Beecher v. Wetherby

Mr. Charles W. Felker for the plaintiff in error. The act was in the nature of an executory agreement, and by its terms no title to sections numbered 16 could vest in the State until they were surveyed and designated on the plats filed in the surveyor-general's office. The sectional or subdividing lines of the township in question were not run prior to the treaty of May 12, 1854. The proviso to the act implies a reserved power in the government to sell or dispose of sections 16 while they remained a part of the public domain, and that treaty did not reserve any section, but appropriated the entire tract as a reservation, and vested the title thereto in the Indians. Meade v. United States, 2 Ct. of Cl. 224; United States v. Brooks, 10 How. 442. The State took title to none but public land. Land like that in question, continuously and rightfully in the occupation of an Indian tribe under authority of the government, is not 'public' within the meaning of the grant. Mr. Justice Davis, in Newhall v. Sanger, 92 U. S. 761, justly remarked, that the words 'public lands' 'are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.' The treaty ratified Jan. 23, 1849, allowed the Indians to remain upon the lands for two years, and until the President should give notice that they were wanted. His subsequent act setting them apart as a reservation was a specific appropriation of them. Not having then been surveyed, no right of the State to sections 16 within the reservation vested, and they have never since become 'public lands.' Wilcox v. Jackson, 13 Pet. 498; Cooper v. Roberts, 18 How. 173; Leavenworth, &c. Railroad Co. v. United States, 92 U. S. 733; Spaulding et al. v. Martin, 11 Wis. 262.