1. Where rights claimed under the United States are set up
against it, they must be so clearly defined that there can be no
question of the purpose of Congress to confer them.
2. The rule announced in the former decisions of this Court that
a grant by the United states is strictly construed against the
grantee applies as well to grants to a state to aid in building
railroads as to one granting special privileges to a private
corporation.
3. The doctrine in
Wilcox v.
Jackson, 13 Pet. 498, that a tract lawfully
appropriated to any purpose becomes thereafter severed from the
mass of public lands and that no subsequent law or proclamation
will be construed to embrace it or to operate upon it, although no
exception be made of it, reaffirmed and held to apply with more
force to Indian, than to military, reservations, inasmuch as the
latter are the absolute property of the government, whilst in the
former other rights are vested.
4. Where Congress enacts "That there be and is hereby granted"
to a state, to aid in the construction of a specified railroad,
"every alternate section of land, designated by odd numbers,"
within certain limits of each side of the road, the state takes an
immediate interest in land so situate whereto the complete title is
in the United States at the date of the act, although a survey of
the land and a location of the road are necessary to give precision
to the title and attach it to any particular tract. Such a grant is
applicable only to public land owned absolutely by the United
States. No other is subject to survey and division into such
sections.
5. Where the right of an Indian tribe to the possession and use
of certain lands as long as it may choose to occupy the same is
assured by treaty, a grant of them, absolutely or
cum
onere, by Congress to aid in building a railroad violates an
express stipulation, and a grant in general terms of "land" cannot
be construed to embrace them.
6. A proviso that any and all lands heretofore reserved to the
United States for any purpose whatever are reserved from the
operation of the grant to which it is annexed applies to lands set
apart for the use of an Indian tribe under a treaty. They are
reserved to the United States for that specific use, and if so
reserved at the date of the grant, are excluded
Page 92 U. S. 734
from its operation. It is immaterial whether they subsequently
become a part of the public lands of the country.
7. The Act of March 3, 1863, 12 Stat. 772, to aid in the
construction of certain railroads in Kansas embraces no part of the
lands reserved to the Great and Little Osages by the Treaty of June
2, 1825, 7 Stat. 240, and the Treaty concluded Sept. 29, 1865, and
proclaimed Jan. 21, 1867, 14 Stat. 687, neither makes nor
recognizes a grant of such lands. The effect of the treaty is
simply to provide that any rights of the companies designated by
the state to build the roads should not he barred or impaired by
reason of the general terms of the treaty, but not to declare that
such rights existed.
8. The act of Congress of even date with said act, 12 Stat. 793,
authorizing treaties for the removal of the several tribes of
Indians from the State of Kansas and for the extinction of their
title, and a subsequent act for relocating a portion of the road of
the appellant, 17 Stat. 5, neither recognize nor confer a right to
the lands within the Osage country.
This is a bill filed by the United States against the
Leavenworth, Lawrence & Galveston Railroad Company to establish
its title to certain tracts of land lying within the Osage country
in Kansas, which were certified to the Governor of Kansas as
forming part of the grant made by Congress to that state, to aid in
the construction of certain railroads. The court granted the prayer
of the bill, and the company appealed.
The Treaty with the Great and Little Osage tribes of Indians of
June 2, 1825, 7 Stat. 240, contains the following provision:
"ARTICLE II. Within the limits of the country above ceded and
relinquished there shall be reserved to and for the Great and
Little Osage tribe or nation aforesaid, so long as they may choose
to occupy the same, the following described tract of land."
The land embraces, with other tracts, that mentioned in the
first article of a treaty with those Indians which was concluded
Sept. 29, 1865, 14 Stat. 687. That article is as follows:
"The tribe of the Great and Little Osage Indians, having now
more lands than are necessary for their occupation, and all
payments from the government to them under former treaties having
ceased, leaving them greatly impoverished, and being desirous
of
Page 92 U. S. 735
improving their condition by disposing of their surplus lands,
do hereby grant and sell to the United States the lands contained
within the following boundaries. . . . And, in consideration of the
grant and sale to them of the above-described lands, the United
States agree to pay the sum of three hundred thousand dollars,
which sum shall be placed to the credit of said tribe of Indians in
the Treasury of the United States, and interest thereon at the rate
of five percentum per annum shall be paid to said tribe
semiannually in money, clothing, provisions, or such articles of
utility as the Secretary of the Interior may from time to time
direct. Said lands shall be surveyed and sold under the direction
of the Secretary of the Interior on the most advantageous terms,
for cash, as public lands are surveyed and sold under existing laws
[including any act granting lands to the State of Kansas, in aid of
the construction of a railroad through said lands], but no
preemption claim or homestead settlement shall be recognized, and
after reimbursing the United States the cost of said survey and
sale and the said sum of three hundred thousand dollars placed to
the credit of said Indians, the remaining proceeds of sales shall
be placed in the Treasury of the United States to the credit of the
'civilization fund,' to be used, under the direction of the
Secretary of the Interior, for the education and civilization of
Indian tribes residing within the limits of the United States."
The words in brackets are an amendment adopted by the Senate,
26th June, 1866, which the Indians accepted Sept. 21 of that year.
The treaty was proclaimed Jan. 21, 1867.
On the 3d of March, 1863, Congress passed "An Act for a grant of
lands to the State of Kansas, in alternate sections, to aid in the
construction of certain railroads and telegraphs in said state," 12
Stat. 772, the first section of which is as follows:
"That there be and is hereby granted to the State of Kansas for
the purpose of aiding in the construction
first of a
railroad and telegraph from the City of Leavenworth, by way of the
Town of Lawrence, and via the Ohio City crossing of the Osage
River, to the southern line of the state in the direction of
Galveston Bay, in Texas, with a branch from Lawrence by the valley
of the Wakarusa River, to the point on the Atchison, Topeka &
Santa Fe Railroad where said road intersects the Neosho River;
second of a railroad from the City of Atchison, via
Topeka, the capital of
Page 92 U. S. 736
said state, to the western line of the state, in the direction
of Fort Union and Santa Fe, New Mexico, with a branch from where
this last-named road crosses the Neosho, down said Neosho Valley to
the point where the said first-named road enters the said Neosho
Valley, every alternate section of land, designated by odd numbers,
for ten sections in width on each side of said road and each of its
branches. But in case it shall appear that the United States have,
when the lines or routes of said road and branches are definitely
fixed, sold any section or any part thereof granted as aforesaid,
or that the right of preemption or homestead settlement has
attached to the same, or that the same has been reserved by the
United States for any purpose whatever, then it shall be the duty
of the Secretary of the Interior to cause to be selected, for the
purpose aforesaid, from the public lands of the United States
nearest to tiers of sections above specified, so much land, in
alternate sections or parts of sections, designated by odd numbers,
as shall be equal to such lands as the United States have sold,
reserved, or otherwise appropriated, or to which the right of
preemption or homestead settlements have attached as aforesaid,
which lands, thus indicated by odd numbers and selected by the
direction of the Secretary of the Interior as aforesaid, shall be
held by the State of Kansas for the use and purpose aforesaid,
provided that the land to be so selected shall in no case
be located further than twenty miles from the lines of said road
and branches;
provided further that the lands hereby
granted for and on account of said road and branches severally
shall be exclusively applied in the construction of the same and
for no other purpose whatever, and shall be disposed of only as the
work progresses through the same, as in this act hereinafter
provided,
provided also that no part of the land granted
by this act shall be applied to aid in the construction of any
railroad or part thereof, for the construction of which any
previous grant of land or bonds may have been made by Congress,
and provided further that any and all lands heretofore
reserved to the United States, by any act of Congress or in any
other manner by competent authority, for the purpose of aiding in
any object of internal improvement or for any other purpose
whatsoever be and the same are hereby reserved to the United States
from the operation of this act, except so far as it may be found
necessary to locate the routes of said road and branches through
such reserved lands, in which case the right of way only shall be
granted, subject to the approval of the President of the United
States. "
Page 92 U. S. 737
The Legislature of Kansas, on the 9th of February, 1864, passed
an act accepting the grant and designated the appellant to build
the road from Leavenworth to the southern line of the state and to
receive the grant of land upon the prescribed terms and conditions.
Its authorized route passed through the Osage lands whereof mention
is made in the first article of the treaty of 1865, and a map of
the definite location of the road was filed in the General Land
Office Jan. 2, 1868.
The Commissioner of the General Land Office, by letter bearing
date Jan. 21, 1868, directed the register and receiver of the
proper office to withdraw from sale the odd-numbered sections
within ten miles of the line of the road.
The fourth section of the law making appropriations for the
Indian Department, approved March 3, 1863, 12 Stat. 793, is as
follows:
"That the President of the United States be and is hereby
authorized to enter into treaties with the several tribes of
Indians respectively now residing in the State of Kansas for the
extinction of their titles to lands held in common within said
state and for the removal of such Indians of said tribes as hold
their lands in common to suitable localities elsewhere within the
territorial limits of the United States and outside the limits of
any state."
On the 10th of April, 1869, Congress passed the following joint
resolution, 16 Stat. 55:
"
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled that any
bona fide settler residing upon any portion of the lands
sold to the United States by virtue of the first and second
articles of the treaty concluded between the United States and the
Great and Little Osage tribe of Indians, September twenty-ninth,
eighteen hundred and sixty-five, and proclaimed January
twenty-first, eighteen hundred and sixty-seven, who is a citizen of
the United States or shall have declared his intention to become a
citizen of the United States shall be and hereby is entitled to
purchase the same in quantity not exceeding one hundred and sixty
acres at the price of one dollar and twenty-five cents per acres
within two years from the passage of this act under such rules and
regulations as may be prescribed by the Secretary of the Interior,
provided however that both the odd and even numbered
sections of said lands shall
Page 92 U. S. 738
be subject to settlement and sale as above provided,
and
provided further that the sixteenth and thirty-sixth sections
in each township of said lands shall be reserved for state school
purposes in accordance with the provisions of the Act of admission
of the State of Kansas,
provided, however, that nothing in
this act shall be construed in any manner affecting any legal
rights heretofore vested in any other party or parties."
Settlers made entries lying within the odd-numbered sections,
which were set aside and vacated, Jan. 16, 1872, by the Secretary
of the Interior, who decided that the appellant had a grant within
those lands.
The appellant having constructed its road from its initial point
to Thayer, within the ceded territory, and about twenty miles south
of its northern boundary, and, desiring to charge its previously
located route south of that town, the Legislature of Kansas, in
January, 1871, asked Congress to allow a relocation of the
road.
Congress passed an Act, approved April 19, 1871, as follows (17
Stat. 5):
"An Act to enable the Leavenworth, Lawrence & Galveston
Railroad Company to relocate a portion of its road."
"
Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled, that the
Leavenworth, Lawrence & Galveston Railroad Company, for the
purpose of improving its route and accommodating the country, may
relocate any portion of its road south of the Town of Thayer within
the limits of its grant as prescribed by the act of Congress
entitled 'An Act for a grant of lands to the State of Kansas, in
alternate sections, to aid in the construction of certain railroads
and telegraphs in said state,' approved March third, eighteen
hundred and sixty-three, but not thereby to charge, enlarge, or
diminish said land grant."
Sept. 21, 1871, the Governor of Kansas certified to the
Secretary of the Interior that the road of the appellant had been
constructed and equipped as required by the Act of Congress of
March 3, 1863, and that a map of the road had been duly filed
whereupon certified lists of the odd-numbered sections of lands
within the railroad limits were made by the proper authority at
Washington, and the governor, April 8, 1872, and March 21,
Page 92 U. S. 739
1873, issued to the appellant patents for the lands mentioned in
the bill of complaint.
MR. JUSTICE DAVIS delivered the opinion of the Court.
This bill was brought by the United States to confirm and
establish its title to certain tracts of land and to enjoin the
appellant from setting up any right or claim thereto. These tracts,
situate within the Osage ceded lands in Kansas and specifically
described in "certified lists" furnished by the Commissioner of the
General Land Office, with the approval of the Secretary of the
Interior, to the governor of the state, were subsequently conveyed
by the latter to the appellant. Having the force and effect of a
patent (10 Stat. 346), the lists passed the title of the United
States to the tracts in question if they were embraced by the grant
in aid of the construction of the appellant's road. But the
appellee contends that they were not so embraced. If such be the
fact, inasmuch as public officers cannot bind the government beyond
the scope of their lawful authority, the decree of the circuit
court granting the prayer of the bill must be affirmed.
The Act of Congress of March 3, 1863, 12 Stat. 772, is the
starting point in this controversy. Upon it and the Treaty with the
Great and Little Osage Indians, proclaimed Jan. 21, 1867, 14
id. 687, the appellant rests its claim of title to the
lands covered by the patents. It is therefore of primary importance
to ascertain the scope and meaning of that act. The parties differ
radically in their interpretation of it. The United States
maintains that it did not dispose of the Osage lands and that it
was not intended to do so. On the contrary, the appellant insists
that although not operating upon any specific tracts until the road
was located, it then took effect upon those in controversy, as
they, by reason of the extinction of the Osage title in the mean
while, had become, in the proper sense of the term, public lands.
This difference would seem to imply obscurity in the act, but be
this as it may, the rules which govern in the interpretation of
legislative grants are so well
Page 92 U. S. 740
settled by this Court that they hardly need be reasserted. They
apply as well to grants of lands to states, to aid in building
railroads, as to grants of special privileges to private
corporations. In both cases, the legislature, prompted by the
supposed wants of the public, confers on others the means of
securing an object the accomplishment of which it desires to
promote, but declines directly to undertake.
The main question in
Dubuque & Pacific Railroad
Company v. Litchfield, 23 How. 66, was whether a
grant to the Territory of Iowa to aid in the improvement of the
navigation of the Des Moines River extended to lands above the
Raccoon Fork or was confined to those below it. The Court, in
deciding it, said:
"All grants of this description are strictly construed against
the grantee; nothing passes but what is conveyed in clear and
explicit language, and, as the rights here claimed are derived
entirely from the Act of Congress, the donation stands on the same
footing of a grant by the public to a private company, the terms of
which must be plainly expressed in the statute, and if not thus
expressed, they cannot be implied."
This grant, like that to Iowa, was made for the purpose of
aiding a work of internal improvement, and does not extend beyond
the intent it expresses. It should be neither enlarged by ingenious
reasoning nor diminished by strained construction. The
interpretation must be reasonable and such as will give effect to
the intention of Congress. This is to be ascertained from the terms
employed, the situation of the parties, and the nature of the
grant. If these terms are plain and unambiguous, there can be no
difficulty in interpreting them, but if they admit of different
meanings -- one of extension and the other of limitation -- they
must be accepted in a sense favorable to the grantor. And if rights
claimed under the government be set up against it, they must be so
clearly defined that there can be no question of the purpose of
Congress to confer them. In other words, what is not given
expressly or by necessary implication is withheld.
Dubuque
& Pacific Railroad Company v. Litchfield, supra; 66 U.
S. Railroad Company, 1 Black 380;
Charles
River Bridge v. Warren Bridge, 11 Pet. 420.
Applying these rules to this controversy, there does not seem to be
any difficulty in deciding it. Whatever is included in the
Page 92 U. S. 741
exception is excluded from the grant, and it therefore often
becomes important to ascertain what is excepted in order to
determine what is granted. But if the exception and the proviso
were omitted, the language used in the body of this act cannot be
construed to include the Osage lands.
It creates an immediate interest, and does not indicate a
purpose to give in future. "There be and is hereby granted" are
words of absolute donation, and import a grant
in
praesenti. This Court has held that they can have no other
meaning, and the land department, on this interpretation of them,
has uniformly administered every previous similar grant.
Railroad Company v.
Smith, 9 Wall. 95;
Schulenberg v.
Harriman, 21 Wall. 60; 1 Lester 513; 8 Opin. 257;
11
id. 47. They vest a present title in the State of
Kansas, though a survey of the lands and a location of the road are
necessary to give precision to it and attach it to any particular
tract. The grant then becomes certain, and by relation has the same
effect upon the selected parcels as if it had specifically
described them. In other words, the grant was a float until the
line of the road should be definitely fixed. But did Congress
intend that it should reach these lands? Its general terms neither
include nor exclude them. Every alternate section designated by odd
numbers, within certain defined limits, is granted, but only the
public lands owned absolutely by the United States are subject to
survey and division into sections, and to them alone this grant is
applicable. It embraces such as could be sold and enjoyed, and not
those which the Indians, pursuant to treaty stipulations, were left
free to occupy.
Rice v. Railroad Co., supra. Since the
land system was inaugurated, it has been the settled policy of the
government to sell the public lands at a small cost to individuals,
and for the last twenty-five years to grant them to states in large
tracts to aid in works of internal improvement. But these grants
have always been recognized as attaching only to so much of the
public domain as was subject to sale or other disposal, although
the roads of many subsidized companies pass through Indian
reservations.
Such grants could not be otherwise construed, for Congress
cannot be supposed to have thereby intended to include land
previously appropriated to another purpose unless there be an
express declaration to that effect. A special exception of it
Page 92 U. S. 742
was not necessary, because the policy which dictated them
confined them to land which Congress could rightfully bestow
without disturbing existing relations and producing vexatious
conflicts. The legislation which reserved it for any purpose
excluded it from disposal as the public lands are usually disposed
of, and this act discloses no intention to change the long
continued practice with respect to tracts set apart for the use of
the government or of the Indians. As the transfer of any part of an
Indian reservation secured by treaty would also involve a gross
breach of the public faith, the presumption is conclusive that
Congress never meant to grant it.
"A thing which is within the letter of the statute is not within
the statute unless it be within the intention of the makers." 1
Bac.Abr. 247. The Treaty of June 2, 1825, secured to the Osages the
possession and use of their lands "so long as they may choose to
occupy the same," and this treaty was only the substitute for one
of an earlier date with equal guaranties.
As long ago as
The Cherokee Nation v.
Georgia, 5 Pet. 1, this Court said that the Indians
are acknowledged to have the unquestionable right to the lands they
occupy until it shall be extinguished by a voluntary cession to the
government, and recently, in
United States v.
Cook, 19 Wall. 591, that right was declared to be
as sacred as the title of the United States to the fee. Unless the
Indians were deprived of the power of alienation, it is easy to see
that they could not peaceably enjoy their possessions with a
dominant race constantly pressing on their frontier. With the
ultimate fee vested in the United States, coupled with the
exclusive privilege of buying that right, the Indians were safe
against intrusion if the government discharged its duty to them.
This it has indicated a willingness to do, for in 1834 an act was
passed, 4 Stat. 729, sec. 11, prohibiting under heavy penalties a
settlement on the lands of an Indian tribe or even an attempt to
survey them. This perpetual right of occupancy, with the
correlative obligation of the government to enforce it, negatives
the idea that Congress, even in the absence of any positive
stipulation to protect the Osages, intended to grant their land to
a railroad company either absolutely or
cum onere. For all
practical purposes, they owned it, as the actual right of
possession, the
Page 92 U. S. 743
only thing they deemed of value, was secured to them by treaty
until they should elect to surrender it to the United States. In
the free exercise of their choice, they might hold it forever, and
whatever changed this condition or interfered with it violated the
guaranties under which they had lived. The United States has
frequently bought the Indian title to make room for civilized men,
the pioneers of the wilderness, but it has never engaged in advance
to do so, nor was constraint, in theory at least, placed upon the
Indians to bring about their acts of cession. This grant, however,
if it took effect on these lands, carried with it the obligation to
extinguish the Indian right. This will be conceded if a complete
title to them were granted, but it is equally true if only the fee
subject to that right passed. It would be idle to grant what could
be of no practical benefit unless something be done which the
grantee is forbidden, but which the grantor has power, to do. And
this applies with peculiar force to a grant like this, intended to
be immediately available to the grantee. The lands were expected to
be used in the construction of the road as it progressed, but they
could neither be sold nor mortgaged so long as a valid adverse
right of occupancy attached to them. The grantee was prohibited
from negotiating with the Indians at all, but the United States
might, by treaty, put an end to that right. As Congress cannot be
supposed to do a vain thing, the present grant of the fee would be
an assurance to the grantee that the full title should be
eventually enjoyed. This would be in effect a transfer of the
possessory right of the Indians before acquiring it -- a poor way
of observing a treaty stipulation. How could they treat on an
equality with the United States under such circumstances? They
would be constrained to sell, as the United States was obliged to
buy. Although it might appear that the sale was voluntary, it would
in fact be compulsory. Can the court, in the absence of words of
unmistakable import, presume that an act so injurious to the
Indians was intended? The grant is silent as to such a purpose, but
if it was to take effect in the Osage country on the surrender of
the Indian title, it would have so declared. It is true the
recognized route of the road passed through that country, but many
other roads, aided by similar grants, ran through such
reservations, and in no case before this has land included in them
been considered
Page 92 U. S. 744
as falling within any grant, whether the Indian right was
extinguished before or after the definite location of the road. And
if Congress really meant that this grant should include any part of
the reservation of the Osages, it would at least have secured an
adequate indemnity to them, and sanctioned a delay in locating the
road until the surrender of their right should be made. Instead of
this, the act contains no provision for them, and contemplates that
the road shall be finished as soon as practicable. This is
inconsistent with a purpose to grant their land, for they had not
proposed to relinquish it, nor had the President encouraged them to
do so. In the face of this, it is hard to believe that Congress
meant to hold out inducements to the company to postpone fixing the
route of their road until a contingency should happen which the act
did not contemplate. Besides, Congress was bound by every
consideration affecting the condition of the Indians to retain
their lands within its own control. But it is said that the Indian
appropriation bill became a law the same day as the act under
consideration, and that it authorized the President to enter into
negotiations with the several tribes of Indians residing in Kansas,
for the extinction of their title and for their removal. This is
true, but it does not prove any purpose inconsistent with the
policy of the Act of 1837, 5 Stat. 135, which contemplates the sale
of all Indian lands ceded to the government. If Congress had
intended to extinguish the Osage title for the benefit of the
appellant, it would have spoken directly, as it did in the Pacific
Railroad Act, and not in an indirect way near the end of one of the
general appropriation bills. The Congress that made this grant made
one, eight months before, to aid in the construction of a railroad
from the Missouri River to the Pacific Ocean, and of other roads
connecting therewith, in which it agreed to extinguish as rapidly
as possible the Indian title, for the benefit of the companies.
This was necessary although their roads ran through territory
occupied by wild tribes, but this passed through a reservation
secured by treaty and occupied by Indians at least partially
civilized. A transfer of any part of it would be wrong, and as the
act does not mention it, there is no reason to suppose that
Congress, in making the grant, contemplated the extinction of the
Indian title at all. Besides, the avowed object of the
Page 92 U. S. 745
provision in the appropriation act was to remove the Indians. If
any ulterior hidden purpose was to be thereby subserved, Congress
is not responsible for it, nor can it affect this case. The
language used is to be taken as expressing the legislative
intention, and the large inference attempted to be drawn from it is
not authorized. It does not follow, because Congress sanctioned
negotiations to effect the removal of the Indians from Kansas, as a
disturbing element of her population, and to procure their land for
settlement, that it also contemplated obtaining the title of any
tribe in order to convey it by this grant. The policy of removal --
a favorite one with the government, and always encouraged by it --
looked to the extinguishment of the Indian title for the general
good, and not for the special benefit of any particular interest.
But the two acts have no necessary connection with each other
because they happened to be approved on the 3d of March. The laws
signed by the President that day occupy one hundred pages of the
twelfth volume of the statutes.
We are not without authority that the general words of this
grant do not include an Indian reservation. In
Wilcox v.
Jackson, 13 Pet. 498, the President by proclamation
had ordered the sale of certain lands without excepting therefrom a
military reservation included within their boundaries. The
proclamation was based on an act of Congress supposed to authorize
it, but this Court held that the act did not apply, and then
added,
"We go further and say that whenever a tract of land shall have
been once legally appropriated to any purpose, from that moment the
land thus appropriated becomes severed from the mass of public
lands, and that no subsequent law, proclamation, or sale would be
construed to embrace or operate upon it, although no reservation
were made of it."
It may be urged that it was not necessary in deciding that case
to pass upon the question; but however this may be, the principle
asserted is sound and reasonable, and we accept it as a rule of
construction. The Supreme Courts of Wisconsin and Texas have
adopted it in cases where the point was necessarily involved.
State v. Delesdenier, 7 Tex. 76;
Spaulding v.
Martin, 11 Wis. 274. It applies with more force to Indian than
to military reservations. The latter are the absolute property of
the government; in the former other rights are vested. Congress
cannot be supposed to grant them by a subsequent law
Page 92 U. S. 746
general in its terms. Specific language leaving no room for
doubt as to the legislative will is required for such a
purpose.
But this case does not rest alone on the words of description in
the grant, for the Osage lands are expressly excepted by force of
the following proviso:
"That any and all lands heretofore reserved to the United States
by any act of Congress or in any other manner by competent
authority for the purpose of aiding in any object of internal
improvement or for any other purpose whatsoever be, and the same
are hereby, reserved to the United States from the operation of
this act except so far as it may be found necessary to locate the
routes of said road and branches through such reserved lands, in
which case the right of way only shall be granted, subject to the
approval of the President of the United States."
In construing a public grant, as we have seen, the intention of
the grantor, gathered from the whole and every part of it, must
prevail. If on examination there are doubts about that intention or
the extent of the grant, the government is to receive the benefit
of them. This proviso has, in our opinion, no doubtful meaning.
Attached in substantially the same form to all railroad land grant
acts passed since 1850, it was employed to make plainer the purpose
of Congress to exclude from their operation lands which, by reason
of prior appropriation, were not in a condition to be granted to a
state to aid it in building railroads. It would be strange indeed
if, by such an act, Congress meant to give away property which a
just and wise policy had devoted to other purposes. That lands
dedicated to the use of the Indians should upon every principle of
natural right be carefully guarded by the government and saved from
a possible grant is a proposition which will command universal
assent. What ought to be done has been done. The proviso was not
necessary to do it, but it serves to fix more definitely what is
granted by what is excepted. All lands "heretofore reserved" --
that is, reserved before the passage of the act -- "by competent
authority for any purpose whatsoever" are excepted by the proviso.
This language is broad and comprehensive. It unquestionably covers
these lands. They had been reserved by treaty before the act of
1863 was passed. It is said, however, that having been reserved
Page 92 U. S. 747
not "to the United States," but to the Osages, they are
therefore not within he terms of the proviso. This position is
untenable. It would leave the proviso without effect, because all
the reservations through which this road was to pass were Indian.
This fact was recognized, and the right of way granted through them
subject to the approval of the President. Through his negotiations
with the Indians, he secured it in season for the operations of the
company. Besides, there were no other lands over which he could
exercise any authority to obtain that right. And why grant it by
words vesting its immediate enjoyment, unless it was contemplated
that the roads would be constructed during the existence of those
reservations? But the verbal criticism, that these lands were not,
within the meaning of this proviso, reserved "to the United
States," is unsound. The treaty reserved them as much to one as to
the other of the contracting parties. Both were interested therein,
and had title thereto. In one sense, they were reserved to the
Indians; but in another and broader sense, to the United States,
for the use of the Indians.
Every tract set apart for special uses is reserved to the
government, to enable it to enforce them. There is no difference,
in this respect, whether it be appropriated for Indian or for other
purposes. There is an equal obligation resting on the government to
require that neither class of reservations be diverted from the
uses to which it was assigned. Out of a vast tract of land ceded by
the Osages, a certain portion was retained for their exclusive
enjoyment, as long as they chose to possess it. The government
covenanted that they should not be disturbed, except with their
voluntary consent first obtained; and a grant of their land would
be such a manifest breach of this covenant, that Congress, in order
to leave no possible room for doubt, specially excepted it by the
proviso. A construction which would limit it to land set apart for
military posts and the like, and deny its application to that
appropriated for Indian occupation, is more subtle than sound. This
proviso, or rather one couched in the same language, was the
subject of consideration by this Court, and received a liberal
interpretation, instead of the technical and narrow one claimed for
it by the appellant.
Wolcott v. Des Moines
Navigation Co., 5 Wall. 681,
Page 92 U. S. 748
was a controversy concerning the title to certain lands, which,
it was conceded, were covered by a grant, unless excluded by the
proviso thereunto annexed. The court held that they were excluded,
although they had not been reserved "to the United States." They
had been, in fact, reserved by the executive officers of the
government, upon a mistaken construction of a prior grant made by
the United States to the State of Iowa. This decision was
reaffirmed in
Williams v.
Baker, 17 Wall. 144.
The scope and effect of the Act of 1863 cannot, in our opinion,
be mistaken. The different parts harmonize with each other, and
present in a clear light the scheme as an entirety. Kansas needed
railroads to develop her resources, and Congress was willing to aid
her to build them, by a grant of a part of the national domain, in
a condition at the time to be disposed of. It was accordingly made
of alternate sections of land within ten miles on each side of the
contemplated roads. Formerly, lands which would probably be
affected by a grant were, as soon as it was made, if not in advance
of it, withdrawn from market. But experience proved that this
practice retarded the settlement of the country, and at the date of
this act the rule was not to withdraw them until the road should be
actually located. In this way, the ordinary working of the land
system was not disturbed. Private entries, preemption, and
homestead settlements, and reservations for special uses, continued
within the supposed limits of the grant, the same as if it had not
been made. But they ceased when the routes of the roads were
definitely fixed, and if it then appeared that a part of the lands
within those limits had been either sold at private entry, taken up
by preemptors, or reserved by the United States, an equivalent was
provided. The companies were allowed to select, under the direction
of the Secretary of the Interior, in lieu of the lands disposed of
in either of these ways, an equal number of odd sections nearest to
those granted, and within twenty miles of the line of the road.
Having thus given lands in place and by way of indemnity, Congress
expressly declared, what the act already implied, that lands
otherwise appropriated when it was passed were not subject to
it.
The indemnity clause has been insisted upon. We have before said
that the grant itself was
in praesenti, and covered
Page 92 U. S. 749
all the odd sections which should appear, on the location of the
road, to have been within the grant when it was made. The right to
them did not, however, depend on such location, but attached at
once on the making of the grant. It is true they could not be
identified until the line of the road was marked out on the ground;
but as soon as this was done, it was easy to find them. If the
company did not obtain all of them within the original limit, by
reason of the power of sale or reservation retained by the United
States, it was to be compensated by an equal amount of substituted
lands. The latter could not, on any contingency, be selected within
that limit, and the attempt to give this effect to the clause
receives no support, either in the scheme of the act or in anything
that has been urged by counsel. It would be strange, indeed, if the
clause had been intended to perform the office of making a new
grant within the ten-mile limit, or enlarging the one already made.
Instead of this, the words employed show clearly that its only
purpose is to give sections beyond that limit, for those lost
within it by the action of the government between the date of the
grant and the location of the road. This construction gives effect
to the whole statute, and makes each part consistent with the
other. But, even if the clause were susceptible of a more extended
meaning, it is still subject to, and limited by, the proviso which
excludes all lands reserved at the date of the grant, and not
simply those found to be reserved when the line of the road shall
be definitely fixed. The latter contingency had been provided for
in the clause, and if the proviso did not take effect until that
time, it would be wholly unnecessary. And these lands being within
the terms of the proviso, as we construe it, it follows that they
are absolutely and unconditionally excepted from the grant, and it
makes no difference whether or not they subsequently became a part
of the public lands of the country.
But the appellant claims that these lands were subjected to this
grant by virtue of the senate amendment to the Osage treaty,
concluded Sept. 29, 1865, and proclaimed in 1867. If the amendment
has this effect, it is entirely inconsistent with the purposes of
the treaty. The United States had not made an absolute or a
contingent grant of the lands. There was
Page 92 U. S. 750
manifestly, no reason why the Osages should bestow a gratuity on
the appellant; and the treaty itself, as originally framed,
disclaims such an intention. Whatever they did give was limited to
persons from whom they had received valuable services, and they so
expressly stated. Their annuities had ceased. Confessed poverty,
and the desire to improve their condition, induced them to
negotiate. They had a surplus of land, but no money. The United
States, in pursuance of a long-settled policy, desired to open that
land to settlement. Induced by these considerations, the parties
concluded a treaty, which was submitted to the senate for its
constitutional action. By the first article the Osages ceded, on
certain conditions, a large and valuable part of their possessions.
The United States was required to survey and sell it on the most
advantageous terms, for cash, in conformity with the system then in
operation for surveying and selling the public lands, with the
restriction that neither preemption claims nor homestead
settlements were to be recognized. The proceeds, after deducting
enough to repay advances and expenses, were to be placed in the
Treasury to the credit of the "civilization fund," for the benefit
of the Indian tribes throughout the country.
The moneys arising from the sale of the lands ceded by the
second article were for the exclusive benefit of the Osages; but
the relation of the United States to the property in each case is
the same. And it can make no difference that the trust in one is
specifically set forth, and in the other is to be ascertained from
the general scope of the language. It is an elementary principle,
that no particular form of words is necessary to create a trust. In
neither case is the government a beneficiary. In both, the fund is
to be applied to promote the wellbeing of the Indians, which it has
ever been the cherished policy of Congress to secure.
Neither party contemplated that a part of the lands was to be
given to a corporation, to aid in building a railroad. And, if the
appellant gets any of them, it is manifest that the treaty cannot
be carried into effect, nor can the trusts therein limited and
declared be executed. As neither the Act of 1863 nor the treaty in
its original shape grants the tracts in controversy, the inquiry
presents itself as to the effect of the amendment.
Page 92 U. S. 751
The provision on this subject, with the amendment in brackets,
reads as follows:
"Said lands shall be surveyed and sold under the direction of
the Secretary of the Interior, on the most advantageous terms for
cash, as public lands are surveyed and sold under existing laws
[including any act granting lands to the State of Kansas in aid of
the construction of a railroad through said lands], but no
preemption claim or homestead settlement shall be recognized."
Tested by its literal meaning and grammatical structure, this
amendment relates solely to the survey and sale of the lands, and
cannot be extended further. It was doubtless so explained to the
Indians when they accepted it. But obscure as it is, and indefinite
as is its purport, it was intended to do more than declare what
laws should be observed in surveying and selling the lands. But
whatever purpose it was meant to serve, it obviously does not,
proprio vigore, make a grant. To do this, other words must
be introduced, but treaties, like statutes, must rest on the words
used -- "nothing adding thereto, nothing diminishing." In
Rex
v. Barrell, 12 Ad. & Ell. 468, Patteson, J., said,
"I see the necessity of not importing into statutes words which
are not found there. Such a mode of interpretation only gives
occasion to endless difficulty."
Courts have always treated the subject in the same way, when
asked to supply words in order to give a statute a particular
meaning which it would not bear without them.
Rex v. Poor Law
Comm'rs, 6 Ad. & Ell. 7;
Everett v. Wells, 2
Scott (N.C.) 531;
Green v. Wood, 7 Q.B. 178.
It is urged that the amendment, if it does not make a grant,
recognizes one already made. It does not say so, and we cannot
suppose that the senate, when it advised and consented to the
ratification of the treaty with that among other amendments,
intended that the Indians, by assenting to them, should recognize a
grant that had no existence. Information was doubtless communicated
to that body that there were grants of some of the ceded lands
which might interfere with the absolute disposal of them required
by the treaty. If there were such grants, it was obviously proper
that the treaty should be so modified as not to conflict with
rights vested under them. But the senate left that question to the
proper tribunal, and
Page 92 U. S. 752
declared, in effect, that such grants, if made by existing laws,
should be respected in the disposition of the lands. On this
interpretation, the amendment in question is consistent with the
treaty. But if that contended for by the appellant be correct, the
treaty is practically defeated. If no such grant had been made,
lands would be taken from the Osages without either their consent
or that of Congress, and appropriated to building railroads; for no
one can fail to see that interested outside parties, having access
to these ignorant Indians, would explain the amendment as a
harmless thing. In concluding the treaty, neither party thereto
supposed that any grant attached to the lands, for, as we have
seen, all were to be sold, and the fund invested. Did the senate
intend to charge them with a grant, whether it had really been made
or not? If so, the treaty would have been altered to conform to so
radical a change in its essential provisions, by excepting the
lands covered by the grant instead of directing them to be sold.
Why sell all if the status of a part was fixed absolutely by the
amendment? In such a case, justice to the companies required that
they should have the lands granted to them. The United States
should also, to this extent, be relieved of its trust. But, if the
amendment was designed to operate only in the contingency that a
grant had been made, there was no occasion to alter the treaty
further than to say, as it now substantially does say, that the
companies, if entitled to the lands, should get them. No objection
could justly be made to such a provision. It preserved vested
rights, but did not create new ones. Without solving the problem
whether or not a grant had been made, it decided that the rights of
the companies, if any they had, should not be barred or impaired by
reason of the general terms of the treaty. It is argued that the
Osages are not injured by taking a portion of their country, as an
enhanced value would be given to the remainder by the construction
of the appellant's road. This is taking for granted what may or may
not be true. Besides, they cannot be despoiled of any part of their
inheritance upon such a fallacious pretense, and they chose to have
all their lands sold. To this the United States assented by
positive stipulation. We do not think that it was the intent of the
amendment to annul that stipulation,
Page 92 U. S. 753
or to construe statutes upon which the title of the appellant
depends. Its office was to protect rights that might be asserted,
independently of the treaty, but not to declare that any such
rights existed.
The Thayer Act, as it is called, is invoked, but it can have no
effect upon this case. It was passed for the sole purpose of
enabling the company to relocate its road, and a false recital in
it cannot turn the authority thereby given into a grant of lands or
a recognition of one. Especially is this so when it expressly
leaves the rights of the appellant to be determined by previous
legislation. Besides this, these lands were then selling under a
joint resolution, and it cannot be presumed that the Congress of
1871 intended to change the disposition of them, directed by the
Congress of 1869.
It is urged that parties have loaned money on the faith that the
lands in question were covered by the grant.
This is a subject of regret, as is always the case when a title,
on the strength of which money has been advanced, fails. It is to
be hoped that the security taken upon the other property of the
company will prove to be sufficient to satisfy the claims of the
holders of its bonds. But whether this be so or not, we need hardly
say that the title to lands is not strengthened by giving a
mortgage upon them; nor can the fact that it has been given throw
any light upon the prior estate of the mortgagor.
Upon the fullest consideration we have been able to bestow upon
this case, we are clearly of opinion that there is no error in the
record.
Decree affirmed.
MR. JUSTICE FIELD, with whom concurred MR. JUSTICE SWAYNE and
MR. JUSTICE STRONG, dissenting.
I do not agree with the majority of the Court in this case. In
my judgment, the land in controversy passed by the grant of
Congress to the State of Kansas, and by the patents of the state to
the defendant. In reliance upon the title conferred, a large
portion of the money was raised with which the road of the company
was built. I cannot think that the legislation of Congress, and the
subsequent action in conformity to it of the Department of the
Interior and of the State of Kansas, deceived both company and
creditors.
Page 92 U. S. 754
The act of Congress appears to me to be singularly plain and
free from obscurity. "There be and is hereby granted to the State
of Kansas," are the words used, for the purpose of aiding in the
construction of a railroad and telegraph between certain places,
alternate odd sections of land along each side of the road and its
branches. These words were sufficiently comprehensive to pass
whatever interest the United States possessed in the lands. If
there were any limitation upon their operation, it lay either in
the character of the property granted, as lands in the occupation
of Indian tribes, or in the subsequent reservations of the act.
The road with which the present company is concerned was to be
constructed through the tract situated in the southern part of the
state, known as the Osage reservation. Upon this tract the Osage
tribes of Indians resided under the Treaty of June 2, 1825, by
which the tract was reserved to them so long as they might choose
to occupy it. 7 Stat. 240. The fee of the land was in the United
States, with the right of occupation, under the treaty, in the
Indians. Until this right was relinquished, the occupancy could not
be disturbed by any power except that of the United States. The
only right of Indian tribes to land anywhere within the United
States is that of occupancy. Such has been the uniform ruling of
this Court; and upon its correctness the government has acted from
its commencement. In
Fletcher v. Peck, which was here as
long ago as 1810, it was suggested by counsel on the argument that
the power of the state of Georgia to grant did not extend to lands
to which the Indian title had not been extinguished; but Mr. Chief
Justice Marshall replied, that the majority of the Court were of
opinion that the nature of the Indian title, which was certainly to
be respected until legitimately extinguished, was not such as to be
absolutely repugnant to seisin in fee on the part of the state. 6
Cranch 121 [argument of counsel -- omitted],
10 U. S.
142-143.
In
Clark v.
Smith, 13 Pet. 200, decided many years afterwards,
Mr. Justice Catron, speaking of grants made by North Carolina and
Virginia of lands within Indian hunting grounds, said that these
states
"to a great extent paid their officers and soldiers of the
Revolutionary war by such grants, and extinguished the arrears due
the army by similar means. It was one
Page 92 U. S. 755
of the great resources that sustained the war, not only by these
states, but others. The ultimate fee encumbered with the Indian
right of occupancy was in the Crown, previous to the Revolution,
and in the states of the Union afterwards, and subject to
grant."
And in the recent case of the
United States v. Cook,
where replevin was brought for timber cut and sold by Indians on
lands reserved to them, the court said that the fee of the land was
in the United States, subject only to a right of occupancy in the
Indians; that this right of occupancy was as sacred as that of the
United States to the fee, but it was "only a right of occupancy,"
and "that the possession, when abandoned by the Indians, attaches
itself to the fee without further grant." 19 Wall.
86 U. S.
593.
It would seem therefore clear that there was nothing in the
character of the land as an Indian reservation which could prevent
the operation of the grant of Congress, subject to the right of
occupancy retained by the Indians, so that, when this right should
be relinquished, the possession would inure to the grantee.
It is true that the United States, acting in good faith, could
only acquire the relinquishment of the Indian right of occupancy by
treaty, and so the authors of the bill for the grant understood.
The representative of Kansas in the Senate of the United States, by
whom the bill was introduced, preceded its presentation with a
notice of his intention to introduce at the same time a bill for
extinguishing the Indian title in Kansas, and the removal of the
Indians beyond her border. The two bills were introduced within a
few days of each other, and both became a law on the same day. The
one for the extinguishment of the Indian title was incorporated
into the appropriation bill, and authorized the President to enter
into treaty for that purpose with the several tribes of Indians
then residing in the state, and for their own removal beyond its
limits. Pursuant to this authority, a treaty was subsequently made
with the Osage Indian tribes, and before the line of the road of
the defendant company was definitely fixed, their right of
occupancy to the lands in controversy was extinguished.
I proceed to the next inquiry: was there anything in the
Page 92 U. S. 756
reservations of the act which limited the operation of the
general words of grant? There were two reservations in the act --
one general and the other special, the latter being in the proviso.
The general reservation only excepted from the operation of the
grant lands which, at the time the line of the road and its
branches was definitely fixed, were sold or reserved, or to which
the right of preemption or homestead settlement had then
attached.
The sections granted could only be ascertained when the route of
the road was established, but as this might take years, the
government did not in the meantime withhold the lands from
settlement and sale upon any notion that the route might possibly
pass through or near them. It kept the lands generally open to the
settler or preemptor and subject at all times to appropriation for
public uses, and the object of the general reservation mentioned
was to provide for the possible acquisition of interests in this
way to lands falling within the limits of the grant. When they did
so fall, other lands in their place were to be selected. It was
only when the route was definitely fixed that the right of sale or
settlement or reservation ended, and the title previously floating
attached to the land subject to the grant. This was the
construction adopted by the land department, and was the one which
most fully fitted in with the general policy of the government in
other cases in the disposition of the public lands.
In 1856 the question arose before the Department of the Interior
as to the construction of a similar provision in the Act of
Congress of May 15 of that year, granting lands to the state of
Iowa and was submitted to the then attorney general, Cushing, and
he replied that the act contemplated that the United States should
retain power to convey within all the possible limits of the grant,
either by ordinary sale or on preemption, up to the time when the
lines or routes of the road were definitely fixed. 8 Op. Att'y-Gen.
246.
Whilst the operation of the grant may, on the one hand, be thus
limited by what occurs subsequent to the act, it may, on the other
hand, be enlarged by subsequent removal of existing impediments,
such as reservations, contracts of sale, and initiatory steps for
acquiring rights of preemption and homestead
Page 92 U. S. 757
settlement. The question in either case respects the condition
of the land at the time the line or route of the road is definitely
fixed. If a previous reservation, whether existing before the Act
of made afterwards, be then relinquished, or a previous contract of
sale or right of preemption or homestead settlement be then
abandoned, the grant will, in my judgment, take the land. Such I
understand to be the ruling of the land department, and it is
difficult to perceive any reasons of public policy which should
prevent the land in such cases from passing under the grant.
The special reservation contained in the proviso to the act in
terms applies only to lands reserved to the United States. There
have been, from the outset of the government, reservations of lands
for public uses of various kinds, through which a right of way for
a public highway or railroad might well be granted, subject to the
approval of the President, who would see that the property was not
injured. To protect lands thus situated, or lands reserved to the
government for similar public purposes, the proviso applied. The
lands now in controversy, occupied by the Osage Indians, were set
apart to them -- they were not reserved
to the United
States in any sense in which those terms can be properly used.
The treaty of 1825, under which the lands were held,
distinguishes between reservations
to the Indians and
reservations to the United States, and speaks of both in the same
article (art. 2).
The argument of the majority of the Court on this head appears
to me to defeat itself. The proviso, it is contended, excluded from
the operation of the grant any of the lands occupied by the
Indians; it would have been a great breach of faith, it is said, to
apply the grant to any of those lands. But at the same time, it is
admitted that the act contemplated a right of way through those
lands for the road. It is difficult to perceive how taking the
lesser quantity of the land for a right of way, if done without
treaty, could have been any less a breach of faith, and if done by
treaty, the taking might as well have extended to the whole lands.
As the Congress which made the grant also authorized the President
to obtain an extinguishment of the right of occupancy from the
Indians, it would seem that there ought not to be any greater
reproach
Page 92 U. S. 758
in providing for the acquisition of the lands, than in providing
for the acquisition of the right of way.
But aside from this consideration, if the conclusion were at all
doubtful, which I do not think it is, there is a rule applicable to
the construction of provisos in a grant, which should determine the
question here; and that is that they must be strictly construed. In
United States v. Dixon, Mr. Justice Story stated, that it
was
"the general rule of law, which has always prevailed and become
consecrated almost as a maxim in the interpretation of statutes,
that where the enacting clause is general in its language and
objects, and a proviso is afterwards introduced, that proviso is
construed strictly, and takes no case out of the enacting clause
which does not fall fairly within its terms. In short, a proviso
carves special exceptions only out of the enacting clause; and
those who set up any such exception must establish it as being
within the words as well as within the reason thereof."
15 Pet.
40 U. S. 165. I
submit confidently that the proviso here thus construed would not
take the lands in controversy out of the enacting clause of the
act.
The proviso itself is a formula used in nearly all land grants,
and is inserted out of abundant caution, even where there are no
special reservations on which it can operate. But in this case
there was the military reservation at Fort Gibson, which would have
passed under the grant but for the proviso.
There is, then, in my judgment nothing in the reservations
contained in the act which should prevent the operation of the
granting words upon the lands within the Osage reservation. But
were there any doubt whether the act was intended to cover these
Indian lands, that doubt would be removed by the recognition of the
grant in the treaty with the Indians and the subsequent legislation
of Congress. The treaty was adopted on the 29th of September, 1865.
Stat. 687, 692. It provided that in consideration of the sale of
the lands, the United States should pay $300,000, to be placed to
the credit of the Indians in the treasury of the United States, and
should pay interest thereon in money, clothing, provisions, and
such articles of utility as the Secretary of the Interior might
from time to time direct. And it declared, as originally drawn,
that the lands should be surveyed and sold as public lands are
surveyed and sold under existing
Page 92 U. S. 759
laws. But when the treaty was under consideration by the Senate,
it was amended in this particular, so as to conform to the act
granting the lands to Kansas. That act provided that the alternate
sections reserved from the grant, within ten miles of the road or
its branches, should be sold at double the minimum price of the
public lands. The amendment inserted in the treaty added,
immediately after the provision for the survey and sale under
existing laws, the words "including any act granting lands to the
State of Kansas in aid of the construction of a railroad through
said lands," so that the provision required that the sale of the
lands of the Osage Indians should be made in accordance with
existing laws, including among them the one granting lands to
Kansas. Here is a clear recognition that that act was intended to
cover the Indian lands. This recognition was not limited merely to
the senate; for the attention of both houses of Congress was called
to the subject by the appropriation which the treaty required and
Congress made.
Again, in January, 1871, Congress passed an act authorizing the
company, for the purpose of improving its route and accommodating
the country, to relocate any portion of its road south of the Town
of Thayer, within the limits of its grant as prescribed by the Act
of Congress. The Town of Thayer was situated within the boundaries
of the Osage lands. The act also declared that the company should
not thereby -- that is, by the relocation -- change, enlarge, or
diminish the land grant, and this declaration is held by the
majority of the Court to destroy the effect of the act as a
recognition of the grant of the Indian lands. How it does so I am
unable to see. When it declares that the company may alter its road
south of a particular point within the limits of its grant, the act
does admit that the company has a grant, and that the grant lies
south of that point, and this admission is not affected by the
further declaration that the company shall not thereby change,
enlarge, or diminish the grant.
But I will not pursue the subject further. The conclusion
reached by the court appears to me to work great injustice. The
government of the United States, through one set of its officers,
after mature deliberation and argument of counsel, has issued its
certificates or lists, that the lands in controversy were
Page 92 U. S. 760
covered by the grant, and has thus encouraged the expenditure of
millions of money in the construction of a public highway, by which
the wilderness has been opened to civilization and settlement; and
then, on the other hand, after the work has been done and the money
expended, has, with another set of officers and all the machinery
of the judiciary, attempted to render and has succeeded in
rendering utterly worthless the titles it aided to create and put
forth upon the world. Such proceedings are not calculated, in my
judgment, to enhance our ideas of the wisdom with which the law is
administered, or of the justice of the government.
I am of opinion that the decree should be reversed.
NOTE:
Missouri, Kansas, and Texas Railway Company v. United
States, appeal from the Circuit Court of the United States for
the District of Kansas, is, in its essential features, the same as
the preceding case, and was argued by the same counsel.
MR. JUSTICE DAVIS delivered the opinion of the Court. The
decision in
Leavenworth, Lawrence, & Galveston Railroad
Company v. United States, supra, p.
92 U. S. 733,
controls this case. Each company claims a grant of land within the
Osage reservation. This case involves substantially the same
questions as the other, with this difference, that the Act of July
25, 1866, 14 Stat. 289, under which the appellant claims, was
passed after the amendment had been advised by the senate, and the
treaty was beyond its control
In any aspect of this case, the appellant cannot recover. The
amendment refers only to existing laws, and does not apply to the
act of 1866, as it was not then in force. It is true that the bill,
which subsequently becomes a law, was pending at the same time as
the treaty; but if the senate intended the amendment to apply not
only to existing but to contemplated grants, language appropriate
to such a purpose would have been used. This remark applies to
Congress also, for if it meant, notwithstanding the provisions of
the treaty, to grant these lands, word would have been employed to
include them, or at lease take them out of the proviso. But the
result is the same whether the act is to be treated as taking
effect before or after the treaty became operative by the
proclamation of the President on the 21st of January, 1867. If it
was in force for all purposes on the day it passed, then the Indian
title even was not extinguished, as the treaty had not been
ratified. But if it be considered as in any sense taking effect
after the ratification, then the claim of the appellant is defeated
by the terms of the treaty. These lands, having been thereby set
apart to be surveyed and sold for the benefit of the Indians, were
"otherwise appropriated," as much as they had been before the
treaty was concluded, and were consequently reserved within the
meaning of the excepting clause in the act.
Decree affirmed.
MR. JUSTICE SWAYNE, MR. JUSTICE FIELD, and MR. JUSTICE STRONG
dissented.