, with the implied consent of the government,
had acquired such rights of occupancy as entitled them to retain
possession as against the defendants, no officer or agent of the
government had authority to deal with the land upon any other
theory. The acceptance of leases for the land from the defendant
company by agents of the government was, under the circumstances,
unauthorized, and could not bind the government; much less could it
deprive the Indians of their rights.
See and compare
11 U. S. Munroe and
Thornton, 7 Cranch 366;
Whiteside v. United States,
93 U. S. 247,
93 U. S. 257;
Dubuque & Sioux City R. Co. v. Des Moines Valley R.
Co., 109 U. S. 329,
109 U. S. 336;
Pine River Logging Co. v. United States, 186 U.
S. 279,
186 U. S.
291.
6. We think, however, the circuit court of appeals erred in
holding that the right of the Indians extended to the entire area
of each legal subdivision, irrespective of the inclosure, and we
agree with the district court in confining the right to the lands
actually inclosed, including the whole of the northeast quarter of
the southwest quarter of Section 13, the small portion thereof
which had not been enclosed having been improved. The court of
appeals, in support of its conclusion, relied upon
Quinby v.
Conlan, 104 U. S. 420. In
that case, Conlan had entered upon a quarter section of land,
occupied a portion thereof, and declared his purpose to acquire a
preemption right to the whole, and soon thereafter had filed his
declaratory
Page 261 U. S. 235
statement in legal form, claiming the whole as a preemptor. This
Court sustained Conlan's claim as against Quinby, a subsequent
settler. Here, the claim for the Indians is based on occupancy
alone, and the extent of it is clearly fixed by the inclosure,
cultivation, and improvements. The evidence does not disclose any
act of dominion on their part over, or any claim or assertion of
right to, any lands beyond the limits of their actual possessions
as thus defined. Under the circumstances, their rights are confined
to the limits of actual occupancy, and cannot be extended
constructively to other lands never possessed or claimed simply
because they form part of the same legal subdivisions.
See
Garrison v. Sampson, 15 Cal. 93, 95, where the Supreme Court
of California said:
"A fatal objection to the judgment consists in the finding of
the judge in favor of the plaintiff for the whole tract of land
sued for. The plaintiff claims by force of prior possession and a
contract or consent on the part of the defendant, whom he mediately
or immediately let into possession, to hold the premises for him or
subject to his order. The land is public land. It was not taken up
by the plaintiff under the Possessory Act of this state, nor was it
inclosed. There was a house and corral on the land. Of these he may
be said to have been in the actual occupancy. But we cannot see
from the proofs any right of possession to the whole of the quarter
section, or even any claim to it. We do not understand that the
mere fact that a man enters upon a portion of the public land, and
builds or occupies a house or corral on a small part of it, gives
him any claim to the whole subdivision, even as against one
entering upon it without title. The case would be different if he
claimed under the Possessory Act and pursued the necessary steps
prescribed by it, or if he had made his entry under the preemption
laws of the United States. But merely going on waste and uninclosed
land, and building a house and corral, and even subsequently
Page 261 U. S. 236
cutting hay on a part, did not extend his possession to the
whole of the 160 acres."
This is in accordance with the general rule that possession
alone, without title or color of title, confers no right beyond the
limits of actual possession.
See Green v.
Liter, 8 Cranch 229,
12 U. S. 250;
Watkins v.
Holman, 16 Pet. 25,
41 U. S. 55;
Marine Ry. Co. v. United States, 257 U. S.
47,
257 U. S. 65;
Humphries v. Huffman, 33 Ohio St. 395, 401;
Langdon v.
Templeton, 66 Vt. 173, 179;
Ryan v. Kilpatrick, 66
Ala. 332, 337.
Certain other contentions of defendants we deem it unnecessary
to review, although they have been carefully considered. Aside from
that stated in the last paragraph, we find no error, but, for the
reasons there given, the decree of the circuit court of appeals is
reversed, and the cause remanded to the district court with
instructions to amend its decree so as to cancel the patent in
respect of the lands possessed by the Indians, and, as so amended,
that decree is affirmed.
Reversed.
[
Footnote 1]
"Sec. 2. . . . And when any of said alternate sections or parts
of sections shall be found to have been granted, sold, reserved,
occupied by homestead settlers, preempted, or otherwise disposed
of, other lands, designated as aforesaid, shall be selected by said
companies in lieu thereof, under the direction of the Secretary of
the Interior, in alternate sections designated by odd numbers as
aforesaid, nearest to and not more than ten miles beyond the limits
of said first-named alternate sections. . . ."
[
Footnote 2]
"Sec. 8. . . . That each and every person claiming lands in
California by virtue of any right or title derived from the Spanish
or Mexican government shall present the same to the said
commissioners when sitting as a board, together with such
documentary evidence and testimony of witnesses as the said
claimant relies upon in support of such claims, and it shall be the
duty of the commissioners, when the case is ready for hearing, to
proceed promptly to examine the same upon such evidence, and upon
the evidence produced in behalf of the United States, and to decide
upon the validity of the said claim, and, within thirty days after
such decision is rendered, to certify the same, with the reasons on
which it is founded, to the district attorney of the United States
in and for the district in which such decision shall be rendered. .
. ."
"Sec. 13. . . . That all lands, the claims to which have been
finally rejected by the commissioners in manner herein provided, or
which shall be finally decided to be invalid by the District or
Supreme Court, and all lands the claims to which shall not have
been presented to the said commissioners within two years after the
date of this act, shall be deemed, held, and considered as part of
the public domain of the United States. . . ."
"Sec. 16. . . . That it shall be the duty of the commissioners
herein provided for to ascertain and report to the Secretary of the
Interior the tenure by which the mission lands are held, and those
held by civilized Indians, and those who are engaged in agriculture
or labor of any kind, and also those which are occupied and
cultivated by Pueblos or Rancheros Indians."