United States v. Cadzow

FULUER, District Judge. The rights of the Indians generally in the United States to the occupancy of lands have been considered by various courts in a number of instances, and it is generally conceded that the aboriginal inhabitants of the country had the right to such occupancy, although the paramount title is vested in the government; that such right of occupancy is good as against all others except the government, but that it is not of a nature to prevent the government from dealing with the title as it may see fit. In an early case the nature and rights of the title of Indians to lands in the United States were exhaustively considered by Chief Justice [130] Marshall, and the following principle declared to be unquéstioned: “That the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may,’ perhaps, be supported by reason, and certainly cannot be rejected by courts of justice. * * * It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right.” Johnson v. McIntosh, 8 Wheat. 543, 5 L. Ed. 681. It has also been determined in numerous cases that the Indians are wards of the government, and that it is the duty of the government to protect them as such. In a case in the Supreme Court, decided October 20, 1913, in which such rights were considered, the court says: “Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long-continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a state. As was said by this court in United States v. Kagama, 118 U. S. 375, 384, 6 Sup. Ct. 1109, 30 L. Ed. 228, 230: ‘The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.’ ” United States v. Sandoval, 231 U. S. 28, 34 Sup. Ct. 1, 58 L. Ed. 107. And in the case last cited it is held that courts of the United States, rather than state courts, are vested with jurisdiction to determine and protect the rights of Indians: “These Indian tribes are the wards of the nation. They are communities dependent on the United States; dependent largely for their daily food;. dependent for their political rights. They owe no [131] allegiance to tlie states, and received from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. 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 has always been recognized by the executive and by Congress, and by this court, whenever the question has arisen.” United States v. Kagama, 118 U. S. 383, 6 Sup. Ct. 1109, 30 L. Ed. 228. The rights of the Indians, and the duty of the United States to protect such rights, have been considered also in the following cases: Caldwell v. Robinson (C. C.) 59 Fed. 653; Robinson v. Caldwell, 67 Fed. 391, 14 C. C. A. 448; Beck v. Flournoy L. & R. Co., 65 Fed. 30, 12 C. C. A. 497; United States v. Boyd (C. C.) 68 Fed. 577; United States v. Flournoy L. & R. Co. (C. C.) 71 Fed. 576; Beecher v. Wetherby, 95 U. S. 517, 24 L. Ed. 440; United States v. Winans (C. C.) 73 Fed. 72; United States v. Boyd, 83 Fed. 547, 27 C. C. A. 592; Maxey v. Wright, 3 Ind. T. 243, 57 S. W. 809; Nagle v. U. S., 191 Fed. 141, 111 C. C. A. 621; Peters v. Malin (C. C.) 111 Fed. 250; McGrath v. Valentine, 167 Fed. 477, 93 C. C. A. 109; Lemmon v. U. S., 106 Fed. 651, 45 C. C. A. 518; Young v. Goldsteen (D. C.) 97 Fed. 303. The status and rights of Indians in Alaska have been fully considered in an opinion delivered by Judge Wickersham in 1905, in the case of United States v. Berrigan, 2 Alaska, 443, and but little need be added to what is therein said. The treaty ceding Alaska to the United States provided: “That the uncivilized tribes will be subject to such laws and regulations as the United States may from time to time adopt in regard to aboriginal tribes of that country.” The following acts of Congress each contain a provision protecting the Indians in Alaska in the use and occupancy of lands claimed by them: An act to provide a civil government for Alaska, approved May 17, 1884. 23 Stat. 24. An act to repeal timber culture laws, and for other purposes, approved March 3, 1891. 26 Stat. 1095. An act extending homestead laws and providing for right of way for railroads in the district of Alaska, and for other purposes. Approved May 14, 1S98. 30 Stat. 412. An act making further provision for a civil government for Alaska, and for other purposes, approved June 6, 1900. 31 Stat. 330. [132] The provision, in each of these acts referred to, was designed to protect the Indians in the occupancy of lands held by them at the time of passage of the several acts; and the rights of missions to occupy public lands, and to secure title therefor, are also recognized. “The land not exceeding six hundred and forty acres at any station now occupied as missionary stations among the Indian tribes in said section, with the improvements thereon erected by or for such societies, shall be continued in the occupancy of the several religious societies to which said missionary stations respectively belong until action by Congress.” “All tracts.of land not exceeding 640 acres in any one tract now occupied as missionary stations in said district of Alaska, are hereby excepted from the operation of the last three preceding sections of this act.” “The Indians or persons conducting schools or missions in the district shall not be disturbed in the possession of any lands now actually in their use- or occupation, and the land, at any station not exceeding six hundred and forty acres, now occupied as missionary stations among the Indian tribes in the section, with the-improvements thereon erected by or for such societies, shall be continued in tbe occupancy of the several religious societies to which the missionary stations respectively belong, and the Secretary of the Interior is hereby directed to have such lands surveyed in compact form as nearly as practicable and patents issued for tbe same to tbe several societies to which they belong; but nothing contained in this act shall be construed to put in force in tbe district the general land laws of the United States.” Comp. Laws Alaska 1913, pp. 118, 119. It. appears that no-action has ever been taken by the Department of the Interior to set apart any special lands for Indian occupancy in Alaska, under the provisions of the section above quoted, and, as stated heretofore, the application of the St. Stephen’s Mission for a part of the tract in controversy is still pending in the land office. In the report of the United States deputy surveyor who surveyed the mission tract at Ft. Yukon, in explanation of his action in surveying only 2.91 acres, instead of 640 acres, as applied for by the mission, he says: “I questioned the Indians throughout the village, and they in nearly every instance said they came to Ft. Yukon at the time that Beaumont came, which was in 1892. At any rate, the Indians have built houses over most of the ground along the water front and claim the land as their own. * * * For the foregoing reason the tract was not surveyed as large as was requested by Bisbop Bowe. To [133] extend tlie lines would be to encroach on lands claimed by natives and others.” Whether or not the part of the act of June 6, 1900, above quoted, contemplates that patent should issue to the religious society to which the missionary station belongs, for the entire tract, not exceeding one mile square, occupied by it and by the Indians, for the benefit jointly of the mission and Indians, or whether, as interpreted by the surveyor of,this tract, it contemplates that a patent should issue to the missionary society for only such lands as are actually occupied by it, and the rights of the Indians should be separately considered, and the Department of thé Interior issue a patent to them separately, it is not necessary to determine. At any rate, the government, by the acts above mentioned, has guaranteed to the Indians the right to remain in the occupation of the lands occupied by them at the time the several acts were passed. There is no question but that a considerable number of these Indians were in the occupation of these lands at the time of the passage of the act of June 6, 1900. I am satisfied that they reasonably require for their use all the lands between the mission buildings and the store of Mclnroy & Foster, and extending from the water front back a distance of one-half mile. Under the authority of United States*v. Berrigan, supra, and other cases cited, the defendants Horton & Moore, by purchasing a cabin of an Indian occupant, did not acquire any title whatever thereto, and could be removed therefrom at the suit of the United States, if such action were deemed advisable. The government does not ask that any white people now occupying any part of this tract be removed therefrom, but simply that no further encroachments be allowed; and a permanent injunction, granting such relief, may be entered. The United States undoubtedly had the right to institute and maintain this action, for the protection of either the Indians or the mission, or both. A decree may be entered, enjoining the defendants from entering or trespassing upon the part of the lands last mentioned, and from interfering with the Indians or the mission in their occupancy thereof.