85 F. 94 | U.S. Circuit Court for the District of Oregon | 1898
On the 2d day of July, 1864, congress granted to the state of Oregon, to aid in the construction of a
At the time of the grant by congress, the lands east of the Cascade Mountains, through, which f lie military road was located, were occupied by Indian tribes, whose title thereto had not been extinguished, and were “Indian country.” Prior to the road grant by congress, and on March 25, 1864, congress passed an act. authorizing the president to .conclude a treaty with the Klamath, Modoc, and Snake Indians, for the purchase of the country occupied by them (13 Stat. 37), and appropriating §20,000 for such purchase. The lands in controversy were included within the proposed purchase. In pursuance of this act, a treaty was concluded on October 14, 1864, which was subsequently, and on July 2, 3866, ratified by the senate. 1(5 Stat. 707. The treaty, as ratified by the senate, contained two amendments, consisting of mere verbal corrections in no wise affecting its sense, with the result that a second convention was had on December 30, 3.869, at which the so-called amendments were assented to by ihe contracting tribes, and thereafter, on February 17, 1870, the president’s proclamation of ratification was published. The treaty provides that:
“Tlie tribes of Indians aforesaid cede to the United States all their rigid, title, and claim to all the couniry claimed by them, the same being determined by tile following boundaries, to wit: Beginning at the point when» the forty-fourth parallel of north latitude crosses the summit of the Cascade Mountains; thence following the main dividing ridge of said mountains in a southerly direction to Hie ridge which separates the waters of Pitt and McCloud rivers from the waters on the north; thence along said dividing ridge in an easterly direction to the southern end of Goose Lake; thence northeasterly to the northern end of Harney Lake; thence due north to the forty-fourth parallel of north latitude; thence west to the place of beginning: provided, that the following described tract, within the country ceiled by this treaty, shall, until otherwise directed by the president of the United States, be set apart as a. residence for said Indians, and held and regarded as an Indian reservation.”
The lands in controversy are comprised within this reservation. By ibis treaty the tribes coni meting agreed and bound themselves that immediately after the ratification of the treaty they would remove to said reservation, and remain there, unless temporary leave of absence
When this grant was made, the right of occupancy of the Indian tribes in the territory including the reservation had not been extinguished. The fee was in the United States, subject to this right. This right is referred to by the supreme court of the United States as a “title,” as a right “as sacred as that of the United States to the fee. * * phjg right of use and occupancy by the Indians is unlimited. They may exercise it at their discretion. If the lands in a state of. nature are not in a condition for profitable use, they may be made so. If desired for the purpose of agriculture, they may be cleared of their-timber to such an extent as may be reasonable under the circumstances. The timber taken off by the Indians in such clearing may be sold by them.” U. S. v. Cook, 19 Wall. 593. For all purposes, therefore, save only that of private sale, the Indians were in fact the owners of these lands. And this right, title, or interest has never been surrendered by them. The treaty cedes to the United States all the right, title, and claim of the Indian tribes to all the country claimed by them, the same being described by boundaries which include' the reservation. This section is followed by a proviso as follows: “Provided, that the following described tract within the territory ceded by this treaty, shall, until otherwise directed by the president of the United States, be set apart as a residence for said Indians, and held and regarded as an Indian reservation.” Then follows a description of the reservation. It is argued that this cession extinguishes the Indian right to the entire Indian country, and the proviso establishes a new right, which, being new, is subordinate to the prior road grant. The Indian right under the treaty, as to the particular lands, is precisely what it was before the treaty.. By the terms of the treaty, the fee remains in the government, and the right of- occupancy in the Indians, as before. If the Indians’ present right is a new one, it must have been preceded by a surrender of the right of occupancy originally held by them. But how can the cession of the treaty precede the reservation, when both depend upon the same treaty stipulation? In this case the right of the Indians to the lands in dispute is reserved in a proviso contained in .the article of cession by them, and is a condition of the cession of the domain within which such lands are included. The cession in
It is also contended that the issues involved in this suit were involved in the suit of the United States against the complainant company, and that the matters in dispute are therefore res adjudicata between the parties. That suit was an attempt to cancel the title held under the road grant upon the ground that; the lands taken thereunder were never earned, and that the government had been imposed upon by a false certifícate of completion, procured through the fraudulent contrivance of interested parties. To that complaint the defense of bona fide purchase for value and without notice was made and sustained. The questions involved in that case are not involved in this. That case did not admit of an adjudication of the question at issue here, which is one of title to particular lands under the grant. The doctrine of bona fide purchase is not a rule of property or of title. “Whenever the relations between the litigants are of such a nature, and the suit is of such a kind, that a court of equii.v is called upon to decide, and must decide, the merits of the controversy, and determine the validity and sufficiency of 1he opposing titles or claims, then it does not admit the defense of bona lide purchase as effectual and conclusive.” 2 Pom. Eq. Jur. § 7T.). In the case referred to, the government, having an equity growing out of the fraud alleged, sought to enforce it against those who held the title to the lands acquired under the grant. This equity the defendant company avoided by invoking in aid of its legal title an equity of its own arising from the payment of money, and the taking of title without notice. The court, in such case, does not adjudicate the title. It merely refuses to grant relief against the purchaser having the title because of the bona tides of his purchase. In that case the only question was one of good faith, on the part of the road company and the payment of money. In this case the right of the company to the lands granted is conceded, and the only question is whether the grant attached to Ihe particular lands in dispute. The paramount Indian right of occupancy was not, and could not he, affected by the bona fide purchase of 1lie road company. The doctrine of bona fide purchase cannot he invoked against a paramount outstanding title or right, and it has not been attempted in the case relied on. In that case the government admitted that the road com