Ash Sheep Co v. United States, s. 212

• Decision Date: 01 March 1920
• Docket Number: Nos. 212,285,s. 212
• Citation: 252 U.S. 159,64 L.Ed. 507,40 S.Ct. 241
• Parties: ASH SHEEP CO. v. UNITED STATES (two cases)
• Court: U.S. Supreme Court

252 U.S. 159

40 S.Ct. 241

64 L.Ed. 507

ASH SHEEP CO.

v UNITED STATES(two cases).

Nos. 212, 285.

Argued Jan. 30, 1920.

Decided March 1, 1920.

Messrs. Cornelius B. Nolan and William Scallon, both of Helena, Mont., for appellant and plaintiff in error.

[Argument of Counsel from pages 159-162 intentionally omitted]Mr. Assistant Attorney General Nebeker, for the United States.

Mr. Justice CLARKEdelivered the opinion of the Court.

These two cases were argued and will be decided together.

No. 212 is an appeal from a decree, entered in a suit in equity, in favor of the government granting a permanent injunction restraining the appellant from trespassing upon described lands in Montana by grazing sheep thereon and for nominal damages for such trespass.

No. 285 is a proceeding in error, in which reversal is sought of a judgment rendered in an action at law against plaintiff in error, appellant in the equity suit, for a penalty for the same trespass.

The validity of the right asserted by the government, in both cases, turns upon whether the lands involved were 'Indian lands' or 'public lands.'If they were the former, the decree in the equity case should be affirmed, but in the law case there would remain the question as to whether 'sheep' were within the terms of the act under which the penalty was imposed.

In both cases the government contends that the appellant violated section 2117 of the Revised Statutes of the United States (Comp. St. § 4107), which reads as follows:

'Every person who drives or otherwise conveys any stock of horses, mules, or cattle, to range and feed on any land belonging to any Indian or Indian tribe, without the consent of such tribe, is liable to a penalty of one dollar for each animal of such stock.'

The company admits that it pastured 5,000 sheep on the described lands without the consent of the Crow Tribe of Indians or of the United States, but denies that they were 'Indian lands' and contends that they were 'public lands,' upon which it was lawful for it to pasture its stock.

Whether the described lands were Indian or public lands depends upon the construction to be given the act of Congress, approved April 27, 1904(33 Stat. 352, c. 1624), entitled 'An act to ratify and amend an agreement with the Indians of the Crow Reservation in Montana, and making appropriations to carry the same into effect.'

The agreement embodied in this act of Congress provided for a division of the Crow Indian Reservation in Montana on boundary lines which were described, and the lands involved in this case were within the part of the reservation as to which the Indians, in terms, 'ceded, granted and relinquished' to the United States all of their 'right, title and interest.'

The argument of the Sheep Company is that the United States being owner of the fee of the land before the agreement, the effect of this grant and release of their possessory right by the Indians was to vest the complete and perfect title in the government, and thereby make the territory a part of the public lands with the interest of the Indians transferred to the proceeds to be derived from them.For this conclusion the following cases are cited: United States v. Choctaw Nation and Chickasaw Nation, 179 U. S. 494, 21 Sup. Ct. 149, 45 L. Ed. 291;Bean v. Morris, 159 Fed. 651, 86 C. C. A. 519;Id., 221 U. S. 485, 31 Sup. Ct. 703, 55 L. Ed. 821.But in the first of these cases the Indians parted with their possessory rights for a cash payment by the United States (179 U. S. 527, 21 Sup. Ct. 149, 45 L. Ed. 291), and in the second the character of the agreement under which the Indian title was said, incidentally, to have terminated, does not appear.

Whether or not the government became trustee for the Indians or acquired an unrestricted title by the cession of their lands, depends in each case upon the terms of the agreement or treaty by which the cession was made.Minnesota v. Hitchcock, 185 U. S. 373, 394, 398, 22 Sup. Ct. 650, 46 L. Ed. 954;United States v. Mille Lac Band of Chippewa Indians, 229 U. S. 498, 509, 33 Sup. Ct. 811, 57 L. Ed. 1299.

The agreement we have in this case is elaborate and, in consideration of the grant by the Indians of their possessory right, the government assumed many obligations with respect to the lands and the proceeds of them—notably that it would sell the land to settlers, except sections 16and36, for not less than $4 per acre and would pay the proceeds to the Indians, under the direction of the Secretary of the Interior, in a manner prescribed.Thus, the government contracted to expend $90,000 of the proceeds of the land in the extension of the irrigation system on the reservation remaining, $295,000 in the purchase of stock to be placed on the reservation, with a further contingent purchase in contemplation of $200,000, $40,000 in fencing, $100,000 for schools, and $10,000 for a hospital for the Indians, for the maintenance of which $50,000 additional was to be held in trust.It was further provided that, to the extent that feasible irrigation prospects could be found, parts of the released lands should be withdrawn under the Reclamation Act and be disposed of within five years, but not for less than $4 an acre.$There were many other like provisions, all intended to secure to the Indians the fullest possible value for what are referred to in the agreement as 'their lands' and to make use of the proceeds for their benefit.

It was provided that semiannual reports should be made by the Secretary of the Interior to the Indians, showing the amounts expended from time to time and the amounts remaining in each of the several funds.

It is obvious that the relation thus established by the act between the government and the tribe of Indians was essentially that of trustee and beneficiary and that the agreement contained many features appropriate to a trust agreement to sell lands and devote the proceeds to the interests of the cestui que trust.Minnesota v. Hitchcock, 185 U. S. 373, 394, 398, 22 Sup. Ct. 650, 46 L. Ed. 954.And that this was precisely the light in which the Congress regarded the whole transaction, is clear from the terms of the concluding section, the eighth:

'That nothing in this act contained shall in any manner bind the United States to purchase any portion of the land herein described, except sections sixteen and thirty-six or the equivalent in each township, or to dispose of said land except as provided herein, or to guarantee to find purchasers for said lands or any portion thereof, it being the intention of this act that the United States shall act as trustee for said Indians to dispose of said lands and to expend and pay over the proceeds received from the sale thereof only as received, as herein provided.'33 Stat. pp. 352, 361, c. 1624.

Taking all of the provisions of the agreement together, we cannot doubt that, while the Indians by the agreement released their possessory right to the government, the owner of the fee, so that, as their trustee, it could make perfect title to purchasers, nevertheless, until sales should be made, any benefits which might be derived from the use of the lands would belong to the beneficiaries and not to the trustee, and that they did not become 'public lands' in the sense of being subject to sale, or other disposition, under the General Land Laws.Union Pacific R. R. Co. v. Harris, 215 U. S. 386, 388, 30 Sup. Ct. 138, 54 L. Ed. 246.They were subject to sale by the government, to be sure, but in the manner and for the purposes provided for in the special agreement with the Indians, which was embodied in ActApril 27, 1904(33 Stat. 352), and as to this point the case is ruled by the Hitchcock and Chippewa Cases, supra.Thus we conclude that the lands described in the bill were 'Indian lands' when the company pastured its sheep upon them, in violation of section 2117 of Revised Statutes, and the decree in No. 212 must be affirmed.

There remains the question as to the construction of R. S. § 2117.

In the law case it is admitted in the bill of exceptions that the Sheep Company, without the permission of the Crow Tribe of Indians or of the United States, drove, ranged, and grazed 5,000 head of sheep on the land described in the complaint, and that at the time no settlement or entries...