United States v. Cook (86 U.S. 591)

ON certificate of division in opinion between the judges of the Circuit Court for the Eastern District of Wisconsin.

The Menomonee Indians by agreement and treaty, negotiated on the 8th and 17th February, 1831, set apart and ceded to the United States certain of their lands in Wisconsin as a home for such of the New York Indians as might remove to and settle upon them. As the lands were intended for a home for the New York Indians, it was provided that the President should prescribe the time for the removal of the Indians to and settlement upon them, and, at the expiration of the time, apportion the lands among the actual settlers in such manner as he should deem equitable and just. If within the time prescribed they refused to accept the provisions of the treaty made for their benefit, or, having accepted, refused to remove from New York and settle on the lands, then the lands were to be and remain the property of the United States. It was also distinctly understood that the lands ceded were to be held by the tribes of New York Indians, under such tenure as the Menomonees held their lands, subject to such regulations and alterations of tenure as Congress and the President might direct. For this cession the United States paid the Menomonees $20,000.

On the 3d of February, 1838, the first Christian and Orchard parties of the Oneida Indians, to whom a part of the Menomonee cession had been apportioned, ceded to the United States all the lands set apart to them, except a tract containing one hundred acres for each individual, or in all about 65,000 acres, which they reserved to themselves, to be held as other Indian lands are held. Of this tract some three or four thousand acres have been occupied and cultivated as farming lands by individuals of the tribe in severalty with the consent of the tribe. Many of the Indians, including most of the young men, do not cultivate any of the lands as their own. A small number of the tribe cut timber from a part of the reservation not occupied in severalty, and made it into saw-logs, which they removed and sold to a certain George Cook. The United States brought this action of replevin against the said Cook to recover possession of these logs, and upon trial in the Circuit Court the facts here stated were established by the testimony; and, in adition, evidence was offered tending to prove that timber on the reservation had been cut and sold by the Indians of the tribe continually since 1838, with the tacit consent of the officers of the tribe.

Upon this state of facts the counsel of the United States asked the court to instruct the jury that the action could be brought and maintained. Upon the question of giving this instruction the judges were divided in opinion, and it was certified to this court for decision.

Mr. S. F. Phillips, Solicitor-General, for the United States; no opposing counsel.

The CHIEF JUSTICE delivered the opinion of the court.