was attended by conditions in the nature of a trust. While the dependent character of the Indians makes it the duty of the court to closely scrutinize the provisions of the treaty and to interpret them "in the light of the larger reason and the superior justice that constitute the spirit of the law of nations" (Choctaw Nation v. United States, 119 U. S. 1, 28, 30 L. ed. 306, 315, 7 Sup. Ct. Rep. 75), the court must take care, when using its power to ascertain the intention of the parties, not to disregard the obvious import of the words employed, and thereby, in effect, determine questions of mere governmental policy. We may repeat, that if wrong was done to the Indians by the treaty of 1866, interpreted as we have indicatedand we are not to be understood as expressing the opinion that they were not under all the circumstances fairly dealt with-the wrong can be repaired by that branch of the government having full power over the subject.

United States stated that the new Indian | if some of the parties had not been Indians treaties to be made must contain certain it would never have occurred to anyone that stipulations. But no one of those stipula- the cession of territory made by that treaty tions had specific reference to the lands constituting the Leased District. It is true that of the stipulations mentioned by Commissioner Cooley at the Fort Smith Council, the fifth declared that "a portion of the lands hitherto owned and occupied by you [the Indians] must be set apart for the friendly tribes now in Kansas and elsewhere, on such terms as may be agreed upon by the parties and approved by the government, or such as may be fixed by the government;" and that by the seventh it was provided that "no white person, except officers, agents, or employees of the government, or of any internal improvement authorized by the government, will be permitted to reside in the territory unless formally adopted into some tribe according to the usages of the band." But those stipulations had no reference to the Leased District then held by the United States under the treaty of 1855 for the permanent settlement of Indians. The reference in the fifth and seventh proposed stipulations related, so far as the Choctaws and Chickasaws were concerned, to lands "owned and occupied by them," that is, to the territory, respectively, of the Choctaws and Chickasaws east of the 98th degree of west longitude, which was controlled by them and in which their laws and usages prevailed. Those nations did not then occupy the Leased District, but did own and occupy lands east of that district, and in that territory their laws and usages controlled.

*It is said that the interpretation placed by us upon the Choctaw-Chickasaw treaty of 1866 is inconsistent with that placed by the United States upon the treaties made in the same year with the Seminoles and the Creeks

all of which treaties contemplated a new policy for the Indian country and for the Indians. Let us see what are the facts in relation to those treaties.

The preamble of the treaty with the Seminoles (which was concluded March 21, 1866, The treaty of 1866 contains no word or and proclaimed August 16, 1866, 14 Stat. at clause qualifying or limiting the absolute L. 755), recited: "Whereas existing cession made by article 3 of the territory con- treaties between the United States and the stituting the Leased District. If the parties Seminole Nation are insufficient to meet to it intended that the lands constituting their mutual necessities; and whereas the that district should continue to be held and Seminole Nation made a treaty with the soused by the United States as they were then called confederate states, August 1, 1861, held and used under the treaty of 1855-whereby they threw off their allegiance to that is, under lease the treaty of 1866 would not have declared, without qualification, that the Choctaws and Chickasaws "hereby cede" to the United States the territory known as the Leased District, and omitted all words that would, under the most liberal interpretation, either import a continuation of the lease then existing or any trust connected with the territory ceded. It is a fact not without significance that one of the persons attesting the treaty of 1866 as a witness was an eminent lawyer who was of counsel for the Choctaws and Chickasaws during the negotiations at Washington resulting in that treaty. In the view we take of the matter, we cannot suppose that he advised the Indians that the treaty made any other than an unconditional cession of the territory known as the Leased District.

If the Indians intended, so far as they were concerned, to pass an absolute uneneumbered title to the United States, it would, we think, have been impossible to employ language more appropriate to that object than is to be found in the treaty of 1866. Our convictions upon this point are so decided that we feel constrained to say that

the United States, and unsettled their treaty relations with the United States, and thereby incurred the liability of forfeiture of all lands and other property held by grant or gift of the United States; and whereas a treaty of peace and amity was entered into between the United States and the Seminole and other tribes at Fort Smith, September 10, 1865, whereby the Seminoles revoked, canceled and repudiated the said treaty with the so-called confederate states; and whereas the United States, through its commissioners, in said treaty of peace, promNation to arrange and settle all questions ised to enter into treaty with the Seminole relating to and growing out of said treaty with the so-called confederate states; and whereas the United States, in view of said treaty of the Seminole Nation with the ene mies of the government of the United States, and the consequent liabilities of said Seminole Nation, and in view of its urgent neces sities for more lands in the Indian territory, requires a cession by said Seminole Nation of a part of its present reservation, and is willing to pay therefor a reasonable price, while at the same time providing new and adequate lands for them." And by the 3d

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article of that treaty it was provided: "In | with the Choctaws and Chickasaws. But that compliance with the desire of the United cannot constitute a reason why the court States to locate other Indians and freedmen should depart from the ordinary significa thereon, the Seminoles cede and convey to tion of the words used in the treaty with the the United States their entire domain, being Choctaws and Chickasaws. If Congress chose the tract of land ceded to the Seminole In- to adopt one course towards the Seminoles dians by the Creek Nation under the provi- and Creeks and a different course towards sions of article first, treaty of the United the Choctaws and Chickasaws, it is not for States with the Creeks and Seminoles, made the judiciary to defeat the will of the legis and concluded at Washington, D. C., Au- lative branch of the government by giving to gust 7th, 1856. In consideration of said an Indian treaty a meaning not justified by grant and cession of their lands, estimated its words. at 2,169,080 acres, the United States agree to pay said Seminole Nation the sum of $325,362, said purchase being at the rate of fifteen cents per acre. The United States having obtained by grant of the Creek Nation the westerly half of their lands, hereby grant to the Seminole Nation the portion thereof hereafter described, which shall constitute the national domain of the Seminole Indians."

veyances provided for, I have felt bound to look into the whole matter, and in view of the facts which I ehall presently mention, to postpone any executive action until these facts could be submitted to Congress."

lands have been ceded in trust by article 3 of the treaty between the United States and said Choctaw and Chickasaw Nations of Indians, which was concluded April 28, 1866, and proclaimed on the 10th day of August of the same year, and whereof there remains, after deducting allotments as provided by said agreement, a residue ascertained by survey to contain 2,393,160 acres; three-fourths of this appropriation to be paid to such per-ed: "After a somewhat careful examinason or persons as are or shall be duly authorized by the laws of said Choctaw Nation to receive the same, at such time and in such sums as directed and required by the legislative authority of said Choctaw Nation, and one-fourth of this appropriation to be paid to such person or persons as are or shall be duly authorized by the laws of said Chickasaw Nation to receive the same, at such times and in such sums as directed and required by the legislative authority of said Chickasaw Nation; this appropriation to be immediately available and to become opera tive upon the execution, by the duly appointed delegates of said respective nations specially authorized thereto by law, of releases and conveyances to the United States of all the right, title, interest, and claim of said respective nations of Indians in and to said land (not including Greer county, which is now in dispute), in manner and form satisfactory to the President of the United States; and said releases and conveyances, when fully executed and delivered, shall operate to extinguish all claim of every kind and character of said Choctaw and Chickasaw Nations of Indians in and to the tract of country to which said releases and conveyances shall apply."

It is argued that the words in the above paragraph, "said lands have been ceded in trust by article 3 of the treaty between the United States and said Choctaw and Chickasaw Nations of Indians, which was conclud

ed April 28, 1866," must be taken as an admission by the United States in 1891 that the cession made by the treaty of 1866 was not intended to be absolute and unconditional, but in trust to be used for the settlement of Indians, upon the abandonment of which object by the United States the ceded lands

reverted to the Indians.

There would be force in this contention if it appeared that the legislative and execu tive branches of the government had adhered to the declaration in the act of March 3, 1891. But such is not the fact. For at the next session of Congress, President Harrison, by special message, dated February 18, 1892. called attention to the above para graph, and among other things said: "If this section had been submitted to me as a separate measure, especially during the closing hours of the session, I should have disapproved it; but as the Congress was then in its last hours a disapproval of the general Indian appropriation bill of which it was a part would have resulted in consequences so far-reaching and disastrous that I felt it my duty to approve the bill. But as a duty was devolved upon me by the section quoted, viz.: the acceptance and approval of the con

After referring to some matters that have no connection with the inquiry as to the meaning of the treaty of 1868 with the Choctaws and Chickasaws, the President proceedtion of the question, I do not believe that the lands for which this money is to be paid were, to quote the language of § 15 of the Indian appropriation bill, already set out, 'ceded in trust by article 3 of the treaty between the United States and said Choctaw and Chickasaw Nations of Indians, which was concluded April 28, 1866,' etc. It is agreed that the treaty contained no express limitation upon the uses to which the United States might put the territory known as the Leased District. The lands were ceded by terms sufficiently comprehensive to have passed the full title of the Indians. The limitation upon the use to which the government might put them is sought to be found in a provision of the treaty by which the United States undertook to exclude white settlers, and in the expressions found in the treaties made at the same time with the Creeks and other tribes of the purpose of the United States to use the lands ceded by those tribes for the settlement of friendly Indians. The stipulation as to the exclusion of white settlers might well have reference solely to the national lands retained by the Choctaw and Chickasaw tribes, and the reason for the nonincorporation in the treaty with them of a statement of the purpose of the government in connection with the use of the lands is well accounted for by the fact that as to these lands the government had already, under the treaty of 1855, secured the right to use them perpetually for the settlement of friendly Indians. This was not true as to the lands of the other tribes referred to. The United States paid to the Choctaws and Chickasaws $300,000, and the failure to insert the words that are called words of limitation in this treaty points, I think, clearly to the conclusion that the commissioners on the part of the government, and the Indians

themselves, must have understood that this government was acquiring something more than a mere right to settle friendly Indians, which is already possessed, and something more than the mere release of the right which the Choctaws and Chickasaws had unthese lands if they chose. Undoubtedly it der the treaty of 1855 to select locations on was the policy of this government for the time to hold these and the adjacent lands as Indian country, and many of the expressions in the proclamations of my predecessors and in the reports of the Indian Bureau and of the Secretary of the Interior mean this and nothing more. This is quite different from a conditional title which limits the grant to a particular use, and works a reinvestment of full title in the Indian grantors when that use ceases. But those who hold most strict

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ly that a use for Indian purposes, where it is expressed, is a limitation of title, seem to agree that the United States might pass a fee absolute to other Indian tribes in the lands ceded for their occupancy. Certainly it was not intended that in settling friendly Indians upon these lands the government was to be restrained in its policy of allotment and individual ownership. If, for an adequate consideration by treaty, the United States placed upon these lands other Indian tribes, it was competent to give them patents in fee for a certain and agreed reservation. This being so, when the policy of allotment is put into force the compensation for the unused lands should certainly go to the occupying tribe, which, in the case supposed, had paid a full consideration for the whole reservation. It will hardly be contended that in such case this government should pay twice for the lands. It is right also, I think, that Congress in deal ing with this matter should have the whole question before it; for the declaration of Indian title contained in this item of oppropriation extends to a very large body of land, and will involve very large future appropriations. The Choctaw and Chickasaw Leased District, embracing the lands in the Indian Territory between the 98th and 100th degrees of west longitude and extending north and south from the main Canadian river to the Red river, including Greer county, contains, according to the public surveys, 7,713,239 acres, or, excluding Greer county, 6,201,663 acres. This Leased District is occupied as follows: Greer county, by white citizens of Texas, 1,511,576 acres. The United States is now prosecuting a case in the courts to obtain a judicial declaration that this county is part of the Indian country. If a decision should be rendered in its favor, the claim of the Choctaws and Chickasaws to be paid for these lands at the rate named in this appropriation would at once be presented. Under the treaty of 1855 the Choctaws and Chickasaws quit claimed any supposed interest of theirs in the land west of the 100th degree. The boundary between the Louisiana purchase and the Spanish possessions by our treaty of 1819 with Spain was, as to these lands, fixed upon the 100th degree of west longi-ing thereto this proviso: "Provided, howtude. Our treaty with the Choctaws and Chickasaws made in 1820, extended their grant to the limit of our possessions. It follows, of course, that these lands were included within the boundaries of the state of Texas, when that state was admitted into the Union, and the release of the Choctaws and Chickasaws, whatever it was worth, operated for the benefit of the state of Texas, and not of the United States. The lands became public lands of that state. For the release of this claim, and for the lease of the lands west of the 98th degree, the government of the United States paid the sum of $800,000. In the calculations which have been made to arrive at the basis of the appropriations under discussion, no part of this sum is treated as having been paid for the lease. I do not think that this is just

to the United States. It seems probable that a very considerable part of this considera tion must have related to the leased lands, because these were the lands in which the Indian title was recognized and the treaty gave to the United States a permanent right of occupation by friendly Indians. The sum of $300,000, paid under the treaty of 1866, is deducted, as I understand, in arriving at the sum appropriated. It seems to me that a considerable proportion of the sum of $800,000 previously paid should have been deducted in the same manner. I have felt it my duty to bring these matters to the attention of Congress for such action as may be thought advisable."

The President's message having been referred by the Senate to its Committee on Indian Affairs, that Committee made a report accompanied by the following resolu tion: "Resolved, That for reasons set forth in the report of the Committee on Indian Affairs upon the President's message of February 18, 1892, upon the appropriation of March 3, 1891, for payment to the Choctaw and Chickasaw Nations for their interest in the Cheyenne and Arapahoe reservation in the Indian territory, submitted with this resolution, it is the opinion of ther Senate that there is no sufficient reason for interference in the due executior of the law referred to." Congr. Rec. 52 Cong. 1st Sess. Vol. 23, pt. 5, p. 4093. The resolution was adopted, and one of similar import was adopted by the House of Representatives.

But on the 15th day of December, 1892, the House of Representatives passed the following resolution: "Resolved by the Senate and House of Representatives, That the Secretary of the Treasury be, and he is hereby, directed to retain and cover back into the Treasury $48,800 of the appropriation made by Congress to pay the Choctaw and Chickasaw tribes of Indians for their interest in lands of the Cheyenne and Arapahoe reservation, dated March 3, 1891, which amount has been ascertained, by a recount of the allottees of said Cheyennes and Arapahoes to be by that amount more than is due the said Choctaws and Chickasaws upon the purchase and settlement for their said interest." The Senate amended that resolution by add

ever, That neither the passage of the original act of appropriation to pay the Choctaw and Chickasaw tribes of Indians for their interest in the lands of the Cheyenne and Arapahoe reservation, dated March 3, 1891, nor of this resolution shall be held in any way to commit the government to the payment of any further sum to the Choctaw and Chickasaw Indians for any alleged interest in the remainder of the lands situated in what is commonly known and called the 'Leased District." In this amendment the House concurred, and on January 18, 1893, the resolution as amended was approved by the Presi dent. Congr. Rec. 52d Cong. 2d Sess. vol. 24, pt. 1, pp. 173, 379, 868; 27 Stat. at L 753.

Then followed the act of 1895, 28 Stat. at L. 876, 898, chap. 188, under which the

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