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(46 S. Ct.)

standing alone, we could base no decree upon the island constituted an organized town it with any feeling of certainty. Living wit- forming a part of Door county, Wis., as early nesses are no longer available; and tradi- as 1867. Evidence of early and continued tion, recollection of statements made by per- recognition and treatment of the island as a sons long since dead, if of any legitimate val- part of Wisconsin by the United States ue, deductions drawn from ancient docu- through its surveys, etc., is to the same effect ments, more or less cryptic, and inferences as that in respect of the other group. And based on more recent uses of the channels, the evidence is likewise the same in respect or on their relative safety and convenience of the uniform appearance of Chambers Isas indicated by physical characteristics, all relied upon in the absence of first-hand evidence, constitute at best most unsatisfactory substitutes. If it were necessary, we should, of course, undertake the task-as we should *316

land and the other small islands of the group upon the old maps as a part of Wisconsin, and their absence from Michigan surveys and maps. The absence of evidence of specific acts of dominion over the strawberries and the other small islands of this group is easily understood and does not affect the result. They are of little consequence, lying well within the boundary as claimed by Wisconsin, easterly from Chambers Island and near the westerly shore of the Door county peninsula. They appear on all maps as, and have never been regarded or treated otherwise than, a

be bound to do of reaching a conclusion from these dubious premises. But it is not necessary, for, as in the case of the two sections of the boundary just discussed, the title of Wisconsin to the disputed area now in question is established by long possession and acquiescence, and this conclusion is justified by evidence and concessions of the most sub-part of Door county. It is impossible to give

stantial character.

There is evidence of acts of dominion and possession of some of the disputed islands while Wisconsin was yet a territory. Almost from the day of her admission, the state has continuously possessed, asserted title, and exercised jurisdiction and dominion over all of the islands within the boundary claimed by her. In support of this general statement, the following, among other things, may be cited: On March 21, 1855, Washington, Detroit, Rock, and Plum Islands, described as being in the waters of Green Bay in Door county, were organized by an act of the Wisconsin Legislature as the town of Washing

ton.

them a status differing from that of the larger island and the peninsula, between, and within the shadows of, which they lie.

*318

*

*

That Wisconsin since statehood has continuously asserted title and has exercised complete and exclusive dominion over all the islands of both groups is really not a serious issue. Indeed, the bill of complaint avers that Wisconsin has possessed herself of, and exercised sovereignty over, the islands, including Washington, Plum, the Strawberries, and numerous other valuable islands, and has excluded and continues to exclude the state of Michigan from her rights thereto, and, more particularly that "Wisconsin has Chapter 210, Priv. & Loc. Laws Wis. for many years disregarded the true and 1855. A census taken the same year by the *rightful boundary, town clerk showed a population of 318, which * and has for a has since grown, it is said, to about 1,000. long time past possessed and does now posSince before that time the United States sess, and has asserted and does now assert, Land Department, by its surveys, plats, and civil, criminal, and political jurisdiction over sales of public lands, has uniformly and no- those portions of the territory within the toriously recognized the islands as a part of Michigan boundaries above described as the Wisconsin, without objection on the part of Montreal river section, the Menominee river Michigan. Indeed, as early as 1837, they section, and Green Bay section of the disputwere surveyed and platted as a part of Wis-ed territory, aggregating approximately 255,consin territory. A large number of maps, and has unlawfully taxed published and available to the public during and still continues to unlawfully tax said the years between 1837 and 1878, without exThe explanation relied ception, show the islands as a part of Wis- upon is that the state of Michigan, as a reconsin, and during the same time they do not sult of her excusable ignorance, has not been appear in any survey or upon any map as be- aware of the real facts, and therefore should longing to Michigan. Never, so far as we are not be held to have lost rights by long acable to find from the record, have they been quiescence which she otherwise might have recognized in any pratical way as a part of had. This view cannot be accepted, and may Michigan, or prior to the commencement of be dismissed, with a reference to what we this suit, claimed by that state. have already said as to the same defense in respect of the Montreal river section.

The evidence in respect of the other group of islands, while perhaps not so complete, is *317

definite and clear to the *same effect. The taxation of lands on Chambers Island began while Wisconsin was still a territory. In 1861 voters on that island participated in a Wisconsin election. A history of Door county, introduced by complainant, recites that

000 acres,

property.

*

*

In respect of the controversy as a whole, and each of the three sections, the words of this court in Indiana v. Kentucky, supra, 136 U. S. p. 509, 10 S. Ct. 1054, are singularly ap posite and conclusive:

46 # * It was over 70 years after Indiana became a state before this suit was commenced, and during all this period she never asserted

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any claim by legal proceedings to the tract in question. She states in her bill that all the time since her admission Kentucky has claimed the Green River Island to be within her limits, and

(270 U. S. 181)

UNITED STATES v. STATE OF MINNE-
SOTA.

1926.)

No. 17, Original.

has asserted and exercised jurisdiction over it, (Argued Jan. 4 and 5, 1926. Decided March 1,
and thus excluded Indiana therefrom, in defiance
of her authority and contrary to her rights.
Why, then, did she delay to assert by proper
proceedings her claim to the premises? On the
day she became a state her right to Green
River Island, if she ever had any, was as per-
fect and complete as it ever could be. On that
day, according to the allegations of her bill of
complaint, Kentucky was claiming and exercis-

#319

1. Courts

379-United States, ́as guardian

of Indians, is interested party in suit against
state to recover swamp land claimed to have
been set apart for Indians and erroneously
patented to state, so that United States Su-
preme Court has original jurisdiction.

Where lands, respecting which the United

been patented to Minnesota, United States, as
guardian of Indians and by reason of obligation
to them, was a party in interest, entitled to sue
state to recover lands in the United States Su-
preme Court.

ing, and has done so ever since, the rights of
sovereignty both as to soil and jurisdiction
over the land. On that day, and for many
years afterwards, as justly and forcibly ob-States owed obligation to Chippewa Indians, had
served by counsel, there were perhaps scores of
living witnesses whose testimony would have
settled, to the exclusion of a reasonable doubt,
the pivotal fact upon which the rights of the
two states now hinge and yet she waited for
over 70 years before asserting any claim what-
ever to the island, and during all those years
she never exercised or attempted to exercise
a single right of sovereignty or ownership over
its soil. It is not shown, as he adds, that an
officer of hers executed any process, civil or
criminal, within it, or that a citizen residing
upon it was a voter at her polls, or a juror in
her courts, or that a deed to any of its lands
is to be found on her records, or that any
taxes were collected from residents upon it for
her revenues.

"This long acquiescence in the exercise by Kentucky of dominion and jurisdiction over the island is more potential than the recollections of all the witnesses produced on either side. Such acquiescence in the assertion of authority by the state of Kentucky, such omission to take any steps to assert her present claim by the state of Indiana, can only be regarded as a recognition of the right of Kentucky too plain to be overcome, except by the clearest and most unquestioned proof. It is a principle of public law, universally recognized, that long acquiescence in the possession of territory, and in the exercise of dominion and sovereignty over it, is conclusive of the nation's title and rightful authority."

The result is that complainant has failed to maintain her case in any particular, and that the claims of Wisconsin as to the location of the boundary in each of the three sections are sustained.

2. Public lands

120-United States may sue for Indian lands erroneously patented to state.

Notwithstanding Indians could not sue the
United States for failure to demand that state
surrender lands or value, concerning which
United States was under obligation to them, and
which were claimed to have been erroneously
patented to state, nor sue the state without
permission, United States is in duty bound to
discharge its obligations, and to do so may sue
the state.

3. Public lands 120-Limitation of actions to
annul patents inapplicable to suits to annul
patents in violation of Indian rights (Act
March 3, 1891, § 8, 26 Stat. 1095, 1099 [Comp.
St. § 5114]; Act March 3, 1891, 26 Stat. 1093).

Act March 3, 1891, § 8 (Comp. St. § 5114),
and Act March 3, 1891, 26 Stat. 1093, limiting
time within which United States may sue to
annul land patents, are not applicable to suits
by the United States to annul patents issued in
alleged violation of rights of Indian wards.

4. Limitation of actions 11(1)-State stat-
utes of limitation are not binding on United
States, when suing to enforce public right or
to protect interest of Indians.

The state statutes of limitation have no application to actions by the United States to en[4] The decree, therefore, will be for Wis-force a public right or protect the interest of consin, costs to be divided between the par-its Indian wards.

ties in accordance with the general rule in

cases of this character. North Dakota v. 5. Indians 11-Cession in treaty of 1855

$320

with Chippewa Indians held not overcome, as
having been hastily negotiated with chiefs and
warriors not fairly representative (Indian
Treaty Feb. 22, 1855, 10 Stat. 1165).

Minnesota, 44 S. Ct. 208, 263 U. S. 583, 68 L.
Ed. 461. The boundary seems to be sufficient-
ly defined for all purposes of future posses-
sion and jurisdiction; but the parties, or ei-
Cession of lands to United States in treaty
ther of them, if so advised, may within 30
days submit the form of a decree more par-Chippewa Indians, cannot be impeached as hav-
of February 22, 1855 (10 Stat. 1165), by the
ticularly to carry this opinion into effect, ing been hastily negotiated with chiefs and
failing which a simple decree dismissing the warriors not fairly representative of the bands
bill will be entered.
affected, and subjected to influence and pres-

It is so ordered.

sure.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(46 S.Ct.)

6. Public lands 58-Indian lands, ceded to United States after extension of Swamp Land Act to Minnesota, held not included in grant to state (Indian Treaties of July 29, 1837 [7 Stat. 536], and Feb. 22, 1855 [10 Stat. 1165]; Act March 12, 1860, 12 Stat. 3 [Comp. St. § 4965]; Act Sept. 28, 1850, 9 Stat. 519 [Comp. St. §§ 4958-4960]).

Minnesota swamp lands, included in the Leech Lake, Winnibigoshish, and Cass Lake Reservations under treaties with the Chippewa Indians of July 29, 1837 (7 Stat. 536), and February 22, 1855 (10 Stat. 1165), at time of Act March 12, 1860 (Comp. St. § 4965), extending the grant of swamp lands by Act Sept. 28, 1850 (Comp. St. §§ 4958-4960), to the state of Minnesota, and which did not become public land until Act Jan. 14, 1889, held not included in grant to state, which was in præsenti.

7. Statutes 219-Long-continued and uniform practice of officers charged with administering statute is persuasively determinative of its construction.

Where there is some uncertainty in an act, the long-continued and uniform practice of officers charged with administering it is persuasively determinative of its construction.

8. Public lands 29-Lands appropriated or reserved are impliedly excepted from subsequent disposals.

Lands which have been appropriated or reserved for a lawful purpose are not public, and are to be regarded as impliedly excepted from subsequent laws, grants, and disposals not specifically disclosing purpose to include them.

9. Public lands 59-Treaties with Chippewa Indians, reserving lands for their use, made after Swamp Land Act, held not to bring lands passing under act within exception as to lands reserved (Act March 12, 1860, 12 Stat. 3 [Comp. St. § 4965]).

Public lands passing under the Swamp Land Act of March 12, 1860 (Comp. St. § 4965), which were included in tracts afterwards reserved and appropriated for use of Chippewas by treaties made before title under the grant was confirmed by patent, held not included in reservation, not being within exception of act as to land reserved, sold, and disposed of in pursuance of laws enacted before grant was extended.

10. Public lands 59-Indian treaties held not to divest state of lands passing under swamp land grant act (Indian Treaties of March 11, 1863 [12 Stat. 1249], May 7, 1864 [13 Stat. 693], and March 19, 1867 [16 Stat. 719]; Act March 12, 1860, 12 Stat. 3 [Comp. St. § 4965]; Act Sept. 28, 1850, 9 Stat. 519 [Comp. St. §§ 4958-4960]).

Treaties of March 11, 1863 (12 Stat. 1249), May 7, 1864 (13 Stat. 693), and March 19, 1867 (16 Stat. 719), held not to have divested the state of Minnesota of her right to lands passing under the Swamp Land Act of March 12, 1860 (Comp. St. § 4965), extending Act Sept. 28, 1850 (Comp. St. §§ 4958-4960), to Minnesota, there being nothing in the treaties certainly indicative of such purpose.

11. Public lands 60-Minnesota did not lose right to swamp land by delay in securing patents (Act March 12, 1860, 12 Stat. 3 [Comp. St. 4965]; Act Sept. 28, 1850, 9 Stat. 519 [Comp. St. §§ 4958-4960]).

Minnesota did not lose right to swamp lands under Act March 12, 1860 (Comp. St. § 4965), extending Act Sept. 28, 1850 (Comp. St. §§ 49584960), by delay in securing patents; election by act of Legislature of Minnesota in 1862 (Laws 1862, c. 62), approved by Governor, to abide by government surveyor's field notes, being sufficient selection, within requirement of Act March 12, 1860, § 2.

12. Public lands 58-Amendment to Minnesota Constitution, requiring sale of swamp lands for support of schools, held not to disable state from accepting grant (Act Sept. 28, 1850, 9 Stat. 519 [Comp. St. §§ 49584960]; Act March 12, 1860, 12 Stat. 3 [Comp. St. § 4965]).

Amendment to Minnesota Constitution, adopted in 1881, declaring that swamp land should be sold and proceeds inviolably devoted to support and maintenance of schools and educational institutions, held not to disable state from right to receive patents to land under Act Sept. 28, 1850 (Comp. St. §§ 4958-4960), extended to Minnesota by Act March 12, 1860 (Comp. St. § 4965), because of provision of act of 1850 directing that lands be applied exclusively, as far as necessary, in effecting their reclamation; the judgment of the state as to the necessity being paramount, and power to enforce such provisions being in Congress, and not in the court.

13. Indians 11-Act Jan. 14, 1889, 25 Stat. 642, and cession, with resulting rights of Indians and obligation of United States under it, was without application to any lands in which Indians had no interest (Act March 12, 1860, 12 Stat. 3 [Comp. St. § 4965]).

Act Jan. 14, 1889, and cession by Chippewa Indians of reservation lands to United States, with resulting rights of Indians and obligations of United States, held without application to lands in which Indians had no interest, and re

sulting rights of Indians and obligations of United States were limited accordingly, and did not affect swamp lands passing to state of Minnesota under Act March 12, 1860 (Comp. St. § 4965).

14. Indians 11-Value of lands set aside for Indians, but erroneously patented to state, should be determined on basis of prices which would have been controlling had lands been dealt with as they should have been (Act Sept. 28, 1850, 9 Stat. 519 [Comp. St. §§ 4958-4960]; Act March 12, 1860, 12 Stat. 3 [Comp. St. § 4965]; Act Jan. 14, 1889, 25 Stat. 642).

In suit by United States to recover lands, or their value, which by treaties and arrangements with Chippewa Indians were set aside and reserved for their benefit, but had erroneously been patented to Minnesota under Swamp Land Act Sept. 28, 1850 (Comp. St. §§ 4958-4960), as extended by Act March 12, 1860, 12 Stat. 3 (Comp. St. § 4965), value of lands should be deItermined on basis of prices which would have

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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of Minnesota to cancel *patents issued to her for certain lands under the swamp land grant, or, where the state has sold the lands, to recover their value and to leave the patents uncanceled as to such lands. Seven patents, for about 153,000 acres, are brought in question. The first was issued May 13, 1871, and the others at different times from May 17, 1900, to June 10, 1912. The bill was filed May 7, 1923. The state answered, and the case was heard and submitted on the pleadings and much documentary evidence. The issues presented are chiefly of law.

It is not questioned that the lands were swampy and in this respect within the swamp land grant, nor that the patents were sought by the state and issued by the land officers in good faith. But it is insisted, on behalf of the United States, first, that by treaties and other engagements with the Chippewa Indians, entered into before the patents were issued, the United States became obligated to apply the lands and the proceeds of their sale exclusively to the use, support, and civilization of the Chippewas, and that this operated to exclude or withdraw the lands from the swamp land grant; secondly, that the state failed to select or claim the lands within the period prescribed in the act making the grant, and thereby lost any right which she may have had to have them patented to her; and, thirdly, that the grant was subject to a condition whereby the state was required to apply the lands or the proceeds of their sale in effecting their reclamation by means of needed ditches, and that before the patents were issued the state, by an amendment to her Constitution, had disabled herself from complying with that condition and proclaimed her purpose to apply the lands and their proceeds otherwise, and thereby had lost any right she may have had to receive the patents. Stating it in another way, the insistence, on the part of the United States, is that the lands were appropriated or set apart for the Chippewas, that the land

193

officers, misconceiving their authority in the premises, issued the patents contrary to the provisions of the act making the swamp land grant and in disregard of obligations to the Indians which the United States had assumed and was bound to respect, that those obligations are still existing and must be performed, and that to enable the United States to proceed with their performance it is entitled to a cancellation of the patents as respects such of the lands as still are held by the state and to recover the value of such as she has sold.

Besides disputing the several contentions just stated, the state advances two propositions, either of which her counsel conceive must end the case.

The first proposition is that the suit is essentially one brought by the Indians against the state, and therefore is not within the original jurisdiction of this court. In support of the proposition it is said that the United States is only a nominal party, a mere conduit through which the Indians are asserting their private rights; that the Indians are the real parties in interest, and will be the sole beneficiaries of any recovery; and that the United States will not be affected, whether a recovery is had or denied.

[1] It must be conceded that, if the Indians are the real parties in interest and the United States only a nominal party, the suit is not within this court's original jurisdiction. New Hampshire v. Louisiana, 2 S. Ct. 176, 108 U. S. 76, 27 L. Ed. 656; Hans v. Louisiana, 10 S. Ct. 504, 134 U. S. 1, 33 L. Ed. 642; North Dakota v. Minnesota, 44 S. Ct. 138, 263 U. S. 365, 374-376, 68 L. Ed. 342. But the allegations and prayer of the bill-by which the purpose and nature of the suit must be tested-give no warrant for saying that the Indians are the real parties in interest and the United States only a nominal party. At the outset the bill shows that the Indians, although citizens of the state, are in many respects, and particularly in their relation to the matter here in controversy, under the

#194

guardianship of the *United States and entitled to its aid and protection. This is followed by allegations to the effect that the Indians had an interest in the lands before and when they were patented to the state, that the patents were issued by the land officers without authority of law and in violation of an existing obligation of the United States to apply the lands and the proceeds of their sale exclusively to the use and benefit of the Indians, and that it is essential to the fulfillment of that obligation that the lands—or, where any have been sold, their value in their stead-be restored to the control of the United States. And the prayer is for a decree compelling such a restoration and declaring that the lands and moneys are to be held, administered, and disposed of by the United States conformably to that obligation.

Whether in point of merits the bill is well

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(46 S. Ct.)

*196

grounded or otherwise, we think it shows allowed to stand "would work prejudice to that the United States has a real and direct the interests or rights of the United States, interest in the matter presented for examina- or would prevent the government from fultion and adjudication. Its interest arises filling an obligation incurred by it, either to out of its guardianship over the Indians, and the public or to an individual, which personout of its right to invoke the aid of a court al litigation could not remedy, there would of equity in removing unlawful obstacles to be an occasion which would make it the duty the fulfillment of its obligations, and in both of the government to institute judicial proaspects the interest is one which is vested in ceedings to vacate such patent." it as a sovereign. Heckman v. United States, 32 S. Ct. 424, 224 U. S. 413, 437, 444, 56 L. Ed. 820; United States v. Osage County, 40 S. Ct. 100, 251 U. S. 128, 132, 133, 64 L. Ed. 184: La Motte v. United States, 41 S. Ct. 204, 254 U. S. 570, 575, 64 L. Ed. 410; Cramer v. United States, 43 S. Ct. 342, 261 U. S. 219, 232, 67 L. Ed. 622; United States v. Beebe, 8 S. Ct. 1083, 127 U. S. 338, 342-343, 32 L. Ed. 121; United States v. New Orleans Pacific Ry. Co., 39 S. Ct. 175, 248 U. S. 507, 518, 63 L. Ed. And see United States v. Nashville, Chattanooga & St. Louis Ry. Co., 6 S. Ct. 1006, 118 U. S. 120, 126, 30 L. Ed. 81; In re Debs, 15 S. Ct. 900, 158 U. S. 564, 584, 39 L.

388.

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States is under no duty, *and has no right, to bring this suit. But the premise does not make for the conclusion. The reason the Indians could not bring the suits suggested lies in the general immunity of the state and the United States from suit in the absence of consent. Of course, the immunity of the state is subject to the constitutional qualification that she may be sued in this Court by the United States, a sister state, or a foreign state. United States v. Texas, 12 S. Ct. 488, 143 U. S. 621, 642, et seq., 36 L. Ed. 285. Otherwise her immunity is like that of the United States. But immunity from suit is not based on and does not reflect an absence of duty. So the fact that the Indians could not sue the United States for a failure to demand that the state surrender the lands or their value does not show that the United States owes no duty to the Indians in that regard. Neither does the fact that they could not sue the state show that the United States is without right to sue her for their benefit. But it does make for and emphasize the duty, and therefore the right, of the United States to sue. This is a necessary conclusion from the ruling in United States v. Beebe, supra, where much consideration was given to the duty and right of the United States in respect of the cancellation of patents wrongly issued. This court there pointed out special instances in which the government might with propriety refrain from suing and leave the individuals affected to settle the question of title by personal litigation, and then said that where the patent, if

[3, 4] The state's second proposition is that the suit is barred by the provision in the Act of March 3, 1891, c. 561, § 8, *26 Stat. 1095, 1099, being Comp. St. § 5114 (also chapter 559, p. 1093), limiting the time within which the United States may sue to annul patents, and, if not by that provision, then by a law of the state. But both branches of the propOsition must be overruled. The provision in the act of 1891 has been construed and adjudged in prior decisions-which we see no reason to disturb-to be strictly a part of the public land laws and without application to suits by the United States to annul patents, as here, because issued in alleged violation of tions to them. Cramer v. United States, supra, page 233 (43 S. Ct. 342); La Roque v. United States, 36 S. Ct. 22, 239 U. S. 62, 68, 60 L. Ed. 147; Northern Pacific Ry. Co. v. United States, 33 S. Ct. 368, 227 U. S. 355,

rights of its Indian wards and of its obliga

367, 57 L. Ed. 544. And it also is settled that state statutes of limitation neither bind nor have any application to the United States, when suing to enforce a public right or to protect interests of its Indian wards. United States v. Thompson, 98 U. S. 486, 25 L. Ed. 194; United States v. Nashville, Chattanooga & St. Louis Ry. Co., supra, pages 125, 126 (6 Co. v. United States, 39 S. Ct. 407, 250 U. S. S. Ct. 1006); Chesapeake & Delaware Canal 123, 125, 63 L. Ed. 889.

We come therefore to the merits, which involve a consideration of the past relation of the Indians to the lands and of the nature and operation of the swamp land grant to the state.

The lands are all within the region formerly occupied by the Chippewas. By a treaty made in 1837 the Indians ceded the southerly part of that region to the United States (7 Stat. 536); and by a treaty made in 1855 they ceded to it a further part adjoining that ceded before (10 Stat. 1165). But by the latter treaty nine reservations were set apart out of the ceded territory as "permanent homes" for designated bands. Four of these reservations were called the Mille Lac, the Leech Lake, the Winnibigoshish, and the Cass Lake. This was the situation in 1860, when the swamp land grant theretofore made to other states was extended to Minnesota.

*197

Most of the *lands in question are within what was then ceded territory and outside those reservations. The rest are within the Mille Lac, Leech Lake, Winnibigoshish, and Cass Lake Reservations as then defined.

By a treaty made in 1863 six of the reserva

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