This appeal brings up for review a decree of the Circuit Court of Appeals, directing the cancellation of a land patent issued in 1904 by the United States to the defendant, the Central Pacific Railway Company, in so far as it purports to convey certain legal subdivisions of land in Sections 13 and 23. Township 43 North, Range 8 West, M.D.M. Siskiyou County, California. 276 Fed. 78.
The original complaint alleged an actual occupancy by the individual Indians, but sought cancellation of the patent primarily on the ground that the lands formed part of an Indian reservation provided for in a treaty which was pending for ratification when the Act of 1866 was passed; but this last contention was abandoned on the trial, it appearing that the treaty had been rejected by the Senate prior to that date.
But the District Court found for the plaintiff upon the issue of actual occupancy and entered a decree confirming the right of possession in the Indians, which, however, was confined to the land actually enclosed, being an irregular body of about 175 acres and which did not in terms cancel the patent.
The District Court refused to reopen the case on the defendants' application to allow further proof on the issue last stated, holding that, as the occupation by the Indians was alleged in the original bill, defendants should have offered their evidence on that issue at the trial. The court found that as early as 1859 the Indians named lived with their parents upon the lands described and had resided there continuously ever since; that they had under fence between 150 and 175 acres in an irregularly shaped tract, running diagonally through the two sections, portions of which they had irrigated and cultivated; that they had constructed and maintained dwelling houses and divers outbuildings, and had actually resided upon the lands and improved them for the purpose of making for themselves homes. These findings have support in the evidence and will be accepted here. Adamson v. Gilliland, 242 U.S. 350, 353.
The decree of the Circuit Court of Appeals agreed with that of the District Court generally but extended the right of possession to the whole of each of the legal subdivisions which was fenced and cultivated in part, and reversed the decree, with instructions to enter one cancelling the patent in respect of the entire 360 acres.
A reversal of this decree is now sought upon several grounds.
1. It is urged that the occupancy of land by individual Indians does not come within the exceptive provision of the grant.
Until the Act of March 3, 1875, c. 131, 18 Stat. 402, 420, extending the homestead privilege to Indians, the right
"It is true that the Indian did not give notice of his intention to apply for an allotment of this land until after the State had made disposal thereof, but the purchaser at such sale was bound to take notice of the actual possession of the land by the Indian if, as alleged, he was openly and notoriously in possession thereof at and prior to the alleged sale, and that the act did not limit the time within which application for allotment should be made."
Congress itself, in apparent recognition of possible individual Indian possession, has in several of the state enabling acts required the incoming State to disclaim all right and title to lands "owned or held by any Indian or Indian tribes." See 25 Stat. 676, c. 180, § 4, par. 2; 28 Stat. 107, c. 138, § 3, par. 2.
The action of these individual Indians in abandoning their nomadic habits and attaching themselves to a definite locality, reclaiming, cultivating and improving the soil and establishing fixed homes thereon was in harmony with the well understood desire of the Government which
The fact that such right of occupancy finds no recognition in any statute or other formal governmental action is not conclusive. The right, under the circumstances here disclosed, flows from a settled governmental policy. Broder v. Water Co., 101 U.S. 274, 276, furnishes an analogy. There this Court, holding that the Act of July 26, 1866, c. 262, § 9, 14 Stat. 251, acknowledging and confirming rights of way for the construction of ditches and canals, was in effect declaratory of a preexisting right, said: "It is the established doctrine of this court that rights of . . . persons who had constructed canals and ditches .. . are rights which the government had, by its conduct, recognized and encouraged and was bound to protect, before the passage of the act of 1866. We are of opinion that the section of the act which we have quoted was rather a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use, than the establishment of a new one." Then, referring to the land grant to the Pacific Railroad Companies, which was made expressly subject to "pre-emption, homestead, swamp land, or other lawful claim," and which antedated the Act of 1866, the Court held that defendant's right of way for its canal, independent of that act, was within the excepting provision of the grant and said: "We have had occasion to construe a very common clause of reservation in grants to other railroad companies, and in aid of other works of internal improvements, and in all of them we have done so in the light of the general principle that Congress, in the act of making these donations, could not be supposed to exercise its liberality at the expense of pre-existing rights, which, though imperfect, were
We are referred to Buttz v. Northern Pacific R.R., 119 U.S. 55, but that case affords no aid to the defendant. There the railroad ran through a section of the country where the original right of Indian occupancy had not been extinguished and this Court held (p. 66): "The grant conveyed the fee subject to this right of occupancy. The Railroad Company took the property with this incumbrance." The United States, however, undertook to extinguish the Indian title as rapidly as might be consistent, etc., and when this was done the right of the company, it was held, immediately attached free from the Indian title.
In our opinion the possession of the property in question by these Indians was within the policy and with the implied consent of the Government. That possession was definite and substantial in character and open to observation when the railroad grant was made, and we have no doubt falls within the clause of the grant excepting from its operation lands "reserved . . . or otherwise disposed of."
2. It is insisted that any rights these Indians might otherwise have had are barred by the provisions of the Act of March 3, 1851, c. 41, 9 Stat. 631. This statute required every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican governments to present the same for settlement to a commission created by the act. There was a provision directing the commission to ascertain and report the tenure by which the mission lands were held and those held by civilized Indians, and other Indians described.
Barker v. Harvey, 181 U.S. 481, does not support the defendants' contention. There the Indians whose claims were in dispute were Mission Indians claiming a right of occupancy derived from the Mexican Government. They had failed to present their claims to the Commission, and this, it was held, constituted an abandonment. The Indians here concerned have no such claim and are not shown to be within the terms of the Act of 1851 in any respect. It further appeared in that case that prior to the cession to the United States the Mexican authorities, upon examination, found that the Indians had abandoned
3. The contention that the United States was without authority to maintain the suit in the capacity of guardian for these Indians is without merit. In United States v. Kagama, 118 U.S. 375, 383, 384, the general doctrine was laid down by this Court that the Indian tribes are wards of the nation, communities dependent on the United States. "From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power." This duty of protection and power extend to individual Indians, even though they may have become citizens. United States v. Nice, 241 U.S. 591, 598, and cases cited; Heckman v. United States, 224 U.S. 413, 436; United States v. Gray, 201 Fed. 291; United States v. Fitzgerald, 201 Fed. 295. In United States v. Gray, supra, the capacity of the United States to sue for the breach of a lease made by an Indian allottee was asserted and upheld. After pointing out the fact that it was the policy of the Government to protect all Indians and their property and to teach and persuade them to abandon their nomadic habits the court said: "The civil and political status of the Indians does not condition the power of the government to protect their property or to instruct them. Their admission to citizenship does not deprive the United States of its power, nor relieve it of its duty. . . ." In United States v. Fitzgerald, supra, it was held that the United States had capacity to sue for the taking of personal property from an Indian held by him subject to the management of an Indian agent, on the ground, among others, that such taking obstructs the execution of its governmental policy. At page 296 the
4. The suit is not barred by the Act of March 3, 1891, c. 561, § 8, 26 Stat. 1095, 1039, limiting the time within which suits may be brought by the United States to annul patents.
The object of that statute is to extinguish any right the Government may have in the land which is the subject of the patent, not to foreclose claims of third parties. Here the purpose of the annulment was not to establish the right of the United States to the lands, but to remove a cloud upon the possessory rights of its wards. As stated by this Court in United States v. Winona & St. Peter R.R. Co., 165 U.S. 463, 475, the statute was passed in recognition of "the fact that when there are no adverse individual rights, and only the claims of the Government and of the present holder of the title to be considered, it is fitting that a time should come when no mere errors or irregularities on the part of the officers of the land department should be open for consideration." After the
5. Neither is the Government estopped from maintaining this suit by reason of any act or declaration of its officers or agents. Since these Indians with the implied consent of the Government had acquired such rights of occupancy as entitled them to retain possession as against the defendants, no officer or agent of the Government had authority to deal with the land upon any other theory. The acceptance of leases for the land from the defendant company by agents of the Government was, under the circumstances, unauthorized and could not bind the Government; much less could it deprive the Indians of their rights. See and compare Lee v. Munroe & Thornton, 7 Cranch, 366; Whiteside v. United States, 93 U.S. 247, 257; Dubuque & Sioux City R.R. Co. v. Des Moines Valley R.R. Co., 109 U.S. 329, 336; Pine River Logging Co. v. United States, 186 U.S. 279, 291.
6. We think, however, the Circuit Court of Appeals erred in holding that the right of the Indians extended to the entire area of each legal subdivision, irrespective of the inclosure, and we agree with the District Court in confining the right to the lands actually inclosed, including the whole of the northeast quarter of the southwest quarter of Section 13, the small portion thereof which had not been enclosed having been improved. The Court of Appeals, in support of its conclusion, relied upon Quinby v. Conlan, 104 U.S. 420. In that case Conlan had entered upon a quarter section of land, occupied a portion thereof, and declared his purpose to acquire a preemption right to the whole, and soon thereafter had filed his declaratory
"A fatal objection to the judgment consists in the finding of the Judge in favor of the plaintiff for the whole tract of land sued for. The plaintiff claims by force of prior possession and a contract or consent on the part of the defendant, whom he mediately or immediately let into possession, to hold the premises for him or subject to his order. The land is public land. It was not taken up by the plaintiff under the Possessory Act of this State, nor was it inclosed. There were a house and corral on the land. Of these he may be said to have been in the actual occupancy. But we cannot see from the proofs any right of possession to the whole of the quarter section, or even any claim to it. We do not understand that the mere fact that a man enters upon a portion of the public land, and builds or occupies a house or corral on a small part of it, gives him any claim to the whole subdivision, even as against one entering upon it without title. The case would be different if he claimed under the Possessory Act, and pursued the necessary steps prescribed by it; or if he had made his entry under the preemption laws of the United States. But merely going on waste and uninclosed land, and building a house and corral, and even subsequently
This is in accordance with the general rule that possession alone, without title or color of title confers no right beyond the limits of actual possession. See Green v. Liter, 8 Cranch, 229, 250; Watkins v. Holman, 16 Pet. 25, 55; Marine Ry. & Coal Co. v. United States, 257 U.S. 47, 65; Humphries v. Huffman, 33 Ohio St. 395, 401; Langdon v. Templeton, 66 Vt. 173, 179; Ryan v. Kilpatrick, 66 Ala. 332, 337.
Certain other contentions of defendants we deem it unnecessary to review, although they have been carefully considered. Aside from that stated in the last paragraph we find no error, but for the reasons there given, the decree of the Circuit Court of Appeals is reversed and the cause remanded to the District Court, with instructions to amend its decree so as to cancel the patent in respect of the lands possessed by the Indians and, as so amended, that decree is affirmed.
"Sec. 13. . . . That all lands, the claims to which have been finally rejected by the commissioners in manner herein provided, or which shall be finally decided to be invalid by the District or Supreme Court, and all lands the claims to which shall not have been presented to the said commissioners within two years after the date of this act, shall be deemed, held, and considered as part of the public domain of the United States; . . ."
"Sec. 16. . . . That it shall be the duty of the commissioners herein provided for to ascertain and report to the Secretary of the Interior the tenure by which the mission lands are held, and those held by civilized Indians, and those who are engaged in agriculture or labor of any kind, and also those which are occupied and cultivated by Pueblos or Rancheros Indians."