United States v. Santa Fe Pac Co v. 12 8212 13, 1941

• Citation: 314 U.S. 339,62 S.Ct. 248,86 L.Ed. 260
• Decision Date: 08 December 1941
• Docket Number: No. 23,23
• Parties: UNITED STATES v. SANTA FE PAC. R. CO. Argued Nov. 12—13, 1941
• Court: United States Supreme Court

314 U.S. 339

62 S.Ct. 248

86 L.Ed. 260

UNITED STATES

v SANTA FE PAC. R. CO.

No. 23.

Argued Nov. 12—13, 1941.

Decided Dec. 8, 1941.

Rehearing Denied Jan. 5, 1942.

See 314 U.S. 716, 62 S.Ct. 476, 86 L.Ed. —-.

[Syllabus from pages 339-341 intentionally omitted] Messrs. Francis Biddle, Atty. Gen., and Nathan R. Margold, of Washington, D.C., for petitioner.

[Argument of Counsel from pages 341-343 intentionally omitted] Messrs. Joyce Cox, of Houston, Tex., and Max Radin, of Berkeley, Cal., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

This is a suit brought by the United States, in its own right and as guardian of the Indians of the Walapai (Hualpai) Tribe in Arizona, 28 U.S.C. § 41(1), § 24, Judicial Code, 28 U.S.C.A. § 41(a), to enjoin respondent from interfering with the possession and occupancy by the Indians of certain land in northwestern Arizona. Respondent claims full title to the lands in question under the grant to its predecessor, the Atlantic and Pacific Railroad Co., provided for in the Act of July 27, 1866, 14 Stat. 292. The bill sought to establish that respondent's rights under the grant of 1866 are subject to the Indians' right of occupancy both inside and outside their present reservation which was established by the Executive Order of President Arthur, January 4, 1883. The bill consists of two causes of action—the first relating to lands inside, and the second, to lands outside, that reservation. The bill prayed, inter alia, that title be quieted and that respondent 'account for all rents, issues and profits derived from the leasing, renting or use of the lands subject to said right of occupaycy' by the Indians. Respondent moved to dismiss on the ground that the facts alleged were 'insufficient to constitute a valid cause of action in equity'. The District Court granted that motion. The Circuit Court of Appeals affirmed. 9 Cir., 114 F.2d 420. We granted the petition for certiorari, 312 U.S. 675, 61 S.Ct. 738, 85 L.Ed. 1116, because of the importance of the problems raised in the administration of the Indian laws and the land grants.

Sec. 2 of the Act of July 27, 1866, the Act under which respondent's title to the lands in question derived,¹ provided: 'The United States shall extinguish, as rapidly as may be consistent with public policy and the welfare of the Indians, and only by their voluntary cession, the Indian title to all lands falling under the operation of this act and acquired in the donation to the road named in the act.'

Basic to the present causes of action is the theory that the lands in question were the ancestral home of the Walapais, that such occupancy constituted 'Indian title' within the meaning of § 2 of the 1866 Act, which the United States agreed to extinguish, and that in absence of such extinguishment the grant to the railroad 'conveyed the fee subject to this right of occupancy'. Buttz v. Northern Pacific Railroad, 119 U.S. 55, 66, 7 S.Ct. 100, 104, 30 L.Ed. 330. The Circuit Court of Appeals concluded that the United States had never recognized such possessory rights of Indians within the Mexican Cession² and that in absence of such recognition the Walapais had no such right good against grantees of the United States.

Occupancy necessary to establish aboriginal possession is a question of fact to be determined as any other question of fact. If it were established as a fact that the lands in question were, or were included in, the ancestral home of the Walapais in the sense that they constituted definable territory occupied exclusively by the Walapais (as distinguished from lands wandered over by many tribes), then the Walapais had 'Indian title' which unless extinguished survived the railroad grant of 1866. Buttz v. Northern Pacific Railroad, supra.

'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.' Cramer v. United States, 261 U.S. 219, 227, 43 S.Ct. 342, 344, 67 L.Ed. 622. This policy was first recognized in Johnson v. M'Intosh, 8 Wheat. 543, 5 L.Ed. 681, and has been repeatedly reaffirmed. Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483; Mitchel v. United States, 9 Pet. 711, 9 L.Ed. 283; Chouteau v. Molony, 16 How. 203, 14 L.Ed. 905; Holden v. Joy, 17 Wall. 211, 21 L.Ed. 523; Buttz v. Northern Pacific Railroad, supra; United States v. Shoshone Tribe, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213. As stated in Mitchel v. United States, supra, 9 Pet. at page 746, 9 L.Ed. 283, Indian 'right of occupancy is considered as sacred as the fee-simple of the whites.' Whatever may have been the rights of the Walapais under Spanish law, the Cramer case assumed that lands within the Mexican Cession were not excepted from the policy to respect Indian right of occupancy. Though the Cramer case involved the problem of individual Indian occupancy, this Court stated that such occupancy was not to be treated differently from 'the original nomadic tribal occupancy'. 261 U.S. at page 227, 43 S.Ct. at page 344, 67 L.Ed. 622. Perhaps the assumption that aboriginal possession would be respected in the Mexican Cession was, like the generalizations in Johnson v. M'Intosh, supra, not necessary for the narrow holding of the case. But such generalizations have been so often and so long repeated as respects land under the prior sovereignty of the various European nations including Spain,³ that like other rules governing titles to property (United States v. Title Insurance & Trust Co., 265 U.S. 472, 486, 487, 44 S.Ct. 621, 623, 68 L.Ed. 1110) they should now be considered no longer open. Furthermore treaties⁴ negotiated with Indian tribes, wholly or partially within the Mexican Cession, for delimitation of their occupancy rights or for the settlement and adjustment of their boundaries, constitute clear recognition that no different policy as respects aboriginal possession obtained in this area than in other areas. And see United States v. Kagama, 118 U.S. 375, 381, 6 S.Ct. 1109, 1112, 30 L.Ed. 228. Certainly it would take plain and unambiguous action to deprive the Walapais of the benefits of that policy. For it was founded on the desire to maintain just and peaceable relations with Indians. The reasons for its application to other tribes are no less apparent in case of the Walapais, a savage tribe which in early days caused the military no end of trouble.

Nor is it true, as respondent urges, that a tribal claim to any particular lands must be based upon a treaty, statute, or other formal government action. As stated in the Cramer case, 'The fact that such right of occupancy finds no recognition in any statute or other formal governmental action is not conclusive.' 261 U.S. at page 229, 43 S.Ct. at page 344, 67 L.Ed. 622.

Extinguishment of Indian title based on aboriginal possession is of course a different matter. The power of Congress in that regard is supreme. The manner, method and time of such extinguishment raise political not justiciable issues. Buttz v. Northern Pacific Railroad, supra, 119 U.S. at page 66, 7 S.Ct. at page 104, 30 L.Ed. 330. As stated by Chief Justice Marshall in Johnson v. M'Intosh, supra, 8 Wheat. at page 586, 5 L.Ed. 681, 'the exclusive right of the United States to extinguish' Indian title has never been doubted. And whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise, its justness is not open to inquiry in the courts. Beecher v. Wetherby, 95 U.S. 517, 525, 24 L.Ed. 440.

If the right of occupancy of the Walapais was not extinguished prior to the date of definite location of the railroad in 1872, then the respondent's predecessor took the fee subject to the encumbrance of Indian title. Buttz v. Northern Pacific Railroad, supra. For on that date the title of respondent's predecessor attached as of July 27, 1866. United States v. Southern Pacific R.R. Co., 146 U.S. 570, 13 S.Ct. 152, 36 L.Ed. 1091; Nelson v. Northern Pacific Ry. Co., 188 U.S. 108, 23 S.Ct. 302, 47 L.Ed. 406.

Certainly prior to 1865 any right of occupancy of the Walapais to the lands in question was not extinguished; nor was the policy of respecting such Indian title changed. The Indian Trade and Intercourse Act of June 30, 1834, 4 Stat. 729, was extended over 'the Indian tribes in the Territories of New Mexico and Utah' by § 7 of the Act of February 27, 1851, 9 Stat. 574, 587. The 1834 Act, which derived from the Act of July 22, 1790, 1 Stat. 137, made it an offense to drive stock to range or feed 'on any land belonging to any Indian or Indian tribe without the consent of such tribe' (§ 9); gave the superintendent of Indian affairs authority 'to remove from the Indian country all persons found therein contrary to law' (§ 10); made it unlawful to settle on 'any lands belonging, secured, or granted by treaty with the United States to any Indian tribe' (§ 11); and made invalid any conveyance of lands 'from any Indian nation or tribe of Indians.' § 12. The Act of 1851 obviously did not create any Indian right of occupancy which did not previously exist. But it plainly indicates that in 1851 Congress desired to continue in these territories the unquestioned general policy of the Federal government to recognize such right of occupancy. As stated by Chief Justice Marshall in Worcester v. Georgia, supra, 6 Pet. at page 557, 8 L.Ed. 483, the Indian trade and intercourse acts 'manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, which which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States.'

The court below laid considerable stress upon the Act of July 22, 1854, 10 Stat. 308, as indicating that Congress recognized no rights of the Indians in Arizona and New Mexico other than...