47 Ct. Cl. 415 | Ct. Cl. | 1912
Lead Opinion
delivered the opinion of the court:
This case now comes before the court on the defendants’ motion for a new trial and the claimants’ motion to amend findings of fact.
The case came to the court under a special jurisdictional act approved February 15, 1909 (35 Stat. L., 619), as set forth in Finding I.
The claim is predicated upon certain rights alleged to have accrued to the claimant. Indians under the provisions of treaties executed in 1855, 1863, and 1864, having to do with the disposition of their landed interests, upon which they have resided since time immemorial. The claimants herein are a band of that formerly large and powerful tribe of
On March 11, 1863, another treaty was entered into between the same parties at Washington, D. C. The treaty of 1863 (12 Stat. L., 1249) provided for the cession to the United States of the reservations provided for the Indians in the treaty of 1855; provided them with another reservation set apart by particular description; extended the present annuities for 10 years; appropriated $20,000 to pay for depredations committed in 1862; appropriated $16,000 to pay the chiefs of the bands; agreed to pay the expenses of the State of Minnesota incurred in September, 1862, for sending commissioners to visit the Indians, to the extent of $1,338.15; expressly agreed to clear, stump, grub, and plow certain lands on the reservation for each.of the bands; to build houses for the chiefs; to furnish oxen, log chains, plows, and other agricultural implements; establish and maintain a sawmill, and otherwise improve and render susceptible to cultivation and habitation their new reservation, to which they were expected to immediately remove. ■
“ It shall not be obligatory upon the Indians, parties to this treaty, to remove from their present reservations until the United States shall have first complied with the stipulations of articles 4 and 6 of this treaty, when the United States shall furnish them with all necessary transportation and subsistence to their new homes and subsistence for six months thereafter: Provided, That owing to the heretofore good conduct of the Mille Lac Indians they shall not be compelled to remove so long as they shall not in any way interfere with or in any manner molest the persons or property of the whites.”
On May 7, 1864, another treaty was entered into between the same parties concerning the same subject. (13 Stat. L., 693.) The annuities were again extended, and certain allotments in fee out of their respective reservations were made to their respective chiefs. Substantially the same provisions for the cultivation and improvement of their new habitat were incorporated therein, although the amounts therefor were increased ($25,000 was appropriated for agency buildings), and article 12 of the treaty of 1863, supra, was repeated verbatim as article 12 of the treaty of 1864.
In April, 1871, filings for homesteads and preemption entries were made under the public-land laws, principally in soldiers’ additional scrip, upon the lands of the Mille Lac Indian Reservation. Up to March 31, 1884, 55,976.42 acres of the total acreage of 61,028.14 had been filed upon as open to settlement. On June 20, 1871, the Interior Department ordered the suspension of all entries alleged to have been made under the treaties of 1854 and 1855 and notified the parties that the same would be canceled, and on September 23,1871, all entries made up to that date were canceled. Subsequently, on March 1, 1877, the Hon. Z. Chandler, then Secretary of the Interior, reversed the preceding decision as to cancellation of above entries, but suspended the execution of his decision and directed the discontinuance of the filing of entries until the close of the next Congress, holding all existing claims in statu quo. In 1878 Hon. Carl Schurz, then
On May 10, 1882, Hon. Henry M. Teller, Secretary of the Interior, reviewed at length the legal status of the disputed entries upon the Mille Lac Eeservation, and decided that a sufficient acreage of the Mille Lac Eeservation necessary to maintain and support the diminished band should be set aside for them, and the surplus lands after said ascertainment should be open to settlement as part of the public domain.
In 1884 the Congress passed the act of July 4, 1884 (28 Stat. L., 16, 98), providing that none of the aforesaid lands should be patented or disposed of in any manner until further legislation by Congress. On January 14, 1889, Congress passed an act “ For the relief and civilization of the Chippewa Indians in the State of Minnesota.” (25 Stat. L., 642.)
Section 1 of this latter act provided for the appointment by the President of three commissioners to negotiate with all the different bands or tribes of Chippewa Indians in the State of Minnesota for the complete cession and relinquishment in writing of all their reservations in said State, except the White Earth and Eed Lake Eeservations, and so much of said reservations as, in the judgment of the commissioners, was not necessary to fill the allotments required by this act, said cession and relinquishment to be deemed suffi
Section 2 prescribed for the qualification of the commissioners and fixed their compensation.
Section 3 provided for the removal of all the Indians from their reservations to the White Earth Eeservation, except the Eed Lake Indians, who were to retain their own reservation. Individual allotments were to be made to the Eed Lake Indians on their reservation, and all other Indians so removing were to be allotted lands on the White Earth Eeservation, provided, however, that any individual Indian disinclined to remove to the White Earth Eeservation might take an allotment on the reservation where he lived at that time.
Section 4 provided that subsequent to the cession and relinquishment the Commissioner of the General Land Office should cause the lands to be surveyed the same as other public lands, and, after making report thereof to the Secretary of the Interior, examiners appointed by the latter should go upon the lands, subdivide the same in 40-acre tracts, appraise at not less than $3 per thousand feet board measure the pine timber thereon, and classify the same into what should be known as “ pine lands ” and those without pine timber into “ agricultural lands.”
Section 5 provided for the sale at public auction, after extensive public notice, of the “ pine lands ” mentioned in the preceding section. The pine lands were to be offered in lots of 40 acres each and in no event to be sold for less than appraised value. The surplus lands failing to sell at auction should be sold at private sale under same conditions.
Section 6 provided for the disposition of the surplus of agricultural lands over the acreage required by the terms of the act. The agricultural lands were to be thrown open to homestead entries to actual settlers only at $1.25 per acre,
Section 7 provided that all money accruing from the sales provided for in the previous section, after deducting the expenses incident to the surveys, etc., should be placed in the Treasury to the credit of the Chippewas as a permanent fund, to draw interest at the rate of 5 per centum per annum for 50 years, said interest to be computed annually and disbursed in annual payments to the .Indians: One-half of same to be paid to heads of families and guardians of orphan minors; one-fourth of same to be paid to all other classes of Indians; and the remaining one-fourth to be expended under the direction of the Secretary of the Interior for the establishment and maintenance of public schools. The principal fund was to be distributed per capita at the expiration of the 50-year period among the Chippewas then surviving. The United States further agreed to advance as interest upon said fund the sum óf $90,000 per annum and continue said advancement until the principal fund herein provided for, exclusive of deductions, should equal or exceed the sum of $3,000,000, in which event the advancements made herein were to be repaid.
Section 8 simply provided for the necessary expenses of carrying into effect the provisions of this act.
The respective bands of Chippewa Indians accepted the terms of the act of January 14,1889, and executed in writing their assent thereto. The relinquishment of the claimant Indians will be found in full in Finding IX.
There was another treaty entered into between the same parties on March 19, 1867, the provisions of which simply changed the boundaries of the reservation ceded to the Indians by article 2 of the treaty of May 7, 1864. It does not modify to any considerable extent the previous status of the Indians, and throws no light upon the controversy referred by the special jurisdictional act.
On May 27, 1902 (32 Stat. L., 268), the Congress appropriated $40,000 to pay claimant Indians for improvements upon their reservation upon condition of their removing therefrom and their acceptance in council of the provisions of this act. Provision was made for the reservation to any individual of the tribe of land purchased or leased by him from any person having title thereto from the Government.
The petition herein alleges that the claimant Indians, by virtue of the twelfth article of the treaties of 1863 and 1864, reserved to themselves the right of occupancy of the Mllle Lac Reservation as defined in said treaties; that they never by violation of the condition expressed therein forfeited said right until the same was voluntarily transferred to the United States by their assent to the act of January 14, 1889; that the United States failed to carry into execution the provisions of the act of January 14, 1889, and instead of appraising and selling their pine and agricultural lands, did, by the resolutions of December 19, 1893, and May 27, 1898, by validating past entries and approving future ones, open to public settlement under the public-land laws all their reservation, of which they have been deprived. The damages claimed, aggregating three millions of dollars, are rested entirely upon the provisions for the sale of their lands found in sections 5, 6, and 7 of the act of January 14, 1889.
The jurisdictional statute refers a claim; it determines no rights other than the one to litigate; provides a forum with authority to ascertain, adjudicate, and enforce rights. The question of damages alleged to have been suffered by claimant Indians must be determined by the court upon the same legal principles as appertain to controversies between individuals, and while it defines the nature of the cause of action and recognizes the justice of its determination, it extends no further as respects the merits of the issue. (Stewart v. United States, 206 U. S., 185.)
“ There is no question involved in this case as to the taking of property; the authority which it is proposed to exercise, by virtue of the act of 1898, has relation merely to the control and development of the tribal property, which still remains subject to the administrative control of the Govern-; ment, even though the members of the tribe have been invested with the status of citizenship under recent legislation.”
Lone Wolf v. Hitchcock followed the Cherokee case, supra, and the court therein was dealing with administrative measures designed to control Indian property, “a mere change in the form of investment of Indian tribal property.”
This court has in the past considered numerous cases similar to this, one quite recently decided, The Ute Indians v. United States (45 C. Cls., 440), wherein a judgment for over $8,000,000 was awarded the claimants, and no appeal therefrom taken by the United States. The additional point as to the right of the claimants to sue as an individual band necessarily follows the development of the case and is determined thereby.
The title to Indian lands vested in Indian tribes was the right of occupancy, the ultimate fee in the lands was in the United States, and the right of conveyance by the Indians was limited to the United States or to some one else by their express consent. This rule, following the case of Johnson v. McIntosh (8 Wheat., 543), has obtained without interruption through the whole course of judicial procedure from that early time until the present day. (Jones v. Meehan, 175 U. S., 1; United States v. Winans, 198 U. S., 371.)
A proviso to a statute (likewise a treaty) is purposed to qualify or except from the general operation and effect of the enacting part persons and property, or the conditions upon which persons and property will not be effected by the result sought to be accomplished. Likewise, it is imperative in ascertaining the intention of the parties to a contract ambiguous in terms, that all the surrounding circumstances and conditions under which the transaction was consummated shall be taken into consideration.
It will be observed that the treaty of 1863 was executed on March 11 of that year. The date is important, for at the time the United States was engaged in war. In August, 1862, Hole-in-the-Day, a famous Chippewa chief, became hostile to the United States and attempted an uprising among the Indians, with intent to join forces with the then hostile Sioux, whose terrible atrocities and fearful massacre of innocent men, women, and children terrorized the whole State of Minnesota. It was a disturbance much to be deplored at this particular juncture in the Nation’s history and fraught, as it was, with imminent danger to the poorly protected white people, whose soldiers previously stationed
Commissioner of Indian Affairs Price, in an exhaustive letter upon this subject, written in April, 1882, in analyzing this feature of the claimants’ title, said:
“ Manifestly, I think, reference was intended to the white settlers occupying the surrounding country, their neighbors especially', for there could have been no whites lawfully living upon the reservation at that time, and it was hardly intended in anticipation of the entry and settlement of whites upon the reservation and with a view to their protection; for the Indians being in occupation, the introduction of whites into their midst would unquestionably result in conflict at once; indeed it is not difficult to see that such common occupancy by Indians and whites would be quite impossible. The Indians were there, and until they were removed, either by their own consent or by reason of the forfeiture of their right of occupancy, the whites manifestly must keep out. * * * For the sake of argument, let us suppose that the language of the proviso was intended to apply to settlers coming upon the reservation. Then the Indians, if they would not work a forfeiture of their right of occupancy, must not interfere with or molest either the persons or property of such. Surely nothing more. It does not provide that they shall make way for or vacate or abandon any improvements or shelter they have or land to these people. It is only required that they shall not interfere with or molest either their persons or property. These words (‘ interfere ’ and ‘ molest ’) when employed in such connection in respect of the conduct or action of Indians are, I think, to be inter*442 preted in their worst sense. And when it is remembered that only a few months before the treaty was made the whole country there had been thrown into a state of the greatest alarm on account of the uprising of the Indians of that section, it is clear to my mind that the framers of the treaty intended that they should be interpreted in no other way.”
The qualifications to the reservation were in most respects ■surplusage. If the Indians had persisted in bad conduct toward the .whites, if they assumed a hostile attitude toward the people and the Government, the military arm of the United States would have promptly interposed. In addition to all this the Government made no effort by treaty or legislation to dispossess said Indians or in any manner disturb their occupancy of this reservation until 1886, notwithstanding the violent and most persistent controversies, sometimes favorable, sometimes unfavorable, going- on between the Land Office and anxious entrymen.
In some Indian treaties the right to hunt over and fish in the waters adjoining the ceded reservation is excepted from the treaty, and in some instances express words have reserved rights to the ceding Indians. The language used to establish said reservations has most generally been positive and unambiguous, leaving no doubt as to the intention of the contracting parties. If a mere license to pursue game was intended, apt language expressed the same; if possessory rights were conferred, doubts as to the extent of title were removed by the context of the article creating the same. (Kappler’s Treaties, vol. 2, pp. 19-22.)
No mere license to fish and hunt was conferred upon the Mille Lac Indians by article 12 of the treaty of 1864; if so, the language used would have clearly expressed the same. The distance between White Earth and Mille Lac negatives this intention. What other Indian right, then, could have been intended save the right of occupancy ?
The word “ remove ” as used in the treaty has especial reference to a change of residence, for that was the subject matter of the negotiations. The Mille Lac Indians resided on their reservation and had been there since 1855. If they intended to cede their lands and at the same time reserve to themselves a right of residence thereon, a possessory right
The White Earth Reservation carved out by the treaties and embracing a vast acreage of land was 150 miles distant from the Mille Lac Reservation. It was to this reservation the Chippewas were to be removed by the articles of the treaties, and extensive appropriations were made to improve it and to provide for schools and other civilizing influences. Many comforts, advantages, and conveniences were open to the Mille Lacs if they would remove. The inducements were all extended to accomplish the removal of the Indians to secure a cession of their lands that they might be thrown open to public settlement. Under all these circumstances it seems improbable that astute and experienced Indian officers charged with the special duty of securing this treaty would overtly and intentionally leave upon an Indian reservation a large band of loyal Indians 150 miles away from the reservation provided for the other bands with no greater
Numerous Indian cases have been before this court involving millions of acres of land and millions of dollars in money, but in no one of them, after a most careful examination can the court find a contention similar to this, wherein Indian title is made to rest upon sufferance, as distinct from their right of occupancy, the greatest title they could possess. It is said by the defendants that the provision in article 4 for the improvement of 70 acres for the Mille Lac Band on the White Earth Reservation evidences an intention to effect their removal thereto. The answer to the contention is twofold. Frist, why didn’t they do it? The opportunity was at hand, and the Indians were at peace and assented to the treaty. Second, the language of the proviso gave the Mille Lacs an option, a right of election to remain or go. “ They' shall not be compelled ” is the language of the proviso. They elected to remain, and during the subsequent years of their occupancy fulfilled the conditions of their tenure, a fact fully attested by every Indian agent and every other witness in the record. It is conceded by the defendants that the claimant Indians' did not molest or interfere with the persons or property of the whites. It is true that evil practices contaminated to some extent the personal conduct of individual Indians. The introduction of whisky was the prime cause. White Earth was not free from the same evil, and the surroundings there as respects the opportunity to procure and indulge intemperately in this commodity were about the same as at Mille Lac.
The Mille Lac Indians understood at the time of the execution of the treaty that they were securing and reserving to themselves the Mille Lac Reservation. The treaty, as before observed, was negotiated in Washington, and no record of the proceedings incident thereto is available. Senator Henry M. Rice, a gentleman of large Indian experience, a devoted and trusted friend of the Indians, was one of the commissioners appointed to assist in the procurement of the treaty, and his name is affixed to the treaty of 1863. In 1889 Senator
“ I wish to refer to an old matter that has given you a great deal of trouble. That is the treaty made at Washington some 25 years ago. I was there, and know all about it. It was a wise treaty, and if it had been properly carried out you would have escaped all the trouble that has befallen you. Men who cared more for themselves than they did for you thought they had found a hole in it, and they would take advantage of that and deprive you of- your rights. They knew that the Government was engaged in a great war which occupied all its time. They thought that under the circumstances they would be able to drive you from this reservation. * * * The time has come when I am able to tell you that all he said, all I have said to you, all the chiefs told you who were there and made the treaty, is correct. Here is the acknowledgment of the Government that you were right, that£ you have not forfeited your right to occupy the reservation.’ ”
On May 15, 1886 (24 Stat. L., 44), the Congress appropriated $15,000 to enable the Secretary of the Interior to negotiate with the several tribes and bands of Chippewas in Minnesota for modification of existing treaties and such changes in their reservations as might be deemed desirable and best by the Indians and the Secretary. In pursuance of the above act the Secretary appointed Hon. John V. Wright, a jurist, Bishop H. B. Whipple, and Hon. Charles F. Larrabee to carry forward the negotiations. On October 9, 1886, on the Mille Lac Reservation, Mr. Larrabee, in addressing the Indians in council assembled in the course of an attempt to secure their removal from Mille Lac to White Earth Reservation, used these words:
“ Long ago you ceded your reservation to the United States, with the understanding, however, that y@u were not to be compelled to remove so long as you did not molest or interfere with the persons or property of the whites. That is all the rights you have in this land — a very feeble tenure.”
On the following day the Mille Lac Indians expressed great surprise at the statement of Mr, Larrabee, and in more
In the case of California and Oregon Land Co. v. Worden (85 Fed. R., 94) the Congress in 1864 granted to the State of Oregon alternate sections of public land for three sections in width, to aid in the construction of a military road. Subsequently it appeared that the land so granted was embraced within Indian country. A treaty negotiated with the Indian owners of the land in the same year secured a cession to the United States of the Indian lands, with a proviso, however, that a particular tract embraced within the general cession should be set apart as a reservation for the Indians until, otherwise directed by the President. All the lands to the extent of 130,000 acres taken under the congressional grant were located within the lands set apart by the proviso. Plaintiff’s contention was planted upon the general cession of all the Indian lands embodied in the first articles of the treaty, insisting that the proviso was a reservation subsequent to the vesting of their title and invalid. The court held that the Indians had not by the terms of the treaty ceded title to their reservation; that it was not a cession and recession of reserved lands, but a mere reservation to the Indians of the same right and title they originally had. This case is exceedingly apropos.
“ In other words, it was decided that the Indians acquired no rights but what the inhabitants of the Territory or State would have. Indeed, acquired no rights but such as they would have without the treaty. This is certainly an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more. * * * In other words, the treaty was not a grant of rights to the Indians, but a grant of rights from them — a reservation of those not granted.” (Spalding v. Chandler, 160 U. S., 394.)
If the privileges granted by Article III of the above treaty were superior in extent and duration to a mere license, it is quite difficult to reconcile the taking of a home — a supposed place of permanent abode — with the idea of such feeble and uncertain tenure as an estate by sufferance. (United States v. Thomas, 151 U. S., 577.)
The act of January 14, 1889, following as it did years of discussion as to rights of the Mille Lac Indians to their reservation, would seem to confirm their title in every respect were it not for the second proviso to section 6 thereof. This proviso, validating certain homestead and preemption entries made on Chippewa lands, and extending additional privileges as to entries not theretofore perfected, brings forth a defense that this act does not apply to the Mille Lac Reservation. In other words, the restrictive provisions applying
The defendants in this case ask for a specific finding of a conspiracy between eminent public officials and the local land officials at Taylor Falls, Minn., to enter over 23,000 acres of this reservation, which was at the time thwarted by the vigilance of the Interior Department. In 1884 Congress halted the whole proceedings, and, with the exceptions noted in the findings, patents -were suspended and entries. prohibited. In 1886 Congress attempted the removal of the claimants to make way for settlers, and failed. Therefore in 1889 Congress had before it a controversy with respect to Indian pine lands extending over a period of 18 years. The legislation then enacted superseded the general land laws, conserved the valuable resources of the Indians, and threw around the disposal of their pine such positive restrictions as to prevent its fraudulent acquirement. Why this great necessity to erect barriers against fraud and corruption save the prevalence of this stealthy practice as against these claimants? Are we to presume that the salutary legislation of 1884 was repealed by a proviso in an enactment made for the general purpose of forestalling the very thing the act of 1884 did prohibit? Eepeals by implication are not favored in law. The debates in Congress incident to the passage of the act of January 14, 1889, indicate a legislative intention to prohibit by the terms of the act the unwholesome and corrupt practices previously obtaining as to the acquirement
It is hard to believe that the Government of the United States would by express treaty stipulations grant a right to peaceable, loyal, and well-behaved Indians, a right doubly sacred to them, and then, in not to exceed seven years from the date of said grant, countenance their ejectment from the lands so granted by a series of fraudulent entries under the general land laws. If the Government intended the Mille Lac Indian Reservation to be open to entry and settlement under the general land laws, it would have so announced, removing all doubt, and doing as is usually done under similar circumstances.
The Department of the Interior, the commissioners appointed by the President to procure the assent of the Indians to the act of January 14, 1899, all treated the Mille Lac Indians as coming within the purview of its provisions. A council extending over several days was held on the Mille Lac Reservation to secure their approval thereto; they were positively and repeatedly assured by the representatives of the Government that they were within its terms; and their written relinquishment of their title to the same, executed by a majority of the tribe residing on the reservation, was secured upon the faith of said representations. Absolutely no doubt existed then as to the scope of the law or its applicability to claimant Indians. The fact of allowance of homestead entries to the chief of the band and his son argues little. We need not cite authorities to sustain the proposition that the Interior Department is entirely without authority to issue valid patents to Indian lands. (United States v. Carpenter, 111 U. S., 347. If these patents are at all valid they must rest upon treaty rights or statutory law.
The Congress as late as July 22, 1890, treated the Mille Lac Reservation as Indian lands, for on that date an act was approved granting a railway company a right of way and other privileges through and upon the reservation, expressly reserving to the Mille Lacs in their tribal capacity the damages incident thereto. (26 Stat. L., 290.)
The technical language used in the written instrument subsequent to claimants’ assent to the act of January 14, 1889, is cited as indicating a difference in title as to claimant Indians. The use of the word “ relinquish ” when speaking of the Mille Lac Reservation as distinguished from the word “ cede ” when referring to the White Earth and Red Lake Reservations can hardly be relied upon in the determination of Indian title. The words are frequently used in Indian treaties conjunctively, and in so far as they affect the conveyance of Indian title the employment of either word would effectively divest the Indians of their right of occupancy. It is quite true that to the trained lawyer they have a distinct technical significance, but are so nearly synonymous that even they employ them carelessly. In construing Indian treaties their technical significance vanishes.
In Worcester v. United States (6 Pet., 236) Chief Justice Marshall, in language so directly applicable to his case that we cite it in full, said:
“ It is reasonable to suppose that the Indians, who could not write, and most probably could not read, who certainly were not critical judges of our language, should distinguish the word £ allotted ’ from the words ‘ marked out.’ The actual subject of contract was the dividing line between the two nations, and their attention may very well be supposed to have been confined to that subject. When in fact they were ceding lands to the United States and describing the extent of their cession, it may very well be supposed that they might not understand the term employed as indicating that instead of granting they were receiving lands. If the term would admit of no other signification, which is not con*453 ceded, its being misunderstood is so apparent, results so necessarily from the whole transaction that it must, we think, be taken in the sense in which it was most obviously used.”
The rule established by this case has been followed by the Supreme Court in construing Indian treaties ever since. (Jones v. Meehan; United States v. Hitchcock; United States v. Winans; Cherokee Intermarriage Cases, 203 U. S., 76; all heretofore cited, and many other cases too numerous to mention.) It is well-settled law.
The Mille Lac Indians in this instrument expressly recited that they were dealing with the Mille Lac Reservation occupied and belonging to them “ by virtue of a clause in the twelfth article of the treaty of May 7, 1864 (13 Stat., p. 693).”
Lastly, granting, arguendo, but not conceding the force of the defense, then in that event the provisos to the act of January 14,1889, were the initiatory legislation subsequently confirmed by the resolutions of December 19, 1893, and May 27, 1898, which deprived claimant Indians of their right of occupancy in the Mille Lac Reservation. The jurisdictional act provides for the assessment of damages “ by reason of the opening of the Mille Lac Reservation * * * to public settlement under the general land laws of the United States.” If this legislation served the purposes contended for by defendants, it likewise opened, to public settlement claimants’ reservation by confirming all the .entries made thereon previous to its enactment, and the various amounts provided for the Indians can well serve as a basis for damages in this cause.
On January 9, 1891, the Interior Department decided the case of Amanda J. Walters (12 L. D., 59). The claimant in the case had previously been allowed to make entries on the Mille Lac Reservation, and the issue was her right to a patent therefor. The Secretary confirmed her right of patent, resting his decision upon the second and third provisos to section 6 of the act of January 14, 1889, asserting therein that said provisos constituted the further legislation provided for in the act of 1884 annulling all the aforesaid entries. The decision mentioned is another of the numerous
The resolution of December 19, 1893 (28 Stat. L., 576), by its terms was simply intended by the Congress to protect bona fide homestead filings or entries upon the Mille Lac Reservation which had been made subsequent to the rulings in the Walters ease, and by virtue thereof, and before the contrary holding in the N. P. R. R. Co. ease, made on April 22, 1892, and under the opinion of April 22, 1892, the remaining agricultural lands of the Mille Lac Reservation were opened to homestead'entry under the terms and provisions of the act of January 14, 1889.
The resolution of May 27, 1898 (30 Stat. L., 745), enacted as it was to put an end to the land-office controversy by which the whites were first let in and then put out, unquestionably ratified all previous entries and interposed to deny the claimants the benefits of the act of January 14, 1889. It divested them of their reservation and under its provisions the lands upon which they so long resided have been almost, if not entirely, taken up by white settlers and lumber companies.
The act of May 27, 1902 (32 Stat. L., 268), appropriated $40,000 to pay the Mille Lacs for the improvements made upon their reservation. It can not affect this controversy and was at the most a tardy and almost inconsequential recompense to secure their removal from a reservation from which they had already been excluded by being divested of their Indian title, and upon which they had remained because of the failure to extend to them the benefits of the act of 1889. All the treaties with the Mille Lacs provided payment of expense of removal to their new reservation. The Congress by the terms of this act recognized their possession
It has been most forcibly brought to the attention of the court that a judgment in this case results in a double payment to the Mille Lac Indians. In some respects this is true. It can hardly be said to be a double payment, but is more in the nature of an additional allowance or a supplemental benefit, which in any case accrues alike to all the Mississippi Chippewas mentioned in the treaty of 1864. The Mille Lacs have participated in the annuities allowed by the treaties of 1863 and 1864, and the few of the minority of the tribe who removed to the White Earth Reservation received the benefits of treaties, but the great majority of the tribe — the real Mille Lac Band, who remained on the Mille Lac Reservation — received no benefit from the provisions of the treaties providing for schools, blacksmith shops, agricultural implements, etc., on the White Earth Reservation until their removal thereto. In fact, the Mille Lac Indians remained on their reservation, claiming title thereto under the treaty of 1863, without the numerous advantages and profitable perquisites granted to the other bands of Mississippi Chippewas who did at the time remove to the White Earth Reservation. They withstood at times the most intense poverty, and while they were of good reputation among the neighboring whites, under most adverse circumstances, they willingly forebore many of the advantages of White Earth to occupy their ancient home. Under the act of January 14, 1889, they are, and under all other treaties and agreements were, entitled as fully as any other Chippewa Indian Band to the full and
In any event the argument is devoid of merit. The question is not one which goes to the considerations for the treaties or benefits to be derived therefrom. That is for the political department of the Government. The courts are confined alone to an interpretation of what rights did accrue, and not as to their justice or injustice. The Congress is vested with complete authority to determine questions of this character, and its jurisdiction is exclusive.
In United States v. Choctaw, etc., Nations (179 U. S., 541) Mr. Justice Harlan, speaking for the court, said:
“ Now, it is argued that if the interpretation placed by the United States upon the treaty of 1866 with the Choctaws and Chickasaws is accepted the result will be that the General Government has been more liberal toward the Seminóles and Creeks than it has been with the Choctaws and Chickasaws. But that can not constitute a reason why the court should depart from the ordinary signification of the words used in the treaty with the Choctaws and Chickasaws. If Congress chose to adopt one course toward the Seminóles and Creeks and a different course toward the Choctaws and Chickasaws, it is not for the judiciary to defeat the will of the legislative branch of the Government by giving to an Indian treaty a meaning not justified by its words.”
In any event, it is quite doubtful if any advantages will accrue to the Mille Lac Indians in view of the judgment that will hereafter be rendered in this case. Whatever inequality may appear is minimized by the terms and provisions of the act of January 14, 1889. This statute marshals the proceeds from the sale of all the Indian lands therein mentioned and
The treaties of 1863 and 1864 reserved to the claimants the Mille Lac Reservation. They remained as a band in open, notorious possession of the same, a lawful notice to the world of a claim of title, until the resolutions of the Congress opened their domain to public settlement and divested them of title to their lands. They fulfilled all the conditions of the tenure, remained at peace with the whites, and were fully entitled to the benefits of the act of January 14, 1889, which were denied them. (United States v. Thomas, 151 U. S., 577.)
It is seriously contended that the court in the Fond du Lac case (34 C. Cls., 426) decided the issue here involved and denied relief under similar circumstances. The case mentioned was determined under a limited, specific, and mandatory jurisdictional act. While the proceedings were similar to a suit at law, the relief to be afforded was distinctly equitable. Any judgment found due predicated upon treaty rights was to depend for its finality upon two equitable considerations expressly named in the jurisdictional act, viz, whether subsequent to the treaty there had been any equitable adjustment made to the Indians because of failure to execute the treaty stipulations; and what, if any, advantages accrued to the Indians under the act of January 14, 1889. The court found and so reported that the injury resulting from failure to execute the treaty was fully recompensed by the subsequent proceedings, composed the differences, and dismissed the petition. Of course the Fond du Lacs received distinct advantage by reason of the right to participate in the common fund provided for in the act of January 14, 1889, and Congress expressly, or as said in the opinion, “commands us by the imperative shaIV balance this advantage against the prior injury and determine results accordingly. The court found the exact number of acres included in the treaty reservation, and had the juris
The court is unable to reconcile a conceded right of occupancy to'Indian lands with the doctrine of limited and circumscribed tenure by license or mere favor. It is certainly most unusual and an anomalous estate not heretofore carved out of Indian lands. It is repugnant to every intendment of the Government in its conduct toward the Indians, and confuses rather than adjusts the settlement of Indian affairs. It can not be claimed as just to the Indians, failing, as it must, to bring about that permanent repose continually sought for in Indian treaties and acts of Congress. The various conflicting opinions of the Department of the Interior were the result of this contention and have carried this controversy through the long years of its existence.
The jurisdictional act is comprehensive, its evident intention being to afford relief to the claimants mentioned therein for damages suffered by them as a band or by the Chippewa Indians of Minnesota. The language of the statute, “ a suit or suits to be brought by and on behalf of the Mille Lac Band of Chippewa Indians in the State of Minnesota * * * on account of losses sustained by them or the Chippewas of Minnesota,” precludes the idea of technical objections interposed to limit the parties interested. The suit under this jurisdiction may be brought by the Mille Lac Band of Indians for alleged damages to them as a band, or for damages accruing to the Chippewas of Minnesota by reason of injuries to them as a component part of the Chippewa Tribes. It is conceded that the Congress possesses plenary power in reference to the disposition of Indian tribal lands and tribal funds. The jurisdictional act passed subsequent to the act of January 14, 1889, wherein distinct provisions are made with reference to the disposition and division of tribal funds and
The situation of the parties herein concerned corresponds to the relief intended by the jurisdictional act. The Mille Lac Indians occupied one of the reservations included in the act of January 14,1889, and their assent thereto was secured.
The court has experienced great difficulty in attempting to reconcile the testimony in reference to the acreage, and value of the timber thereon, contained in this reservation. The conflicting statements of the witnesses are so wide apart as to make it impossible for the court to accept either the highest or lowest estimate of the amount. Taking into consideration the testimony of the witnesses and the records of the Interior Department submitted herein, we have reached the conclusion that the Mille Lac Indian Reservation contained 61,028.14 acres of land; that 25,000 acres of said land was swamp or agricultural land upon which no pine timber grew; that upon 34,360.89 acres of said land there was standing 100,000,000 feet of pine timber; and that 1,661.25 acres of said land was reserved for various purposes in the various treaties hereinbefore mentioned.
The amendment to the act of January 14,1889 (25 Stat. L., 642), fixing the minimum price of Norway pine at $4 per 1,000 feet on the stump and white pine at $5 per 1,000 feet, made it necessary for a careful investigation of the record in reference to the percentage of the different kinds of pine. Upon this subject the record is entirely silent, and it has been absolutely impossible to ascertain with any degree of accuracy whatever the quantity of Norway and white pine thereon. In view of this situation the court has treated all
The act of 1889 provided for interest at the rate of 5 per cent per annum on the sums received from the sale of the lands therein mentioned, and the United States expressly agreed to advance the sum of $90,000 per annum to pay said interest until the accumulation should be of sufficient amount to reimburse them for this outlay.
Under this statute there must be added to the principal amount the accumulated interest at the rate of 5 per cent per annum for 18 years 4 months and 17 days, which makes the total sum of $827,580.72, for which amount judgment will be entered in favor of the Mille Lac Indians of Minnesota, to be distributed under the act of 1889, as therein provided, to all the Chippewa Indians of Minnesota.
The defendants’ motion for a new trial is overruled. The claimants’ motion to amend findings is allowed in part and overruled in part, and amended findings and modified opinion this day filed. The former judgment is vacated and set aside and judgment now entered on the findings for the claimants in the sum of $827,580.72.
Dissenting Opinion
dissenting:
When this case was originally argued I was in doubt as to the claimants’ right to recover, but yielded to the judgment of the majority. Since the argument of the motion for a new trial I am in still greater doubt, and therefore dissent from the action of the majority of the court in overruling the motion for a new trial.
Without analyzing the various treaties and r •; of Congress — referred to and commented on in the opinion of the court — dealing with the Chippewa Indians, of which the claimant band is a part, my reasons for dissenting are briefly these: The jurisdictional act confers upon the court authority to “ hear and determine ” the suit of the claimant Indians “ on account of losses sustained by them or the Chip
The act does not create a claim, nor does it perform any office except to give the Indians a forum in which to determine their suit on account of losses sustained as aforesaid. (Stewart v. United States, 206 U. S., 185; Sac and Fox Indians, 220 U. S., 481.)
The lands here in controversy, with others, were by article 1 of the treaty of 1864 (13 Stat. L., 693) ceded to the United States in consideration of certain lands set apart by article 2 to six bands of Chippewas in common, including the claimant band, and of moneys paid and to be paid them, as shown in articles 3 to 11 of said treaty, in which consideration the •claimants herein shared on equal terms with all other Indians parties to the treaty. And in addition thereto, for their peaceful conduct (in compliance with former treaties to keep the peace) during the Sioux outbreak in 1862 they were, by the proviso to article 12 of the treaty (1864), permitted to continue their occupancy of the lands so ceded “ so long as they shall not in any way interfere with or in any manner molest the persons and property of the whites.” At most, this was a naked right of occupancy, and this is the only right of which the claimants were deprived by opening the lands to settlement under the public-land laws of the United States.
After the treaty of 1864 the lands here in controversy were surveyed, and as early as 1811 entries thereon had been made, and up to 1884, though the Secretary of the Interior had forbidden entries, more than 55,000 acres of the tract had been entered and patents, though withheld, had been issued for over 7,000 acres.
By reason of adverse rulings by various Secretaries of the Interior respecting the rights of these entrymen all entries were suspended to await the action of Congress. Congress, by the act of July 4, 1884 (23 Stat. L., 76, 98), provided in substance that none of the lands should be patented or disposed of in any manner until further legislation by Con
In January, 1891, the Secretary of the Interior (Noble) rendered a decision in the case of Walters et al. (12 L. D., 52), holding that the act of 1889 was the further legislation contemplated by the act of 1884, and therefore all entries theretofore suspended were validated; and he directed that if otherwise regular and valid such entries should proceed to patent; that is to say, that prior to the act of 1889 the claimant Indians were, by virtue of the proviso to article 12 of the treaty of 1864, entitled to the use and occupation of the lands (Northern Pacific Railway Co. v. Walters, 13 L. D., 230), but not thereafter.
Congress, by the ..joint resolution of December 19, 1893 (28 Stat. L.,'576), approved the ruling of the Secretary of the Interior holding that the entries made thereon were valid and authorized the issuance of patents therefor; and later, by the act of May 27, 1898 (30 Stat. L., 745), Congress declared all lands so occupied by the claimant band subject to entry, followed by the act of May 27, 1902 (32 Stat. L., 268), appropriating $40,000 to pay the claimant Indians for their improvements on said lands, on condition of their removal therefrom, granting them, however, the privilege of making their allotments on the lands so occupied or on the White Earth ^Reservation at their election.
There can be no question but that the lands here in controversy were ceded to the United States by article 1 of the treaty of 1864, and the Indian title was- thereby extinguished, the lands paid for, and the claimant Indians, independent of their occupancy of the lands here in controversy, were placed on equal terms with all other Chippewas parties to the treaty of 1864.
In the case of the Fond du Lac Indians (34 C. Cls., 426) the question turned on the acceptance by the Indians of the terms and provisions of the act of 1889, whereby they were permitted to share in the proceeds of nearly 4,000,000 acres of land in addition to the lands set apart to them in severalty. The claimants herein, independent of their right of occupancy of the lands here in controversy, were given equal rights in and to the lands and timber so to be sold.
The jurisdictional act requires us to hear and determine what losses the Chippewa Indians sustained, if any, “by reason of the opening of the Mille Lac Reservation * * * to settlement under the general land laws of the United States.”
Section 4 of this act provides in substance that as soon as the cession and relinquishment of the Indian title shall have been obtained the Commisioner of the General Land Office shall “ cause the lands so ceded to the United States to be surveyed.” No provision is there made for the survey of the lands the occupancy of which was alone relinquished by the claimant Indians. The act clearly makes a distinction between the cession of the Indian title to the reservation set apart to them by article 2 of the treaty of 1864 and the relinquishment by the claimants of their right of occupancy to the lands here in controversjL The lands so relinquished were not offered for sale under said act, as were the lands so ceded; and this may be taken as a construction of the act by the officers of the Government charged with its execution, especially when coupled with the entries of nearly all the lands involved herein under the public-land laws of the United States prior to the passage of the act of 1889 and the subsequent ratification thereof by act of Congress, as herein-before stated.
It is manifest that a recovery in this case amounts to double payment for the lands, in addition to the peaceful occupancy thereof by the claimant Indians for a period of about 25 years. That is to say, the consideration expressed in the treaty of 1864 was for the cession of the six reservations set apart to the Chippewas of the Mississippi by clause 2 of article 2 of the treaty of 1855, of which the reservation here involved was one; and that consideration, be it remembered, was not diminished by the proviso permitting the claimant Indians to continue their occupation of the lands. If not, then any judgment rendered herein for the value of the
The situation is not relieved by awarding judgment in favor of the claimant Indians and decreeing that the proceeds thereof be shared in common by all the other Chippewas of the Mississippi, since such other Chippewas are not parties to this action, nor were they given any right of occupancy by the grace of the Government by the proviso to article 12. That right was given to the claimant Indians alone, and it is a denial of that right in opening the lands to settlement under the public-land laws that gives rise to this action.
The intent of Congress by the appropriation to pay for the improvements, and the approval of the ruling of the Secretary of the Interior holding the entries made on the lands in controversy as valid must be construed by the court as a legislative construction of the act of 1889 excluding the lands here in controversy from the provisions thereof. This certainly was the view of the executive officers in disposing of the other lands and timber after their classification under the act of 1889, in which the lands here in controversy were not included.
In my view of the case the action of Congress with respect to the claimant Indians, coupled with the ruling of the Interior Department, so approved by Congress, is final, and, thus believing, I think the jurisdictional act should be construed in harmony therewith.
For these reasons, I think, the motion for a new trial should be allowed and the petition dismissed.
Dissenting Opinion
dissenting:
The same reasons which influenced me not to j oin the other members of the court in awarding judgment for $764,210.89 constrain me now, after an increase of the judgment to $825,484.37, to state the reasons why at the outset I was unable, and am yet unable, to concur in the judgment for any amount at all in favor of either the Mille Lac Indians as a band or of the Chippewas of Minnesota as a tribe.
The two propositions involve contrary and different rules from those to be followed under the act conferring jurisdiction and can not stand with the terms of the act if we are to omit from consideration the validity of the joint resolution of 1893 of the Congress ratifying and confirming the entries on the old Mille Lac Reservation and the validity of the subsequent joint resolution of 1898 declaring the old Mille Lac Reservation open to entry as public land under the general land laws of the United States. Nor can we read into the act conferring jurisdiction a supposed intent to obtain results by merely assessing damages for the value of the lands, which by reason of public entry on a part of these lands (by virtue of a final understanding) had the effect finally of causing the removal of the remnant of the plaintiff band from their former reservation.
If it is intended to convey the idea that the jurisdictional act is a warrant of authority to adjudicate results and not determine the means employed to bring about the same, and that the court can merely draw a conclusion of fact as to the amount of timber destroyed or taken, then there is nothing to appeal from on the court’s findings of fact thus restricted to values. The right of appeal conferred by the act would have no meaning if liability according to strict legal
As in the case of the Sac and Fox Indians, 220 U. S., 489, something must be shown in the present case amounting to a right in law, because a merely moral claim can not be the foundation for a possible recovery.
As a matter of fact, there is no question of the moral right involved that can be considered separately from the legal right. There is no room for the court to speculate upon the matter of moral obligation, inasmuch as by the opinion of the majority it is in any event “ quite doubtful if any advantages (by the judgment) will accrue to the Mille Lac Indians” because of the provisions of the act of January 14, 1889, 25 Stat., 642, by which the Mille Lacs were given an interest in the proceeds of the sale of about 4,000,000 acres of land, accompanied with the further right to have allotments in severalty to other lands given to them for occupancy, and that all Chippewa Indians in Minnesota have such a right to participate in the judgment rendered that the amount accruing to the Mille Lacs (by reason of the opening up of the old reservation occupied by them) would amount practically to nothing.
My objections to the judgment are:
(1) That the intent and scope of the various treaties between the United States and the parties for whom judgment is rendered contemplated and provided for the opening of the Mille Lac Keservation to public settlement by the whites, and that in the exercise of full plenary power over the subject matter Congress has so interpreted its obligations, duties, and rights as to provide, by valid and constitutional acts, full, fair, and adequate compensation to plaintiffs which the court can not disregard but must carry out.
Many cases establish the rule that the plenary authority over the tribal relations of the Indians is a political power
In Choctaw and Chickasaw Nations, 179 U. S., 494, the court said that “ the Court of Claims is without authority to determine the rights of parties upon the ground of mere justice or fairness, much less under the guise of interpretation to depart from the plain import of the words of the treaty. Its duty was to ascertain the intent of the parties according to the established rules for the interpretation of treaties,” concluding with the further statement that if the treaty there under consideration “ did injustice to the Choctaws and Chickasaws the remedy is with the political department of the Government.”
In the last-mentioned case the treaty had, as between the United States and the Choctaws and Chickasaws, provided for cession of a vast domain, which included a payment to the tribes of the inconsiderable sum of $300,000, which sum (according to what these tribes yet say) was never paid to the Choctaws and Chickasaws.
(2) My next objection to the judgment as rendered is that, the treaty by which the Mille Lacs relinquished their right
Judicial notice will be taken of most everything upon which the findings are predicated, but for convenience and a better understanding of the merits attention is directed to those parts of public documents supposed to be material in determining the issues.
The treaty of September 30, 1854; 10 Stat., 1109, is important in that it partitioned the Chippewa lands in Minnesota between the Chippewas of Lake Superior and the Chippewas of the Mississippi. The scheme of that treaty as it appears was to encourage each family to cultivate the soil and to advance the Indian civilization.
The treaty of February 22, 1855, 10 Stat., 1165, mentioned in the second finding of the court, was made with the Chippewas of the Mississippi, and not with the Gull Lake, Mille Lac, Sandy Lake, Pokamogin Lake, Eed Lake, and Pice Lake Bands of Indians. Nor were the tracts of land reserved as a home for the Mississippi Chippewas designated as reservations until the treaty of 1863 and 1864. They were held in common by the whole tribe of the Chippewas of the Mississippi.
The map prepared by the General Land Office and filed as an exhibit in this case throws much light upon the questions to be considered. In fact, it is almost impossible without it to obtain a clear idea of the numerous cessions made by the various treaties between the United States and the Chippewa Indians.
The third finding of the court, is objected to by the defendants as contradictory to the official reports. The Government contends that the outbreak of the annuity Sioux in Minnesota did not start until August, 1862, and that no massacres or depredations were committed until August 17,1862,,
Defendants urge that this statement incorporated in the findings is not sustained by the contemporaneous reports of the Commissioner of Indian Affairs, who was on the ground at the time. The report of the Secretary of the Interior for 1862, pages 223, 224, 227, 228, 229, 230, 231, discloses a state of affairs apparently establishing two things: First, that the Mille Lac Band was restrained by the presence of a number of United States troops equal to their own number from acts of hostility; and, secondly, that there were no promises made to them that they might remain on the land then occupied by them. Whether any effect can be given to these reports in the appellate court on the judicial notice there taken of what the reports show must be determined there. But the report of the Commissioner of Indian Affairs on the ground acting for the United States at the time of the Chippewa troubles, together with the reports of the Secretary of the Interior, are both important in arriving at the intent of the Government and the Indians in the subsequent treaties of 1863 and 1864.
The treaty of 1863 was superseded by article 14 of the treaty of 1864. The White Earth Reservation was not set apart for the home of the Mississippi Chippewas by th'e treaty of 1864, but was set apart for them by the treaty of March 19,1867, 16 Stat. L., 719. The commission appointed under the act of May 15, 1886, 24 Stat., 44, described the White Earth Reservation as “ set apart for the permanent home of the Mississippi Chippewas by the treaty of March 19, 1867, 16 Stat., 719, as part of the consideration for a large and valuable tract of land ceded to the Government.”
Defendants object to that part of Finding VI showing that the Mille Lac Indians believed they were reserving to themselves the Mille Lac Eeservation in the execution of the treaty of 1863 and treaty of 1864, because (1) this treaty was not made with the Mille Lac Indians but with the Mississippi Chippewas, who had a common interest in each of the six reservations ceded by the treaty of 1864, and the right to occupy the old reservation was granted as a favor to one band, and not reserved by the Indians at all; and (2) because the statement is a conclusion of law drawn from certain acts of the Indians in their dealings with the Government and should have no place in a finding of fact; and (3) that the treaty of 1864 must be interpreted according to the recognized rules of construction without reference to what each party to the agreement believed it meant, citing Old Settlers case, 148 U. S., 427; Choctaw and Chickasaw Nation v. United States, 179 U. S., 494. Defendants also objects to the second paragraph of the sixth finding, because of its immateriality as to what the commissioner for the United States thought of the purpose of article 12 of the treaty of 1864 or what the Indians thought of it in reaching an agreement under the act of January 14, 1889. The fifth paragraph of the sixth finding is also objected to by the defendants, because the act of May 27, 1902, and the proceedings thereunder are separate and distinct transactions from the negotiations of 1886. The report of the commissioners appointed under the act approved May 15, 1886, 24 Stat., 44, to negotiate with the Chippewa Indians in Minnesota for modifications of existing treaties and changes of reservation, discloses the purpose of securing an agreement for the removal of that portion of the Mille Lac Band (about 200 in number) then residing on the old White Earth Eeservation. (Sen. Ex. Doc. No. 115, 49th Cong., 2d sess., 21, 27, 32, Serial No. 2449.) This report also
The act of July 4, 1884, 23 Stat., 76, 98, as originally drafted appropriated $15,000 for the removal and settlement of the White Oak Point and Mille Lac Bands on the White Earth Reservation. The appropriation was afterwards stricken out by the conference committee, and the act as passed provided “ That the lands acquired from the White Oak Point and Mille Lac Bands of Chippewa Indians on the White Earth Reservation in Minnesota shall not be patented or disposed of in any manner until further legislation by Congress.” (Plouse bills, 48th Cong., vol. 199; Conference Rep., Cong. Rec., vol. 15, pt. 6, pp. 5800, 5801.) The appropriation was evidently stricken out because the Mille Lac Band had already been settled on the White Earth Reservation, and only a few scattered Indians remained on the old reservation.
Pursuant to the act of January 14, 1889, three commissioners appointed by the President took a census of the Chippewa Indians of Minnesota. The total number of Chippewa Indians in Minnesota was found to aggregate 8,304, and the quantity of land in all the Chippewa reservations in that State aggregated 4,747,931 acres, of which the Mississippi Chippewas were interested in 796,672 acres (H. R. Doc. No. 287, 51st Cong., 1st sess., 9,15, 27); and thereafter, on different dates, by different agreements with the different bands, there were ceded and relinquished to the United States the Grand Portage Reservation, the Fond du Lac Reservation, the Boise or Wood Fort Reservation, the Deer Creek Reservation, and the surplus, lands of the White Earth and Red Lake Reservations not required for allotment in severalty to said Indians who had become parties to the agreements. Each separate agreement made with each of the bands of
By the treaty of May 7, 1864, six reservations were ceded to the United States, but prior to that treaty the Chippewas as a tribe owned an undivided communal interest in each of the six reservations. By the treaty the Chippewas of the Mississippi as a tribe ceded to the United States the Gull Lake, Mille Lac, Sandy Lake, Eabbit Lake, Pokagomin Lake, and Eice Lake Eeservations. By article 2 a reservation was set apart by boundaries to the six bands ceding the lands, including the Mille Lacs, and by article 3 these Mississippi Chippewas, including' the Mille Lacs, were given a money consideration. Then followed stipulations for expenditures on the reservation set apart by article 2 in improving the property for cultivation and residence, specifying 70 acres for the Mille Lac Band.
The twelfth article of this treaty of May 7, 1864, 13 Stat., 693, upon which the claim is predicated, provided as follows:
“ It shall not be obligatory upon the Indians parties to this treaty to remove from their present reservation until the United States shall have first complied with' the stipulations of articles four and six of this treaty, when the United States shall furnish them with all necessary transportation and subsistence to their new homes and subsistence for six months thereafter: Provided, That owing to the heretofore good conduct of the Mille Lac Indians they shall not be compelled to remove so long as they shall not in any way interfere with or in any manner molest the persons or property of the whites.”
It is conceded that the Government complied with the stip-, illations of articles 4 and 6 of the treaty; and, though a con
The treaty, which included article 12, was a cession by the Mississippi Chippewas of their six reservations to the United States. It is a mistake to assume that by the first part of this article the Government receded (or intended to recede) to the Mille Lac Band the reservation. By the cession the United States either acquired a right to the reservation as a reservation or it did not acquire a right. A party can not be both grantor and grantee of the same premises, in the same right, in the same stipulation. In California & Oregon Land Co. v. Worden, 85 Fed. Rep., 94, it was said that such a thing ivas impossible. The stipulation permitting the small number of Mille Lacs to remain on lands (which for a consideration the band had just relinquished to the United States) was not a recession of such title as the band had before, nor a recession of such character as that the band could lawfully object to the entry of the whites where the land was not necessary for Indian use by the election of the band to remain. The treaty ceding the land to the United States was purposeless if, by the same instrument or by any contemporaneous qualification, the United States did not acquire the right to open the land to such public settlement as would not interfere with the limited use and occupancy of the band. The purpose of the treaty agreement was to open the lands to public settlement, except such land as the band should cultivate as long as it remained.
If defendants did not acquire the right to open all that part of the old reservation (to white settlement) not necessary for the occupancy and subsistence of the band as long as the band remained, then the conditions imposed by the twelfth article must be held to have operated to destroy the manifest intention of the Government at the time to provide homesteads for white settlers and the manifest intention of
The thing the Government did do in taking over the six reservations was to give a money consideration for the cession of these lands to the United States, and then, by way of grace, provide that, because of past good conduct, the Mille Lacs should not be compelled to remove so long as they should not in any way interfere with or molest the persons or property of the whites who might come on the reservation by the permission of the Government.
Why should the Government stipulate in the proviso that if the band remained they should neither interfere with nor molest the persons and property of the whites if the Government, by necessary implication from the language used, had not reserved the right to place whites somewhere on the reservation? Certainly at the time of the treaty there were no whites there, because the reservation up to the promulgation of the agreement was Indian country. Such whites as may have unlawfully come in as trespassers on the reservation before the treaty was made were without the protection of the Government and continued without protection of any kind until opportunity was afforded to each white person unlawfully there to have entry by Government permission.
By the treaty, 16 Stat, 707, under which the case of the California & Oregon Land Co. v. Worden, supra, was decided there was a proviso that “ within the country ceded a tract of land was set apart as a residence for the tribe making cession to be held and regarded as an Indian reservation.” As to the land thus reserved and expressly declared to be a reservation, the right of occupancy originally in those who made the cession of a large tract remained precisely the same after the treaty as before the cession for the small tract reserved for residence purposes. The case at bar is entirely different. Here the privilege of remaining on the premises did not have the effect of perpetuating the right of the Mille Lacs to the 61,000 acres, because of the stipulation necessarily implied that the whites who might be put on such part of
In United States v. Cook, 19 Wall., 591, the Government by treaty with the Menomonees, 7 Stat., 344, paid $20,000 for a cession of land. The Oneidas, to whom a part of the Menomonee cession had been apportioned, ceded to the United States all the lands set apart to them except a small tract to each individual, which they reserved to themselves ■to be held as other Indian lands. A small number of the occupants cut timber from a part of the reservation not occupied in severalty, which they removed and sold to Cook. Beplevin by the United States against Cook was brought to recover possession of the timber which had been converted into saw logs. Following the early case of Johnson v. McIntosh, 8 Wheat., 574, the Supreme Court held that, for the purposes of agriculture, tribes as occupants might clear the lands of the timber to such an extent as might be reasonable. But the improvement of the land to justify any cutting of the timber must be done in good faith, as the improvement was the principal thing and the cutting of the timber the incident only. The court further held that the severance of timber for purposes of improvement only was a legitimate use, but that if timber should be severed for purposes of sale the cutting would be wrongful and the timber when cut would become the absolute property of the United' States.
If the Mille Lac Band in the present case had cut timber for sale upon the faith of their right to remain as occupants such timber would instantly have become the property of the United States, discharged of any Indian rights conferred by the privilege given to remain, because the fee to the land was in the Government. As by the privilege to remain the Mille Lac Band could not acquire any such right in the timber as to justify the court in rendering a judgment in
By the act of March 3, 1865, 13 Stat., 541, appropriations were made for fulfilling the stipulations of the treaty of May 7, 1864, including appropriations for removal and subsistence. Thereafter appropriations were made annually for the benefit of the tribes, including plaintiffs, pursuant to the same treaty. (14 Stat., 273, 496; 15 Stat., 202; 16 Stat., 19, 339, 549; 17 Stat., 169, 443.)
Subsequently another treaty between the United States and the Chippewas of the Mississippi was proclaimed April 18, 1867, 16 Stat., 719, whereby the Chippewas received large benefits pursuant to the scheme of removal.
On March 31,1884, out of 61,028.14 acres contained in the former Mille Lac Reservation 55,976.42 acres had been entered under the general land laws, of which 7,792.16 acres had been patented.
As further showing the intent of the Mille Lac Band, 25 had removed to White Earth prior to 1872, and by May 10, 1882, nearly 400 had removed to the latter reservation. (H. Doc. 1388, 60th Cong., 1st sess., pp. 8, 12.) Prior to December 1, 1886 (as previously stated), not more than 200 of the Mille Lacs remained to avail themselves of the privilege of remaining, and but few of these lived on their former reservation permanently. (Report of Commissioners, Sen. Ex. Doc., 115, 49th Cong., 2d sess., p. 21.) On August 30, 1902, there were 125 male adults on the old Mille Lac Reservation, and quite a number of these had received allotments on the White Earth Reservation. On January 31, 1911, there were 174 of the Mille Lacs scattered around on the former reservation. (Report of Commissioner Hall.) The endeavor on the part of the Government in the latter part of the year 1886 was not really an effort to remove from the old Mille Lac Reservation any of the band, because, as hereinbefore shown, but 200 of the entire band had not removed to their new homes on the White Earth Reservation. The 200 unprovided for were, according to official reports, scattered through the country south of the reservation, and the efforts of the Government to remove the remnant of the band were principally
The allotments of land came under the provisions of a treaty with the Chippewa Indians proclaimed April 18,1867, and certain acts of Congress relating to such Indians. On February 8, 1887, Congress passed an act “ to provide for the allotment of lands in severally to Indians on the various reservations.” This act was amended February 28, 1891. Then followed amending acts unecessary to be stated. Then came the act of April 28, 1904, entitled “An act to provide allotments to Indians on White Earth Reservation in Minnesota.” This was known as the Steenerson Act.
By an act approved May 27, 1902, 32 Stat., 268, the sum of $40,000 was appropriated to pay the Mille Lac Band for improvements made by them on their former reservation upon an appraisement by the Secretary of the Interior; but there was a provision that anyone of them who had leased or purchased any Government subdivision of land within the old reservation from or through a person having title from the Government should not be required to move. Thus it appears that the individuals of the Mille Lac Band were treated fairly and justly by the Government throughout, because every member of the band had the privilege of staying* there by purchase, as the land was opened up for public settlement. Then they were given equal rights in the lands provided for the other Chippewas. The band also acquired rights in the- timber to be sold from the new reservations which had been provided by the Government for all the Chippewas. The band participated in the annuities allowed by the treaties of 1868 and 1864 for purposes of subsistence, and if its members did not avail themselves of the benefit of schools, blacksmith shops, agricultural implements, and other advantages growing out of the removal to the White Earth Reservation it was their neglect or improvidence, as by removal they could have had these benefits at any time they desired to share in such advantages.
The improvements at the time the appraisement was made were practically of no value, and were assessed at what they
The clause in the agreement that nothing contained therein should be construed to deprive said Indians of any benefits to which they might be entitled under existing treaties or agreements not inconsistent with agreement then entered into, or the act of May 27, 1902, is the same provision which has been inserted in every agreement made with Indians, since 1896, and has no special significance in this agreement.
(3) My third objection to the judgment is that it represents the value of the Mille Lac Reservation itself and not the value of the right of occupation given to the small band who claimed the right to remain. The judgment does not inure strictly to the benefit of the Mille Lac Indians, nor is it yet restricted to the benefit of the Chippewas of the Mississippi, who held title to the reservation prior to its cession to the United States in 1864, but does provide for all the Chippewas of Minnesota. Most of the Minnesota Chippewas never at any time had any interest in the Mille Lac Reservation. The Lake Superior, Red Lake, and Pembina Bands certainly had no interest. None of these had any interest in the occupation by the Mille Lac Band, who were of the Mississippi Chippewas.. The treaty of September 30, 1854, supra, discloses that the Chippewas of Lake Superior and the Chippewas of the Mississippi had partitioned their land in Minnesota between themselves, the Lake Superior people acquiring lands east of a defined boundary and the Chippewas of the Mississippi acquiring the lands west of that boundary. The treaty of February 22,1855, supra, discloses that the Chippewas of the Mississippi ceded their lands west of the defined boundary line to the United States, out of which five reservations were set apart for their use, to be held in common— the Gull Lake, Sandy Lake, Rabbit Lake, Pokamogin Lake, and Rice Lake Reservations; and another, also to be held in common, the Mille Lac Reservation, which had been ceded by the Chippewas, prior to the partition of their lands, by the treaty of July 29, 1837, supra.
The beneficiaries in the judgment are principally those Indians who were guilty of the outbreak in 1862. Thus the
The claims of the Chippewa Indians for compensation arising from an alleged difference in area of the reservation as actually set apart for them and that provided to be set apart under treaty with the Chippewas of Lake Superior and the Mississippi was heard by this court by virtue of a special jurisdictional act to determine the difference between the area actually set apart to the Fond du Lac Band and that pi’ovided to be set apart in the treaty there mentioned to that band, 34 C. Cls. R., 431. The question in that case involved the acceptance by that band of the terms of the later act of 1889. The Mille Lac Band was given equal rights in and to the lands and timber provided for the Fond du Lacs and other Chippewas besides the reservation to the Mille Lacs of their right to separate allotments. It would now seem that the act of 1889 settled adversely the rights of all the parties declared by the majority of this court to be entitled to share in- the present judgment. The other Chippewas of Minnesota, including the Fond du Lac Band, certainly have no further claim growing out of the occupancy by the Mille Lac Band of the old reservation.
Undoubtedly the Congress have the power at will to make such payment for Indian claims within the category of rights as may seem meet to the Legislature, as well as the right to pay demands by way of gratuity. But when a claim has been presented to a court having jurisdiction and the right of such claimant has been determined by the entry of judgment the right involved in the matter as a claim strictly speaking is res judicata.
But whether the rights of all or any of the Chippewas have or have not been adjudicated under the treaty of 1889 the later acts negative the contentions of all the parties (including the Mille Lac Band) to any further lands or to any other and further compensation for the value of such lands as are not now in their possession.
