Morrison

The sole question in this case is whether the lands here in controversy, which constitute a part of section 16, township 3 south, range 6 east of the Willamette meridian, in the state of Oregon, passed to that' state, and through it to its grantees, prior to the attempted withdrawal of the said lands from any disposition by the executive department of the government.

The act of Congress of August 14, 1848 ( 9 Stat. 323 , c. 177,), entitled “An act to establish the territorial government of Oregon,” provided in its twentieth section;

In the act of Congress of September 27, 1850 ( 9 Stat. 496 , c. 76), entitled “An act to create the office of Surveyor General of the Public Lands in Oregon, and to provide for the survey, and to make donations to settlers of the said public lands/' it was provided, among other things:

—and after making certain donations of public lands to certain specifically described settlers, declared, in its ninth section, as follows:

By its act of February 19, 1851 ( 9 Stat. 568 , c. 10), entitled “An act to authorize the legislative assemblies of the territories of Oregon and Minnesota to take charge of the school lands in said territories, and for other…

(dissenting). The opinion of the majority of this court is based upon what was said, rather than what was decided, in Beecher v. Wetherby, 95 U. S. 517 , 24 L. Ed. 440 . There was under consideration in that case the act for the admission of the state of Wisconsin, of date August 6, 1846 ( 9 Stat. 58 , c#. 89, § 6), which provided—

The section 16 which was in controversy in that case had been included in lands occupied by the Menomonee Indians, which they had held under treaty since 1825. In 1848 they ceded certain of their lands, and there was set apart to them by the President a portion thereof, which included the land in controversy. The Legislature of Wisconsin by a joint resolution of February 1, 1853 (Laws 1853, p. 110) declared its assent that the Indians remain on the tract so set apart to them. *37 Under the act of Congress of February 6, 1871 ( 16 Stat. 404 , c. 38) the lands so set apart were directed to be sold for the benefit of the Indians, and upon such sale the plaintiff obtained patents to section 16. In the meantime, in 1854, the lands had been surveyed. The court held the plaintiff’s patents void, and ruled that the grant to the state had attached upon the…