70 F. 453 | U.S. Circuit Court for the District of Minnesota | 1895
I find the facts to be as follows: A treaty was concluded October 2, 1863, between the United States and certain 'Chippewa Indians, article 9 whereof provides “that, upon the urgent request of the Indians, parties to this treaty, there shall bo set apart from the'tract hereby ceded a reservation of six hundred and forty (640) acres, near the mouth of Thief river, for the chief Moose Dung.” In accordance with this article of the treaty, Moose Dung selected certain lands, but died before the same were surveyed. About September 3.0, 1879, a formal selec
Defendant insists that Mon-si-moh had no such title as would enable him to make a valid lease, unless the same was approved by the .government, and that complainants’ lease is invalid because not so approved. The decisive question is whether, under the terms of the treaty, such a title to or interest in the lands selected was vested in Mon-si-moh as would empower him to make a valid lease of the premises in question to complainants. Defendant urges strongly that article 9 of the treaty in effect excepts the selection from the operation of the treaty, and leaves it unaffected thereby. I do not so interpret the language. The words are, “shall be set apart from the tract hereby ceded.” The act of cession is completed, the title has passed to the government, and “upon the urgent request of the Indians, parties to this treaty” the government is asked to set apart a reservation of 640 acres for the chief. No restrictions or conditions subsequent are imposed; and, in order to determine the title or interest of Mon-si-moh, it is necessary to inquire what construction has been placed by the government and the courts upon the words “set apart” and “reservation,” as used in these treaties, or in cases of a like nature. Section 18 of the organic act of Minnesota, passed by congress March 3, 1849, provides that sections 16 and 36 in each township “shall be and the same are hereby reserved” for school purposes; and in the act of congress of February, 26, 1857, authorizing the state government of Minnesota, we find “that seventy-two sections of land shall be set apart and reserved .for the use and support of a state university.” In neither of these cases has it ever been questioned but that a fee-simple title passed; and no patents have ever been issued, or were necessary, to confer title to these lands. Gaines v. Nicholson, 9 How. 365. In Glenn v. Glenn, 41 Ala. 582, the court says, “ ‘To allot is usually understood as meaning to set apart a portion of a particular.thing or things to some particular person”; and in Best v. Polk, 18 Wall. 112, where by the terms of a treaty there was no provision for a patent, the term “allotted” was held to pass the full title. See, also, Gaines v. Nicholson, 9 How. 356. To the same effect is the case of U. S. v. Brooks, 10 How. 442, where it was held that the