Walker v. Henshaw
ERROR to the Supreme Court of Kansas; the case being thus:
Walker and others brought an action under the civil code of Kansas to try title to and get possession of a section of land in Douglas County, Kansas, being 'parcel of the lands ceded to the United States by the Shawnee tribe of Indians, by treaty ratified November 2d, 1854,  and lying between the Missouri State line and a line parallel thereto and west of the same thirty miles distant.'
The condition of these lands, as gathered from the provisions of certain Indian treaties and the laws of Congress, was as follows:By articles of convention, made between William Clark, Superintendent of Indian Affairs, and the Shawnees, of November 7th, 1825, in exchange for their lands near Cape Girardeau, on the Mississippi, held under the authority of the Spanish government, the Shawnees had the right to select 1,600,000 acres of land (a tract equal to fifty miles square) on the Kansas River, to be 'laid off either south or north of that river, and west of the boundary of Missouri.'
By act of Congress of May 28th, 1830, the President was authorized to make and exchange,  and—
§ 3. 'To assure the tribe or nation . . . that the United States will forever secure and guarantee to them, their heirs or successors, the country so exchanged with them,' and
§ 6. 'To cause such tribe or nation to be protected, at their new residence, against all interruption or disturbance from any other tribe or nation of Indians, or from any other person or persons whatsoever.'
By articles of agreement and convention of August 8th, 1831, the United States agreed to grant, by patent in fee simple, 100,000 acres of land, to be located under direction of the President, within the limits of the fifty miles square reserve, provided for by the said treaty of 1825,  and to guarantee that said lands
'Shall never be within the bounds of any State or Territory, . . . and cause said tribe to be protected . . . against all interruption or disturbance from any other tribe or nation of Indians, or from any other person or persons whatever.' 
[This fifty miles square reserve was located so as to include the lands in question.]
These arrangements and this treaty, the reader will observe, were with the Shawnee Indians; and thus things with that tribe and the United States remained A.D. 1842.
On the 17th of March in the year just named, a treaty was concluded between the Wyandot Indians and the United States.  The 14th article of it was thus: 'The United States agree to grant, by patent in fee simple, to each of the following named persons [Irwin Long among others] and their heirs, all of whom are Wyandottes, one section of land, . . . out of any lands west of the Mississippi [afterwards changed by amendment to Missouri] River, set apart for Indian use, not already claimed or occupied by any person or tribe. The lands hereby granted to be selected by the grantees, . . . but never to be conveyed by them, or their heirs, without the permission of the President of the United States.'
We now come back to the Shawnees.
The 1,600,000 acres of land granted to them by the treaty of 1825, subject to the provisions of the treaty of August 8th, 1831, including the lands in question, remained the property of the Shawnees until November 2d, 1854.  A new treaty was then ratified between them and the United States, by which the Shawnees ceded to the United States this 1,600,000 acres, and the United States ceded back to the Shawnees 200,000 thereof, 'to be selected between the Missouri State line and a line parallel thereto, and west of the same thirty miles distant,' including the lands in question.
Out of these 200,000 acres, east of the thirty mile line, were to be carved certain head rights, and set off certain tracts to be occupied by Shawnees in common and for the protection of certain absentees; the residue was to be
'Set apart in one body of land, in compact form, under the direction of the President of the United States, and all such Shawnees as return to and unite with the tribe within FIVE years from the proclamation of this treaty  shall be entitled to the same quantity of land' as their brethren, &c.,. . . . 'and whatever portion of said surplus remains unassigned, after the expiration of said five years, shall be sold as hereinafter provided,' &c., the selections to conform to the legal subdivisions of the survey provided for in article 5.
The fifth article also
'No white person or citizen shall be permitted to make locations or settlements within the thirty mile limits until after all of the lands shall have been surveyed, and the Shawnees shall have made their selections and locations, and the President shall have set apart the surplus.'
On the 22d of July, 1854, Congress passed an act extending the pre-emption laws over 'all the lands to which the Indian title has been, or shall be, extinguished' within the Territories of Nebraska and Kansas. 
We now pass back again to the Wyandottes, with whom the treaty had been made October 5th, 1842.
By a new treaty, now made March 1st, 1855, it was thus provided in a tenth article:
'That each of the individuals to whom reservations were granted by the fourteenth article of the treaty of March 17th, 1842, or their heirs or legal representatives, shall be permitted to select and locate said reservations on any government lands west of the States of Missouri and Iowa, subject to pre-emption and settlement, said reservations to be patented by the United States in the name of the reservees as soon as practicable after the selections are made; and the reservees, their heirs or proper representatives, shall have the unrestricted right to sell and convey the same whenever they may think proper.'
The lands in question were first opened for settlement, pre-emption, and sale on the 9th of July, 1858.
So far as to treaties and the date of opening of these lands to pre-emption, & c. Now as to the facts of this particular case.
The plaintiffs claimed under Irwin Long, the Wyandotte Indian mentioned in the treaty of 1842, who held a patent from the United States. In support of this title it appeared that on the 8th of May, 1857, one Stover, a white man, as agent for Long, filed in the office of the Surveyor-General of Kansas and Nebraska a written notice that as such agent of Long he had on that day selected and located a reserve of land to which Long was entitled, in pursuance of the two treaties made by the United States with the Wyandottes on the 5th of October, 1842, and the 1st of March, 1855. On this proceeding a patent-this being the patent under which the plaintiffs claimed purporting to convey the lands in pursuance of the said treaties, was issued and duly delivered.
The defendants claimed title by virtue of a pre-emption settlement of the 28th of July, 1858. In support of this title it appeared that in February, 1857, one Whaley, being personally qualified, entered upon and made settlement in person, and commenced to improve with intent to pre-empt and purchase the land; that after making such settlement, and within thirty days thereafter, he went to the proper local land office, with intent to file notice of his said settlement and intention to pre-empt, and offered to make such filing; but that the register of the land office refused to allow such filing, on the ground that the said land was not pre-emptable; that in April of the same year he went to the same office and made the same offer, which was refused by the register on the same grounds; that on the 30th day of July, 1858, he duly filed in the office of the register of the said land office a notice of his settlement on said land, and of his intention to pre-empt the same, dating the time of his settlement July 28th, 1858; that on the 5th day of May 1859 he purchased the said land, and paid for the same, and took the usual certificate of such purchase and payment; that on the 10th day of August, 1860, the said pre-emption and purchase was approved by the Commissioner of the General Land Office of the United States, and the register of the local land office was duly notified, by letter of said commissioner, of such approval.
That afterward the said Whaley applied to the register of said local land office, at his office, for a patent from the United States to him for said land, and was informed by said register that said patent had been sent from Washington to said office, and afterwards recalled.
As already said, the land in question was first opened for settlement, pre-emption, and sale, on the 9th of July, 1858.
The suit being referred to a referee to try the action, he found as matter of law that up to the 9th of July, 1858, when, as just mentioned, the lands were first opened for settlement, pre-emption, and sale, and indeed up to May 5th, 1859, when Whaley made his payment and purchase, neither plaintiffs nor defendants had acquired any title; but that by the purchase and payment then made, an equitable title was vested in Whaley.
He accordingly found that the defendants were entitled to judgment, and found further that the plaintiffs should convey the title to the defendants, &c.
This decision was declared to be right by the Supreme Court of the State, and the case was now brought here for review.
Messrs. W. T. Otto and J. P. Usher, for the plaintiffs in error; Messrs. Thacher and Banks, contra.
Mr. Justice DAVIS delivered the opinion of the court.
^1 10 Stat. at Large, 1056.
^2 4 Stat. at Large, 412, § 2.
^3 7 Id. 356, art. 2.
^4 7 Id. 357, art. 10.
^5 11 Id. 583.
^6 10 Stat. at Large, 1053.
^7 This gave until November 2d, 1859.
^8 10 Stat. at Large, 309.