[33] invalid because it is uncertain, inasmuch as while it determines that the Choctaws shall be allowed the proceeds of the sale of the lands ceded by the Treaty of 1830, and at the rate of 12 cents an acre for the residue, it does not ascertain what those proceeds and the value of the residue amount to in the aggregate. But the award itself provided the means of reducing this uncertainty by a reference to the Secretary of the Interior, who was directed to cause the account to be stated with the Choctaws, showing what amount was due them according to the principle of settlement embraced in the award. It is not disputed but that the Secretary of the Interior was enabled by the records of his office to state such an account, and that in fact he has stated it. This reference to the Secretary of the Interior for the mere purpose of an account cannot be consid- | ered as a delegation of authority by the Senate to adjudicate any of the questions which had been submitted to it by the agreement of the parties. The stating of the account was merely in execution of the judgment; the principle on which it should proceed was fully, clearly and finally adjudged. Whatever exception might be taken to the account when rendered would not be different from such as in the usual course of equity practice might be taken to the report of a master to whom was referred the statement of an account, the principles of which had been previously settled by a decree of the court fixing and establishing the rights of the parties.

as is insisted in argument, that no express men-
tion is made in this Act of the award, and the
claim of the Choctaw Nation is described as
one arising under the eleventh and twelfth
articles of the Treaty of 1855, but no possible
claim could arise under those articles of that
Treaty in behalf of the Choctaw Nation, except
one to insist upon the arbitration and to enforce
the award made, in pursuance of their terms.
The whole object and scope of those articles of
the Treaty is to provide for the_submission to
the arbitration of the Senate, and the execution
of the award made under it. The future ad-
justment of the claims of the Choctaws men-
tioned in the proviso evidently refers to the di-
vision of the fund, ascertained by the report of
the Secretary of the Interior, by which a por-
tion was to be paid over to the Nation for the
satisfaction of individual claimants, and the re-
mainder retained by the United States as a
trust fund, according to the 13th article of the
Treaty of 1855.

It does not, therefore, give too much effect to the Act of March 2, 1861, to treat it as an Act of Congress confirming the validity of the Senate award. This view is very much strengthened by the terms of the Act of June 23, 1874, from which it appears that at that recent date Congress intended to treat the award of the Senate as valid and binding, and the report of the Secretary of the Interior as to the balance due to be final. The provision of that Act, 18 Stat. at L. 230, is as follows: "That the Secretary of the Treasury is hereby directed to inThird. It is also said that the award is inquire into the amounts of liabilities due from valid for lack of proper notice to the United States of the intended action of the arbitrator before proceeding to the adjudication. When it is considered that the Senate of the United States was the arbitrator, constituting, as it does, a branch of the legislative as well as of the treaty-making power of the Government of the United States, it can hardly be contended that the United States had no notice of proceedings taken by the Senate in pursuance of laws or treaties made by the United States.

the Choctaw Tribe of Indians to individuals,
as referred to in articles 12 and 13 of the
Treaty of June 22, 1855, between the United
States and the Choctaw and Chickasaw Tribes
of Indians, and to report the same to the next
session of Congress, with a view of ascertain-
ing what amounts, if any, should be deducted
from the sum due from the United States to
said Choctaw Tribe, for the purpose of enab-
ling the said Tribe to pay its liabilities, and
thereby to enable Congress to provide a fund
to be held for educational and other purposes
for said Tribe, as provided for in article 13 of
the Treaty aforesaid.'

Whatever force might otherwise be supposed to reside in these objections to the validity of the award are further answered by a reference to the terms of the Indian Appropriation Act The only further question, then, which can [34] of March 2, 1861, 12 Stat. at L. 238, which en- be claimed to be left open for adjudication in acts as follows: "For payment to the Choctaw this suit by the terms of the Act of March 3, Nation or Tribe of Indians, on account of 1881, is, on the supposition that the award is their claim under the eleventh and twelfth prima facie evidence of the correctness of the articles of the Treaty with said Nation or claim thereby reduced to judgment, whether Tribe made the twenty-second of June, 1855, upon its merits it was fair, just and equitable, as the sum of five hundred thousand dollars; two a settlement between the parties of the matters hundred and fifty thousand dollars of which in controversy, having regard to all the circumsum shall be paid in money; and for the residue stances of the case. As already declared, it is the Secretary of the Treasury shall cause to the right of the United States to question its be issued to the proper authorities of the Na-validity by questioning its justice; at the same tion or Tribe, on their requisition, bonds of the United States, authorized by law at the present session of Congress: Provided, that in the future adjustment of the claim of the Choctaws, under the Treaty aforesaid, the said sum shall be charged against the said Indians."

This appropriation, and the payment which was made under it, would seem to have the effect of confirming the award of the Senate, for it makes an appropriation in part payment of it, and provides for the future adjustment of the claim of the Choctaws under it. It is true,

time, the burden of proof is upon them to estab-
lish, by affirmative proof, the considerations
which ought to constrain this court, as a matter
of justice, altogether to disregard it.

Proceeding, then, to review the whole ques-
tions of difference between the parties de novo
for this purpose, we are led to the conclusion
that the principle of settlement adjudged by the
Senate in its award, in pursuance of the 11th
article of the Treaty of 1855, furnishes the near-
est approximation to the justice and right of
the case that, after this lapse of time, it is prac-

[35]

(36)

371

ticable for a judicial tribunal to reach. Our
judgment to this effect is based upon the fol-
lowing considerations:

The situation and circumstances in which
the parties were found at the time the Treaty
of September 27, 1830, was entered into, were
these: By the previous Treaty of 1820, the pol-
icy of the United States therein declared, and
the agreement between the parties, was "To
promote the civilization of the Choctaw In-
lians, by the establishment of schools amongst
them, and to perpetuate them as a Nation by
exchanging for a small part of their land here,"
that is, in Mississippi, "a country beyond the
Mississippi River, where all who live by hunt-
ing and will not work may be collected and set-
tled together." It was also recited that it was
"desirable to the State of Mississippi to obtain
a small part of the land belonging to said Na-
tion for the mutual accommodation of the
parties." Accordingly, the Choctaws, by the
Treaty of 1820, ceded to the United States a
portion only of their lands in Mississippi.

the consent of the Choctaw Nation, as such, to
the provisions of that Treaty, the United States
entered into the obligations already specified
and contained in its subsequent articles, par-
ticularly articles 14, 15 and 19, by which large
reservations of land were made, so that under
article 14 the head of every Choctaw family
who desired to remain and become a citizen of
the United States was entitled to do so, and
thereupon became entitled to a reservation of a
section of 640 acres of land for himself, and an
additional half section for each unmarried child
living with him over ten years of age, and an
additional quarter section for each child under
ten years of age, to adjoin his own location;
with the further provision that if they resided
upon said lands, intending to become citizens
of the States, for five years after the ratification
of the Treaty, a grant ir fee simple should is-
sue to them. The Choctaws, it appears, were
very reluctant to emigrate from their old homes
to their new ones, and a very much larger num-
ber than was expected manifested an intention
to avail themselves of those provisions of the
Treaty which entitled them to remain.

By the 2d article of the Treaty it was de-
clared that, "For and in consideration of the
foregoing cession on the part of the Choctaw
Nation, and in part satisfaction for the same,
the commissioners of the United States, in
behalf of said States," thereby ceded to said
Nation a tract of country west of the Missis-
sippi River, the boundaries of which were de-
scribed. It was also declared by article 4 of
that Treaty, that "The boundaries hereby es-effectuate the policy of the United States in re-
tablished between the Choctaw Indians and
the United States on this side of the Mississippi
River shall remain without alteration until the
period at which said Nation shall become so
civilized and enlightened as to be made citizens
of the United States, and Congress shall lay off
a limited parcel of land for the benefit of each
family or individual in the Nation."

It is notorious as a historical fact, as it abundantly appears from the record in this case, that great pressure had to be brought to bear upon the Indians to effect their removal, and the whole Treaty was evidently and purposely executed, not so much to secure to the Indians the rights for which they had stipulated, as to gard to their removal. The most noticeable thing, upon a careful consideration of the terms of this Treaty, is that no money consideration is promised or paid for a cession of lands, the beneficial ownership of which is assumed to reside in the Choctaw Nation, and computed to amount to over ten millions of acres. It was not an exchange of lands east of the Mississippi River for lands west of that river. The latter tract had already been secured to them by its cession under the Treaty of 1820.

By the Treaty of January 20, 1825, it was
further stipulated that the 4th article of the
Treaty of October 18, 1820, should be so modi-
fied as that Congress should not exercise the It is true that by the 18th article of the Treaty
power of apportioning the lands for the benefit of 1830 it is provided that, "For the payment
of each family or individual of the Choctaw of the several amounts secured in this Treaty,
Nation, and of bringing them under the laws the lands hereby ceded are to remain a fund
of the United States, but with the consent of pledged to that purpose, until the debt shall be
the Choctaw Nation. In the meantime, how- provided for and arranged. And, further, it
ever, under the pressure of the demand for the is agreed that, in the construction of this Treaty,
settlement of the unoccupied lands of the State wherever well founded doubt should arise, it
of Mississippi by emigrants from other States, shall be construed most favorably towards the
the policy of the United States in respect to Choctaws." The only money payments se-
the Indian Tribes still dwelling within its bor- cured by the Treaty, over and above the neces-
ders underwent a change, and it became desi- sary expenditures in removing the Indians, in
rable by a new treaty to effect so far as practi- providing for their subsistence for twelve
cable the removal of the whole body of the months after reaching their new homes, and
Choctaw Nation, as a tribe, from the limits of paying for their cattle and their improvements,
the State to the lands which had been ceded to are: first, an annuity of $20,000 for twenty
them west of the Mississippi River. To carry years, commencing after their removal to the
but that policy the Treaty of 1830 was nego-west; and, second, the amount to be expended
tiated.

in the education of forty Choctaw youths for
By the 3d article of that Treaty the Choctaw twenty years, and for the support of three teach-
Nation of Indians ceded to the United States ers of schools for twenty years, together with
the entire country they owned and possessed the cost of erecting some public buildings, and
east of the Mississippi River, and agreed to re- furnishing blacksmiths, weapons and agricult
move beyond the Mississippi River as early as ural implements in addition to the several an-
practicable, so that as many as possible of their nuities and sums secured under former treaties
people, not exceeding one half of the whole to the Choctaw Nation and People. It is no-
umber, should depart during the falls of 1831 where expressed in the Treaty that these pay-
and 1832, and the residue follow during the ments are to be made as the price of the lands
suceeding fall of 1833. But, in order to induce i ceded; and they are all only such expenditures

[38]

[42]

[43]

The judgment of the Court of Claims is therefore reversed and the cause is remanded to that court, with instructions to enter a judgment in conformity with this opinion; and it is so or

dered.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.
Mr. Chief Justice Waite dissenting:

State of Arkansas and the Choctaw Nation, | been awarded under the Act of August 23,
$68,102.
1842, but not delivered, provided "that the
final payment and satisfaction of said awards
shall be first ratified and approved as a final
release of all claims of such parties under the
fourteenth article." That release was executed
on the 6th of November, 1852. The Treaty of
1855 recites that "The Choctaws contend that,
by a just and fair construction of the Treaty of
September 27, 1830, they are of right entitled
to the net proceeds of the lands ceded by them
to the United States under said Treaty, and
have proposed that the question of their right
to the same, together with the whole subject
matter of their unsettled claims, whether na
tional or individual, against the United States,
arising under the various provisions of said
Treaty, shall be referred to the Senate of the
United States for final adjudication and ad-
justment." In view of this recital, we are to
construe Article XI, of the Treaty, which is in
these words:

I regret to find myself unable to agree to this judgment. If the United States had authorized suit to be brought against them on the Senate award, I should not have hesitated about giving judgment in favor of the Choctaw Nation, upon the facts now found by the court below, for the full amount due according to the statement of the Secretary of the Interior That award has not, in my opinion, been abrogated by the bringing of this suit. It remains, so far as anything appears in this record, as valid and as binding to-day as it was when made. The United States have neglected to pay the amount awarded, but the Choctaw People have never, so far as this record shows, released them from their obligation to pay. On the contrary, it seems always to have been insisted upon.

This suit is not brought upon the award, but upon the Treaties, and it is to be determined, in my opinion, according to the legal rights of the parties now existing as fixed by the Treaties, without regard to anything that was done by the Senate under the Treaty of 1855. The language of the jurisdictional statute is this: "The court of claims is hereby authorized to take jurisdiction of and try all questions of difference arising out of treaty stipulations with the Choctaw Nation, and render judgment thereon; power is hereby granted the said court to review the entire question of differences de novo, and it shall not be estopped by any action or award made by the Senate of the United States in pursuance of the Treaty of 1855." This, as it seems to me, means no more than that the questions of difference are to be tried de novo, as far as the award is concerned. A judgment is to be rendered. This implies that the proceeding is to be judicial in its character, and that the judgment is to be in accordance with the principles governing the rights of parties in the administration of justice by a court. The Senate, however, were, by the Treaty of 1855, made arbitrators, and they were invested with power to determine whether the Choctaws were "entitled" legally to the proceeds of their lands, and, if not, whether they ought, under all the circumstances of the case, to be "allowed" such proceeds. The Senate could consider and act upon the moral obligations of the United States; but neither we nor the court of claims can do more than enforce their legal liabilities.

"The Government of the United States not being prepared to assent to the claim set up under the Treaty of September the twenty-seventh, eighteen hundred and thirty, and so earnestly contended for by the Choctaws as a rule of settlement, but justly appreciating the sacrifices, faithful services, and general good conduct of the Choctaw People, and being desirous that their rights and claims against the United States shall receive just, fair, and liberal consideration, it is therefore stipulated that the fol lowing questions be submitted for adjudication to the Senate of the United States:

"First. Whether the Choctaws are entitled to, or shall be allowed, the proceeds of the sale of the lands ceded by them to the United States, etc.," or

"Second. Whether the Choctaws shall b allowed a gross sum in further and full satisfaction of their claims, national and individual, against the United States; and, if so, how much."

Thus the whole matter was referred to the Senate to determine (1) whether the Choctaws were in law entitled to the proceeds of the sale of their lands, and, if not, then, (2) what, under the circumstances, would be a fair and liberal settlement of all the matters of difference, with the right under this branch of the submission to "allow" the Choctaws the proceeds, or a gross sum" to be ascertained in some other way. The Senate decided that they were not entitled to the proceeds as a matter of right, but that, under all the circumstances, it would be fair and just to settle on that basis. Had the same power been granted to the court of claims, I should not hesitate to affirm a judgment to the full amount of the award if placed on that ground. But, as has been seen, the jurisdictional statute confines the jurisdiction of the courts in this suit to a determination of the legal rights of the parties. Under the Treaty the Senate could do what was fair and just, but we can only adjudge according to law.

What, then, are the legal obligations of the
United States under the Treaties at this time,
leaving the Senate award entirely out of view?
The jurisdictional statute neither waives nor
abrogates the release which was executed under This court agrees with the Senate committee
the Act of July 21, 1852. The same is true of in deciding that the Choctaws were not legally
the Treaty of 1855. By the Act of 1852 pay-entitled to the proceeds of the land. In that I
ments were to be made in cash to claimants
under the fourteenth article of the Treaty of
1830, for the amount of the scrip which had

concur. The only inquiry, then, is, how much
must be paid for the violation of the Treaty of
1830 by the United States. If the release stands,

[44]

286]

then there can only be a recovery for the unsettled claims of the Choctaws, national and individual. In my opinion, the release has not been invalidated as an instrument binding in law by the findings in the case. The United States may have taken advantage of the necessities of the Indians and exacted a hard bargain, but the bargain was made and both parties promptly carried it out. The Senate, under its powers, might take the hardship of this bargain into account and go behind the release, but, in my judgment, we cannot. All that remains, then, is to ascertain what is legally due from the United States on account of the national and individual claims not included in that settlement; and upon this I am entirely satisfied with what was done by the court of claims. I think the judgment should be affirmed.

the intent to sell the same therein as a beverage, contrary to the provisions of section 1542 of the Code of Iowa as amended and substituted by the Act of the Twentieth General Assembly of the State of Iowa, approved April 3, 1884; and further, that in the month of August, 1884, said defendants in their said saloon sold to divers and sundry persons intoxicating liquors, contrary to the provision of section 1540 of the Code of Iowa, as amended by said Twentieth General Assembly; and further, that said defendants at said saloon, have since the 15th day of July, 1884, by themselves, their agents and servants sold and continue from day to day to sell said liquors therein, to be drank as a beverage, contrary to law.

Complainant therefore prays that said saloon may be adjudged and decreed to be a nuisance, and that the same be abated, and said defendant be enjoined by preliminary injunction from James H. McKenney, Clerk, Sup. Court, U. 8. further keeping or maintaining said saloon for

True copy. Test:

SCHMIDT BROTHERS, a Firm Composed of ALBERT SCHMIDT and TITUS SCHMIDT, Appts.,

E. M. COBB.

(See S. C. Reporter's ed. 286-295.)

Place for sale of intoxicating liquors as a bever age, a nuisance-bill to abate—constitutionality of Statute of Iowa-conflict with Civil Rights Statutes, and Fourteenth Amendment to Constitution of United States.

Where a complaint in equity was filed in the District Court of the State of Iowa, under section 1543, Code of that State, as amended by the Twentieth General Assembly, alleging that the defendants (the appellants here), were keeping a place for the sale of intoxicating liquors as a beverage, and sold such liquors for such purpose, contrary to the law of the State, and asking that such place be declared a nuisance and abated, and that a preliminary injunction be issued, and the defendants filed their petition for removal of the cause to the Circuit Court of the United States, upon the ground that the statutes under which the proceedings were had and which the Supreme Court of Iowa had declared valid were in violation of the Civil Rights Law and the Constitution of the United States, especially the Fourteenth Amendment thereof, and such petition was granted, and upon motion of plaintiff in the circuit court, the case was remanded, upon the ground that no federal question was involved; upon appeal from that decree, this court being equally divided in opinion upon a motion made here by appellee, complainant below, to dismiss the appeal, and affirm the decree of the circuit court remand[No. 855.]

ing the cause, such decree stands affirmed.

Submitted Oct. 12, 1886. Decided Oct. 25, 1886.

APPEAL from the Circuit Court of the United

States for the Northern District of Iowa.
Affirmed.

U motion to dismiss.

On the 4th day of September, 1883, complainant, a citizen of Iowa, filed in the District Court of the State of Iowa, in and for Dubuque County, his complaint in equity, alleging that the defendants, who were and are citizens of Iowa, at their place of business in the City of Dubuque, Iowa, have established a saloon and place for the keeping and sale of intoxicating liquors; to wit, whisky, wine, gin and beer, and are keeping said liquors in said saloon, with

the illegal sale of intoxicating liquors, and also from selling the same in said saloon, contrary to law; and that upon final hearing said injunction be made perpetual.

This action is brought under the provisions of section 1543 of said Code of Iowa, as amended by said Twentieth General Assembly, which enacts that in cases of the violation of the provision of section 1540, or section 1542 of said Code, prohibiting the selling or keeping for sale intoxicating liquors, contrary to law, the building in which such unlawful selling or keeping with intent to sell, is carried on, is a nuisance; and further provides that any citizen of the county in which such nuisance exists, or is kept or maintained, may maintain an action in equity to abate and enjoin the same.

On the twenty-first day of September, defendants filed in the state court their petition for removal to the Circuit Court of the United States, upon the ground that the statutes aforesaid were in violation of the Civil Rights Law, and the Constitution of the United States, especially the Fourteenth Amendment thereof.

Which petition was allowed and the case removed.

In the circuit court, defendants amended their petition for removal, and averred therein; 1. That they were, and for five years past have been, citizens of Iowa.

2. That long prior to July 4, 1884, they had been engaged in brewing beer and selling the same at wholesale, and have kept upon their premises a room and bar where said beer so manufactured is kept for sale at retail; which is the keeping of a saloon charged in the petition herein.

3. That they invested in said business of brewing and selling beer a large sum of money; to wit, the sum of ten thousand dollars, exclusive of costs, which will be rendered entirely worthless if plaintiff succeeds in this action. 4. That there has been no trial or final hearing of this case.

5. That plaintiff has filed his motion for a temporary injunction to restrain defendants from prosecuting their said business, which if allowed will work an irreparable injury to defendants.

6. That the Twentieth General Assembly of Iowa passed an Act which went into effect July