The Kansas Indians

• Decision Date: 01 December 1866
• Citation: 18 L.Ed. 667,72 U.S. 737,5 Wall. 737
• Parties: THE KANSAS INDIANS
• Court: U.S. Supreme Court

72 U.S. 737

18 L.Ed. 667

5 Wall. 737

THE KANSAS INDIANS.

December Term, 1866

THESE were three distinct cases involving, however, with certain differences, essentially the same question, argued on the same day and by the same counsel.

The specific question was, whether the State of Kansas had a right to tax lands in that State held in severalty by individual Indians of the Shawnee, Wea, and Miami tribes, under patents issued to them pursuant to certain treaties of the United States; the tribal organization of these tribes having to a certain extent, as was alleged, been broken in upon by their intercourse with the whites, in the midst of

whom the Indians were, and by their enjoyment, to some extent, of the social and other advantages to our own people.

The question was raised on bills filed in equity in the county courts of Kansas, by different Indian chiefs,—Blue Jacket as representing the Shawnees; Yellow Beaver representing the Wea tribe, and Wan-zop-e-ah the Miamis—against the County Commissioners of Johnson County and Miami County, to restrain these commissioners from selling for non-payment of taxes lands held by these Indians in their individual characters. The county court dismissed the bills, conceiving that the lands were rightly taxed, and on an affirmance of such dismissals in the Supreme Court of the State, the cases were brought here. They were, respectively, thus:

I. CASE OF THE SHAWNEE TRIBE.

In 1817, a portion of the Shawnees were living in Missouri, others in Ohio; those in Missouri were upon lands given to them by the United States, and which, by treaty, was declared should not be liable to taxes so long as they continued to be the property of the Indians.¹

In 1825, the Shawnees in Missouri gave up their lands there to the United States, and in consideration for the surrender received for themselves, and such of their brethren in Ohio as might choose to follow them, a tract in Kansas—then a wild—of 50,000 square miles, or 1,600,000 acres.²

In 1831, the Shawnees in Ohio resolved to join their Missouri brethren who had gone to Kansas. A treaty was accordingly concluded in that year by the United States with the Ohio Shawnees. By the terms of it the President was to cause the said tribe from Ohio to be protected at their intended residence against all interruption or disturbance from any other tribe or nation of Indians, or from any other person or persons whatsoever, and he was to have the same care

and superintendence over them in the country to which they were to remove, that heretofore he had over them at their then place of residence. 100,000 acres of land within the 50,000 square miles, above mentioned, were granted to them in fee by patent, so long as they should exist as a nation. These lands were not to be ceded by them except to the United States, and were never to be included within the bounds of any State or Territory, nor to be subject to its laws.³

The Ohio Shawnees were thus transferred to Kansas, and were there resident with the rest of their tribe from the time they went there, continuously, up to 1854. In the course of this term of years, the progress of civilization westward, carried numbers of white men to, around, among, and beyond them. They were thus in the midst of whites. In May of the year just mentioned, 1854, Kansas became a 'Territory' of the United States, with an organic law from Congress. By this law, it was ordained 'that all treaties, laws, and other engagements made by the government of the United States with the Indian tribes inhabiting the territories embraced therein should be faithfully and rigidly observed;' and also that all such 'territory, as by treaty with any Indian tribe was not to be included within the territorial limits or jurisdiction of any State or Territory should be excepted out of the boundaries and constitute no part of the same until said tribe should signify their assent to the President of the United States to be included therein.'

In November of this same year, 1854, the Shawnees—holding their lands in common in fee by patent, no partition having been made among themselves, and they proposing to divide them to the extent of 200 acres each, among themselves, but having no mode to effect this except by parole—ceded to the United States the whole tract of 1,600,000 acres. A retrocession of a part (200,000 acres) was made in the same instrument to carry out this purpose, with a stipulation that these retroceded lands should cover the lands where improvements of individuals had been made, and that the

restriction before annexed to their title should be as to the power of alienation, regulated as Congress might provide for. In one article of the agreement now made with these Indians, 'the care and protection of the United States are invoked, and they agree to comply with the laws of the United States, and expect to be protected and have their rights vindicated by them.'⁴ A sum of $829,000 was agreed to be paid to the Shawnee Indians for the cession to the United States. One article of the treaty provides that this sum 'shall be in full satisfaction not only of such claim, of all others of what kind soever, and in release of all demands and stipulations arising under former treaties.' From this re-ceded or reserved tract 200 acres were to be selected for each individual, except as to certain bands, who were to have their lands in common and in a compact body. The lands assigned to individuals were to be patented, under such restrictions as Congress—or, as that body afterwards enacted⁵—such restrictions as the Secretary of the Interior might impose. This officer afterwards made rules; and patents were issued in fee simple, with the restriction that 'the said lands shall never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior.'

In July, 1859, a constitution was formed for the State of Kansas, in which it was provided that all rights of individuals should continue as if no State had been formed, or change in the government made.

In January, 1861, an act for the admission of the State was passed by Congress.⁶ In this it was provided 'that nothing contained in this said constitution respecting the boundaries of said State shall be construed to impair the rights of person or property now pertaining to the Indians of said territory, so long as such rights shall remain unextinguished by treaty with such Indians.' And also, 'that no territory should be included which, by treaty with such Indian tribes, was not (without the consent of such tribe) to be included within the territorial limits or jurisdiction of any State or

Territory; but that all such territory shall be excepted out of the boundaries and constitute no part of the State of Kansas until said tribe shall signify their assent to the President of the United States to be included in said State.'

No treaty had been made by this tribe in which such consent was given by them. Nor was such assent shown by the record to have been given to the President.

II. THE CASE OF THE WEA TRIBE

Was similar in the outlines to that of the Shawnees. It was a small tribe—a mere band—who joining with other small tribes surrendered to the United States, by treaty of 10th August, 1854,⁷ lands which had been ceded to them in earlier times while the region was wild. One hundred and sixty acres were reserved for each individual, to be selected, not in a body, by the heads of families. Ten sections were reserved for the common property of the tribe, and one section for the American Indian Mission Association. The unselected lands were to be sold and the proceeds given to the Indians. The patents were like those given to the Shawnees.

III. THE CASE OF THE MIAMI TRIBE

Was, in its main aspect, like the others. By the treaty of 1854,⁸ it was provided, 'should difficulties at any time arise, that these Indians would abide by the laws of the United States, and as they expected to be protected and have their rights vindicated by those laws.' And also in the 11th article of the same treaty it was provided, 'that the President, with the advice and consent of the Senate, might adopt such policy in the management of their affairs as in his judgment might be most beneficent to them; or Congress might thereafter make such provision by law as experience

should prove to be necessary.' Like the Indians of the other two tribes, this tribe held their rights in severalty, with the conditions against alienation except on approval, &c. The patents, in the case of this tribe, declared, however:

'That the lands now patented shall not be liable to levy, sale, or execution, or forfeiture: PROVIDED, that the legislature of a State within which the ceded county may be hereafter embraced, may, with the assent of Congress, remove the restriction.'

IN THE CASE OF THE SHAWNEE TRIBE, the Commissioners of the County of Johnson, which had laid the tax, answered the bill as follows:

'That the aggregate of the lands selected by the said Indians, and from which it is sought to enjoin the levy of taxes, is about one hundred thousand acres; that they do not lie in a contiguous body, but are scattered over the entire area of the lands ceded by said tribe of Indians to the United States; in fact, over the whole body of the said county of Johnson; that interspersed with the selected lands are farm lands and roads, and school districts and municipal townships (the said districts and townships exercising their jurisdiction and functions over the said lands) of the white citizens of the county; that the lands are traversed by the white citizens as well as by Indians in visiting each other, in going to mill and to various business centres of the county; that highways have been laid across the lands by different county tribunals, and frequently at the instance and request of the grantees of the lands; that since the lands have been patented to the Indians, many of them...