Caldwell v. Robinson

• Decision Date: 22 January 1894
• Citation: 59 F. 653
• Parties: CALDWELL v. ROBINSON.
• Court: U.S. District Court — District of Idaho

59 F. 653

CALDWELL v. ROBINSON.

United States Circuit Court, D. Idaho, Central Division.

January 22, 1894

James W. Reid, for complainant.

Fremont Wood, U.S. Atty., for defendant.

BEATTY District Judge.

This cause was removed from the state court, wherein an order had been made enjoining defendant from ejecting the complainant from certain lands. The motion for dissolution of such order being called, the parties, stipulating to submit the cause upon its merits, agreed to a statement of facts, among which are:

That William Craig, a citizen of the United States, with his wife an Indian woman, in the year of 1846, settled upon the tract of land in controversy, containing 640 acres, situated within the Nez Perce Indian reservation in the state of Idaho, but at the time of settlement within what was Oregon territory that they resided upon and cultivated said land from such settlement until 1869; that on June 4, 1855, said Craig filed in the proper land office the notice of his claim to such land, and a description thereof under the act of September 27, 1850, (9 Stat. 496,) commonly known as the 'Oregon Donation Act,' and at the same time made and filed in said land office his proof of residence upon and cultivation of such land for four years; that by mesne conveyance complainant is now in the possession of and claims to own the undivided one-half of the land, the legal title being still in the government; that defendant is the Indian agent in charge of such reservation, and that only as such, and under instructions from his superior officers of the interior department, his actions in this matter were taken.

1. The defendant claims that Craig's settlement was void, because at the time made the 'Indian title' to the land had not been extinguished. That title was only such as attached to the unsettled and unoccupied public domain which had not been designated by congress for some special purpose, for, so far as appears, the land in question had not been so designated prior to such settlement.

It is unnecessary to now indulge in any reflections upon the systems of ethics which governed the Christian world in the acquisition of this country. Our aggressions upon the rights of the native race may continue to be, as they have been, a subject for pathetic song, and for the casuist's pen, but not one for present consideration. It has long been settled that the Indians had no title to this continent which we felt bound to consider during the process of its acquisition. When the Christian princes of Europe commissioned their subjects upon voyages of discovery, it was not doubted that all lands found by them in the possession only of the heathen could lawfully be taken by the discoverer, and from then until now the Indian heritage has been transferred from one government to another, and to their subjects, in total disregard of any claim or title thereto by the natives. From the Mississippi river to the 'South Sea' the country was claimed under an absolute title by the governments of France and Spain. Their title passed to the United States by treaties with France in 1803 and with Spain in 1819. The only right ever conceded to the Indian was that of occupancy, which has generally proven to be the merest shadow of a right when it became inconvenient to the dominant race.

This question is fully reviewed by Chief Justice Marshall in Johnson v. McIntosh, 8 Wheat., where, upon page 585, it is said:

'It has never been doubted that either the United States or the several states had a clear title to all the lands within the boundary lines described in the treaty, [with Great Britain, 1783,] subject only to the Indians' right of occupancy, and that the exclusive power to extinguish that right was vested in that government, which might constitutionally exercise it.'

And on page 587:

'The United States then have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indians' title of occupancy, either by purchase or conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise. The power now possessed by the government of the United States to grant lands resided, while we were colonies, in the crown, or its grantees. The validity of the title given by either has never been questioned by our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with and control it.'

The land in controversy having never, prior to its settlement in 1846, and, as we shall see, never prior to 1855, been within any government reservation, it would seem clear that the only title the Indians had to it was that of such occupancy as they had to unoccupied public lands in general, and that this right they held only by the voluntary consent of the government, which it might modify or extinguish, as it desired.

Attention has been called to the intercourse act of June 30, 1834, (4 Stat. 729,) defining the country west of the Mississippi river as 'Indian Country.' By section 11 it prohibits all white persons from settling upon 'any lands belonging, secured, or granted by treaty with the United States to any Indian tribe.' It does not exclude other lands from such settlement, but, on the contrary, the reservation of certain lands from settlement would imply authority to occupy those not so reserved. Moreover, the act contemplates the residence of whites in the Indian country, for its chief object seems to be to so regulate their intercourse with the Indians as to prevent strife and disorder between the two races.

The two cases--U. S. v. Cook, 19 Wall. 591, and Leavenworth, L. & G. R. Co. v. U. S., 92 U.S. 733--cited by defendant's counsel are concerning lands within Indian reservations, and cannot be considered controlling in this case. This right of general occupancy to the public domain is quite different from that given the Indians when a special reservation is by law or treaty assigned to them; this the government treats as something tangible, and of it they are never deprived until they relinquish their claim. All public lands, including any Indian title thereto, being under the control of the government, it must follow that any right which Craig may have obtained to the land must have been through the laws of the government, and any laws which granted him such right must at the same time have operated to extinguish the Indian title thereto. It remains, then, to inquire by what, if any, laws or authority Craig's settlement was made.

2. Prior to our treaty of June 15, 1846, with Great Britain, the territory of Oregon, including what now constitutes the states of Oregon, Washington, and Idaho, was, by treaties of 1818 and 1827 with Great Britain, 'open and free to the citizens of both powers.' While in this condition, the people of Oregon, in 1845, organized a provisional government, through which any resident of the territory was allowed a land claim of 640 acres. After our government obtained undisputed control of the country, it adopted, in 1848, a territorial organic act for Oregon, by which the land laws of the provisional government were revoked. By section 4 of the said donation act it was provided that 'there shall be and hereby is granted' 640 acres of land to married persons who should comply with the provisions of the act 'so as to entitle them to the grant as above provided, whether under the late provisional government of Oregon or since;' and by section 7, that 'at any time after the expiration of four years from the date of such settlement, whether made under the laws of the late provisional government or not, shall prove,' etc.

Thus congress recognized all rights which had accrued under the provisional government, but the grant was finally to pass to the settler only by a compliance with the conditions prescribed by the donation act.

3. Defendant interposes the objection that this act applied only to lands west of the Cascade mountains, hence not to those in question, which are east of that range. Section 3 provides for the survey only of the lands west of the Cascades; section 10 grants two townships therein for university purposes; section 7 of the amendatory act of February 14, 1853, (10 Stat. 158,) provides for appointment of land officers for the same territory; and by act of May 29, 1858, (11 Stat. 293,) it is directed that 'the existing laws relating to the survey and disposal of the public lands in the territories of Oregon and Washington west of the Cascade mountains' are made applicable to the country east of those mountains. These provisions, considered alone, give some support to defendant's view, and possibly indicate that congress, by its last act, so construed its first. Considering, however, the whole act, it clearly appears as intended to apply to the entire territory. It is reasonable to conclude the survey was limited to the west, because most accessible. Neither was it needed then in the eastern part, which was little inhabited, while the purpose of the act of 1858 was to extend the surveys, not the act, to the entire territory. The donation act recognized the claims made under the provisional government, and there can be no pretense that they were limited to the western part of the territory.

In a contest over land lying east of the Cascades, in which the donation act was involved, no claim was made that the act was limited to the west thereof, (Missionary Society v Dalles, 107 U.S. 336, 2 S.Ct. 672,) and so...