KANSAS COLLECTION BOOKS

William G. Cutler's History of the State of Kansas


ERA OF PEACE, PART 6

[TOC] [part 7] [part 5] [Cutler's History]

CONTEST OVER THE OSAGE CEDED LANDS.

On the 3d of March, 1863, Congress passed "an act for a grant of lands to the State of Kansas, in alternate sections, to aid in the construction of certain railroads and telegraphs in said State," the first section of which is as follows:

That there be and is hereby granted to the State of Kansas, for the purpose of aiding in the construction: First, of a railroad and telegraph from the city of Leavenworth, by way of the town of Lawrence, and via the Ohio City crossing of the Osage River to the Southern line of the State, in the direction of Galveston Bay, in Texas; with a branch from Lawrence, by the valley of the Wakarusa River, to the point on the Atchison, Topeka & Santa Fe Railroad where said road intersects the Neosho River. Second, of a railroad from the city of Atchison, via Topeka, the capital of said State, to the Western line of the State, in the direction of Fort Union and Santa Fe, New Mexico; with a branch from where this last-named road crosses the Neosho, down said Neosho Valley to the point where the said first-named road enters the said Neosho Valley; every alternate section of land, designated by odd numbers, for two sections in width on each side of said road and each of its branches. But in case it shall appear that the United States have, when the lines or routes of said road and branches are definitely fixed, sold any section, or any part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected, for the purpose aforesaid, from the public lands of the United States nearest to tiers of sections above specified, so much land, in alternate sections, or parts of sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of pre-emption or homestead settlements have attached, as aforesaid; which lauds thus indicated by odd numbers and selected by the direction of the Secretary of the Interior, as aforesaid, shall be held by the State of Kansas for the use and purpose aforesaid; provided, that the land to be so selected shall in no case be located further than twenty miles from the line of said road and branches; provided further, that the lands hereby granted for and on account of said road and branches, severally, shall be exclusively applied in the construction of the same, and for no other purpose whatever; and shall be disposed of only as the work progresses through the same, as in this act hereinafter provided; provided, also, that no part of the land granted by this act shall be applied to aid in the construction of any railroad or part thereof for the construction of which any previous grant of land or bonds may have been made by Congress; and provided further, that any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be and the same are hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the route of said road and branches through such reserved lands; in which case the right of way only shall be granted, subject to the approval of the President of the United States.

The Legislature of Kansas, on the 9th of January, 1864, passed an act accepting the grant, and designated the Leavenworth, Lawrence & Galveston Railroad Company to build the road from Leavenworth to the southern line of the State, and to receive the grant of land upon the prescribed terms and conditions. Its authorized route passed through the Osage lands whereof mention is made in the first article of the treaty of 1865, and a map of the definite location of the road was filed in the General Land Office, January 2, 1868. The Commissioners of the General Land Office, by letter bearing date January 21, 1868, directed the Register and Receiver of the proper office to withdraw from sale the odd numbered sections within ten miles of the line of the road.

The fourth section of the law making appropriations for the Indian Department, approved March 3, 1863, is as follows:

"That the President of the United States be, and is hereby authorized to enter into treaties with the several tribes of Indians, respectively, now residing in the State of Kansas, for the extinction of their titles to lands held in common within said State, and for the removal of such Indians of said tribes as hold their lands in common to suitable localities elsewhere within the territorial limits of the United States, and outside the limits of any State."

The treaty with the Great and Little Osage tribes of Indians of June 2, 1825, contains the following provision:

ARTICLE II. Within the limits of the county above ceded and relinquished, there shall be reserved to and for the Great and Little Osage tribe or nation aforesaid, so long as they may choose to occupy the same, the following described tract of land.

The land embraces, with other tracts, that mentioned in the first article of a treaty with these Indians, which was concluded September 29, 1865. That article is as follows:

The tribe of the Great and Little Osage Indians, having now more lands than are necessary for their occupancy, and all payments from the Government to them under former treaties having ceased, leaving them greatly impoverished, and being desirous of improving their condition by disposing of their surplus lands, do hereby grant and sell to the United States the lands contained within the following boundaries.
*  *  *  *  *
And, in consideration of the grant and sale of them of the above described lands, the United States agree to pay the sum of $300,000, which sum shall be placed to the credit of said tribe of Indians in the treasury of the United States; and interest thereon at the rate of five per centum per annum shall be paid to said tribe semi-annually, in money, clothing, provisions, or such articles of utility as the Secretary of the Interior may from time to time direct. Said lands shall be surveyed and sold under the direction of the Secretary of the Interior, under the most advantageous terms, for case, as public lands are surveyed and sold under existing laws, including any act granting lands to the State of Kansas, in aid of the construction of a railroad through said lands, but no pre-emption claim or homestead settlement shall be recognized, etc.

The words in italics are an amendment adopted by the Senate, June 26, 1866, which the Indians accepted September 21 of that year. The treaty was proclaimed January 21, 1867.

On the 10th of April, 1869, Congress passed the following joint resolution:

Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, That any bona fide settler residing upon any portion of the lands sold to the United States by virtue of the first and second articles of the treaty concluded between the United States and the Great and Little Osage tribe of Indians, September 29, 1865, and proclaimed January 21, 1867, who is a citizen of the United States, or shall have declared his intention to become a citizen of the United states, shall be and hereby is entitled to purchase the same in quantity not exceeding one hundred and sixty acres, at the price of one dollar and twenty-five cents per acres, within two years from the passage of this act provided, however, that both the odd and even numbered sections of said lands shall be subject to settlement and sale as above provided: And provided further, that the sixteenth and thirty-sixth sections in each township of said lands shall be reserved for State school purposes in accordance with the provisions of the act of admission of the State of Kansas; provided, however, that nothing in this act shall be construed in any manner affecting any legal rights heretofore vested in any other party or parties.

The railroad company having constructed its road from Lawrence to Thayer, within the ceded territory, and about twenty miles south of its northern boundary, and desiring to change its previously located route south of that town, the Legislature of Kansas in January, 1871, asked Congress to allow a relocation of the road. Congress passed an act, approved April 19, 1871, as follows:

An act to enable the Leavenworth, Lawrence & Galveston Railroad Company to relocate a portion of its road.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the Leavenworth, Lawrence & Galveston Railroad Company, for the purpose of improving its route and accommodating the country, may relocate any portion of its road south of the town of Thayer, within the limits of its grant, as prescribed by the act of Congress, entitled "An act for a grant of lands to the State of Kansas, in alternate sections, to aid in the construction of certain railroads and telegraphs in said State, approved March 3, 1863; but not thereby to change, enlarge or diminish said land grant."

On the 25th of July, 1866, was approved by the President, an act granting lands in the same manner and to the same extent and on the same conditions as those granted to the Leavenworth, Lawrence & Galveston Railroad Company through the Osage ceded lands to the Missouri, Kansas & Texas Railway Company, and upon the completion of its road through the lands in 1871, the Secretary of the Interior in due time issued to that company patents to the lands it was entitled to receive under the act of July 25, 1866.

The acts of Congress granting lands to these railroad companies through the Osage ceded lands, were ignored by a large number of people, who settled upon the railroad lands, claiming that they belonged to the United States. They effected an organization called "Settlers' Protective Association of the Osage ceded lands," through which a contest was made in the federal courts with the railroad companies for the ownership of the lands. The suits were first instituted in the Circuit Court of the United States for the District of Kansas, by George R. Peck, United States District Attorney, who filed bills therein against the railroad companies to establish the title of the United States to the Osage ceded lands, amounting to nine hundred and sixty thousand acres. The case was argued in this court in June, 1874. The attorneys for the Government were George R. Peck, United States District Attorney; Wilson Shannon, H. C. McComas and J. E. McKeighan. The attorneys for the railroad companies were Solon O. Thacher, for the Leavenworth, Lawrence & Galveston Railroad Company and T. C. Sears for the Missouri, Kansas & Texas Railway Company. The prayer of the bill was granted by the Circuit Court. An appeal was taken to the United States Supreme Court, before which body the case was argued in October, 1875. In the Supreme Court the government was represented by United States District Attorney Peck, Jeremiah S. Black, Solicitor General Phillips and William Lawrence. The railroad companies were represented by George F. Edmunds and Philip Phillips. The Supreme Court affirmed the decree of the Circuit Court and the settlers were victorious. As the syllabus in the case against the Leavenworth, Lawrence & Galveston Railroad Company covers all the points in this controversy, it is here given:

SYLLABAUS. - l. Where rights claimed against the United States are set up against it, they must be so clearly defined that there can be no question of the purpose of Congress to confer them.

2. The rule announced in the former decisions of this court, that a grant by the United States is strictly construed against the grantee, applies as well to grants to a State of aid in building railroads, as to one granting special privileges to a private corporation.

3. The doctrine in Wilcox v. Jackson, 13 Pet. 498, that a tract lawfully appropriated to any purpose thereafter severed from the mass of public lands, and that no subsequent law or proclamation will be construed to embrace it or to operate upon it, although no exception be made to it, re-affirmed and held to apply with more force to Indian than to military reservations, inasmuch as the latter are the absolute property of the Government, whilst in the former other rights are vested.

4. Where Congress enacts "That there be and is hereby granted" to a State, to aid in the construction of a specified railroad, "every alternate section of land, designated by odd numbers," within certain limits of each side of the road, the State takes an immediate interest in land so situate, whereto the complete title is in the United States at the date of the act, although a survey of the land and a location of the road are necessary to give precision to the title and attach it to any particular tract. Such a grant is applicable only to public land owned absolutely by the United States. No other is subject to survey and divisions into such sections.

5. Where the right of an Indian tribe to the possession and use of certain lands as long as it may choose to occupy the same is assured by treaty, a grant of them, absolutely or cum onere, by Congress, to aid in building a railroad, violates an express stipulation, and a grant in general terms of "land" cannot be construed to embrace them.

6. A proviso (sic), that any and all lands theretofore reserved to the United States, for any purpose whatever, are reserved from the operation of the grant to which it is annexed, applies to lands set apart for the use of an Indian tribe under a treaty. They are reserved to the United States for that specific use; and, if so reserved at the date of the grant, are excluded from its operation. It is immaterial whether they subsequently became a part of the public lands of the country.

7. The act of March 3, 1863 (12 Stat. 772), to aid in the construction of certain railroads in Kansas, embraces no part of the lands reserved to the Great and Little Osage by the treaty of June 2, 1825 (7 Stat. 240); and the treaty concluded June 29, 1865, and proclaimed January 21, 1867 (14 Stat. 687), neither makes nor recognizes a grant of such lands. The effect of the treaty is simply to provide that any rights of the companies designated by the State to build the roads should not be barred or impaired by reason of the general terms of the treaty, but not to declare that such rights existed.

8. The act of Congress of even date with said act (12 Stat. 793), authorizing treaties for the removal of the several tribes of Indians from the State of Kansas, and for the extinction of their title, and a subsequent act for relocating a portion of the road of the appellant (17 Stat. 5), neither recognize nor confer a right to the lands within the Osage country.

Mr. Justice Field, with whom concurred Mr. Justice Swayne and Mr. Justice Strong, in giving a dissenting opinion, said:

I do not agree with a majority of the court in this case. In my judgment, the land in controversy passed by the grant of Congress to the State of Kansas, and by the patents of the State to the defendant. In reliance upon the title conferred, a large portion of the money was raised with which the road of the company was built. I cannot think that the Legislation of Congress, and the subsequent action in conformity to it of the Department of the Interior, and of the State of Kansas, deceived both company and creditors. * * * * The conclusion reached by the court appears to me to work great injustice. The Government of the United States, through one set of its officers, after mature deliberation and argument of Counsel, has issued its certificates or lists, that the lands in controversy were covered by the grant, and has thus encouraged the expenditure of millions of money in the construction of a public highway, by which the wilderness has been opened to civilization and settlement; and then, on the other hand, after the work has been done and the money expended, has, with another set of officers and all the machinery of the judiciary, attempted to render and has succeeded in rendering utterly worthless the titles it aided to create and put forth upon the world. Such proceedings are not calculated, in my judgment, to enhance our ideas of the wisdom with which the law is administered, or of the justice of the government.

The mileage of this road is as follows: Lawrence to Coffeyville, 143.33 miles; Ottawa Junction to Olathe, 31.77 miles; Cherryvale to Harper, 148.82 miles; Wellington to Hunnewell, 18.35 miles; Burlington Junction to Burlington, 42.21 miles; total number of miles, 384.48.

The officers are: General Superintendent, J. L. Barnes, Lawrence, Kan.; Directors - T. J. Coolidge, W. B. Strong, Alden Speare, I. T. Burr, H. H. Hunnewell, Charles Merriam, W. P. Mason, Boston, Mass.; O. E. Learnard, Lawrence, Kan.; C. C. Wheeler, Topeka, Kan.; John W. Scott, Iola, Kan.

[TOC] [part 7] [part 5] [Cutler's History]