Cramer v. United States

Decision Date19 February 1923
Docket NumberNo. 207,207
Citation43 S.Ct. 342,67 L.Ed. 622,261 U.S. 219
PartiesCRAMER et al. v. UNITED STATES
CourtU.S. Supreme Court

Messrs. C. F. R. Ogilby, of Washington, D. C., and Frank Thunen, of San Francisco, Cal., for appellants.

[Argument of Counsel from pages 220-223 intentionally omitted] Mr. Assistant Attorney General Riter, for the United States.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

This appeal brings up for review a decree of the Circuit Court of Appeals, directing the cancellation of a land patent issued in 1904 by the United States to the defendant, the Central Pacific Railway Company, in so far as it purports to convey certain legal subdivisions of land in sections 13 and 23, township 43 north, range 8 west, M. D. M., Siskiyou county, Cal. 276 Fed. 78.

The suit was brought in the federal District Court for the Northern District of California by the United States, acting in behalf of three Indians, who, it was claimed, had occupied the lands continuously since before 1859. The Act of July 25, 1866, 14 Stat. 239, c. 242, granted to the predecessor of the defendant company a series of odd-numbered sections of land, including those named, but excepted from the grant such lands as 'shall be found to have been granted, sold, reserved, occupied by homestead settlers, pre-empted or otherwise disposed of.'1 The obligations of the grant were complied with, and patent conveying the sections mentioned above, with others, was issued to the defendant company, as successor in interest of the legislative grantee.

The original complaint alleged an actual occupancy by the individual Indians, but sought cancellation of the patent primarily on the ground that the lands formed part of an Indian reservation provided for in a treaty which was pending for ratification when the act of 1866 was passed; but this last contention was abandoned on the trial, it appearing that the treaty had been rejected by the Senate prior to that date.

But the District Court found for the plaintiff upon the issue of actual occupancy and entered a decree confirming the right of possession in the Indians, which, however, was confined to the land actually inclosed, being an irregular body of about 175 acres and which did not in terms cancel the patent.

After the submission of the case plaintiff was allowed, over defendants' objection, to amend its bill by reciting that in bringing the suit the government proceeded in its own right and as guardian of its Indian wards, thereafter named in the bill, by omitting all reference to the treaty, and by making the allegations respecting the Indian occupancy somewhat more specific.

The District Court refused to reopen the case on the defendants' application to allow further proof on the issue last stated, holding that, as the occupation by the Indians was alleged in the origi al bill, defendants should have offered their evidence on that issue at the trial. The court found that as early as 1859 the Indians named lived with their parents upon the lands described and had resided there continuously ever since; that they had under fence between 150 and 175 acres in an irregularly shaped tract, running diagonally through the two sections, portions of which they had irrigated and cultivated; that they had constructed and maintained dwelling houses and divers outbuildings, and had actually resided upon the lands and improved them for the purpose of making for themselves homes. These findings have support in the evidence and will be accepted here. Adamson v. Gilliland, 242 U. S. 350, 353, 37 Sup. Ct. 169, 61 L. Ed. 356.

The decree of the Circuit Court of Appeals agreed with that of the District Court generally, but extended the right of possession to the whole of each of the legal subdivisions which was fenced and cultivated in part, and reversed the decree with instructions to enter one canceling the patent in respect of the entire 360 acres.

A reversal of this decree is now sought upon several grounds.

1. It is urged that the occupancy of land by individual Indians does not come within the exceptive provision of the grant.

Until the Act of March 3, 1875, 18 Stat. 402, 420, c. 131, extending the homestead privilege to Indians, the right of an individual Indian to acquire title to public lands by entry was not recognized. It cannot, therefore, be said that these lands were occupied by homestead settlers nor were they granted, sold or pre-empted, but the question remains, were they 'reserved * * * or otherwise disposed of?' Unquestionably it has been the policy of the federal government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States. Beecher v. Wetherby, 95 U. S. 517, 525, 24 L. Ed. 440; Minnesota v. Hitchcock, 185 U. S. 373, 385, 22 Sup. Ct. 650, 46 L. Ed. 954. It is true that this policy has had in view the original nomadic tribal occupancy, but it is likewise true that in its essential spirit it applies to individual Indian occupancy as well; and the reasons for maintaining it in the latter case would seem to be no less cogent, since such occupancy being of a fixed character lends support to another well understood policy, namely, that of inducing the Indian to forsake his wandering habits and adopt those of civilized life. That such individual occupancy is entitled to protection finds strong support in various rulings of the Interior Department, to which in land matters this court has always given much weight. Midway Co. v. Eaton, 183 U. S. 602, 609, 22 Sup. Ct. 261, 46 L. Ed. 347 Hastings, etc., R. R. Co. v. Whitney, 132 U.S. 357, 366, 10 Sup. Ct. 112, 33 L. Ed. 363. That department has exercised its authority by issuing instructions from time to time to its local officers to protect the holdings of nonreservation Indians against the efforts of white men to dispossess them. See 3 Land Dec. 371; 6 Land Dec. 341; 32 Land Dec. 382. In Poisal v. Fitzgerald, 15 Land Dec. 19, the right of occupancy of an individual Indian was upheld as against an attempted homestead entry by a white man. In State of Wisconsin, 19 Land Dec. 518, there had been granted to the state certain swamp lands within an Indian reservation, but the right of Indian occupancy was upheld, although the grant in terms was not subject thereto. In Ma-Gee-See v. Johnson, 30 Land Dec. 125, Johnson had made an entry under section 2289, Revised Statutes (Comp. St. § 4530), which applied to 'unappropriated public lands.' It appeared that at the time of the entry and for some time thereafter the land had been in the possession and use of the plaintiff, an Indian. It was held that under the circumstances the land was not unappropriated within the meaning of the statute, and therefore not open to entry. In Schumacher v. State of Washington, 33 L. D. 454, 456, certain lands, claimed by the state under school grant, were occupied and had been improved by an Indian living apart from his tribe, but application for allotment had not been made until after the state had sold the land. It was held that the grant to the state did not attach under the provision excepting lands 'otherwise disposed of by or under authority of an act of Congress.' Secretary Hitchcock, in deciding the case, said:

'It is true that the Indian did not give notice of his intention to apply for an allotment of this land until after the state had made disposal thereof, but the purchaser at said sale was bound to take notice of the actual possession of the land by the Indian if, as alleged, he was openly and notoriously in possession thereof at and prior to the alleged sale, and that the act did not limit the time within which application for allotment should be made.'

Congress itself, in apparent recognition of possible individual Indian possession, has in several of the state enabling acts required the incoming state to disclaim all right and title to lands 'owned or held by any Indian or Indian tribes.' See 25 Stat. 676, c. 180, § 4, par. 2; 28 Stat. 107, c. 138, § 3, par. 2.

The action of these individual Indians in abandoning their nomadic habits and attaching themselves to a definite locality, reclaiming, cultivating, and improving the soil and establishing fixed homes thereon, was in harmony with the well-understood desire of the government which we have mentioned. To hold that by so doing they acquired no possessory rights to which the government would accord protection would be contrary to the whole spirit of the traditional American policy toward these dependent wards of the nation.

The fact that such right of occupancy finds no recognition in any statute or other formal governmental action is not conclusive. The right, under the circumstances here disclosed, flows from a settled governmental policy. Broder v. Water Co., 101 U. S. 274, 276, 25 L. Ed. 790, furnishes an analogy. There this court, holding that the Act of July 26, 1866, 14 Stat. 251, c. 262, § 9 (Comp. St. § 4647), acknowledging and confirming rights of way for the construction of ditches and canals, was in effect declaratory of a pre-existing right, said:

'It is the established doctrine of this court that rights of * * * persons who had constructed canals and ditches * * * are rights which the government had, by its conduct, recognized and encouraged and was bound to protect, before the passage of the act of 1866. We are of opinion that the section of the act which we have quoted was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one.'

Then, referring to the land grant to the Pacific Railroad Companies, which was made expressly subject to 'pre-emption, homestead, swamp-land, or other lawful claims,' and which antedated the act of 1866, the court held that defendant's right of way for its canal, independent of that act, was within the excepting provision of that grant and said:

'We have...

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