Wisconsin v. Hitchcock, 201 U.S. 202 (1906)

STATE OF WISCONSIN, Complainant,

v.

ETHAN ALLEN HITCHCOCK, Secretary of the Interior

(See S. C. Reporter’s ed. 202-215.)

Pnt>lic lands — school lands — Indian rigrht of occupancy. — The state of Wis¬ consin has not, by reason of the cession for school purposes in the enabling act of August

16th section in every township, not sold of otherwise disposed of, any such interest, pres¬ ent or prospective, in the several 16th sec¬ tions of the lands ceded to the United States by the Chippewa Indians in the treaty of March 23, 1843 (7 Stat. at L. 592), where those Indians have not surrendered the right of occupancy reserved therein, as entitles that state to interfere with the administra¬ tion, by the Interior Department, for the benefit of the Indians, of such sections of the land so ceded as were subsequently included within the tracts set aside as a part of the Bad River or La Pointe, and the Flambeau reservations.

[No. 12, Original.]

Arqued February 21, 1906. Decided April 2, 1906.

ORIGINAL BILL in equity to enjoin the Secretary of the Interior from interfer¬ ing with tlie use, possession, or enjoyment by the state of Wisconsin of certain lands embraced within the Bad River or La Pointe and the Flambeau reservations. Dismissed. The facts are stated in the opinion.

Mr. T. W. Spence argued the cause, and, with Mr. L. M. Sturdevant, filed a brief for complainant:

The privilege of temporary Indian occu¬ pancy was destroyed and terminated by the mere act of admitting the state into the Union.

Ward v. Race Horse, 163 U. S. 504, 41 L. ed. 244, 16 Sup. Ct. Rep. 1076.

The state being prior in right, the subse¬ quent survey perfected and completed its title as against subsequent promises of the government to the Indians.

Beecher v. Wetherby, 95 U. S. 524, 24 L. ed. 441.

The obligation of the United States re¬ specting relief invoked is sufficient to en¬ able it to maintain an action to revoke a

SOI u. s.

patent, and no reason is apparent why the same rule should not apply to a state.

United States v. San Jacinto Tin Co. 125 U. S. 273, 31 L. ed. 747, 8 Sup. Ct. Rep. 850; United States v. Beebe, 127 U. S. 338, 32 L. ed. 121, 8 Sup. Ct. Rep. 1083.

Mr. A. C. Campbell argued the cause, and, with Mr. Frank L. Campbell, filed a a brief for defendant:

The words of an Indian treaty are to be construed as they were understood by the Indians, and not to their prejudice.

Worcester v. Georgia, 6 Pet. 515, 582, 8 L. ed. 483, 508; Choctaw Nation v. United States, 119 U. S. 1, 28, 30 L. ed. 306, 315, 7 Sup. Ct. Rep. 75; Minnesota v. Hitchcock, 185 U. S. 373, 396, 46 L. ed. 954, 966, 22 Sup. Ct. Rep. 650; United States v. Rick- ert, 188 U. S. 432, 443, 47 L. ed. 532, 538, 23 Sup. Ct. Rep. 478; Re Heff, 197 U. S. 488, 499, 49 L. ed. 848, 853, 25 Sup. Ct. Rep. 506; United States v. Winans, 198 U. S. 371, 380, 381, 49 L. ed. 1089, 1092, 1093, 25 Sup. Ct. Rep. 662 ; Francis v. Francis, 136 Mich. 288, 99 N. W. 14.

The grant describes and is confined to public lands. Lands are not public unless they are subject to sale or other disposal under the general land laws. They are not subject to sale and disposal under such laws il‘, at the date of the grant, they are burdened with an Indian right of occu¬ pancy. Nor are they public lands, as the term is understood, until surveyed into townships and designated by sections.

Newhall v. Sanger, 92 U. S. 761, 763, 23 L. ed. 769, 770; Leavenworth, L. d O.

R. Co. v. United States, 92 U. S. 733, 741, 23 L. ed. 634, 637 ; Missouri, K. d T. R. Co. v. Roberts, 152 U. S. 114, 119, 38 L. ed. 377, 380, 14 Sup. Ct. Rep. 496; Northern P. R. Co. v. Musser-Sauntry Logging d Mfg. Co. 168 U. S. 604, 609, 42 L. ed. 596, 598, 18 Sup. Ct. Rep. 205; Re Thompson, 32 Land Dec. 468.

No title to sections mentioned in a school grant vests in a state until the same are identified by a public survey.

Gaines v. Nicholson, 9 How. 356, 365, 13 L. ed. 172, 176; Cooper v. Roberts, 18 How. 173, 179, 15 L. ed. 338, 340; Sherman v. Buick, 93 U. S. 209, 214, 215, 23 L. ed. 849-851; Heydenfeldt v. Daney Gold d

S. Min. Co. 93 U. S. 634, 640, 23 L. ed. 995, 996; Beecher v. Wetherby, 95 U. S. 517, 524, 24 L. ed. 440, 441 ; Natoma Water d Min. Co. v. Bugbey, 96 U. S. 165, 167, 24 L. ed. 621, 622; Minnesota v. Hitchcock, 185 U. S. 373, 393, 46 L. ed. 954, 965, 22 Sup. Ct. Rep. 650; Bullock v. Rouse, 81 Cal. 591, 22 Pac. 919; Re Colorado, 6 Land Dec. 412; Barnhurst v. Utah, 30 Land Dec. 314; Re Mahoganey No. 2 Lode Claim, 33 Land Dec. 37.

727

Supreme Court of the United States.

Oct. Tebh-

Sections of land contemplated by a school grant, which, while unsurveyed, fall within an Indian reservation, are subject to the Indian right of occupancy; and, un¬ til such occupancy has been extinguished, such sections are in suspension.

Cherokee 'Nation v. Georgia, 5 Pet. 1, 48,' 3 L. ed. 25, 42; Wilcox v. Jackson, 13 Pet. 498, 513, 10 L. ed. 264, 271; Gaines v. Nicholson, 9 How. 356, 364, 365, 13 L. ed. 172, 176; United States v. Cook, 19 Wall. 591, 593, 22 L. ed. 210, 211; Leavenworth, L. d G. R. Co. v. United States, 92 U. S. 733, 742, 743, 745, 23 L. ed. 634, 638, 639; Beecher v. Wetherby, 95 U. S. 517, 526, 24 L. ed. 440, 441 ; Buttz v. Northern P. R. Co. 119 U. S. 55, 66, 70, 71, 30 L. ed. 330, 334, 336, 7 Sup. Ct. Rep. 100; Bardon v. North¬ ern P. R. Co. 145 U. S. 535, 538, 539, 36 L. ed. 806, 809, 12 Sup. Ct. Rep. 856; United States v. Thomas, 151 U. S. 577, 582-584, 38 L. ed. 276, 278, 279, 14 Sup. Ct. Rep. 426; Missouri, K. d T. R. Co. v. Roberts, 152 U. S. 114, 116-121, 38 L. ed. 377, 379, 380, 14 Sup. Ct. Rep. 496; Spalding v. Chandler, 160 U. S. 394, 402-405, 40 L. ed. 469, 472, 473, 16 Sup. Ct. Rep. 360; Pine River Logging d Improv. Co. v. United' States, 186 U. S. 279, 284, 46 L. ed. 1164, 1167, 22 Sup. Ct. Rep. 920; Minnesota v. Hitchcock, 185 U. S. 373, 388, 389, 46 L. ed. 954, 963, 22 Sup. Ct. Rep. 650 ; Barker v. Harvey, 181 U. S. 481, 490-492, 45 L. ed. 963, 96S, 969, 21 Sup. Ct. Rep. 690; United States v. Rickert, 188 U. S. 432, 437, 441, 47 L. ed. 532, 536, 537, 23 Sup. Ct. Rep. 478; Scott v. Carew, 196 U. S. 100, 109, 111, 49 L. ed. 403, 405, 406, 25 Sup. Ct. Rep. 193; United States v. Winans, supra; Northern P. R. Co. v. Maclay, 9 C. C. A. 609, 15 U. S. App. 438, 61 Fed. 554; Gib¬ son v. Anderson, 65 C. C. A. 277, 131 Fed. 39; Buster v. Wright, 68 C. C. A. 505, 135 Fed. 947 ; United States v. Blendaucr, 122 Fed. 703; Francis v. Francis, 136 Mich. 288, 99 N. W. 14; Re Colorado, supra; Callanan v. Chicago, M. & St. P. R. Co. 10 Land Dec. 285; Re Sherry, 12 Land Dec. 176; Re Louisiana, 17 Land Dec. 440; Re Wis¬ consin, 19 Land Dec. 518; Re Minnesota, 28 Land Dec. 374.

If, at the time of the public survey, a tract of land contemplated by a school grant is encumbered by a right of occupan¬ cy in an Indian tribe, the state may elect to take equivalent lands, or it may wait until such right of occupancy has been ex¬ tinguished, and take the land contemplat¬ ed.

Minnesota v. Hitchcock, 185 U. S. 373, 392, 393, 46 L. ed. 954, 965, ^2 Sup. Ct. Rep. 650; Re Colorado, supra; Re Colorado, 12 Land Dec. 70; Re Louisiana, supra.

If, at the date of a school grant" to a

728

state, the sections are not identified by the government survey, and are within an In¬ dian reservation, Congress is not obliged to transform them from their original status, and may dispose of them ter other purposes.

Minnesota v. Hitchcock, 185 U. S. 373, 393, 394, 46 L. ed. 954, 965, 22 Sup. Ct. Rep.

It is not necessary that the treaty pro¬ viding for a reservation should describe the particular tract to be thereafter occu¬ pied by the Indians, nor is it necessary that a particular tract be designated for that purpose by Congress or by the President. If, after the treaty is signed, the Indians occupy a particular tract without objection by, or interference from, the government, such tract is a reservation to the same ex¬ tent as though it had been specifically desig¬ nated by the treaty.

United States v. Carpenter, 111 U. S. 347, 349, 28 L. ed. 451, 452, 4 Sup. Ct. Rep. 435; Spalding v. Chandler, AGO U. S. 394, 404, 40 L. ed. 469, 473, 16 Sup. Ct. Rep. 360; Minnesota v. Hitchcock, 185 U. S. 373, 390, 391, 46 L. ed. 954, 963, 964, 22 Sup. Ct. Rep. 650; Re Minnesota, 22 Land Dec.

A treaty which provides for a reservation for the Indians is a grant of rights from, and not to, them, and a retention to them of rights not granted.

United States v. Winans, 198 U. S. 371, 381, 49 L. ed. 1089, 1092, 25 Sup. Ct. Rep.

The Secretary of the Interior, under the direction of the President, has the power, and it is his duty, to prevent intrusion upon Indian reservations, and to remove intruders therefrom.

Morris v. Hitchcock, 194 U. S. 384, 391, 392, 48 L. ed. 1030, 1033, 1034, 24 Sup. Ct. Rep. 712; United States v. Mullin, 71 Fed. 682; Eells v. Ross, 12 C. C. A. 205, 29 U. S. App. 59, 64 Fed. 417 ; Beck v. Flournoy Live-Stock d Real Estate Co. 12 C. C. A. 497, 27 U. S. App. 618, 65 Fed. 30, 163 U. S. 686, 41 L. ed. 305, 16 Sup. Ct. Rep. 1201; Pilgrim v. Beck, 69 Fed. 895; Maxey v. Wright, 3 Ind. Terr. 243, 54 S. W. 807, 23 Ops. Atty. Gen. 218.

Where a treaty with an Indian tribe, or an act of Congress, provides that an Indian reservation shall be allotted to the Indians in severalty, the Secretary of the Interior, pending allotment, has jurisdiction over the reservation, and the power to remove in¬ truders therefrom, and the courts will not interfere with his action in respect to allot¬ ment, or with the exercise of his power to remove intruders.

Morris v. Hitchcock, supra; Brown v. Hitchcock , 173 U. S. 473, 477, 43 L. ed. 772. 774, 19 Sup. Ct. Rep. 485; New Orleans v.

201 TJ. S.

Paine, 147 U. S. 261, 264, 267, 37 L. ed. 162, 163, 164, 13 Sup. Ct. Rep. 303.

Mr. Justice Harlan delivered the opinion of the court:

The state of Wisconsin seeks by this suit to enjoin the defendant, as Secretary of the Interior, from interfering, in anywise, with its use, possession, or enjoyment of certain lands, embraced within the present La Pointe or Bad River and the Flambeau In¬ dian reservations in that state.

*The state traces its title back to the act of Congress of August 6th, 1846, authorizing the people of Wisconsin territory to form a state constitution, and providing for the admission of such state into the Union. 9 Stat. at L. 56, chap. 89.

The defendant, Hitchcock, as Secretary of the Interior, demurred to the bill upon the ground, among others, that it did not appear that the state was entitled to the relief asked.

The general question is whether the state has such interest, present or prospective, in the lands in dispute, as to preclude their being administered by the Secretary of the Interior for the benefit of certain Indians.

The case, as presented by the record and by official documents of which judicial notice may be taken, is as follows:

On the 23d day of March, 1843, by a treaty between the United States and the Chippewa Indians of “the Mississippi and Lake Superior,” the latter ceded to the Unit¬ ed States all the country embraced within a specified boundary, including the lands here in controversy. The second and third articles of that treaty provided: “Art. 2. The Indians stipulate for the right of hunt¬ ing on the ceded territory, with the other usual privileges of occMpancy, until required to remove by the President of the United States, and that the laws of the United States shall be continued in force, in respect to their trade and intercourse with the whites, until otherwise ordered by Congress. Art. 3. It is agreed by the parties to this treaty that whenever the Indians shall be re¬ quired to remove from the ceded district, all the unceded lands belonging to the In¬ dians of Fond du Lac, Sandy Lake, and Mis¬ sissippi bands shall be the common property and home of all the Indians party to this treaty.” [7 Stat. at L. 592.] In con¬ sideration of the above cession the United States (art. 4) engaged to pay the Indians annually for twenty-five years certain sums ; and this consideration for the ceded lands was paid by the United States. Revision of Indian Treaties, 217.

By an act of Congress approved August 6th, 1846, the people of the then territory 201 U. S. U. S., Book 50.

of Wisconsin were authorized to form a con¬ stitution *and state government for the pur-

pose of being admitted into the Union on an equal footing with the original states in all respects whatsoever, with certain speci¬ fied boundaries. The 7th section of that act was as follows: “That the following propo¬ sitions are hereby submitted to the conven¬ tion which shall assemble for the purpose of forming a constitution for the state of Wisconsin, for acceptance or rejection; and if accepted by said convention, and ratified by an article in said constitution, they shall be obligatory on the United States : First. That section numbered sixteen, in every township jf the public lands in said state, and, where such section has been sold or otherwise dis¬ posed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to said state for the use of schools. . .

9 Stat. at L. 57, chap. 89.

The conditions prescribed by the enabling act of 1846 were duly accepted by Wisconsin, and that territory was admitted into the Union as a state by an act of Congress ap¬ proved May 29th, 1848. 2 Charters and Constitutions, 2029 ; 9 Stat. at L. 233, chap.

By a treaty made and concluded Septem¬ ber 30th, 1854, between the United States and the Chippewa Indians of Lake Superior and the Mississippi, and which treaty was proclaimed January 29th, 1855 (10 Stat. at L. 1109), the Chippewas of Lake Superior ceded to the United States the lands there¬ tofore owned by them in common with the Chippewas of the Mississippi within the present boundary of Minnesota and lying east of a certain boundary. The Chippewas of the Mississippi assented to that cession and agreed that the whole amount of the consideration money for the country ceded as above should be paid to the Chippewas of Lake Superior, the latter relinquishing to the Chippewas of the Mississippi all their in¬ terest in and claims to the lands theretofore owned by them in common, lying west of the above boundary line.

The lands described in the first article of the treaty of 1854 are within the present state of Minnesota, and constitute no part of the land embraced in the treaty of 1843.

By the second article of that treaty the United States agreed, *among other things,

to set apart and withhold from sale certain lands for the use of the La Pointe band and such other Indians as might settle with them.

For the other Wisconsin bands, a tract of land was to be set apart and withheld from sale, “lying about Lac du Flambeau, and another tract on Lac Court Oreilles, each equal in extent to three townships, the boun¬ daries of which shall be hereafter agreed up-

205-207

Supreme Court of the United States.

Oct. Teem,

on or fixed under the direction of the Pres¬ ident.” The lands described in that article of the treaty of 1854 to be set apart and withheld from sale “for the La Pointe band” and “for the other Wisconsin bands” were part of the lands ceded to the United States by the treaty of 1843.

The third article of the treaty was in these words: “Article 3. The United States will define the boundaries of these reserved tracts, whenever it may be necessary, by actual survey, and the President may, from time to time, at his discretion, cause the whole to be surveyed, and may assign to •each head of a family or single person over twenty-one years of age eighty acres of land for his or their separate use; and he may at his discretion, ag fast as the occupants become capable of transacting their own affairs, issue patent therefor to such occu¬ pants, with such restrictions of the power of alienation as he may see fit to impose. And he may also, at his discretion, make rules and regulations respecting the disposi¬ tion of the lands in case of the death of the head of a family or single person occupying the same, or in case of its abandonment by them. And he may also assign other lands in exchange for mineral lands, if any such are found in the tracts herein set apart. And he may also make such changes in the boundaries of such reserved tracts or otherwise as shall be neces¬ sary to prevent interference with any vested rights. All necessary roads, highways, and railroads, the lines of which may run through any of the reserved tracts, shall have the right of way through the same, compensation being made therefor as in other cases.”

The bill alleges: “That under the enabling (206] act of Congress ‘aforesaid, and under the state Constitution, and under and in view of the cession of their lands by said Chippe¬ wa Indians, contained in said treaty of 1843, all of the lands surveyed and to be surveyed as sections 16 of the various townships within the territory covered by said treaty vested in the state of Wisconsin, and said state of Wisconsin has at all times hereto¬ fore, since its admission to the Union, claimed a right to the fee of all lands in sec¬ tions 16 in the several townships within said reservations, and, since the sectional survey thereof by the United States, has claimed the actual fee in said sections, and has ■exercised dominion and ownership over the same, and has issued sundry and divers pat¬ ents to divers persons and corporations for portions thereof, sundry of wjiich persons and corporations, grantees of the state as aforesaid, have also exercised acts of owner¬ ship thereof, and have paid taxes and made 730

improvements thereon, and nave cut and hauled timber therefrom until forbidden by orders of the defendant, Ethan Allen Hitch¬ cock, as Secretary of the Interior of the United States, as hereinafter more particu¬ larly mentioned; that patents for all of said sections 16 within said La Pointe reser¬ vation have heretofore -been issued by said state to divers parties, and patents upon about fourteen forties of said sections 16 within said Lac du Flambeau reservation have been issued by said state to divers par¬ ties, and there still remain about twenty- nine forties in said sections 16 within said Lac du Flambeau reservation, the title to which is still in and claimed by said state.

That under the treaty of 1854, aforesaid, and in carrying out its provisions, the said Sec¬ retary of the Interior has proceeded, through the United States Indian Department, to al¬ lot from time to time to the various members of said tribes of La Pointe bands of Indians and to various members o£ the Wisconsin bands on said Lac du Flambeau reservation 80 acres per capita of lands within said res¬ ervations, and has caused patents therefor to be issued to the members of said tribes as individuals, and such members have be¬ come full citizens of the United States, and have terminated their tribal relations, and have ceased to ‘occupy any material part of

said reservation in common. That the lands within said reservation, exclusive of the lands in section 16, are sufficient to secure 80 acres to each individual Indian who has hitherto appeared and claimed a right to an allotment. That no allotment has hith¬ erto been allowed to any member of said tribes of Indians of any land embraced with¬ in any of said sections 16. That beginning about the year 1899, and from thence hither¬ to, the defendant, Ethan Allen Hitchcock, as Secretary of the Interior, and the Com¬ missioner of the Indian Office of the United States, and divers agents and servants under them, have set up on behalf of said La Pointe and other bands of Indians, or the members thereof, a claim of interest or title in and to sections 16 aforesaid in the reser¬ vation townships aforesaid, paramount and adverse to the title of the state of Wisconsin, and have claimed and continue to claim that said sections 16 are still held by the United States in trust for said Indians to the same extent as other lands in said reserved town¬ ships, and have forbidden purchasers of such lands holding patents from the state to enter or make improvements or cut any tim¬ ber thereon, and have thereby cast a cloud upon the title of the state and its grantees to said lands, and have interfered with, and are continuing to interfere with, the use and enjoyment of the same by the owners

201 U. S.

Wisconsin v. Hitchcock.

207, 211-213

thereof. . . . That by chap. 95 of the laws of the state of Wisconsin for the year 1903, approved April 20th, 1903, the attor¬ ney general of the state of Wisconsin was duly authorized to institute proceedings in this court under the provision® of the act of Congress passed March 2d, 1901 [31 Stat. at L. 950, chap. 808, U. S. Comp. Stat. 1901, p. 1384], and hereinbefore referred to, to de¬ termine the rights of said state to what are commonly known as school lands, within any reservation or Indian cession within said state, where any Indian tribe claims any right to or interest in said lands, or to the disposition thereof by the United States, and particularly to determine the title to the lands embraced within sections 16 in the several townships constituting the present Bad River or La Pointe and the Flambeau Indian reservations within said state.”

The state contends that the effect of the

treaty of 1843 was *tliat the Chippewa Indi¬ ans released to the United States all of their claim of title or interest in or to the lands therein described and each and every part thereof, and ceded the same to the United States, which thereupon became the absolute owner thereof free from any claim of said Indians; and that the state, upon its ac¬ ceptance of the conditions prescribed by the enabling act of 1846, and its admission into the Union, became vested with an absolute right in and to all the sections 16 within said territory previously surveyed, as well as to the lands subsequently surveyed by the United States, with the right In the state to have the temporary possession or occupancy of the Indians terminated by the United States.

The determination of the question suggest¬ ed by this contention and the decision of this case is controlled by United Stares v. Thomas, 151 U. S. 577, 38 L. ed. 276, 14 Sup. Ct. Rep. 426. That case involved the rights of the state of Wisconsin in and over certain lands in the Lac Court Oreilles reser¬ vation, as established for the benefit of the Chippewa Indians. Thomas, an Indian of the Chippewa tribe, was indicted for the murder of another Indian of the same tribe, commit¬ ted within the limits of that reservation. The evidence showed that the offense was committed upon section 16, a township embraced in the reservation. The accused contended that, by the provisions of the en¬ abling act by which Wisconsin was admitted into thfe Union, section 16 in every township in that state was ceded to it for school pur¬ poses, and could not be subsequently taken by the United States as part of an Indian reservation. It appeared that previous to the alleged murder, namely, in 1859, the sec¬ tion upon which the crime was committed 201 U. S.

had been settled, platted, and set apart by the United States as a part and parcel of said reservation, and was continuously there¬ after occupied by the Indians as such, al¬ though claimed and sold by the state as and for a part of the school land ceded to it by the act of Congress. By act of Congress, approved March 3d, 1885, chap. 341, 23 Stat. at L. 362, 385, it was provided that Indians committing certain crimes, among them mur¬ der, “against the person or property of another Indian or “other person within the

boundaries of any state of the United States, and within the limits of any Indian reser¬ vation, shall be subject to the same laws, tried in the same courts, and in the same manner, and subject to the same penalties, as are all other persons committing any of the above crimes within the exclusive ju¬ risdiction of the United States.” So the question was distinctly presented as to the relative rights of the state and the Indians in said section 16 within the Indian reserva¬ tion on which the alleged murder was com¬ mitted.

This court, said : “The Indians have never been removed from the lands thus ceded [meaning by the treaty of 1842] and no Executive order has ever been made for their removal, and no change has taken place ill their occupancy of the lands, except as pro¬ vided by the treaty of September 30, 1854 (10 Stat. at L 1109). By that treaty the Chippewas ceded a large portion of their territory, previously retained in Wisconsin and elsewhere, and provision was made in consideration thereof for the formation of permanent reservations for their benefit,, each to embrace three full townships, and their boundaries to be established under the direction of the President. One of these included the tract comprised in the Lac Court Oreilles reservation. In the provision for these reservations nothing was said of the sixteenth section of any townships, and it is clear that it was not contemplated that any section should be left out of any one of them. The land reserved was to be, as near as possible, in a compact form, ex¬ cept so far as the meandering lakes were concerned. When the townships composing these reservations were surveyed, the six¬ teenth section was already disposed of in the sense of the enabling act of 1846. It had been included within the limits of the res¬ ervations. As it will be seen by the treaty of 1842, ratified in 1843, which was' pre¬ vious to the enabling act, the Indians stipu¬ lated for the right of occupancy to the lands.

That right of occupancy gave them the en¬ joyment of the lands until they were re¬ quired to surrender it by the President of the United States, which requirement was

T3l

213-210

Supreme Court of the United States.

Oct. Term,

never made. Whatever right the state of

Wisconsin acquired *by the enabling act to

the sixteenth section was subordinate to this right of occupancy for which the In¬ dians stipulated. . . . The general rule

established by the Land Department in ref¬ erence to the school lands in the different states is that the title to them vests in the several states in which the land is situated, subject to any prior right of occupation by the Indians or others which the government had stipulated to recognize.”

Again : “We therefore are of opinion

that, by virtue of the treaty of 1842, in the absence of any proof that the Chippewa Indians have surrendered their right of occupancy, the right still remains with them, that the title and right which the state may claim ultimately to the six¬ teenth section of every township for the use of schools is subordinate to this right of occupancy of the Indians, which has, so far as the court is informed, never been released to any of their lands, except as it may be inferred from the provisions of the treaty of 1S54. That treaty provided for permanent reservations, which included the section in question. The treaty did not operate to defeat the prior right of oc¬ cupancy to that particular section, but, by including it in the new reservations, made as a condition of the cession of large tracts of land in Wisconsin, continued it in force. The state of Wisconsin, there¬ fore, had no such control over that section or right to it as would prevent its being set apart by the United States, with the consent of the Indians, as a part of their permanent reservation. So, by authority of their original right of occupancy, as well as by the fact that the section is in¬ cluded within the tract set aside as a por¬ tion of the permanent reservation in con¬ sideration of the cession of lands, the title never vested in the state, except as subor¬ dinate to that right of occupation of the Indians.” United States v. Thomas, 151 U. ;S. 577, 582, 584, 38 L. ed. 27G, 278, 279, 14 Sup. Ct. Rep. 426, 428, 429.

It is true that the Thomas Case did not have reference to the particular Indian reservations involved in the present suit, — the Bad River or La Pointe and Flambeau reservations, — but only to the Lac Court

0reilles Indian reservation. But all *three reservations, had their origin alike in the same treaties, — that of 1842, proclaimed in 1843, and that of 1854: and the effect of those treaties was considered in that case in connection with the enabling; act of 1846, under which the state now claims, as it claimed in that case, absolute title to, and full control over, all the sections 16 named in that act. What the court said in the 732

Thomas Case, as to the rights of Indians in virtue of their occupancy of the lands set apart for their use in the Lac Court Oreilles reservation, is strictly applicable to the rights of the Indians who have oc¬ cupied, and, so far as appears, still occupy, the Bad River or La Pointe and Flambeau reservations. We could not sustain the claim of the state in the present suit with¬ out overruling the principles announced in the Thomas Case; and that we are not dis¬ posed to do. The principles of the Thomas Case were recognized and enforced in Min¬ nesota v. Hitchcock, 185 U. S. 373, 391, 46 L. ed. 954, 964, 22 Sup. Ct. Rep. 650, 657, et seq., which related to an act of Congress for the admission of Minnesota into the Union, and which act contained a provision similar to the one found in the enabling act for Wisconsin, namely, that certain sections “in every township of public lands in said state, and where either of said sections or any part thereof has been sold or otherwise been disposed of, other lands, equivalent thereto and as contiguous as may be, shall be granted to said state for the use of schools.”

Without repeating all that was said in previous decisions, we hold, on the author¬ ity of those decisions, that the state is not entitled to the relief asked nor to any order that would interfere, at this time, with the administration by the Interior Department, of the lands in question for the benefit of the Indians for whom the Bad River or La Pointe reservation and the Flambeau reser¬ vation were established. Consequently, the bill must be dismissed.

It is so ordered.