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Opinion of the Court.

appellate court, of such a question as that presented by the record in the case at bar, viz., whether or not the highest court of a State erred in holding that it could rightfully determine from the statements in the pleadings filed by both parties to a controversy pending before it that the averments of an answer set forth no defence to the claim of the plaintiff. It was not a denial of a right protected by the Constitution of the United States to refuse a jury trial, even though it were clearly erroneous to construe the laws of the State as justifying the refusal. Brooks v. Missouri, 124 U. S. 394; Spies v. Illinois, 123 U. S. 131, 166.

Writ of error dismissed for want of jurisdiction.



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The Indian reservation at Sault Ste. Marie, under the treaty of June 26, 1820, with the Chippewas, continued until extinguished by the treaty of August 2, 1855; and upon the extinguishment of the Indian title at that time the land included in the reservation was made, by § 10 of the act of September 4, 1841, not subject to preëmption.

THE plaintiff in error claimed the land in dispute in this controversy under an alleged preëmption entry. The claim of the defendant in error rested upon a patent from the United States. The case is stated in the opinion of the court.

Mr. John C. Donnelly and Mr. A. C. Raymond for plaintiff in error.

Mr. John H. Goff for defendant in error.

MR. JUSTICE WHITE delivered the opinion of the court.

Plaintiff in error by a bill in equity filed in the Circuit Court of the county of Chippewa, State of Michigan, sought

Opinion of the Court.

to have a trust declared in his favor in certain lands at Sault Ste. Marie, Michigan, at one time a part of what was known as the "Indian Reserve," which land had been patented by the United States to the defendant, and to have the defendant ordered to execute a conveyance of the legal title.

The facts in the case, as developed upon the trial, were as follows: On June. 26, 1820, 7 Stat. 206, the Chippeway tribe of Indians ceded to the United States sixteen square miles of land. The tract ceded commenced at the Sault and extended two miles up and the same distance down the river with a depth of four miles, including a portage, the site of the village of Sault Ste. Marie, and the old French fort. Schoolcraft's American Lakes, p. 140. One of the objects of the expedition which effected the signing of the treaty was to prepare the way for an American garrison at the Sault. Ib. p. 135. At the time of the signing of the treaty there were about forty lodges of Chippewa Indians, containing a population of about two hundred souls, resident at the Sault, who subsisted wholly upon the whitefish which were very abundant at the foot of the Falls near by the village. Ib. p. 133. The village settlement of the whites consisted of about fifteen or twenty buildings. Ib. p. 132. By the third article of the treaty it was provided that "the United States will secure to the Indians a perpetual right of fishing at the Falls of St. Mary's, and also a place of encampment upon the tract hereby ceded, convenient to the fishing ground, which place shall not interfere with the defences of any military work which may be erected, nor with any private rights." The military post of Fort Brady was established on a part of the tract within a few years following the execution of the treaty.

On March 24, 1836, 7 Stat. 491, the Ottawa and Chippewa Nations ceded to the United States a large tract of territory, including in its general limits the sixteen square miles above mentioned. By article third of this treaty the right of fishing and encampment was preserved to the Indians in the following words: "It is understood that the reservation for

Opinion of the Court.

a place of fishing and encampment, made under the treaty of St. Mary's, of the 16th of June, 1820, remains unaffected by this treaty." In 1845, under the directions of the surveyor general for the Northwest Territory a survey was made at Sault Ste. Marie, and upon the map of said survey was noted the territory occupied by the military, as shown by the stockade or high posts around such occupation, and also the ground then in the occupation of the Indians under the treaty of 1820, and each of said reservations was respectively noted upon the map as the "Military Reserve" and the "Indian Reserve." At the time of the making of the survey of 1845 there was no occupation of the Indian reserve other than by Indians, and a raceway bounded the reserve on the south.

By an act approved March 1, 1847, c. 32, 9 Stat. 146, Congress established the Lake Superior land district in Michigan, embracing therein, among other land, the territory ceded by the Chippewas under the treaty of 1820, and provision was made for a geological survey and examination of the lands therein. It was provided in the closing sentence of section 2 that all non-mineral lands within said district should "be sold in the same manner as other lands under the laws now in force for the sale of the public lands, excepting and reserving from such sales section sixteen in each township for the use of schools, and such reservations as the President shall deem necessary for public uses."

On April 3, 1847, pursuant to the recommendation of the Secretary of the Treasury, based upon a communication from the Commissioner of the General Land Office, acting on the suggestion of the Fifth Auditor of the Treasury, the President ordered that certain described lands in the northern peninsula of Michigan, or so much thereof as might be found necessary, should be reserved for public uses, and in said described land was included the north fractional half of fractional township 47 north, of range 1 east, which embraced the Indian reserve in question as also the site of Fort Brady.

On August 25, 1847, as the result of a report of Brigadier General Brady, commanding the Fourth Military Department, the acting Secretary of War made application to the Commis

Opinion of the Court.

sioner of the General Land Office "to cause to be reserved from sale the sections colored in red on the enclosed plat, embracing sections 4, 5, and 6 of township 47, range 1 east, and an additional tract adjoining the last-named section on the west not designated by number on the plat." On August 27, 1847, the Commissioner wrote to the Secretary of the Treasury, calling his attention to the fact that sections 4, 5, and 6 of township 47 north, range 1 east, had been reserved for public uses by the President on April 3, 1847, and requested that the Secretary make application "to the President for an order for the reservation of fractional sections 1 and 2, township 47 north, range 1 west, under the same act, for the use of Fort Brady." On August 30, 1847, this communication was transmitted to the President by the Secretary of the Treasury, together with a diagram exhibiting the location of the lands, and the President was asked to give his sanction to the proposed reservation. The request was complied with. Sections 1 and 2, township 47 north, range 1 west, lay to the westward of the Indian reserve, and the military post as then occupied was east of the Indian encampment.

The report of General Brady above referred to accompanied a plat prepared under his direction by Lieutenant Westcott, commandant at Fort Brady, of land which had been surveyed for military purposes. General Brady stated in his report

"In making this reserve, I kept in view the probability that some day the government might build there a permanent work.

"As you have in your letter of instructions to me on this subject desired me to give my views in relation to that post, I shall merely observe that I believe that the best interests of the government and that of the community at large would be benefited by the government not offering for sale any of the lots fronting on the line of the canal from the reserve to the head of the rapids, believing, as I most assuredly do, that the day is not far distant when a canal will be made there, if not by the general government, by Michigan and the adjoining States. The quantity of the land that it will require to receive the rocks and other materials that will be taken out of

Opinion of the Court.

a ship canal there no one can know, and until the canal is made those lots had better remain with the present owner. Should they go into the hands of individuals before the canal is completed, great would be the expense to get back the land necessary for the completion of this important work."

The village of Sault Ste. Marie was incorporated by the legislature of Michigan April 2, 1849, (Laws of Michigan, 1849, No. 255, pp. 336, 337,) and included within its boundaries the military reserve of Fort Brady and the Indian reserve.

This act of incorporation was repealed in 1851, but while in force, to wit, on September 26, 1850, c. 71, an act was approved, 9 Stat. 469, which provided for the examination and settlement of claims for land at the Sault Ste. Marie in Michigan. By section 2 of the act, the Commissioner of the General Land Office was authorized to cause the register and receiver of the land office at Sault Ste. Marie to be furnished with a map, on a large scale, of the lines of the public surveys at the Sault Ste. Marie. And it was further provided in said section that: "It shall be the duty of the Secretary of War to direct the proper military officer, on the application of the register and receiver, to designate or cause to be designated upon the map aforesaid the position and the extent of lots necessary for military purposes, as also the position and the extent of any other lot or lots which may be required for other public purposes, and also the position and the extent of the Indian agency tract and of the Indian reserve." Specific directions with regard to the survey and map in question were also given in the seventh section of the act.

On February 15, 1853, the Commissioner of the General Land Office acknowledged receipt of a communication from the register and receiver at Sault Ste. Marie, of date 24th of September, 1852, wherein it had been suggested that a modification be made of the western boundary of the military reservation, so as to obviate a conflict with town and town lot claims, and the Commissioner advised the register and receiver that the Secretary of War had approved of the Westcott survey as the true limits of the military reservation. In their report of April 4, 1853, on the settlement of land claims at Sault Ste.

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