[245 U.S. 427, 428] Messrs. J. C. Thompson and R. A. Hollister, both of Oshkosh, Wis., for State of Wisconsin.
Mr. C. Edward Wright, Asst. Atty. Gen., for defendant.
Mr. Justice DAY delivered the opinion of the court.
This is an original suit brought by the state of Wisconsin claiming title under the school land grant to the state to sections 16 in certain townships in the Menominee Indian Reservation, which lands are alleged to belong to the state or its grantees. 1 The bill seeks to enjoin the defendant, the Secretary of the Interior, and through him the Indian occupants of the land, from cutting timber [245 U.S. 427, 429] or committing waste thereon. The townships in controversy are Nos. 29 and 30 in ranges 13, 14, and 15; township 29 in range 16; township 28 in ranges 15 and 16. These townships are all included in the treaty reservation of 1854, and those in ranges 15 and 16 also in the reservation of 1852, which treaty and reservations are hereinafter considered.
The question to be decided is whether the school land grant shall prevail over the rights of the Indian occupants.
The Enabling Act of Wisconsin was approved August 6, 1846 (9 Stat. 56 ). The state was admitted to the Union on May 29, 1848. The Enabling Act ( section 7) provides:
As to the rights of the Indians, it appears that they had occupied a large territory in the state of Wisconsin, and by various treaties, not necessary now to be dwelt upon, had made cessions to the United States. In 1848 the Indians made a treaty ceding the remainder of their lands in Wisconsin to the United States, for which they received lands farther west and the sum of $350,000. This treaty was ratified January 23, 1849. By its terms the Indians were permitted to remain on the ceded lands for two years from October 18, 1848, and until notified by the President that the same were wanted. The Indians did not remove to the West, and in August, 1850, petitioned the President for leave to remain on some of the ceded lands. In their petition the Indians set forth the unsatisfactory character of the lands granted to them in the West, and their desire to remain in Wisconsin. On September 5, 1850, the President gave the Indians permission to remain upon the ceded lands until June 1, 1851; this time was [245 U.S. 427, 430] subsequently extended by the President to October 1, 1852. On September 30, 1851, the local Superintendent of Indian Affairs reported to the Commissioner of Indian Affairs that in pursuance of instructions he had explored the country on the Wolf and Oconto rivers in Wisconsin for a location for the Menominee Indians, and for that purpose recommended a rectangular tract of land; this tract of land was to commence at the southeast corner of township 28 on the range line between 19 and 20 and run west 30 miles, north 18 miles, and thence back east and south to the place of beginning. The tract embraced 18 townships, 6 of which on the west are included within the limits of the lands described in the treaty of 1854, hereinafter referred to.
On August 30, 1852, Congress appropriated money for the removal of the Indians to the lands designated by the Superintendent. 10 Stat. 41, 47. On November 30, 1852, the Commissioner of Indian Affairs reported to the Secretary of the Interior that the removal of the Menominee Indians, as contemplated by the act of Congress passed the preceding session, had been satisfactorily effected, and that the whole tribe had been concentrated on the designated territory between the Wolf and Oconto rivers, a location with which they were well pleased, and on which they were anxious to be permitted to remain permanently.
On February 1, 1853, the state of Wisconsin by joint resolution of its Legislature gave its assent to this removal, in the following terms:
Laws Wis. 1853 (Joint Resolutions) p. 110, c. 1.
On November 26, 1853, the Commissioner of Indian Affairs made a report in which he said that by the treaty of 1848 the removal of the Menominee Indians to a place west of the Mississippi River was contemplated, but that it was thought preferable to concentrate them on the Upper Wolf and Oconto rivers in the state of Wisconsin, and suggested, among other things, that the Indians could properly remain where they were for many years, without interference with the white population, suggesting, however, that if such arrangement were to be of a permanent character, a new convention should be made with them, which would be necessary for their relinquishment of the country given to them by the treaty of 1848. This recommendation probably gave rise to the treaty of 1854, by which the Indians, for the recited purpose of acquiring the new lands for a permanent home, agreed to relinquish to the United States all lands assigned to them by the treaty of October 18, 1848; in consideration of which cession the United States agreed to give to the Indians for a home, to be held as Indian lands are held, 'that tract of country lying upon the Wolf river, in the state of Wisconsin, commencing at the southeast corner of township 28 north of range 16 east of the fourth principal meridian, running west 24 miles, thence north eighteen miles, thence east twenty- four miles, thence south eighteen miles, to the place of beginning, the same being townships 28, 29 and 30, of ranges 13, 14, 15 and 16, according to the public surveys.' This tract embraced six of the townships included in the Indian reservation of 1852, and six townships to the west thereof. The sixteenth sections in five of the former and four of the latter are here in controversy. [245 U.S. 427, 432] It appears that as to three of these townships the surveys were not approved until February 20, 1854, and as to the other townships the surveys of two were approved October 11, 1854, and of the others on dates ranging from February 6, 1855, to October 9, 1891
It is evident from a consideration of the terms of the Enabling Act ( section 7), that Congress did not make an unconditional grant in praesenti to the state of the school sections; the terms of the grant are that the sections 'shall be' granted. Moreover, the grant contemplated that Congress might make other disposition of the lands. The state of Wisconsin's right to the lands in controversy was to be subordinate to such disposition; in which event the state should seek indemnity in other lands for the loss of school sections.
The Menominee Indians by the treaty of 1848 gave up their holdings in Wisconsin, but were not removed to the lands provided for them in the West. They had the privilege of remaining in Wisconsin for two years, and until notified by the President that the lands were wanted; this permission was extended, ultimately until October, 1852; in the meantime the Indians were located by the action of the Superintendent of Indian Affairs, and by the act of Congress, with the approval of the President, upon the reservation created in 1852. True, the act of Congress appropriating money for the removal referred to the temporary character of the location, but they were thus located subject to the control of Congress, and, as we have seen, with the consent of the state, if that were needed.
We think this recited action was a disposition, prior to survey, of the school sections, which was clearly within the authority of Congress to make and sanctioned by the terms of section 7 of the Enabling Act. This action being before survey took these lands out of the scope of the grant for school purposes, and made them subject [245 U.S. 427, 433] to ultimate disposition by Congress for the benefit of the Indians. This was accomplished by the treaty of 1854, which adds to the reserved lands six townships on the west and includes the six westerly townships of the reservation of 1852. That treaty is comprehensive in its terms, it recites the unwillingness of the Indians to remove to the lands provided for them to the west of the Mississippi River, and sets forth the purpose to exchange those lands for the lands desired by the tribe for a permanent home. To that end the Menominee Indians agreed to cede, and did cede, to the United States all lands assigned to them under the treaty of October 18, 1848, and in consideration of this cession the United States gave to the Indians, for a home to be held as Indian lands are held, the lands described in the treaty, in the 12 townships to which we have referred. The occupancy and rights of the Indians so established have never been terminated, but still continue.
In view of these statements of fact, and the purposes of the government and the Indians in the transactions referred to, we regard the case as controlled by the decision of this court in United States v. Morrison, 240 U.S. 192 , 36 Sup. Ct. 326, which deals with a similar grant of lands for school purposes to the state of Oregon. In that case the previous decision of this court were reviewed, and in concluding the discussion of the effect of such school land grants this court said:
The principles, thus stated, are applicable here. In our view the lands were otherwise disposed of by the Indian reservation of 1852 and the treaty of 1854. As we have seen, these dispositions were made before final approval of the surveys identifying sections 16.
It is insisted that this conclusion is inconsistent with the decision of this court in Beecher v. Wetherby, 95 U.S. 517 . The same contention as to the effect of that decision was made in the Morrison Case, supra, and of it this court said:
See Heydenfeldt v. Daney Gold & Silver Mining Co., 93 U.S. 634 ; United States v. Thomas, 151 U.S. 577 , 14 Sup. Ct. 426; [245 U.S. 427, 436] Minnesota v. Hitchcock, 185 U.S. 375 , 22 Sup. Ct. 650; Wisconsin v. Hitchcock, 201 U.S. 202 , 26 Sup. Ct. 498.
We reach the conclusion that the lands in controversy did not pass under the school lands grant to the state of Wisconsin, and that there should be a decree for the defendant.
It is so ordered.
Mr. Justice McREYNOLDS took no part in the consideration or disposition of this case.
[ Footnote 1 ] NOTE.-The jurisdiction in this case is founded upon the statute set forth in Minnesota v. Hitchcock, 185 U.S. 373, 387 , 22 S. Sup. Ct. 650.