dians, making provision for "various Choc- Caddoes had in these lands, as fully as any taw persons," used, as synonymous expres- patent from the government could make one. sions, the phrases "shall be entitled to a res-The reservation to the Grappes, 'their heirs ervation of," "is allowed a reservation of," and assigns forever,' creates as absolute a "there shall be granted," "there is given," fee as any subsequent act upon the part of or "is granted," sections of land, either in the United States could make. Nothing cluding the present residence and improve- further was contemplated by the treaty to ment of such persons, or to be located on any perfect the title. Brooks being the alienee unimproved and unoccupied land. 7 Stat. of the Grappes for the entire reservation, he at L. 340. In Gaines v. Nicholson (1850) may hold it against any claim of the United 9 How. 356, 13 L. ed. 172, Mr. Justice Nel-States, as his alienors would have done." son, in delivering the opinion of the court, 10 How. 460, 13 L. ed. 496. In that case, did say of such a reservation: "It was so therefore, an agreement that the persons much carved out of the territory ceded, and named "shall have their right" to "certain [15] remained to the Indian occupant, as he had lands reserved," and the lands "shall be laid never parted with it. He holds, strictly off," was given the same effect as a present speaking, not under the treaty of cession, but grant or patent. It is true that the treaty under his original title confirmed by the gov- there in question reserved the right to those ernment in the act of agreeing to the reser persons, "and their heirs and assigns forvation." 9 How. 365, 13 L. ed. 176. But ever." But the like construction has since that treaty was made before the act of Con- been given to reservations unaccompanied gress of 1834; the only question in the case by any words of inheritance. was of the effect of the reservation as against a previous grant of land by Congress to a state for the support of schools; the court had no occasion to define, and did not undertake to define, the exact nature of the title granted or confirmed by the treaty; and the suggestion, in accordance with Attorney General Taney's opinion, above cited, that the treaty rather confirmed the Indian right than 14] granted a new *title, can hardly be reconciled with the later judgments of the court, to be presently considered, one of which was de livered by the same learned judge. Crews v. Burcham, 1 Black, 352, 17 L. ed. 91.

In concluding the treaty of July 1, 1835, between the United States and the Caddo na tion of Indians, in Louisiana, supplementary articles were added, by which, after a recital that that nation had in 1801 granted to one Francois Grappe (who was a half-blood Caddo) and to his three sons a league of land each, "it is agreed" that Grappe's legal representatives and his said three sons "shall have their right to the said four leagues of land reserved to them and their heirs and assigns forever. The said land to be taken out of the lands ceded to the United States by the said Caddo nation of Indians as expressed in the treaty to which this article is supplementary. And the said four leagues of land shall be laid off in one body," at a place described, in conformity with the boundaries "expressed in the original deed of gift" from the Caddo nation to Grappe and his three sons. 7 Stat. at L. 473. In United States v. Brooks (1850) 10 How. 442, 13 L. ed. 489, it was argued for the United States that the effect of this agree ment was simply that the Grappes should retain their right, whatever it might be, under the reservation of 1801, and that that reservation was not authorized by the laws then in force there. But it was adjudged that its effect was to vest in the Grappes an absolute title in fee simple, which they might convey to anyone; the court, speaking by Mr. Justice Wayne, saying: "We think that the treaty gave to the Grappes a fee-simple title to all the rights which the

are

By the first article of a treaty made on the Tippecanoe river in the state of Indiana on October 27, 1832, between the United States and the Pottawatomies of that state and of Michigan territory, that tribe of Indians ceded their title and interest to lands in Indiana, Illinois, and Michigan to the United States. By article 2, "from the cession aforesaid, the following reservations made" to certain bands of Indians. And by article 3, "the United States agree to grant to each of the following persons the quantity of land annexed to their names, which lands shall be conveyed to them by patent." "The foregoing reservations shall be selected under the direction of the President of the United States, after the lands shall have been surveyed, and the boundaries to correspond with the public surveys." 7 Stat. at L. 399-401.

In Doe, Mann, v. Wilson (1859) 23 How. 457, 16 L. ed. 584, it was held, in an action of ejectment, that a warranty deed made by Petchico (a Pottawatomie chief, one of the persons named in the third article of that treaty), in February, 1833, to citizens of Indiana, before the lands had been surveyed or a patent granted, passed a good title as against a deed made by his heirs after the issue of the patent and his death. The court, speaking by Mr. Justice Catron, said: "The Pottawatomie nation was the owner of the possessory right of the country ceded, and all the subjects of the nation were joint owners of it. The reservees took by the treaty, directly from the nation, the Indian title; and this was the right to occupy, use, and enjoy the lands, in common with the United States, until partition was made in the manner prescribed." This sentence has sometimes been supposed to indicate that by the treaty the reservees took directly from the Indian nation its possessory right only, defined as "the right to occupy, use, and enjoy the lands in common with the United States." But this was qualified by *the con- [16] cluding words of the same sentence, "until partition was made in the manner prescribed;" that is to say, by the treaty. And

the court went on to say, in the most dis-ity is the technical one as to the vesting of tinct terms: "The treaty itself converted the legal title." "We think it quite clear, if the reserved sections into individual proper- this patent had issued to Besion in his lifety. The Indians as a nation reserved no in- time, the title would have inured to his granterest in the territory ceded; but, as a part tee. The deed to Armstrong recites the resof the consideration for the cession, certain ervation to the grantee of the half section individuals of the nation had conferred on under the treaty, and that it was to be locat them portions of the land, to which the ed by the President after the lands were surUnited States title was either added or pron veyed; and then, for a valuable consideraised to be added, and it matters not which tion, the grantee conveys all his right and for the purposes of this controversy for pos- title to the same with a full covenant of warsession. The United States held the ulti ranty. The land is sufficiently identified to mate title, charged with the right of undis- which Besion had the equitable title, which turbed occupancy and perpetual possession was the subject of the grant, to give operain the Indian nation, with the exclusive tion and effect to this covenant on the issupower in the government of acquiring the ing of the patent, within the meaning of this right. Although the government alone can act of Congress. [Act of May 20, 1836, purchase lands from an Indian nation, it chap. 76; 5 Stat. at L. 31.] The act declares does not follow that, when the rights of the the land shall inure to, and become vested in, nation are extinguished, an individual of the the assignee, the same as if the patent had nation who takes as private owner cannot issued to the deceased in his lifetime." sell his interest. The Indian title is prop- "Some expressions in the opinion delivered erty, and alienable unless the treaty had pro- in the case of Doe, Mann, v. Wilson, the first hibited its sale. So far from this being the case that came before us arising out of this case in the instance before us, it is manifest treaty, were the subject of observations by that sales of the reserved sections were con- the learned counsel for the appellant in the templated, as the lands ceded were forthwith argument, but which were founded on a misto be surveyed, sold, and inhabited by a apprehension of their scope and purport. It white population, among whom the Indians was supposed that the court had held that could not remain." 23 How. 463, 464, 16 L. the reservee was a tenant in common with ed. 586. the United States after the treaty of cession and until the survey and patent. It will be seen, however, that the tenancy in common there mentioned *referred to the right to oc- [18] cupy, use, and enjoy the land in common with the government, and had no relation to the legal title." 1 Black, 356, 357, 17 L. ed. 92.

In Crews v. Burcham (1861) 1 Black, 352, 17 L. ed. 91, a warranty deed made by Francis Besion, another person named in the third article of that treaty, under like circumstances, to one Armstrong, was accord ingly held to vest the legal title in him; and the scope and effect of the decision in Doe, Mann, v. Wilson were clearly brought out in the opinion delivered by Mr. Justice Nelson, as follows: "It was there held that the reservation created an equitable interest in the land to be selected under the treaty; that it was the subject of sale and conveyance; that Petchico was competent to convey it; and that his deed, upon the selection of the land and the issue of the patent, operated to vest the title in his grantee. It is true that no title to the particular lands in question could vest in the reservee, or in his grantee, [17] until the location by the President, *and, perhaps, the issuing of the patent; but the obligation to make the selection as soon as the lands were surveyed, and to issue the patent, is absolute and imperative, and founded upon a valuable and meritorious consideration. The lands reserved constituted a part of the compensation received by the Pottawatomies for the relinquishment of their right of occupancy to the government. The agreement was one which, if entered into by an individ. ual, a court of chancery would have enforced by compelling the selection of the lands and the conveyance in favor of the reservee, or, in case he had parted with his interest, in favor of his grantees. And the obligation is not the less imperative and binding because entered into by the government. The equitable right, therefore, to the lands, in the grantee of Besion, when selected, was perfect, and the only objection of any plausibil

By those two decisions it was determined that the "reservations," created by the treaty with the Pottawatomies of October 27, 1832, in favor of individual Indians, by the words "the United States agree to grant" to each of them sections of land, "which lands shall be conveyed to them by patent," had the effect of granting a present and alienable interest to each. In both those decisions Chief Justice Taney concurred-which is worthy of special notice in view of the dif ferent opinion, above cited, which he had given, when Attorney General, upon the effect of similar reservations in a treaty made with another band of Pottawatomies seven days earlier, but promulgated by the President at the same time as this treaty. 7 Stat. at L. 378, 399. And the two decisions were cited and approved by this court, speaking by Mr. Justice Matthews, in Prentice v. Stearns (1885) 113 U. S. 435, 446, 447, 28 L. ed. 1059, 1063. See also the opinion de livered by Mr. Justice Miller in the circuit court in Prentice v. Northern P. R. Co (1890) 43 Fed. Rep. 270, 275.

In the treaty of June 3, 1825, between the United States and the Kansas nation of Indians, it was provided, by article 6, that from the lands thereby ceded to the United States there should be made reservations of 1 mile square for each of the half-breeds named; and, by article 11, that "the said Kansas nation shall never sell, relinquish, or

in any manner dispose of the lands herein | necessary, for the treaty proceeded on the reserved, to any other nation, person, or per theory that a grant is as valid by a treaty sons whatever, without the permission of the as by an act of Congress, and does not need United States for that purpose first had and a patent to perfect it. We conclude, thereobtained." 7 Stat. at L. 245, 247. The act fore, that the treaty conferred the title to of Congress of May 26, 1860, chap. 61, after these reservations, which was complete when reciting that the lands so reserved had been the locations were made to identify them." surveyed and allotted to each of the half- 18 Wall. 116, 21 L. ed. 807. "The treaty breeds in accordance with article 6 of the granted the land, but the loeation had to be treaty, enacted that "all the title, interest. fixed before the grant could become operaand estate of the United States is hereby tive. After this was done, the estate became vested in the said reservees, who are now liv-vested and the right to it perfect, as much ing, to the land reserved, set apart, and also as if the grant had been directly executed lotted to them," and in the heirs of those de to the reservee." 18 Wall. 118, 21 L. ed. ceased, "but nothing herein contained shall 808. In support of that conclusion, this [19] be construed to give any *force, efficacy, or court cited decisions of the highest court of binding effect to any contract, in writing or the state of Mississippi, in which, after otherwise, for the sale or disposition of any quoting the words of article 6 of the treaty, lands named in this act, heretofore made by it was said: "By this language, a title in any of said reservees or their heirs;" and it fee passed to such persons as were above the was further enacted that if any of the reser-age of twenty-one. The term 'reservation' vees, or the heirs of anyone deceased, should was equivalent to an absolute grant. The not desire to occupy the lands to which they title passed as effectually as if a grant had were entitled by the provisions of this act, been executed." "The treaty has not conthe Secretary of the Interior, upon their re-templated a further grant, or other evidence quest, should be authorized to sell the lands of title, showing conclusively that by the for their benefit, and to issue patents to the purchasers. 12 Stat. at L. 21. In Smith v. Stevens (1870) a deed made by one of those half-breeds, shortly after the passage of that act, without the authority or assent of the Secretary of the Interior, was ad judged by this court, speaking by Mr. Jus tice Davis, to be void, upon the single ground "that the statute, having provided the way in which these half-breed lands could be sold, by necessary implication prohibited their sale in any other way." 10 Wall. 321, 326, 19 L. ed. 933, 935.

By the treaty with the Chickasaws of May 24, 1834, it was agreed, in article 5, that "the following reservations be granted in fee: To heads of families, being Indians or having Indian families,” a certain number of sections of land; and, by article 6, "also reservations of a section to each shall be granted to" other members of the tribe, of the age of twenty-one years and upwards, according to a list to be made out by seven chiefs named in the treaty, and filed with the agent, "upon whose certificate of its believed accuracy the register and receiver shall cause said reservations to be located upon lands fit for cultivation." 7 Stat. at L. 451, 452. It may be observed that article 6, differing in these respects from article 5, used the future tense, "shall be granted," and omitted the words "in fee." Yet in Best v. Polk (1873) 18 Wall. 112, 21 I.. ed. 805, this court held that the treaty itself conferred a full title upon an Indian to whom lands were reserved by article 6, and, again speaking by Mr. Justice Davis, said: "Can it be doubted that it was the intention of both parties to the treaty to clothe the reservees with the full title? If it were not so, there would have been some words of limitation indicating a contrary intention. Instead of this, there is nothing to show that a further grant, or any additional evidence [20] of title, were contemplated. Nor was this

was

terms used it was intended that a perfect
title was thereby intended to be secured. The
Indian, then, under whom complainants
claim, had in herself an absolute and un-
conditional title in fee simple. The title
was conferred by the treaty; it was not,
however, perfect until the location
made; location was necessary to give iden-
tity. The location it seems was duly made,
and thus the title to the land in controversy
was consummated by giving identity to that
which was before unlocated." Niles v. An-
derson (1841) 5 How. (Miss.) 365, 383;
Wray v. Doe, Ho-ya-pa-nubby (1848) 10
Smedes & M. 452, 461.

In the treaty of June 24, 1862, between
the United States and a tribe of Ottawa In-
dians, article 3 provided as follows: "It
being the wish of said tribe of Ottawas to
remunerate several of the chiefs, councilmen,
and headmen of the tribe for their services
to them many years without pay, it is hereby
stipulated that five sections of land is [are]
be apportioned among the said chiefs, coun-
reserved and set apart for that purpose, to
cilmen, and headmen as the members of the
tribes shall in full council determine; and
it shall be the duty of the Secretary of the [21}
Interior to issue patents in fee simple of
said lands, when located and apportioned, to
said Indians." 12 Stat. at L. 1238. In
Libby v. Clark (1886) 118 U. S. 250, 30 L.
ed. 133, 6 Sup. Ct. Rep. 1045, this court, ap-
proving and affirming the judgment of the
supreme court of Kansas, delivered by Mr.
Justice Brewer, in 14 Kan. 435, held that a
deed to a white person from one of those
chiefs, of land patented to him pursuant to
the treaty, but executed before he had be-
come a citizen of the United States, was
void, for the single reason that the treaty
itself, as construed by the court, expressly
provided, in article 7, that no Indian should
alien or encumber the land allotted to him

until he had, according to the terms of the | Pembina_river." And this construction is treaty, become a citizen of the United States. fortified by other provisions of the treaty In the treaty of Prairie du Chien of July quoted at the beginning of this opinion. 29, 1829, between the United States and cer- By the 8th article, it is "agreed that tain nations of Chippewa, Ottawa and Pot- the United States shall grant to" each male tawatomie Indians, article 4, by which "there adult half-breed or mixed-blood who is reshall be granted by the United States" to lated by blood to these Indians, who has each of the persons named, being descend-adopted the habits and customs of civilized ants from Indians, sections of land, it was life, and who is a citizen of the United provided that "the tracts of land herein stip-States, a homestead of one hundred and ulated to be granted shall never be leased or conveyed by the grantees, or their heirs, to any persons whatever, without the permission of the President of the United States." 7 Stat. at L. 321. Of course, under such a provision, no alienation could be valid without the approval of the President. Pickering v. Lomax (1892) 145 U. S. 310, 36 L. ed. 716, 12 Sup. Ct. Rep. 860; Lomax v. Pickering (1899) 173 U. S. 26, 43 L. ed. 601, 19 Sup. Ct. Rep. 416.

sixty acres, to be selected out of the tract ceded, and in conformity with the official surveys when made. That article was amended by the Senate by providing that no scrip should be issued under its provisions, and no assignment should be made of any right, title, or interest before the issue of a patent, and no patent should be issued until due proof of five years' actual residence and cultivation, as required by the homestead act. Act of May 20, 1862, chap. 75; 12 Stat. at L. 392; Rev. Stat. §§ 2289, 2291.

The clear result of this series of decisions is that when the United States, in a treaty *The reservations of four times as much [23] with an Indian tribe, and as part of the con- land to each of the chiefs Moose Dung and sideration for the cession by the tribe of a Red Bear under the ninth article were not tract of country to the United States, make made subject, by any provision of the origi. a reservation to a chief or other member of nal treaty, or of the Senate amendments, to the tribe of a specified number of sections of the condition of adopting the habits and cusland, whether already identified, or to be toms of civilized life, or of becoming a citisurveyed and located in the future, the zen of the United States, or of five years' actreaty itself converts the reserved sections tual residence and cultivation. But by the into individual property; the reservation, fifth article, with the avowed objects "to enunless accompanied by words limiting its courage and aid the chiefs of said bands in effect, is equivalent to a present grant of a preserving order, and inducing, by their excomplete title in fee simple; and that title is ample and advice, the members of their realienable by the grantee at his pleasure, un-spective bands to adopt the habits and purless the United States, by a provision of the treaty, or of an act of Congress, have expressly or impliedly prohibited or restricted its alienation.

[22] *The letters of the Commissioner of Indian Affairs, referred to in the supplemental brief of the defendant, expressing the views entertained in his office at sundry times as to the effect of a reservation in an Indian treaty to particular Indians without words of present grant, or of inheritance, were for the most part written before the subject had been considered by this court; and they fall far short of establishing such a uniform practical construction of the term by the Executive Departments as would warrant the court in overruling its own opinions as expressed in the cases above stated.

The treaty of October 2, 1863, between the United States and the Red Lake and Pembina bands of Chickasaw Indians, now before the court, contains in itself peculiarly strong evidence that it was intended to vest in the elder chief Moose Dung a full and complete title in the land reserved to him.

According to the decisions above cited, such would be the construction of the ninth article, taken by itself, by which "upon the urgent request of the Indians, parties to this treaty, there shall be set apart from the tract hereby ceded a reservation of six hundred and forty acres near the mouth of Thief river for the chief Moose Dung, and a like reservation of six hundred and forty acres for the chief Red Bear on the north side of

suits of civilized life," each chief was to be paid, not only a certain sum annually out of the annuities payable to the bands by the treaty, but also, at the time of the first payment, a further sum of five hundred dollars "to enable him to build for himself a house."

The provisions of that article are wholly inconsistent with the theory that the title of the chiefs Moose Dung and Red Bear respectively in the reservation of six hundred and forty acres each, unconditionally set apart for them, was to be less absolute than the title of the half-breeds in their homesteads would be after the conditions of the treaty respecting them had been complied with.

The only reasonable construction of all the provisions of the treaty, taken together, is that the ninth article, by which "there shall be set apart from the tract hereby ceded a reservation of six hundred and forty acres near the mouth of the Thief river for the chief Moose Dung," and a reservation of a like quantity of land at another place designated for the chief Red Bear, was intended by the United States and was understood by the Indians, and took effect, as a present grant to each of these two chiefs of an alienable title in fee in that quantity of land at the designated place, subject only to its selection in due form, and to the definition of its boundaries by survey and patent.

Such being in our opinion the construction and effect of the terms of the treaty itself, it is unnecessary to consider the competency of the extrinsic evidence, offered by