Wisconsin v. Hitchcock/Opinion of the Court
The state contends that the effect of the treaty of 1843 was that the Chippewa Indians 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 acceptance 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 suggested by this contention and the decision of this case is controlled by United States 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 reservation, 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, committed 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 enabling act by which Wisconsin was admitted into the Union, section 16 in every township in that state was ceded to it for school purposes, 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 section upon which the crime was committed had been settled, platted, and set apart by the United States as a part and parcel of said reservation, and was continuously thereafter occupied by the Indians as such, although 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 murder, '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 reservation, 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 jurisdiction 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 reservation on which the alleged murder was committed.

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 in their occupancy of the lands, except as provided 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, except so far as the meandering lakes were concerned. When the townships composing these reservations were surveyed, the sixteenth section was already disposed of in the sense of the enabling act of 1846. It had been included within the limits of the reservations. As it will be seen by the treaty of 1842, ratified in 1843, which was previous to the enabling act, the Indians stipulated for the right of occupancy to the lands. That right of occupancy gave them the enjoyment of the lands until they were required to surrender it by the President of the United States, which requirement was 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 Indians stipulated. . . . The general rule established by the Land Department in reference 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 sixteenth 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 1854. That treaty provided for permanent reservations, which included the section in question. The treaty did not operate to defeat the prior right of occupancy 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, therefore, 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 included within the tract set aside as a portion of the permanent reservation in consideration of the cession of lands, the title never vested in the state, except as subordinate to that right of occupation of the Indians.' United States v. Thomas, 151 U.S. 577, 582, 584, 38 L. ed. 276, 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 Oreilles 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 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 occupied, 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 without overruling the principles announced in the Thomas Case; and that we are not disposed to do. The principles of the Thomas Case were recognized and enforced in Minnesota 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 authority 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 reservation were established. Consequently, the bill must be dismissed.

It is so ordered. 

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