Dubuque & Sioux City Railroad v. Des Moines Valley Railroad

delivered the opinion of the court.

The following are no longer open questions in this court:

1. That the grant-of lands to the Territory of Ioiva for the improvement of the Des Moines River, made by the act of August 8th, 1846, c. 103, 9 ¿ at. 11, did not extend above the Raccoon Fork. Dubuque & Sioux City Railroad Company v. Litchfield, 23 How. 66 .

2. That, notAvithstanding this, the odd-numbered sections within five miles of the river, on each side, above the Raccoon Fork and beloAV the east branch,' to which the Indian title had been extinguished, Avere so far reserved, “ by competent authority,” for the purpose of aiding in the improvement' of the Des Moines, that they did not pass under the act of May 15th, 1856, c. 28, 11 Stat. 9 , granting lands to the State of Iowa to .aid in the construction of certain railroads; and—

3. That the act of July 12th, 1862, c. 161, 12 Stat. 543 , “transferred the title from the-United States and vested it in the State of IoAva, for the use of its grantees under the river grant.” Wolcott v. Des Moines Compcmy, 5 Wall. 681 ; Will

The lands involved in. this suit are odd-numbered sections, located in Iowa, within five miles of the Des Moines, above the east fork, and it is insisted that they did not pass under the act of 1862, because,

1. When the'reservation for the river improvement was made the Indian title had not been extinguished, and they were not then part of the public lands of the United States; and

2. The reservation, as in fact made, was along the east branch, and not the main river, where these lands are.

. These objections present the only questions we have now to consider.

1. As to the Indian title.

It is conceded that when the act of 1846 was passed all Indian titles had been extinguished, except such as belonged to certain bands of the Sioux. By a treaty between the United States and the Sacs and Foxes, the Medawah-Kantón, Wahpacoota, Wahpeton, and Sissetong bands or tribes of Sioux/and the Ottawas, Iowas, Ottoes, and Missourias, concluded on the 15th of July, 1830, and proclaimed on the 24th of February, 1831, 1 Stat.. 328, certain lands were ceded and relinquished to the United States “'to be assigned and allotted, under the direction of the president of the United State's, to the tribes now living thereon, or to such other tribes- as the president may locate thereon, for hunting and other purposes.” The north line of this cession is described in the treaty as follows:

“ Beginning at the upper fork of. the Des Moines River and passing the source of the Little Sioux and Floyds Rivers to the fork of the first creek which falls into the Big Sioux or Calumet, on the east-side.”

The lands north of this line were occupied by the Sioux, and those south were held by the United States for the purposes set forth in the treaty. Whether the lands in controversy in this suit are situated north or south of this boundary line depends on whether the east branch or the Lizard made the

On the 28th of- July and the 5th of August, 1851, treaties were negotiated with the Sioux, by which they surrendered all their title to lands in Iowa. The ratification of these treaties, in the form they were originally made, was not advised by the Senate, but on the 23d of June, 1852, certain amendments were proposed, on the acceptance of which the President was authorized to conclude the treaties “ as amended.” The amendments were agreed to by the Indians on the 4th and 8th of September, 1852, and the ratification of the treaties was duly proclaimed on the 24th of February, 1853.

The grant to Iowa under the act of 1846 was of “ one equal moiety, in alternate sections, of the public lands (remaining unsold, and not otherwise disposed of, encumbered, or appropriated), in a strip five miles in width on each side of said river, to be selected,” &c., and the odd-numbered sections rvere after-wards selected. A question arose as to the extent of this grant, and as early as February 23d, 1848, the commissioner of the general land office certified to the officers of the State that, in the opinion of “ his office,” the State was “ entitled to the alternate sections within five miles of the Des Moines River throughout the whole extent of that river within the limits of Iowa.” The State claimed that the grant extended from the mouth of the river to its source. Notwithstanding the opinion of the land office and the claim of the State, a proclamation was issued by the president ■ on the 19 th of June, 1848, ordering into market some of the lands which lay above the Raccoon Fork. ’ This led to a protest on the part of the officers of the State, and a correspondence between the representatives of the State in Congress and the secretary of the treasury, whose department then had charge of the public lands, which resulted in the announcement by the secretary, on the second of March, 1849, of his opinion that the grant extended- from the mouth to the source of the river, not, however, including any lands in the State of Missouri. In accordance with this opinion, instructions were issued from the general land officers to the land

“Department oe the Interior,

■ Washington, October 29, 1851.

“ Sir : I herewith return all the papers in the Des Moines case, which were recalled from your office about the first of the present 'month.

“ I have considered and carefully reviewed my decision of the 26th July last, and in doing so find that no decision which I can make will be final,- as the question involved partakes more of a "judicial than an executive character, which must ultimately be determined by the judicial tribunals of the country, and although my own opinion on the true construction of the grant is unchanged, yet in view of the great conflict of opinion among the executive officers of the government, and also in view of the opinions of several eminent jurists which have been presented to me in favor of the construction contended for by the State, I am willing to recognize the claim of the State, and to approve the selections without prejudice to the rights, if any there be, of -other parties, thus leaving the question as to the proper construction of the statute entirely open to the action of 'the- judiciary. You will please, therefore, as soon-as may be practicable, submit for my .approval such lists as may have been prepared, and proceed to report for like approval lists of the alternate sections claimed by the State of Iowa above the Raccoon Forks, as far as

the surveys have progressed or may hereafter be completed and returned.

“ Very respectfully, etc., etc.,

“A. JE. H. 'Stuart, Secretary.

'The •Commissioner of the General Land Office.”

In obedience to these instructions, lists were made out as the surveys progressed, and submitted to the secretary for his approval. His last approval, before the passage of the railroad grant of 1856, was on the 17th of December, 1853. The lands now in controversy were not surveyed at that time, and were not included in this or any of the lists previously made.

It is undoubtedly true,' as was said in Leavenworth, &c., Railroad v. The United States, 92 U. S. 733 , 743, that, “in the absence of words of unmistakable import,” it will not be presumed that Congress has made a grant bf lands to which the Indian title has not been extinguished ; but there are, nevertheless, instances, as in the case of the Pacific railroads, where this has been done. Confessedly, however, in this case the congressional grant of 1846 did not include the lands now in controversy. Whatever reservation there was to interfere with the railroad grant of 1856, grew out of what was done by the executive officers of the government after the act of 1846 was passed, and while its effect was in doubt. That the State claimed all the alternate sections within five miles of the river on each side, and as far north as the State line, is not denied. That the intention of the president and his cabinet was to make the reservation as broad as the claim is to our minds perfectly apparent from the language of the instructions of the secretary of the interior to the commissioner of the general land office in his communication of the 29th of October, 1851. His words are:

“ I am willing to recognize the claim of the State and approve the selections without prejudice to the rights, if any there be, of others, thus leaving the question as to the proper construction of the statute entirely open to the action of the judiciary.”

. He then directed lists of selections to be prepared and sub

2. As to the east branch.

Much of Avhat has been said about the Indian title applies to tMs objection. The State claimed the lines along the river, and the reservation as promulgated Avas of Avhat Avas claimed. No one now supposes the east branch Avas in fact the Des Moines RiArer. It is undoubtedly true that at some - time some officers of the government, as well as some officers of the State, supposed the branch Avas the main river, and acted accordingly; but that does not change the geographical fact that what was taken for the river was. only a branch. The lists of selections along the branch, and their approval by'the secretary, were mistakes, Avhich the record shoAVs were corrected in the final

We find no error in the record, and the

Judgment is affirmed.