19 Wis. 159 | Wis. | 1865
Lead Opinion
By the Court,
The title to lot forty-three in the
It is proved or admitted in this case, that, in pursuance of the provisions of this act, the commissioners allotted the lands, and caused reports of their proceedings to be filed, and transmitted a copy thereof to the President of the United States, within the time therein specified, and that lot forty three was allotted to Jonas Thompson, one of the Indians.
By an act of Congress approved August 6, 1846, the act of 1843 was repealed, and the Stockbridge tribe of Indians restored to their tribal government and rights; and provision was made for such as desired to become and remain citizens of the United States, to register their names within three months. After that time the township was to be divided into two parts, one known as the Indian District, the other as the Citizen District, according to the strength and number of the respective parties. The lands in the Indian District were to remain and be held in common, those in the Citizen District to be divided, and each Indian who became a citizen was to have his ratable propor'tion of land, for which a patent was to be issued vesting the title in fee simple in the patentee.
There is no proof that anything was ever done under this act, and the treaties of 1848 and 1866 made with these Indians furnish presumptive proof that both the Citizen party and the Indian party were dissatisfied with and embarrassed by it, and refused to carry into effect its provisions.
On the 10th day of November, 1848, Jonas Thompson, the allottee of the lot 43 under the act of 1843, conveyed the lot to John Brown by warranty deed, under whom the defendant below, apellant in this court, claims ; and on the 24th day of November, fourteen days after conveying the lot, a treaty was executed between the tribe and the United States, and in the roll or census of those who compose the tribe and renounce all benefit of the act of 1843 is found the name of Jonas 'Thompson. This treaty, in its preamble, recites that it has
This tribe being still dissatisfied, and' many of its members refusing to move to lands beyond the Mississippi, as they agreed to do by the treaty, on the 5th day of February, 1856, another treaty was made with them, by which they jointly and severally ceded to the United States all their remaining interest in the lands at the town of Stockbridge; and the thirteenth article of this treaty provides that the Secretary of the Interior might examine into the sales made by the Stockbridge Indians to whom lots of land were allotted under the act of 1843, and if they were improperly made, or without a proper consideration, they might be set aside, and patents might be issued for such lands, and to such persons as the secretary should find entitled to the same. And the fourteenth article provides that “ the lots of land the equitable title to which shall be found not to have passed by valid sales from the Stockbridge Indians to purchasers, and such lots as have by the treaty of 1848 been receded to the United States, shall be sold at the mini
The counsel for the appellant contends that by the act of 1843, as soon as the report of the commissioners showing the allotment of the lands had been transmitted to the President, the members of the tribe became and were citizens of the United States, and that the title to the lands allotted vested in the parties to whom they were respectively allotted, in fee simple ; that the issuing of the patents was a mere ministerial act, and was unnecessary to vest the title; that the parties took as grantees under the act of Congress without patents; that the act of 1846, repealing the act of 1843, could not. divest the title thus acquired; and even if it did, that the title was restored and confirmed by the treaties to all the allottees who had accepted the lands allotted to them, and to their assigns; that the spirit of the acts and the treaties taken together is to fully protect purchasers in good faith from the Indians of any lands allotted to them, and which they had conveyed before the making of the treaty of 1848; and that inasmuch as Thompson, to whom the land in question- was allotted, conveyed it before the execution of the treaty, the appellant is protected. This position has been maintained with great ability, and with reasoning that is very plausible, if not sound. We are inclined to the opinion that the position is tenable. But owing to the view we have taken of the title of the plaintiff below, it is unnecessary for us to pass upon the title of the defendant. The plaintiff must recover upon the strength of his own title. He claims title under the act of Congress of August 8, 1846, by which the United States granted to the state of Wisconsin “ a
The act of Congress of August 3, 1854, authorized the' governor of the state of Wisconsin to select the balance of the lands to which the state was entitled under the provisions of the act of 8th August, 1846, out of any of the unsold public lands subject to private entry at $1.25 per aere, and not subject to preemption. The land in question could not be selected under this act, for it was not subject to entry at the price therein specified.
The counsel for the respondent insists that the exceptions to the finding of the circuit court are not such as to enable the court to review the evidence. It is immaterial whether they are or not. The facts found do not show title to the land in the plaintiff, or warrant the conclusion of law of the circuit court, that the plaintiff below owned the land in fee simple. All the material facts proved are in the finding, and no exceptions were necessary.
We come to the conclusion that the title to the lands did not vest in the state under and by virtue of either of the acts of Congress, and consequently the plaintiff below had no title:
A motion for a rehearing was made in this cause, which was disposed of at the June Term, 1865, as follows :
Rehearing
By the Court,
On a motion for a rehearing, the majority of the court are of opinion that the case is rightly decided on the first point in the opinion, and overrule the motion.