Minnesota v. Hitchcock
This is a suit in equity commenced in this court by the state of Minnesota to enjoin the Secretary of the Interior and the Commissioner of the General Land Office from selling any sections 16 and 36 in what was on January 14, 1889, known as the Red Lake Indian reservation.

By the bill, answer, and an agreed statement the following facts appear: By § 18 of the act to establish the territorial government of Minnesota, approved March 3, 1849 (9 Stat. at L. 403, chap. 121), it was enacted 'that when the lands in the said territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered 16 and 36 in each township in said territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said territory and in the states and territories hereafter to be erected out of the same.'

On February 26, 1856, the legislature of the territory of Minnesota sent a memorial to Congress for the relief of settlers upon school lands (Minn. Laws 1856, p. 368), which reads: 'To the Honorable the Senate and House of Representatives of the United States in Congress assembled:

'The memorial of the legislative assembly of the territory of Minnesota respectfully represents:

'That under the provisions of the act of Congress, extending the provisions of the pre-emption law of 1841 over the unsurveyed lands of Minnesota, many of our settlers have heavy investments, both of money and labor, in the opening of farms, erection of buildings, and the laying out and improving of town sites (lots in which said town sites were frequently transferred before the government survey, at high prices, to the occupants thereof), who were found, when the government survey was made, to be upon the school sections, and that the said settler had no means of ascertaining previous to the survey where the school sections would come.

'That it is a great injustice and hardship to compel such persons to repurchase or lose entirely the improvements and homes made by themselves in good faith in the expectation of pre-empting or entering them according to the provisions of the statute. Therefore, your memorialists would respectfully request your honorable body to pass an act giving such persons in this territory as have, previously to the government survey, settled upon the school sections (and have otherwise the right of pre-emption), the right to pre-empt the same as other government lands are pre-empted. And also providing for the entry of the town sites in this territory which are on school sections and were occupied as such previous to the government survey, as other town sites upon unoffered government lands are entered.

'And also allowing the county commissioners of the county in which such lands may be situate to enter in lieu thereof, for the benefit of the school fund of the township in which such land so as aforesaid settled or occupied may be, and without charge, an equal amount of such surveyed lands, subject either to private entry or pre-emption, in the same land district as they may select.

'And as in duty bound your memorialists will ever pray.'

In response to this memorial Congress passed the following joint resolution March 3, 1857 (11 Stat. at L. 254): 'That where any settlements, by the erection of a dwelling house or the cultivation of any portion of the land, shall have been or shall be made upon the sixteenth or thirty-sixth sections (which sections have been reserved by law for the purpose of being applied to the support of schools in the territories of Minnesota, Kansas, and Nebraska, and in the states and territories hereafter to be erected out of the same) before the said sections shall have been or shall be surveyed; or when such sections have been or mav be selected or occupied as town sites, under and by virtue of the act of Congress approved twenty-third of May, eighteen hundred and forty-four, or reserved for public uses before the survey, then other lands shall be selected by the proper authorities, in lieu thereof, agreeably to the provisions of the act of Congress approved twentieth May, eighteen hundred and twenty-six, entitled 'An act to Appropriate Lands for the Support of Schools in Certain Townships and Fractional Townships not Before Provided for.' And if such settler can bring himself, or herself, within the provisions of the act of fourth of September, eighteen hundred and forty-one, or the occupants of the town site be enabled to show a compliance with the provisions of the law of twenty-third of May, eighteen hundred and forty-four, then the right of preference granted by the said acts, in the purchase of such portion of the sixteenth or thirty-sixth sections so settled and occupied, shall be in them respectively, as if such sections had not been previously reserved for school purposes.'

On February 26, 1857, Congress passed an act authorizing the formation of a state government. 11 Stat. at L. 166, chap. 60. Section 5, so far as is applicable, is as follows:

'And be it further enacted, That the following propositions be, and the same are hereby, offered to the said convention of the people of Minnesota for their free acceptance or rejection, which, it accepted by the convention, shall be obligatory on the United States and upon and said state of Minnesota, to wit:

'First, That sections numbered sixteen and thirty-six 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.' On October 13, 1857, a Constitution was formed, in which, by § 3 of article 2, the foregoing proposition was accepted in this language:

'The propositions contained in the act of Congress entitled 'An Act to Authorize the People of the Territory of Minnesota to Form a Constitution and State Government, Preparatory to Their Admission into the Union on Equal Footing with the Originnal States,' are hereby accepted, ratified, and confirmed, and shall remain irrevocable without the consent of the United States; and it is hereby ordained that this state shall never interfere with the primary disposal of the soil within the same by the United States, or with any regulations Congress may find necessary for securing the title to said soil to bona fide purchasers thereof; and no tax shall be imposed on lands belonging to the United States, and in no case shall nonresident proprietors be taxed higher than residents.'

By an act of date May 11, 1858, Minnesota was admitted into the Union. 11 Stat. at L. 285, chap. 31. In that it was recited 'that the state of Minnesota shall be one, and is hereby declared to be one, of the United States of America, and admitted into the Union on an equal footing with the original states in all respects whatever.'

At the date of this admission a large part of the territory in the northwestern part of the state, including the tracts in controversy, was and for a long time thereafter remained unceded Indian lands, subject to the Indian title of occupancy. It was, among other things, stipulated in the agreed statement:

'That, except as its status may have been affected or changed by the treaty of October 2, 1863 (13 Stat. at L. 667), by the President's order of March 18, 1879, enlarging what was then known as the White Earth Indian reservation, by the act of Congress of January 14, 1889 (25 Stat. at L. 642, chap. 24), or by the act of Congress of June 2, 1890 (26 Stat. at L. 126, chap. 391), or by one or more of these, the district or country embracing the lands in controversy continued to be unceded Indian lands subject to the original right of occupancy of the Chippewa Indians up to the time of the action had on March 4, 1890, under the said act of January 14, 1889.'

Referring to the matter stated in this stipulation, it may be noticed that by the treaty of October 2, 1863, the Red Lake and Pembina bands of Chippewa Indians dwelling in northwestern Minnesota ceded lands within certain defined boundaries to the United States, and in article 6 of the treaty the portion of the territory occupied by them and not ceded is spoken of as a reservation, for by it the President was required to appoint a board of visitors, 'whose duty it shall be to attend at all annuity payments of the said Chippewa Indians, to inspect their fields and other improvements, and to report annually thereon on or before the 1st day of November, and also as to the qualifications and moral deportment of all persons residing upon the reservation under the authority of law.'

This tract was thereafter known as the Red Lake Indian reservation, and is referred to in the President's order of March 18, 1879, in which he bounds a proposed reservation on one side by the 'Red Lake Indian reservation.' The act of June 2, 1890 (26 Stat. at L. 126, chap. 391), grants to the Duluth & Winnipeg Railroad Company a right of way through the 'Red Lake (and other) reservations.' The 2d section of the act provides the mode of fixing the compensation to be paid the Indians for the right of way, and that no right of way shall vest in the company until, among other things, 'the consent of the Indians on said reservation as to the amount of said compensation and right of way shall have been first obtained in a manner satisfactory to the President of the United States.' On January 14, 1889, an act was passed (25 Stat. at L. 642, chap. 24), providing for a commission to negotiate with all the bands or tribes of Chippewa Indians in Minnesota for the cession and relinquishment, 'for the purposes and upon the terms' stated in the act, and subject to the approval of the President, 'of all their title and interest in and to all the reservations of said Indians in the state of Minnesota, except the White Earth and Red Lake reservations, and to all and so much of these two reservations as in the judgment of said commission is not required to make and fill the allotments required by this and existing acts.'

That act directed that all the Chippewa Indians in Minnesota, 'except those on the Red Lake reservation,' were to be removed to and allotted lands in the White Earth reservation, and those on the Red Lake reservation were to be allotted lands on so much of that reservation as should be reserved by the commission for that purpose. The ceded lands were thereafter to be surveyed, inspected, classified as agricultural or pine lands, the latter appraised by 40-acre tracts and sold at vendue, and the agricultural lands disposed of to actual settlers at $1.25 per acre. The proceeds arising from the disposition of the two classes of land were to be held and applied as directed in § 7, which reads:

'That all money accruing from the disposal of said lands in conformity with the provisions of this act shall, after deducting all the expenses of making the census, of obtaining the cession and relinquishment, of making the removal and allotments, and of completing the surveys and appraisals in this act provided, be placed in the Treasury of the United States to the credit of all the Chippewa Indians in the state of Minnesota as a permanent fund, which shall draw interest at the rate of five per centum per annum, payable annually for the period of fifty years, after the allotments provided for in this act have been made, and which interest and permanent fund shall be expended for the benefit of said Indians in manner following: One half of said interest shall, during the said period of fifty years, except in the cases hereinafter otherwise provided, be annually paid in cash in equal shares to the heads of families and guardians of orphan minors for their use; and one fourth of said interest shall, during the same period and with the like exception, be annually paid in cash in equal shares per capita to all other classes of said Indians; and the remaining one fourth of said interest shall, during the said period of fifty years, under the direction of the Secretary of the Interior, be devoted exclusively to the establishment and maintenance of a system of free schools among said Indians, in their midst and for their benefit; and at the expiration of the said fifty years the said permanent fund shall be divided and paid to all of said Chippewa Indians and their issue then living, in cash, in equal shares: Provided, that Congress may, in its discretion, from time to time, during the said period of fifty years, appropriate, for the purpose of promoting civilization and self-support among the said Indians, a portion of said principal sum, not exceeding five per centum thereof. The United States shall, for the benefit of said Indians, advance to them as such interest as aforesaid the sum of ninety thousand dollars annually, counting from the time when the removal and allotments provided for in this act shall have been made until such time as said permanent fund, exclusive of the deductions hereinbefore provided for, shall equal or exceed the sum of three million dollars, less any actual interest that may in the meantime accrue from accumulations of said permanent fund; the payments of such interest to be made yearly in advance, and, in the discretion of the Secretary of the Interior, may, as to three fourths thereof, during the first five years, be expended in procuring live stock, teams, farming implements, and seed for such of the Indians, to the extent of their shares, as are fit and desire to engage in farming, but as to the rest, in cash; and whenever said permanent fund shall exceed the sum of three million dollars the United States shall be fully reimbursed out of such excess for all the advances of interest made as herein contemplated and other expenses hereunder.'

Under this act a commission was appointed and an agreement made with the Indians for a cession of a large part of the Red Lake Indian reservation, which agreement was approved by the President March 4, 1890, the unceded portion being reserved by the commissioners 'for the purpose of making and filling the allotments' provided for in the act.

According to the agreed statement of facts the lands in the reservation were wholly unsurveyed at the time of the passage of this last act, January 14, 1889, and until after the approval of the agreement for this cession, March 4, 1890.

On February 28, 1891 (26 Stat. at L. 796, chap. 384), Congress passed this act:

'Where settlements with a view to preemption or homestead have been or shall hereafter be made, before the survey of the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the claims of such settlers; and if such sections, or either of them, have been or shall be granted, reserved, or pledged for the use of schools or colleges in the state or territory in which they lie, other lands of equal acreage are herby appropriated and granted, and may be selected by said state or territory, in lieu of such as may be thus taken by pre-emption or homestead settlers. And other lands of equal acreage are also hereby appropriated and granted, and may be selected by said state or territory, where sections sixteen or thrity-six are mineral land, or are included within any Indian, military, or other reservation, or are otherwise disposed of by the United States: Provided, where any state is entitled to said sections sixteen and thirty-six, or where said sections are reserved to any territory, notwithstanding the same may be mineral land or embraced within a military, Indian, or other reservation, the selection of such lands in lieu thereof by said state or territory shall be a waiver of its right to said sections. And other lands of equal acreage are also hereby appropriated and granted, and may be selected by said state or territory to compensate deficiencies for school purposes, where sections sixteen or thirty-six are fractional in quantity, or where one or both are wanting by reason of the township being fractonal, or from any natural cause whatever. And it shall be the duty of the Secretary of the Interior, without awaiting the extension of the public surveys, to ascertain and determine, by protraction or otherwise, the number of townships that will be included within such Indian, military, or other reservations, and thereupon the state or territory shall be entitled to select indemnity lands to the extent of two sections for each of said townships, in lieu of sections sixteen and thirty-six therein; but such selections may not be made within the boundaries of said reservations: Provided, however, that nothing herein contained shall prevent any state or territory from awaiting the extinguishment of any such military, Indian, or other reservation and the restoration of the lands therein embraced to the public domain and then taking the sections sixteen and thirty-six in place therein; but nothing in this proviso shall be construed as conferring any right not now existing.'

Upon these facts the state contends that the territory in question was not an Indian reservation, but what is known as unceded Indian country, subject to the original right of occupancy by the Chippewa Indians, and also that, whether the country was an Indian reservation or unceded Indian country, it was subject to the grant of sections 16 and 36 to the state when the Indian right of occupancy was extinguished.

Defendant's contentions are:

1. That this tract of country was a reservation, set apart and appropriated to the uses of the civilization and support of the Indians.

2. That these lands never became 'public lands,' and so never became subject to the state's school-land grant.

3. That the school-land grant attached to no particular lands until surveyed. Until then the specific sections remained subject to disposition by Congress, the state, in the event of such disposition, being remitted to the selection of other lands as indemnity. Especially did the joint resolution of March 3, 1857, subject these sections in Minnesota to reservation for public uses at any time before survey, and, in the event of any such reservation, make the state's grant, to that extent, one of indemnity lands.

4. That the act of January 14, 1889, and the agreement negotiated thereunder with the Indians, dedicated and appropriated all the lands in the Red Lake reservation exclusively to the civilization, education, and support of the Indians. This was a disposal of the lands within the meaning of the enabling act of February 26, 1857, and in any event was a reservation of them for public uses under the joint resolution of March 3, 1857.

5. That in interpreting the act of 1889, it is of no moment that the state has a system of common schools aided by a grant of lands from the general government. That act in terms keeps the education of these Indians under national control, and dedicates a portion of the proceeds of the sale of these lands 'exclusively to the establishment and maintenance of a system of free schools among said Indians, in their midst, and for their benefit.'

6. That in determining whether the act of 1889 and the agreement negotiated thereunder were intended to appropriate sections 16 and 36, along with the other lands, to the civilization, education, and support of the Indians, inquiry must be made as to how the act and agreement were understood by the Indians.

Frank B. Kellogg, H. W. Childs, C. K. Davis, C. A. Severance, T. E. Byrnes, W. B. Douglas, and Robert E. Olds for complainant.

Assistant Attorney General Van Devanter for defendants.

Mr. Justice Brewer delivered the opinion of the court: 

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