Fee v. Brown/Opinion of the Court
This case turns upon the proper interpretation of the act of congress of June 8, 1872, subsequently incorporated into the Revised Statutes as section 2368, authorizing the secretary of the interior to permit the purchase of such lands as may have been located with Chippewa half-breed scrip, provided that such locations have been made in good faith, and by innocent holders of the same. Did this authorize the purchase of land which had been located outside of the territory ceded to the United States by the treaty of September 30, 1854, between the United States and the Chippewa Indians of Lake Superior and the Mississippi? 10 Stat. 1109.

To answer this question satisfactorily requires the consideration of the exact terms of the treaty, and the proceedings thereunder. By the first article the Chippewas of Lake Superior ceded certain territory to the United States, theretofore owned by them in common with the Chippewas of the Mississippi, and the latter assented and agreed to such cession upon certain terms, unnecessary to be specified. By article 2 the United States agreed 'to set apart and withhold from sale, for the use of the Chippewas of Lake Superior,' certain tracts of land, described in six paragraphs, all of which tracts lie in the neighborhood of Lake Superior, and within the states of Michigan, Wisconsin, and Minnesota. The seventh paragraph of article 2 provides that 'each head of a family or single person over twenty-one years of age at the present time of the mixed bloods, belonging to the Chippewas of Lake Superior, shall be entitled to eighty acres of land, to be selected by them under the direction of the president, and which shall be secured to them by patent in the usual form.' Article 3 provides that the reserved tracts shall be surveyed; that the president shall make assignments to the parties entitled to the lands in severalty, and issue patents as fast as the occupants become capable of transacting their own affairs, with such restrictions upon the power of alienation as he may see fit to impose. The other articles of the treaty cut but a small figure in this case.

As a means of identifying the persons who, under the seventh paragraph of the second article, were entitled to the lands, certificates were issued to such persons, which became known as 'Chippewa Half-Breed Scrip.' These certificates provided that any sale, transfer, mortgage, assignment, or pledge thereof, or of any right accruing thereunder, would not be recognized as valid by the United States, and that patents for lands located by authority thereof should be issued directly to the person named in the certificate, and should in no wise inure to the benefit of any other person or persons whatsoever. This seems to be conceded in this case. Notwithstanding this provision, which was intended to secure to the holder of the certificates the land itself, they were made the subject of purchase and sale, through the device of powers of attorney signed by the person to whom the scrip was issued, authorizing some person, whose name was left blank, to locate the scrip upon lands to be selected by him, and to sell and convey the lands so selected. On the patent being issued to the person named in the certificate, the name of the attorney was filled in, and the deed executed by such person, as the attorney in fact of the person named in the certificate, to the actual purchaser. Of course, this scheme was in the nature of a fraud upon the act.

There was no legal restriction against the conveyance by the half-breed of the patent title, when once acquired, and no provision upon the face of the scrip limiting its purchasing power to any particular portion of the unappropriated public lands of the government. In fact, it appears, from the time it first began to be issued, that it was expressly recognized and received by officers of the land office as subject to be located anywhere upon the public domain, both within and without the land ceded to the government by  he treaty provisions.

The abuses connected with the transfer of this cerip in the manner above stated finally became so flagrant that the attention of congress was called to the subject, and on December 20, 1871, a resolution was adopted calling, among other things, for the following information:

'(1) The number of pieces of scrip of 80 acres each, and the names of the parties to whom issued. * * *

'(4) A copy of said scrip, the manner of locating the same, whether by the parties to whom it was issued, or by others; whether located upon lands ceded by said tribe, and all decisions of the department of the interior in relation to the issuance and location of said scrip.'

There appears to have been a report made in pursuance of this resolution on March 12, 1872, and on June 8, 1872, an act was passed in the following terms:

The secretary of the interior is authorized to permit the purchase, with cash or military bounty land warrants, of such lands as may have been located with claims arising under the seventh clause of the second article of the treaty of September 30, 1854, at such price per acre as he deems equitable and proper; but not at a less price than one dollar and twenty-five cents per acre; and to permit the purchase, with cash or military good faith are also permitted to complete their entries, and to perfect their titles under such claims upon compliance with the terms above mentioned; but it must be shown to the satisfaction of the secretary of the interior that such claims are held by innocent parties in good faith, and that the locations made under such claims have been made in good faity, and by innocent holders of the same.'

In pursuance of this act, Brown applied for and obtained, upon the payment of $2.50 per acre, a new patent for the lands which had been located by Witter in Colorado.

We think it was probably intended that the power to locate this scrip should be confined to the territory ceded to the United States by the first article, though perhaps not to the tracts named in the first six paragraphs of the second article, of the treaty of September 30, 1854. By this second article the United States agreed to set apart and withhold from sale, for the use of the Chippewas of Lake Superior, certain tracts of land, all of which were within the states of Michigan, Wisconsin, and Minnesota, and in the same article (paragraph 7) provided that each head of a family, or single person over 21 years of age, of mixed blood, should be entitled to 80 acres of land, to be selected by them under the direction of the president. By article 3 the boundaries of the tracts were to be determined by actual survey, and the president was authorized to assign to each head of a family, or single person over 21 years of age, 80 acres of land for his or their separate use, and, as fast as the occupants became capable of transacting their own affairs, to issue patents therefor to such occupants, with such restrictions upon the power of alienation as he might see fit to impose. There is some reason for saying that this article was intended to apply to Indians of pure, as distinguished from those of mixed, blood. By subsequent articles the United States agreed to pay for the land ceded an annuity, and also a certain sum in agricultural implements, household furniture, and cooking utensils, and also to furnish guns, rifles, beaver traps, ammunition, and ready-made clothing, to be distributed among the young men of the nation, as well as to furnish a blacksmith and assistant, with the usual amount of stock, during the continuance of the annuity payments. Article 7 provided against the manufacture, sale, or use of spirituous liquors on any of the lands therein set apart for the residence of the Indians, and the sale of the same was prohibited in the territory thereby by ceded until otherwise ordered by the president.

The whole scope and purpose of this treaty was evidently to induce the Chippewas to relinquish their claims to a large amount of territory theretofo e owned by them, and to receive in lieu thereof a certain annuity, and also six tracts of land within the states above named, which were to be allotted, at the discretion of the president, in severalty, and in parcels of 80 acres each, to heads of families, and single persons over 21 years of age. If there were any doubt upon the question, arising from article 2, the subsequent articles indicate very clearly that the reserved tracts were intended to be for the actual residence of the Indians, and were to be within the states above named.

Beyond this, however, congress on December 19, 1854, passed an act (10 Stat. 598) which, though subsequent in date to the treaty, must, we think, be read in connection with it, and be held to operate as a ratification of it, by which the president was authorized to enter into negotiations with the Chippewa Indians for the extinguishment of their title to all the lands owned by them in Minnesota and Wisconsin, 'which treaties shall contain the following provisions and such others as may be requisite and proper to carry the same into effect:

'First. Granting to each head of a family, in fee simple, a reservation of eighty acres of land, to be selected in the territory ceded, so soon as surveys shall be completed, by those entitled, which said reservations shall be patented by the president of the United States, and the patent therefor shall expressly declare that the said lands shall not be alienated or leased by the reservees,' etc.

If there were doubts latent in the language of the treaty itself, it is clear from this act that it was the intention of congress to limit the reservations to the territory ceded, both as applied to Indians of pure and mixed blood.

This was the distinct ruling of the supreme court of California in Parker v. Duff, 47 Cal. 566, in which an attempt had been made to locate certain of this scrip in California, and we see no escape from that conclusion. It is also entirely clear that this scrip was intended to be located by the half-breeds themselves, that the patents were to be issued to the persons named therein, and that the right to alienate the lands was never intended to be given until the patents had been issued. It follows from this that the location of these lands in the state of Colorado gave no title to Brown, and that the patent issued thereon was void and of no effect.

The validity of Brown's title must turn, then, upon the patent issued to him on June 8, 1872. The argument of the plaintiff in error in this connection is that under the terms of this act the secretary of the interior could only permit the purchase of such lands as may have been located 'with claims arising under the seventh clause of the second article of the treaty'; that the facts show that congress then knew of the existence of more than 450 claims arising under this clause of the treaty, which had been located within the ceded territory, presumably in good faith, by innocent holders thereof; that, as no claim could legally arise under this clause which would warrant the location of lands beyond the cession, the secretary of the interior acquired no jurisdiction from the act of 1872 to sell or issue a patent for lands lying outside that territory.

We are not, however, disposed to put so narrow an interpretation upon this act. While it is true that congress may have been apprised of the fact that a large number of claims had been located within the ceded territory, it is also apparent, from the resolution of December 20, 1871, that it had also been informed of the location of half-breed scrip upon lands which had not been ceded by the Chippewas, and that there had been certain decisions of the land department to the effect that this might lawfully be done. The evil to be remedied was the one relating to these illegal locations, and, if consistent with its language, the act ought to receive a construction broad enough to effectuate this remedy. While congress was not disposed to validate these locations as if they had bee  lawfully made, it did recognize them as giving to the locator a primary right of purchase, at a price not less than the minimum price of public lands, namely, $1.25 per acre.

Upon the theory of the plaintiff in error, that the act applied only to such locations as had been made in pursuance of the treaty within the lands ceded, it is difficult to see any substantial reason for this legislation, since, if the lands had been* already properly located, why comple the settlers to pay for them again, or why speak of them as holders of such claims in good faith, who should be permitted to complete their entries and perfect their titles? Or why provide that it should be shown that such claims were held by innocent parties in good faith, and that the locations made under such claims had been made in good faith by innocent holders? Strictly speaking, no person who had located this scrip, except the half-breeds themselves, could be said to be purchasers in good faith, since they were apprised by the treaty and the act of December 19, 1854, that the scrip could only be located within the ceded territory by the beneficiaries therein named, and that such scrip was incapable of alienation.

Congress, however, was evidently moved to use these words by the fact that this scrip had been misused by designing parties; had become an ordinary subject of barter and sale; had been located, with the assent of the land department, upon lands in other states, by unlearned men, who had acted themselves in perfect good faith, supposing that they had a legal right to do as they had done; and that to compel them to relinquish their holdings would be a great hardship to them, and no advantage to the government, provided they were required to reimburse the government by paying for such holdings at the ordinary price at which public lands were sold. The words, 'located with claims arising under the seventh clause of the second article of the treaty,' may doubtless be interpreted as referring to claims which could only arise within the ceded territory. But we are satisfied that it was not the intention of congress to give it that narrow construction, and that it adopted a course which partially, at least, protected the holder of the land, and at the same time insured to the government a proper compensation for them. It was doubtless contemplated that these lands might in the meantime have largely risen in value, or that persons obtaining knowledge of the invalidity of the original location may have proceeded to preempt them, to locate them under the homestead laws, or otherwise with a design of obtaining for a nominal consideration the benefit of their rise in value.

We are therefore of opinion that Brown obtained a good title to the land in question by the patent of December 1, 1876, and the judgment of the supreme court of Colorado is accordingly affirmed. 

Notes