Whaley v. Northern Pac. Ry. Co.

HUNT, District Judge (after stating the facts as above). A careful examination of the Stevens treaty, the acts of Congress, and decisions of the Supreme Court of the United States applicable to the facts of this case leads me to these conclusions: The most favorable attitude that can be assumed in complainant’s behalf is that since April 16, 1903, he has in good faith claimed a [668] homestead upon land situate in the Bitter Root Valley above the Lo Lo fork, and that his claim is not within the 15 townships which, by the act of Congress of 1872 (infra), had been opened for settlement. By article 11 of the Stevens treaty, made in 1855, no portion of the Bitter Root Valley above the Lo Lo fork was to be open for settlement until the examination and survey had been made, as required by the terms of the treaty, and.until the decision of the President concerning the adaptability of ,the valley to the wants of the Flatheads had been made known. Act July 16, 1855, 12 Stát. pp. 975-979. On November 14,-1871, the President issued his proclamation to the effect that the Bitter Root Valley above the Lo Lo fork had been surveyed, and expressing his judgment that it was not better adapted -to the wants of the Flatheads than the general reservation set apart by the treaty. Upon June 5, 1872, Congress passed another act to provide for the removal of the Flathead and other Indians from the Bitter Root Valley. Act June 5, 1872, c. 308, 17 Stat. 226. Section 2 of this last aforesaid act is all-important. After providing for a survey of 15 townships, it expressly provides that none of the lands in said valley above the Lo Lo fork shall be open to settlement under the homestead and pre-emption laws of the United States. In my judgment, the language of this act is unmistakably clear and comprehensive in its words of exclusion, so that, unless there is later legislation which entitles this complainant to claim rights to lands outside of the 15 townships as a homesteader, it is determinative, and he must fail in his suit. I quote the section in full: “Sec. 2. That as p soon as practicable after the passage of this act, the Surveyor General oí Montana Territory shall cause to he surveyed, as other public lands of the United States are surveyed, the lands in the Bitter Root Valley lying above the Lo Lo fork of the Bitter Root river; and said lands shall be open to settlement, and shall be sold in legal subdivisions to actual settlers only, the same being citizens of the United States, or having duly declared their intention to become such citizens, said settlers being heads of families, or over twenty-one years of age, in quantities not exceeding one hundred and sixty acres to each settler, at the price of one dollar and twenty-five cents per acre, payment to be made in cash within twenty-one months from the date of settlement, or of the passage of this act. The sixteenth and thirty-sixth sections of said lands shall be reserved for school purposes in the manner provided by law. Town-sites in said valley may be reserved and entered as provided by law: Provided, that no more than fifteen townships of the lands so surveyed shall be deemed to be subject to the provisions of this act: And provided further, that none of the lands in said valley above the Lo Lo fork shall be open to settlement under the homestead and pre-emption laws of the United States. An account shall be kept by the Secretary of the Interior of the proceeds of said lands, and out of the first moneys arising therefrom there shall be reserved and set apart for the use of said Indians the sum of fifty thousand dollars, to be by the President expended, in annual installments, in such manner as in his judgment shall be for the best good of said Indians, but no more than five thousand dollars shall be expended in any one year.” Now, the only later act appears to be that of February 11, 1874 (Act Feb. 11, 1874, c. 25, 18 Stat. 15); but this cannot avail complainant, as it is plainly limited in its application to the 15 townships that had been thrown open for settlement under the act of 1872. The court can imply no meaning from the letter of the act of June 5, 1872, [669] whereby homestead claims may be made to lands not within the 15 •townships thrown open to settlement, for the language, being unambiguous, will not hear sucl - construction. Regarding the complainant, therefore, as bound by the act of 1872, as I read and interpret it, his bill must be dismissed, and it will be so ordered. As the foregoing conclusion disposes of the case, discussion of the question whether the particular lands filed upon by complainant on April 16, 1903, were embraced within the words “the Bitter Root Valley above the L,o Bo fork,” as used in the Stevens treaty, would be supererogation. The student of the history of the treaties with the Salishan and other Indians will find much of interest upon the treaty generally by reading the life of Isaac I. Stevens, by Hazard Stevens, where the colloquies between the chiefs and Governor Stevens at Hell Gate are given with considerable detail. Volume 2, c. 31. Mention of the scope of the treaties is also made in Reverend Father Palladino’s book, “Indian and White in the Northwest.” It is certain that the definition of what is the valley above the Lo Lo fork given to the words as used in the treaty by the Department of the Interior restricts the valley to the area of lowlands or depressions of considerable size, with bottoms of gentle slope as compared to the sides; that is to say, the valley is defined to be the space inclosed between the ranges of mountains. Under either of these commonly accepted definitions, the lands involved in this suit have been excluded from the valley lauds; and decision of where the valley ends and where the range of mountains began became one of fact to be ascertained by the Interior Department, as does decision of what are swamp lands. Pleath v. Wallace, 138 U. S. 573, 11 Sup. Ct. 380, 34. L. Ed. 1063. True, in construing a treaty had by the United States with Indians, we must always consider the words used by their plain import; yet, doing this, the common understanding of the word “valley” is to look upon it as meaning lowlands, in contradistinction to mountain slopes and mountain ridges. Again, in reading the whole Stevens treaty, it is to he noticed that in article 1, “the main ridge of the Rocky Mountains” is referred to, and reference is had to “the divide” between certain streams, and, again, to “the source of main branch of the Jocko river.” As these several descriptive words also have commonly accepted definitions, well known by Indians, as by whites, it would seem to be but just to assume that when the words “Bitter Root Valley” were used in article 11, they were employed as much with relation to their ordinary significance as were the words “main ridge” or “divide” or “source.” If this reasoning is fair, then the contention that there has been a misinterpretation of the treaty throughout these many years must fail, and the evidence of the Indians concerning the scope of the treaty is irrelevant. Lastly, complainant has made a very weak showing under the Jiomestead laws of the United States. It would be a very severe strain upon the liberality of the homestead act to extend its protection to complainant, who really never made an earnest effort to establish his actual home upon the place to the exclusion of any other home. He seems to have had a notion that “representation” would do, and that [670] this was possible by occasional visits to the place, followed by some slight evidences of occupancy and cultivation. I do not believe that such acts constitute that good faith demanded of one who claims as a homesteader. Inhabitancy is always required, and surely it is not a compliance with the law for a man to file on a tract of land with no intention of making it his home, with no purpose of living there, with no intention of cultivating the place and of acquiring, it for a place to reside in. Occasional visits made for a day or two every few months, when such visits are made solely for the purpose of complying technicálly with the law, do not constitute a compliance with the statute. To establish a residence under the homestead laws, there must be a combination of act and intent, the act of occupying and living upon the claim and the intention of making the place a home to the exclusion of a home elsewhere. Tested by these demands of the law, under the facts and circumstances adduced in the record, complainant’s showing is so weak that he could not complain if relief were denied to him, solely upon the ground that he has never tried in good faith to comply with the homestead laws.