Smith v. Stevens
ERROR to the Supreme Court of the State of Kansas, the case being thus:
By treaty of June 3d, 1825,  the United States concluded a treaty with the Kansas Indians, containing mutual cessions of territory. The sixth article of the treaty contained a provision that there should be reserved for the benefit of each of the half-breeds of the Kansas Indians named in it (Victoria Smith being one of them), a certain specified allotment of land out of the quantity ceded by the nation to the United States; to be located, &c.
By the eleventh article of the treaty it was stipulated that 'the said Kansas Nation shall never sell, relinquish, or in any manner dispose of the lands therein reserved to any other nation, person or persons whatever, without the permission of the United States, for that purpose first had and obtained, and shall ever remain under the protection of the United States and in friendship with them.'
The lands were afterwards surveyed, located, and numbered according to the treaty, and the half-breed Indians took possession each of his own reservation.
Subsequently to this, that is to say, May 26th, 1860,  Congress passed an act which, referring to the treaty of 1825, and reciting that the land reserved 'had been surveyed and allotted to each of the said half-breeds in the order in which they are named in, and in accordance with, the provision of the said sixth article,' enacted:
'That all the title, interest, and estate of the United States is hereby vested in the said reservees, who are now living on the land reserved, set apart, and allotted to them respectively by the said sixth article of said treaty; . . . but nothing herein contained shall be construed to give any force, efficacy, or binding effect to any contract in writing or otherwise, for the sale or disposition of any lands named in this act heretofore made by any of said reservees, or their heirs.'
The second section of this act provides that
'In case any of the reservees now living or any of the heirs of any deceased reservees shall not desire to reside upon or occupy the lands to which such reservees or such heirs are entitled by the provisions of this act, the Secretary of the Interior, when requested by them or either of them so to do, is hereby authorized to sell such lands belonging to those so requesting him for the benefit of such reservees or such heirs, . . . in accordance with such rules and regulations as may be prescribed by the Commissioner of Indian Affairs and approved by the Secretary of the Interior; and patents in the usual form shall be issued to the purchasers of the said land, in accordance with the provisions of this act.'
Section third provides, that the proceeds of the sales 'shall be paid to the parties entitled thereto, or applied by the Secretary of the Interior for their benefit in such manner as he may think most advantageous to the parties.'
These statutes being in force, Victoria Smith, one of the half-breeds named in the treaty of 1825, being in possession of her tract, executed on the 14th of August, 1860, a deed to one Stevens, purporting to convey it to him, and Stevens went into possession.
About two years after this deed was made, that is to say, on the 17th of July, 1862,  Congress by joint resolution repealed the above-mentioned second and third sections of the act of 1860.
Victoria Smith now brought an action of ejectment against Stevens in a local State court in Kansas, to recover possession of the tract. Stevens in bar of the suit offered in evidence Victoria's deed of the 14th August, 1860, for the same land, but the court excluded the deed from the jury on the ground that the plaintiff by virtue of the Indian treaty of 1825 and the act of Congress on the subject, was prohibited from executing the deed. The Supreme Court of the State, on appeal, affirmed the ruling of the lower court, and the case was brought here to test the correctness of that decision.
Messrs. Denver, Bradley, and Hughes, for the plaintiff in error:
1. Upon the survey and location of the sections of land respectively, and the delivery of possession to the respective reservees, they were by the terms of the treaty of 1825, and though there were no words of perpetuity in the reservations, respectively clothed with a fee-simple title in those reservations. No patent was necessary to complete the title. 
2. But if the title did not pass by the treaty, it did pass in fee by the act of Congress, 26th May, 1860, and the reservees after that act had the right to make a deed in fee. The words of conveyance are very comprehensive. The statute is a grant and is to be taken most favorably for the grantees. There is nothing left in the United States which could draw to it the reversion. Words of perpetuity in such an instrument, made with such full intent, were not needed.
If they 'vested' the fee in the grantees, any restraint upon alienation would have been void. They took freed from such condition, if there was one. And so Congress seem to have considered it, for they do not prohibit future alienation.
Since, then, to allow the second and third sections of this act to be restraints on the disposing power of the grantees, and to limit that power to an application to the Secretary of the Interior, by whom the sale was authorized to be made, would be a plain violation of one of the canons of the law regulating real estate, no such construction can be given unless the intent is too clear to admit of doubt, such construction cannot prevail.
Those two sections are susceptible of a different construction, in harmony with the construction already put upon the first section. The government had already conveyed the lands to the Indians with an unincumbered title. But they desired to protect the Indians against their own improvidence, and to do so imposed this trust on the secretary, to be exercised on the application of the owner of the lands. It was a new duty assigned to the secretary, but neither in terms nor by necessary intendment does it fetter the right of the Indian to dispose of his lands as he may see fit. This view reconciles the act with the established principle of law. And this view is strengthened by the terms of the eleventh article of the treaty, prohibiting the sale of the lands reserved to the nation, but not prohibiting the sale of the private reservations.
Again. There is no prohibition in either the treaty or the act of 1860 against future sales. The Indian had clearly a title to the possession with an inchoate title to the fee. Being in such possession, Victoria conveyed whatever title she had. Congress, by the joint resolution of July 17th, 1862, repealed the second and third sections of the act of 1860. This repeal operated by relation to vest in the purchaser the full title which was vested in her by the first section of the act of 1860.
Mr. J. S. Black, contra, citing Goodell v. Jackson, 20 Johnson, 694, 718, 733; Shawnee County v. Carter, 2 Kansas State, 115; Hunt v. Knickerbacker, 5 Johnson, 332-34; St. Regis Indians v. Drum, 19 Id. 127; Jackson v. Wood, 7 Id. 290; Pettit's Administrators v. Pettit's Distributees, 32 Alabama, 288; Lee v. Glover, 8 Cowen, 189.
Mr. Justice DAVIS delivered the opinion of the court.
^1 7 Stat. at Large, 244, 245.
^2 12 Stat. at Large, 21.
^3 12 Stat. at Large, 628.
^4 United States v. Brooks, 10 Howard, 442; Doe v. Wilson, 23 Id. 457, 463, 464.