United States v. Ash Sheep Co.

This suit was brought by the government (appellant here) to enjoin an alleged trespass by the appellee (defendant below) on certain described lands alleged to be a part of the Crow Indian Reservation in the state of Montana; the bill alleging, among other things, that the lands referred to are a part of the vacant ceded Indian lands of the Crow tribe of Indians, whose title to the same ‘‘has not been extinguished, arid that said lands are subject to the rules and regulations made and promulgated by the Secretary of the Interior of the United States concerning Indian lands that have been opened for settlement and entry, dated November 27, 1911, and the act of Congress of the United States approved April 27, 1904 (33 Statutes at Large, page 352), entitled ‘An act to ratify and amend an agreement with the Indians of the Crow Reservation in Montana, and making appropriations to carry the same into effect.’ ”

*583 Tlic bill further alleges that about July 14, 1913, the defendant sheep company, in violation of the rules and regulations of the Secretary of the Interior, and of said act of Congress, grazed and caused to he grazed upon the lands in question and other vacant ceded Indian…

(dissenting). The reversal of the judgment of the court below must necessarily rest upon the assumption that the lands in question are not public lands of the United States, but are still a part of the Crow Indian Reservation, and as such are subject to the control of the Bureau of Indian Affairs. Prior to the act of April 27, 1904 ( 33 Stat. 352 ), the United States had the legal title and the Indians had a right of occupancy in the lands. In Johnson v. McIntosh, 8 Wheat. 543 , 5 L. Ed. 681 , it was said:

The act of April 27, 1904, extinguished the Indians’ right of occupancy. After receiving from the Indians an absolute and unconditional cession of all their interest in the lands, thus adding the right of occupancy to the fee, is it the meaning of the act that the United States by a subsequent provision thereof intended to confer upon the Indians an equitable interest in the ceded lands?

*588 The agreement between the United States and the Indians, as expressed in the act, provided, in article 1, “that the said Indians of the Crow Reservation do hereby cede, grant and relinquish to the United States all right, title and interest which they may have” to the lands in…