1. It was an unalterable condition of the admission of Wisconsin
into the Union that, of the public lands in the state, section 16
in every township, which had not been sold or otherwise disposed
of, should be granted to her for the use of schools.
2. Whether the compact with the state constituted only a pledge
of a grant
in futuro or operated to transfer to her the
sections as soon as they could be identified by the public surveys,
the lands embraced within them were set apart from the public
domain, and could not be subsequently diverted from their
appropriation to the state. If any further assurance of title was
required, the United States was bound to provide for the execution
of proper instruments transferring to the state the naked fee, or
to adopt such other legislation as would secure that result.
3. The right of the Menomonee Indians to their lands in
Wisconsin was only that of occupancy, and, subject to that right,
the state was entitled to every section 16 within the limits of
those lands.
4. The Act of Congress approved Feb. 6, 1871, 16 Stat. 404,
authorizing a sale of the townships set apart for the use of the
Stockbridge and Munsee Indians, and originally forming a part of
the lands of the Menomonees, does not apply to sections 16.
This was replevin by Beecher to recover from Wetherby, James,
and Stille, saw logs, cut and taken by them during the winter of
1872 and 1873, from section 16, township 28, range 14 east, in
Wisconsin. The plaintiff asserts title to the land under patents
from the United States bearing date Oct. 10, 1872, and the
defendants, under patents from that state of Dec. 15, 1865, and
Sept. 26, 1870.
Under the eighth article of the Treaty of Aug. 19, 1825, 7 Stat.
272, the Menomonee lands were declared to be
"bounded on the north by the Chippewa country, on the East by
Green Bay and Lake Michigan, extending as far south as Milwaukee
River, and on the West they claim to Black River."
The lands in question are embraced in this tract.
Page 95 U. S. 518
A treaty concluded with the Menomonees Feb. 8, 1831,
id., 342, confirming those boundaries was ratified by the
Senate with a proviso that two townships on the east side of
Winnebago Lake should be ceded for the use of the Stockbridge and
Munsee Indians.
By a treaty concluded Oct. 18, 1848, and ratified Jan. 23, 1849,
9
id. 952, the Menomonees agreed to cede to the United
States all their lands in Wisconsin. The eighth article stipulated
that they should be permitted to remain on the ceded lands for the
period of two years, and until the President should notify them
that the same were wanted.
The act to enable the people of Wisconsin Territory to form a
Constitution and state government, and for the admission of such
state into the Union, approved Aug. 6, 1846,
id., 56,
provides
"That section numbered 16 in every township of the public lands
in said state, and, when such section has been sold or otherwise
disposed of, other lands equivalent thereto, and as contiguous as
may be, shall be granted to said state for the use of schools."
The convention called to form a constitution, on the first day
of February, 1849, accepted the proposition contained in the
organic act. Rev.Stat.Wis. 1849, p. 45. By an act entitled "An Act
for the admission of the State of Wisconsin into the Union,"
approved May 29, 1848,
id., 233, such acceptance was
assented to by Congress.
A joint resolution of the Legislature of Wisconsin approved Feb.
1, 1853, Gen.Laws of Wis. 1853, p. 110, gives the assent of that
state
"to the Menomonee nation of Indians to remain on the tract of
land set apart for them by the President of the United States on
the Wolf and Oconto Rivers, and upon which they now reside, the
same being within the State of Wisconsin aforesaid, and described
as follows, to-wit: commencing at the southeast corner of town 28
north, range 19, running thence west thirty miles, thence north
eighteen miles, thence east thirty miles, thence south eighteen
miles to the place of beginning."
On the 12th of May, 1854, 10 Stat. 1064, a treaty was made with
the Menomonees, "supplementary and amendatory" to that ratified
Jan. 23, 1849, wherein it is recited that,
"upon manifestation
Page 95 U. S. 519
of great unwillingness on the part of said Indians to remove to
the country west of the Mississippi River, &c., which had been
assigned to them, and a desire to remain in the State of Wisconsin,
the President consented to their locating temporarily upon the Wolf
and Oconto Rivers,"
and,
"to render practicable the stipulated payments therein recited,
and to make exchange of the lands given west of the Mississippi for
those desired by the tribe, and for the purpose of giving them the
same for a permanent home, these articles are entered into."
By the second article of said treaty, the following-described
tract lying on Wolf River in the State of Wisconsin was ceded to
the Indians to be held as Indian lands are held:
"Commencing at the southeast corner of town 28 N., R. 16 E., 4th
principal meridian, running west twenty-four miles, thence north
eighteen miles, thence east twenty-four miles, thence south
eighteen miles to the place of beginning, the same being townships
28, 29, and 30 of ranges 13, 14, 15, and 16, according to public
survey."
Under an Act of Congress approved Feb. 6, 1871, 16 Stat. 404,
entitled "An Act for the relief of the Stockbridge and Munsee tribe
of Indians in the State of Wisconsin," the two townships set apart
for their use, including the section upon which the logs were cut,
and forming a part of the Menomonee lands, were sold by the United
States, and the plaintiff deraigns title under its patents.
The exterior lines of the township in which the land in question
is situate were run in October, 1852, and the section lines in May
and June, 1854.
There was a judgment for the defendants. The plaintiff then
brought the case here.
Page 95 U. S. 522
MR. JUSTICE FIELD delivered the opinion of the Court.
This was an action of replevin brought by the plaintiff to
recover two million feet of pine saw logs of the estimated value of
$25,000, alleged to be his property, and to have been wrongfully
detained from him by the defendants. The complaint was in the usual
form in such cases, and the answer consisted of a general denial of
its averments. The logs were cut by the defendants from the tract
of land in Wisconsin which constitutes section sixteen (16), in
township twenty-eight (28), range fourteen (14), in the County of
Shawano, in that state. The plaintiff claimed to be the owner of
the logs by virtue of sundry patents of the land from which they
were cut, issued to him by the United States in October, 1872. The
defendants asserted property in the logs under patents of the land
issued to them by the State of Wisconsin in 1870. The question for
determination, therefore, is, which of these two classes of
patents, those of the United States or those of the state,
transferred the title. The logs were cut in the winter of 1872 and
1873; they were therefore standing timber on the land when all the
patents were issued, and as such constituted a portion of the
realty. Although when severed from the soil the timber became
personalty, the title to it remained unaffected. The owner of the
land could equally, as before, claim its possession, and pursue it
wherever it was carried.
The state asserted title to the land under the compact upon
Page 95 U. S. 523
which she was admitted into the Union. The Act of Congress of
Aug. 6, 1846, authorizing the people of the Territory of Wisconsin
to organize a state government, contained various propositions
respecting grants of land to the new state, to be submitted for
acceptance or rejection to the convention which was to assemble for
the purpose of framing its constitution. Some of the proposed
grants were to be for the use of schools, some for the
establishment and support of a university, some for the erection of
public buildings, and some were to be of lands containing salt
springs. They were promised on condition that the convention should
provide by a clause in the Constitution, or by an ordinance
irrevocable without the consent of the United States, that the
state would never interfere with the primary disposal of the soil
within it by the United States, nor with any regulations Congress
might find necessary for securing the title in such soil to
bona fide purchasers; that no tax should be imposed on
lands the property of the United States; and that in no case should
nonresident proprietors be taxed higher than residents. And the act
provided that if the propositions were accepted by the convention,
and ratified by an article in the Constitution, they should be
obligatory on the United States. The first of these propositions
was
"that section numbered sixteen (16) in every township of the
public lands in said state, and where such section has been sold or
otherwise disposed of, other lands equivalent thereto, and as
contiguous as may be, shall be granted to said state for the use of
schools."
The convention which subsequently assembled accepted the
propositions, and ratified them by an article in the Constitution,
embodying therein the provisions required by the act of Congress as
a condition of the grants. With that Constitution, the state was
admitted into the Union in May, 1848. 9 Stat. 233. It was therefore
an unalterable condition of the admission, obligatory upon the
United States, that section sixteen (16) in every township of the
public lands in the state, which had not been sold or otherwise
disposed of, should be granted to the state for the use of schools.
It matters not whether the words of the compact be considered as
merely promissory on the part of the United States, and
constituting only a pledge of a grant
Page 95 U. S. 524
in future, or as operating to transfer the title to the state
upon her acceptance of the propositions as soon as the sections
could be afterwards identified by the public surveys. In either
case, the lands which might be embraced within those sections were
appropriated to the state. They were withdrawn from any other
disposition, and set apart from the public domain, so that no
subsequent law authorizing a sale of it could be construed to
embrace them, although they were not specially excepted. All that
afterwards remained for the United States to do with respect to
them, and all that could be legally done under the compact, was to
identify the sections by appropriate surveys; or, if any further
assurance of title was required, to provide for the execution of
proper instruments to transfer the naked fee, or to adopt such
further legislation as would accomplish that result. They could not
be diverted from their appropriation to the state.
In
Cooper v.
Roberts, 18 How. 173, this Court gave construction
to a similar clause in the compact upon which the state of Michigan
was admitted into the Union, and held, after full consideration,
that by it the state acquired such an interest in every section 16
that her title became perfect so soon as the section in any
township was designated by the survey. "We agree," said the
Court,
"that, until the survey of the township and the designation of
the specific section, the right of the state rests in compact --
binding, it is true, the public faith, and dependent for execution
upon the political authorities. Courts of justice have no authority
to mark out and define the land which shall be subject to the
grant. But, when the political authorities have performed this
duty, the compact has an object upon which it can attach, and, if
there is no legal impediment, the title of the state becomes a
legal title. The
jus ad rem, by the performance of that
executive act, becomes a
jus in re, judicial in its
nature, and under the cognizance and protection of the judicial
authorities, as well as the others."
In this case, the township embracing the land in question was
surveyed in October, 1852, and was subdivided into sections in May
and June, 1854. With this identification of the section the title
of the state, upon the authority cited, became complete, unless
there had been a sale or other disposition of the property by
the
Page 95 U. S. 525
United States previous to the compact with the state. No
subsequent sale or other disposition, as already stated, could
defeat the appropriation. The plaintiff contends that there had
been a prior reservation of the land to the use of the Menomonee
tribe of Indians.
It is true that, for many years before Wisconsin became a state,
that tribe occupied various portions of her territory, and roamed
over nearly the whole of it. In 1825, the United States undertook
to settle by treaty the boundaries of lands claimed by different
tribes of Indians, as between themselves, and agreed to recognize
the boundaries thus established, the tribes acknowledging the
general controlling power of the United States, and disclaiming all
dependence upon and connection with any other power. The land thus
recognized as belonging to the Menomonee tribe embraced the section
in controversy in this case. Subsequently, in 1831, the same
boundaries were again recognized. But the right which the Indians
held was only that of occupancy. The fee was in the United States,
subject to that right, and could be transferred by them whenever
they chose. The grantee, it is true, would take only the naked fee,
and could not disturb the occupancy of the Indians; that occupancy
could only be interfered with or determined by the United States.
It is to be presumed that in this matter the United States would be
governed by such considerations of justice as would control a
Christian people in their treatment of an ignorant and dependent
race. Be that as it may, the propriety or justice of their action
towards the Indians with respect to their lands is a question of
governmental policy, and is not a matter open to discussion in a
controversy between third parties, neither of whom derives title
from the Indians. The right of the United States to dispose of the
fee of lands occupied by them has always been recognized by this
court from the foundation of the government. It was so ruled in
Johnson v.
McIntosh, 8 Wheat. 543, in 1823; and in
United States v.
Cook, 19 Wall. 591, in 1873. Other cases between
those periods have affirmed the same doctrine.
Clark v.
Smith, 13 Pet. 195.
See also Jackson v.
Hudson, 3 Johns. (N.Y.) 375;
Veeder et al. v. Guppy,
3 Wis. 502; and 8 Opin. Atty.Gen., pp. 262-264. In
United
States v. Cook, the United
Page 95 U. S. 526
States maintained replevin for timber cut and sold by Indians on
land reserved to them, the Court observing that the fee was in the
United States and only a right of occupancy in the Indians; that
this was the title by which other Indians held their land, and that
the authority of
Johnson v. McIntosh on this point had
never been doubted. But, added the Court,
"the right of the Indians to their occupancy is as sacred as
that of the United States to the fee, but it is only a right of
occupancy. The possession, when abandoned by the Indians, attaches
itself to the fee without further grant."
In the construction of grants supposed to embrace lands in the
occupation of Indians, questions have arisen whether Congress
intended to transfer the fee, or otherwise; but the power of the
United States to make such transfer has in no instance been denied.
In the present case, there can hardly be a doubt that Congress
intended to vest in the state the fee to section 16 in every
township, subject, it is true, as in all other cases of grants of
public lands, to the existing occupancy of the Indians so long as
that occupancy should continue. The greater part of the state was,
at the date of the compact, occupied by different tribes, and the
grant of sections in other portions would have been comparatively
of little value. Congress undoubtedly expected that at no distant
day the state would be settled by white people, and the
semi-barbarous condition of the Indian tribes would give place to
the higher civilization of our race, and it contemplated by its
benefactions to carry out in that state, as in other states, "its
ancient and honored policy" of devoting the central section in
every township for the education of the people. Accordingly, soon
after the admission of the state into the Union, means were taken
for the extinguishment of the Indian title. In less than eight
months afterwards, the principal tribe, the Menomonees, by treaty,
ceded to the United States all their lands in Wisconsin, though
permitted to remain on them for the period of two years, and until
the President should give notice that they were wanted. 9 Stat.
952.
It is true that subsequently, the Indians being unwilling to
leave the state, the President permitted their temporary occupation
of lands upon Wolf and Oconto Rivers, and in 1853 the
Page 95 U. S. 527
state gave its assent to the occupation; and in May, 1854, the
United States, by treaty, ceded to them certain lands for a
permanent home, the treaty taking effect upon its ratification in
August of that year, and afterwards a portion of these lands was,
by another treaty, ceded to the Stockbridge and Munsee tribes. But
when the logs in suit were cut, those tribes had removed from the
land in controversy, and other sections had been set apart of their
occupation.
The Act of Congress of Feb. 6, 1871, authorizing a sale of the
townships occupied by the Stockbridge and Munsee tribes, must
therefore be held to apply only to those portions which were
outside of sections 16. It will not be supposed that Congress
intended to authorize a sale of land which it had previously
disposed of. The appropriation of the sections to the state, as
already stated, set them apart from the mass of public property
which could be subjected to sale by its direction.
It follows that the plaintiff acquired no title by his patents
to the land in question, and, of course, no property in the timber
cut from it.
Judgment affirmed.
