Wisconsin v. Hitchcock

by John Marshall Harlan

United States Supreme Court

201 U.S. 202

Wisconsin  v.  Hitchcock

 Argued: February 21, 1906. --- Decided: April 2, 1906

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 Indian 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 United 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 hunting on the ceded territory, with the other usual privileges of occupancy, 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 required to remove from the ceded district, all the unceded lands belonging to the Indians of Fond du Lac, Sandy Lake, and Mississippi bands shall be the common property and home of all the Indians party to this treaty.' [7 State. at L. 592] In consideration 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 of Wisconsin were authorized to form a constitution and state government for the purpose of being admitted into the Union on an equal footing with the original states in all respects whatsoever, with certain specified boundaries. The 7th section of that act was as follows: 'That the following propositions are hereby submitted to the convention 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 of the public lands in said state, and, where such section has been sold or otherwise disposed 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 approved May 29th, 1848. 2 Charters and Constitutions, 2029; 9 Stat. at L. 233, chap. 50.

By a treaty made and concluded September 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 theretofore 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 interest 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 boundaries of which shall be hereafter agreed upon or fixed under the direction of the President.' 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, as fast as the occupants become capable of transacting their own affairs, issue patent therefor to such occupants, 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 disposition 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 necessary 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 act of Congress aforesaid, and under the state Constitution, and under and in view of the cession of their lands by said Chippewa 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 heretofore, since its admission to the Union, claimed a right to the fee of all lands in sections 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 patents to divers persons and corporations for portions thereof, sundry of which persons and corporations, grantees of the state as aforesaid, have also exercised acts of ownership thereof, and have paid taxes and made improvements thereon, and have cut and hauled timber therefrom until forbidden by orders of the defendant, Ethan Allen Hitchcock, as Secretary of the Interior of the United States, as hereinafter more particularly mentioned; that patents for all of said sections 16 within said La Pointe reservation 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 parties, 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 Secretary of the Interior has proceeded, through the United States Indian Department, to allot from time to time to the various members of said tribes of La Pointe bands of Indians and to various members of the Wisconsin bands on said Lac du Flambeau reservation 80 acres per capita of lands within said reservations, and has caused patents therefor to be issued to the members of said tribes as individuals, and such members have become 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 hitherto been allowed to any member of said tribes of Indians of any land embraced within any of said sections 16. That beginning about the year 1899, and from thence hitherto, the defendant, Ethan Allen Hitchcock, as Secretary of the Interior, and the Commissioner 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 reservation 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 townships, and have forbidden purchasers of such lands holding patents from the state to enter or make improvements or cut any timber 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 thereof. . . . That by chap. 95 of the laws of the state of Wisconsin for the year 1903, approved April 20th, 1903, the attorney general of the state of Wisconsin was duly authorized to institute proceedings in this court under the provisions of the act of Congress passed March 2d, 1901 [31 Stat. at L. 950, chap. 808, U.S.C.omp. Stat. 1901, p. 1384], and hereinbefore referred to, to determine 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.' Messrs. T. W. Spence and L. M. Sturtevant for complainant.

[Argument of Counsel from page 208 intentionally omitted]

Messrs. A. C. Campbell and Frank L. Campbell for defendant.

[Argument of Counsel from pages 209-211 intentionally omitted]

Mr. Justice Harlan delivered the opinion of the court:

Notes