
    THE NEW YORK INDIANS v. THE UNITED STATES.
    [30 C. Cls. R., 413; 170 U. S. R., 1.]
    
      On the claimants’ Appeal
    
    When the treaty of Buffalo Creek, 1838, is signed, the situation is this: The Indians have rights in lands in Wisconsin; these rights have value; few Indians have emigrated to Wisconsin; a desire is expressed hy some of the New York Indians to go West, with a willingness to surrender their lands in Wisconsin for lands west of the Mississippi; the United States have no financial interest to gain, and will acquire no estate in the New York lands, hut desire to pursue their x>oIicy oí moving all Indian tribes westward. By the treatj' it is agreed that the Indians cede to the United States their interests in the Wisconsin lands; that the United States set apart for them a tract west of the Mississippi (afterwards Kansas); that the tract shall never he included in aiiy State or Territory; that they pay certain sums on the removal of the tribes West; that they appropriate money for the expenses of removal and to assist the Indians in beginning life in their new homes. It is also agreed that those who do not remove “willtin five years, or sueh other time as the President may from time to time appoint, shall forfeit all interest in the lands.” A few Indians migrate, and as to them the United States comply with the terms of the treaty. Neither party then moves in the matter; the Indians make no demand and the President fixes no time for removal. Subsequently the tract West of the Mississippi is included iii the State of Kansas, and with the lands in.Wisconsin is opened to settlement by the Government and sold. The claimants seek to recover the value of the lands under a special act conferring jurisdiction.
    The court below decides:
    1. The acceptance of the treaty of Birffalo Creek, 1838 (7 Stat. L., p.550), by certain Indian tribes named therein does not appear, but the Senate having passed a resolution stating that it has been “approved hy said tribes,” and the President having issued a proclamation accepting, ratifying, and confirming the treaty, the court can not go behind this authoritative decision of the treaty-making power.
    2. The treaty of Buffalo Creek (art. U) provides that if the Indians do not remove to “their new homes within five years, or sueh other time as the President may from time to time appoint,” they “shall forfeit all interest in the lands.” Under this the duty of removal was upon the Government, and a forfeiture could be based only upon a refusal by the Indians to emigrate.
    
      3. Legislative action is not necessarily a precedent for judicial. . Where Congress award damages to one Indian tribe and refer the claims of others to this court for investigation and adjudication, it must he deemed that Congress wore convinced that the one tribe had been injured, but were not convinced that the others had been.
    4. The Jet 28th January, 1893 (27 Stat. L., p. 426), conferring jurisdiction on this court to hear and enter judgment “as if it had original jurisdiction of said case” contains no admission of a right. It is a grant of jurisdiction with a waiver of a statute of limitations.
    5. The Buffalo Creek treaty has expired, leaving no rights or duties behind it, so far as this litigation is involved. Both parties allowed it to lapse. The Indians can not maintain a suit under it for either the lands in Kansas or the lands in Wisconsin.
    The decision of the court below is reversed on the ground that the provision in the treaty of June 15,1838, with the New York Indians, that the United States will set apart as a permanent home for them the tract therein described, in what afterwards became the State of Kansas, was intended to invest a present legal title thereto in the Indians, which title has not been forfeited and has not been reinvested in the United States, and the Indians are' not estopped from claiming the beneñt of such reservation, and that it appears by the records of the proceedings of the Senate that several amendments were there made to said treaty, including a new article; that the ratification was made subject to a proviso, the text of which is stated in the opinion of the court; and that in the official publication of the treaty, and in the President’s proclamation announcing it, all the amendments except said proviso were .published as part of the treaty, and it was certified that “ the treaty, as so amended, is word for word as follows,” omitting the proviso. Held, that it is difficult to see .how the proviso can be regarded as part of the treaty, or as limiting at all the terms of the grant.
    April 11, 1898.
   Mr. Justice Brown

delivered the opinion of the Supreme Court  