296 N.W. 645 | Wis. | 1941
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *312
Ralph Tucker was charged with violation of sec.
The facts are not in dispute. Defendant is an enrolled member of the Menominee tribe of Indians and lives on the Menominee reservation, which is an unallotted reservation in tribal ownership. He was arrested on a portion of State Highway No. 47, which was entirely within the boundaries of the reservation. He operated his truck solely upon this portion of the highway. State Highway No. 47 was established across the reservation by permission of the secretary of the interior given pursuant to sec. 4, ch. 832, Act of March 3, 1901 (31 U.S. Stats. at L. p. 1084). The truck and trailer were the property of defendant and had never been registered in the office of the secretary of state as required by sec.
It was held in State v. Rufus,
"The secretary of the interior is hereby authorized to grant permission, upon compliance with such requirements as he may deem necessary, to the proper state or local authorities for the opening and establishment of public highways, in accordance with the laws of the state or territory in which the lands are situated, through any Indian reservation or through any lands which have been allotted in severalty to any individual Indian under any laws or treaties but which have not been conveyed to the allottee with full power of alienation."
Title 25, Code of Federal Regulations, sec. 256.53, a regulation of the United States department of the interior, relating to opening highways through Indian reservations, requires the assessment of damages and benefits in all such cases and the approval of the secretary of the interior to such schedules of assessments. By article 2 of the treaty with the Menominee Indians, as ratified January 23, 1849, 9 U.S. Stats. at L. p. 952, the tribe sells and relinquishes to the United States all their lands in the state of Wisconsin. By article 2 of the treaty with the Menominee Indians, dated May 12, 1854, 10 U.S. Stats. at L. p. 1064, the United States agrees in return for cession of the lands to give the Indians certain described lands for a home. Article 3 of the treaty with the Menominee Indians, ratified April 18, 1856, 11 U.S. Stats. at L. p. 679, provides: "That all roads and highways, laid out by authority of law, shall have right of way through the lands of the said Indians on the same terms as are provided by law for their location through lands of citizens of the United States." It is conceded that the grant to the state did not include the fee title to the lands over which a right of way was given, and the question is whether a grant of less than a fee was effective to destroy the Indian title. *315
It is first necessary to determine the nature of this title. In Johnson v. M'Intosh, 8 Wheat. 543,
"The Indian title or right of occupation was extinguished, without reservation; and the relinquished strip came under the jurisdiction of the . . . state of Montana. It was not `unappropriated public land,' or land `owned or held by any Indian or Indian tribe.'" *317
See also United States v. Denver Rio Grande R. Co.
The case must relied on by defendant is United States v.Soldana,
We conclude that a grant by the United States to the state of Wisconsin of a right of way to construct and maintain a public highway must, in the absence of express declaration to the contrary, be assumed to vest the state with such control of the highway as is usual and necessary to the construction and maintenance of such a highway; that such a grant extinguishes the right of occupancy in the Menominee Indians, commonly referred to as Indian title, at least to the extent necessary to vest such jurisdiction and control; that while so maintained, the highway ceases to be Indian land; and that the rights of the Indians to use the highway are the same as those of the general public and subject to the same regulations and restrictions. It follows that the trial court had jurisdiction of the offense, and defendant was properly convicted.
By the Court. — Judgment affirmed.