Nadeau v. Union Pac Co, 119

• Decision Date: 07 June 1920
• Docket Number: No. 119,119
• Citation: 64 L.Ed. 1002,253 U.S. 442,40 S.Ct. 570
• Parties: NADEAU et al. v. UNION PAC. R. CO
• Court: U.S. Supreme Court

253 U.S. 442

40 S.Ct. 570

64 L.Ed. 1002

NADEAU et al.

v UNION PAC. R. CO.

No. 119.

Argued Jan. 9 and 12, 1920.

Decided June 7, 1920.

Mr. A. E. Crane, of Topeka, Kan., for plaintiffs in error.

Messrs. R. W. Blair, of Topeka, Kan., and N. H. Loomis, of Omaha, Neb., for defendant in error.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

Defendant in error brought this action to obtain possession of certain lands, formerly part of the Pottawatomie Indian Reservation and now in Pottawatomie county, Kan., which lie in the margins of the 400-foot strip claimed by it as legal successor to the original grantee. Counsel for plaintiffs in error well say but one question is presented for our determination:

'Were the lands involved in this action 'public lands' within the meaning of the acts of Congress dated July 1, 1862, and July 2, 1864, granting ar ight of way to the Leavenworth, Pawnee and Western Railroad Company and its successors.'

The cause were tried by the court below upon pleadings and agreed statement of facts; and a memorandum states the reasons for judgment favorable to the railroad.

By the act of July 1, 1862 (12 Stat. 489, c. 120, § 2), Congress granted a right of way 'two hundred feet in width on each side of said railroad where it may pass over the public lands' (Stuart v. Union Pacific Railroad Company, 227 U. S. 342, 345, 33 Sup. Ct. 338, 57 L. Ed. 535), and declared:

'The United States shall extinguish as rapidly as may be the Indian titles to all lands falling under the operation of this act and required for the said right of way and grants hereinafter made.'

Some amendments added by the act of July 3, 1866 (14 Stat. 79) are not specially important here.

It is said that under treaties of 1846 and 1861 with the United States (9 Stat. 853; 12 Stat. 1191) the Pottawatomie Reservation was no part of the 'public lands'; moreover that Congress lacked power to grant rights therein to a railroad company.

In Kindred v. Union Pacific Railroad Co., 225 U. S. 582, 596, 32 Sup. Ct. 780, 56 L. Ed. 1216, lands in the Delaware Diminished Indian Reservation—east of the Pottawatomies—were declared 'public lands' within the intendment of the right of way clause, act of 1862, although then actually occupied by individual members of the Tribe under assignments executed as provided by treaty. That case renders clear the definite purpose of Congress to treat Indian Reservations, subject to its control, as public lands within the right of way provision. This provision is not to be regarded as bestowing bounty on the railroad; it stands upon a somewhat different footing from private grants, and should receive liberal construction favorable to the purposes in view. United States v. Denver & Rio Grande Railway Co., 150 U. S. 1, 8, 14, 14 Sup. Ct. 11, 37 L. Ed. 975.

Whether Congress had power to make grants in respect of the lands here involved must be determined upon a consideration of their history.

November 14, 1862, the railroad company accepted the act of 1862, and during 1865 and 1866 duly constructed its road through the Pottawatomie Reservation—so far as appears, without protest or objection.

By the treaty of 1846 (article 4) the United States agreed to grant to the Pottawatomie Indians possession and title to a district 30 miles square, on the Kansas river, and to guarantee full and complete possession thereof 'as their land and home forever.' 9 Stat. 854.

In 1861 the same parties entered into another treaty which stipulated (articles 1 and 2) that land within the reservation designated by the treaty of 1846 should be allotted thereafter in severalty to tribal members who had acquired customs of the whites, and desired separate tracts; that the United States' agent should take an accurate census showing those desiring to hold in severalty and those desiring to hold in common, and 'thereupon there shall be assigned, under the direction of the Commissioner of Indian Affairs,' specified amounts of land 'to include, in every case, as far as practicable, to each family their improvements and a reasonable portion of timber, to be selected according to the legal subdivision of survey.' 'When such assignments shall have been completed, certificates shall be issued by the Commissioner of Indian Affairs for the tracts assigned in severalty, specifying the names of the individuals to whom they...