
    THE YANKTON SIOUX TRIBE OF INDIANS v. THE UNITED STATES
    
    [No. D-546]
    
      On the Proofs
    
    
      Indian treaties; Pipestone Quarries; easement. — By treaty stipulations dated April 19, 1858, the plaintiffs ceded to the United States the Pipestone Quarries, and the privilege long recognized by the Government, of taking therefrom sufficient stone for pipes and Indian ceremonials, is in the nature of an easement and not a right of occupancy.
    
      The Reporter’s statement of the case:
    
      Mr. Jennings O. Wise for the plaintiffs. Munn, Anderson & Munn were on the briefs.
    
      Mr. George T. Stormont, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    Decided June 8, 1925.
    Motion for new trial overruled October 26, 1925.
    The following are the facts as found by the court:
    I. On July 31, 1924, the plaintiffs filed their petition in the Court of Claims under the provisions of the act of June 3, 1920, 41 Stat. 138, entitled “ An act authorizing the Sioux Tribe of Indians to submit claims to the Court of Claims.” While said suit was pending, Congress on January 9, 1925, passed an act entitled “An act conferring jurisdiction on the Court of Claims to determine and report upon the interest, title, ownership, and right of possession of the Yankton Band of Santee Sioux Indians to the Red Pipe-stone Quarries, Minnesota,” which reads:
    “ That jurisdiction be, and it hereby is, conferred upon the Court of Claims to determine and report from the finding of facts reported by said court as authorized by section 22 of the act of April 4, 1910 (Thirty-eighth Statutes at Large, page 284), the interest, title, ownership, and right of possession of the Yankton Band of Santee Sioux Indians, in and to the land known as the “ Red Pipestone Quarries,’ described in said act of April 4, 1910; and said court shall determine what amount, if any, is legally and equitably due from the United States to the said Yankton Band of Santee Sioux Indians for the said quarries, and enter judgment thereon.
    “ Sec. 2. That the court is hereby further authorized to determine what, if any, other band or bands of Sioux Indians have an interest in and to the said Bed Pipestone Quarries, and the amount thereof, if any.”
    II. The plaintiffs, the Yankton Sioux Indians, on November 7, 1911, filed their petition under the provisions of section 22 of the act of April 4, 1910, 36 Stat. 269, 284, and thereafter, the case having been heard by the Court of Claims, the court on December 3, 1917, made the following findings of fact:
    “ I. Section 22 of the Indian appropriation act of April 4, 1910, 36 Stat. 269, 284, provides:
    “ ‘ That jurisdiction be, and hereby is, conferred upon the Court of Claims of the United States to hear, and report a finding of fact, as between the United States and the Yank-ton Tribe of Indians of South Dakota as to the interest, title, ownership, and right of possession of the said tribe of Indians in and to the following lands and premises, to wit: The said lands being described and indicated on the township plats of the Government legal survey approved August fifteenth, eighteen hundred and seventy-two, by the surveyor general for the State of Minnesota, as lying in sections one and two of township one hundred and six north, range forty-six west, and sections thirty-five and thirty-six of township one hundred and seven north, range forty-six west of the fifth principal meridian, containing six hundred and forty-eight and two-tenths acres, more or less, and embracing the Bed Pipestone Quarries.
    “ ‘ Proceedings shall be commenced by petition in the name of said Yankton Tribe of Indians, which petition shall be verified by the attorney or attorneys for said Indians. The proceedings shall in all réspects be conducted without cost or expense to said Indians, and the United States, through the Secretary of the Interior, shall furnish without cost to said Indians a competent attorney or attorneys to appear for and represent them in said proceedings, the attorney’s fees therefor to be fixed by the Secretary of the Interior.’
    “ By the act of March 3,1911, 36 Stat. 1058,1065, Congress appropriated $5,000 for the purpose of defraying expenses of said proceedings, including the compensation of counsel. Thereafter, and in pursuance of the foregoing provisions, the Secretary of the Interior appointed Mr. L. B. French, of Yankton, S. Dak., as the attorney to appear for and represent said tribe of Indians in said proceedings, which said appointment was accepted by said attorney upon the terms stated.
    “ II. Thereafter the Yankton Sioux Indians appeared and filed in this court their petition, duly verified by their said attorney, in which they make the following allegations:
    “ ‘(a) The Yankton Sioux Indians, the petitioners in this case, comprise those persons who were parties to the treaty between the United States and the Yankton Sioux Indians made and entered into in 1858, 11 Stat. 743, ratified February 16, 1859, proclaimed February 26, 1859, being also the persons described in article 16 of the treaty made and entered into with the Yankton Sioux Indians, August 15, 1894, 28 Stat. 318, together with those individuals, heads of families, and other legal representatives entitled to receive the benefits of said treaties.
    (b) That the Yankton Sioux Indians are either the original parties to said treaties above referred to or their descendants, and L. B. French has been employed by the United States to represent their interests in the claim which is the subject matter of this suit, he being the attorney whose name is appended to this petition.
    
      “‘(g) Your petitioners further protesting that the matters of difference between themselves and the United States have been fully and finally adjudicated by the treaties above referred to and by certain acts or the Interior Department of the United States and certain acts of the Congress of the United States, to which reference is hereinafter made, and now especially disclaiming that they have any purpose to evade the result of said treaties and acts of the Interior Department and laws of Congress, state that they claim from the United States the full interest, title, ownership, and right of possession of said tribe of Indians in and to the following lands and premises, to wit: The land described and indicated on the township plats of the Government legal survey thereof, approved August 15, 1872, by the surveyor general of the State of Minnesota as lying in sections 1 and 2 of township 106 north, range 46 west, and sections 35 and 36 of township 107 north, range 46 west, of the fifth principal meridian, containing 648.2 acres, more or less, and embracing the Red Pipestone Quarries.
    
      “‘(d) By an item of the Indian appropriation bill of 1910, approved April 4, 1910, it was provided as follows:
    “ ‘ “ That jurisdiction be, and hereby is, conferred upon the Court of Claims of the United States to hear and report a finding of fact, as between the United States and the Yankton Tribe of Indians of South Dakota, as to the interest, title, ownership, and right of possession of said tribe of Indians in and to the following lands and premises, to wit: The said lands above described, and indicated by the township plat of the Government legal survey approved August 15, 1872, by the surveyor general for the State of Minnesota as lying in sections 1 and 2 of township 106 north, range 46 west, and sections 35 and 36 of township 107 north, range 46 west, of the fifth principal meridian, containing 648.2 acres, more or less, and embracing the red pipestone quarries. Proceedings shall be commenced by petition in the name of said Yankton Tribe of Indians, which petition shall be verified by the attorney or attorneys for said Indians. The proceedings shall in all respects be conducted without cost or expense to said Indians, and the United States, through the Secretary of the Interior, shall furnish without cost to said Indians a competent attorney or attorneys to appear for and represent them in said proceedings, the attorneys’ fee therefor to be fixed by the Secretary of the Interior.”
    
      “ ‘ In an item of the appropriation for contingent expenses of the Bureau of Indian Affiairs, passed and approved March 3, 1911, there is found the following:
    “ ‘ “ There is hereby appropriated the sum of $5,000, or so much thereof as may be necessary, to be immediately available, for the purpose of defraying the costs and expenses, including the compensation of counsel, in the proceedings authorized to be brought in the Court of Claims by provisions in section 22 of Indian appropriation act for the fiscal year 1911, approved April 4, 1910, between the United States and the Yankton Tribe of Indians of South Dakota, to determine the interest, title, ownership, and right of possession of said tribe of Indians in and to certain lands and premises therein described, said section being founded under the title of Minnesota, section 8.”
    “ ‘ (e) The treaty above referred to as having been made in 1858, so far as relates to this matter, reads as follows:
    “ ‘ “ Art. VIII. The said Yankton Indians shall be secured in the free and unrestricted use of the red pipestone quarry or so much thereof as they have been accustomed to frequent and use for the purpose of procuring stone for pipes; and the United States hereby stipulate and agree to cause to be surveyed and marked so much thereof as shall be necessary and proper for that purpose, and retain the same and keep it open and free to the Indians, to visit and procure stone for pipes so long as they shall desire.”
    
      
      ‘“(f) The treaty between the Yankton Sioux Indians and the Government of the United States, made in 1892 and ratified in 1894, 28 Stat. 318, being article 16 of that treaty, reads as follows:
    “ ‘ “ If the Government of the United States questions the ownership of the Pipestone Reservation by the Yankton Tribe of Sioux Indians, under the treaty of April 19, 1858, including the fee to the land, as well as the right to work the quarries, the Secretary of the Interior shall as speedily as possible refer the matter to the Supreme Court of the United States to be decided by that tribunal. And the United States shall furnish, without, cost to the Yankton Indians, at least one competent attorney to represent the interests of the tribe before the court. If the Secretary of the Interior shall not within one year after ratification of this agreement by Congress refer the question of the ownership of the Pipestone Reservation to the Supreme Court, as provided for above, such failure upon his part shall be construed as and shall be a waiver by the United States of all rights to the ownership of the Pipestone Reservation, and the same shall thereafter be solely the property of the Yankton Tribe of the Sioux Indians, including the fee to the land.”
    
      ‘“(g) In the execution of their agreement pursuant to the terms of the treaty of' 1858 with the Yankton Sioux Indians the United States caused so much of the pipestone quarry as appeared to be necessary and proper for the purpose of the reservation provided for to be surveyed and marked. A diagram and field notes of the survey were duly returned, filed, and recorded in the General Land Office and in the office of the surveyor general of Minnesota. In February, 1860, copies of them were transmitted by the Commissioner of the General Land Office to the surveyor general of the United States for that State, with instructions to lay the same down on the map of the State in his office and to respect them when the public surveys recalled the locality by closing their lines upon the reservation. At this time the land included in the reservation was not surveyed; but afterwards, in July, 1812, after this survey the commissioner directed the surveyor general to locate the reservation on the official plat in his office from the field notes and plat of the original survey and to transmit authenticated copies to the general and local land offices; or if it should be impossible . to locate it from these data, to direct a resurvey of the tract, so that it might be located and described upon the official plats and its boundaries respected in accordance with the treaty. In pursuance of these instructions the surveyor general caused a resurvey of the quarry reserved and immediately marked it upon the official plats in his office. Its boundaries as resurveyed correspond and are substantially coincident with the lines of the original survey and embrace the section of land above described. .
    “ ‘ (h) Prior to this treaty and ever since the making of the treaty of 1858 the Yankton Sioux Indians have occupied and claimed this tract called the Pipestone Reservation for the purpose of quarrying stone thereon, and have at all times been in possession thereof and claimed the right not only to the possession but also claimed the actual ownership of said land, and the whole thereof, and still do occupy and use said lands.
    “ ‘ (i) Mention should perhaps be made of the fact that on or about the year 1891 a railroad company ran its railroad across said Pipestone Reservation without the knowledge or consent of the Indians. Later the Yankton Sioux Indians, having ascertained this fact, made demand upon the United States Government for the money received for said right of way, and the same was, May 2 to 9, in the year 1891, paid over to the Yankton Sioux Indians by the Government, thus recognizing their sole right to the possession, at least, if not the ownership, of these lands.
    
      “‘(j) By the treaty with the Yankton Sioux Indians approved by act of Congress of date August 15, 1894, 28 Stat. S1Y, it was provided in Article XVI that—
    “ ‘ “ If the Government of the LTnited States questions the ownership of the Pipestone Reservation by the Yankton Tribe of Sioux Indians under the treaty of April 19, 1858, including the fee to the land as well as the right to work the quarries, the Secretary of the Interior shall as speedily as possible refer the matter to the Supreme Court of the United States, to be decided by that tribunal. And the United States shall furnish, without cost to the Yankton Indians, at least one competent attorney to represent the interests ox the tribe before the court.
    “ ‘ “ If the Secretary of the Interior shall not, within one year after the ratification of this agreement by Congress, refer the question of the ownership of the said Pipestone Reservation to the Supreme Court, as provided for above, such failure upon his part shall be construed as and shall be a waiver of the United States of all its rights to the ownership of the said Pipestone Reservation, and the same shall thereafter be solely the property of the Yankton Tribe of Sioux Indians, including the fee to the land.”
    “£ The Government upon its part failed to submit said question to the Supreme Court of the United States or to take any action whatever to decide what right, if any, the United States had in the reservation. The Yankton Sioux Indians have at all times, as heretofore stated, claimed the absolute title to said Pipestone Reservation, and the treaty approved in 1894, above referred to, was made upon the express condition on the part of the Indians that this matter should be settled once for all.
    “ ‘ (7c) The only other act of the United States in any way infringing upon the right of the Yankton Sioux Indians to the Pipestone Reservation was the building of an Indian school thereon, which was built and occupied without the knowledge or consent of the Yankton Sioux Indians, except that by some inadvertence one August Cluensen, on the 15th day of July, 1871, was permitted by the land officers of the district to locate scrip upon a quarter section of this land which was afterwards, on the 15th of May, 1874, patented to the said Cluensen. This patent was set aside by decision of the Supreme Court of the United States in the case of United States v. Herbert M. Carpenter. Said decision is found in the 111 U. S. 347.
    “ ‘ (l) The treaty of 1894, as herein stated, was duly approved and ratified by Congress, and the Government took possession of the lands ceded by said treaty and has disposed of the same, thereby ratifying the provisions of the treaty of 1894.
    “ ‘ (to) Congress has further ratified said treaty and recognized the validity of the same by entering into a contract with the Yankton Sioux Indians for a sale of said Pipestone Reservation and introducing a bill for the payment to the Indians of the sum of $100,000 for said reservation. This act, however, was never ratified by Congress, nor any appropriation made for the payment of said $100,000.
    “ ‘ (n) From the foregoing facts it seems well established that the Government caused the public surveys to be extended over this region in 1872, and that the Commissioner of Indian Affairs, having again called the attention of the General Land Office to this subject, the lines to be surveyed were made to conform with the Pipestone Reservation boundary as already established. Copies of these surveys, with plats and field notes, were transmitted by the Commissioner of the General Land Office to the surveyor general of the United States of the State of Minnesota, with instructions to lay down the boundaries of the Pipestone Reservation on the map of the State; that in July, 1872, the commissioner directed the surveyor general to locate the reservation on the official plat in his office, from the field notes and plats of the original survey, and to transmit authenticated copies to the general and local offices, or if it should be impossible to locate the boundaries from these data, to direct the survey of the tract so that it might be located and described upon official plats and its boundary respected in accordance with the treaty; that this location was held to be a valid location is shown by the case already referred to of United States v. Carpenter, 111 U. S. 347.
    
      u ‘ That all the acts of the executive department of the offices of the United States in all departments and the courts have treated and considered the land in question as Yankton Indian Reservation. In confirmation of this is a report of Agent Foster to the Commissioner of Indian Affairs in 1890. (See Indian Office report, 189.1, p. 427.)
    “£ That by an item in the Indian appropriation act approved July, 1891, authority was vested in the Secretary of the Interior to negotiate with the various Indian tribes for the surrender and sale of the surplus lands of their various reservations, and pursuant to that authority a representative of the Government was directed to enter into an agreement with the Yankton Indians for the cession of their surplus lands. The Yankton Indians, however, refused to enter into such negotiations until this disputed question of title to the Pipestone Quarries should be first determined. The Interior Department, recognizing a valid claim on the part of the Yankton Indians, which it was as anxious as the Indians to have determined in some judicial manner and finally disposed of, authorized the provision which was inserted in the agreement or treaty, section 16, approved 1894.
    “ ‘ Having made this agreement and placed the same \v-the treaty which was approved, and the United States having neglected to provide a means by which the agreement could be made effectual, the Interior Department again sent its representative, under authority of Congress, and made another contract with the Indians in council for the settlement of the question and final disposition of the matter involved in this controversy.
    
      “ ‘ By the terms of this agreement or contract a contract was entered into between the United States and the Yank-ton Indians on the 2d day of October, 1899, whereby the Government agreed that for the relinquishment by the Yankton Sioux Indians of their title to the property in question, and in consideration of its numerous agreements in the past, none of which have been carried out, it would pay to the Indians the sum of $100,000.
    “ ‘ Plaintiff therefore alleges that the Government can not with justice refuse to perform the obligation it has entered into, and that it is and of right ought to be estopped from now claiming that it has any title or interest whatever in said lands.
    “ ‘ Wherefore, in view of all the foregoing allegations in this petition, your petitioner respectfully shows, states, and charges that the plaintiff is entitled to have said reservation and the title thereto quieted in this plaintiff, and that the plaintiff has full capacity to institute and maintain this action under authority expressly granted by Congress for that purpose.
    “ £ BRAYER BOR JUDGMENT
    “£ In consideration of the premises your petitioner respectfully prays:
    “c (1) Under and by virtue of the acts of Congress hereinbefore cited, and the treaties hereinbefore referred to, and the acts of the officers of the Government of the United States, that they have leave to file this their petition, verified by L. B. French as the attorney for said petitioner.
    “ £ (2) That under and by virtue of said acts of Congress the United States bo made a party defendant thereto, and that the court direct the issuance of its process for that purpose, and require the said defendant, the United States, to appear and answer to this petition or otherwise defend, within 60 days from the date of its filing.
    “ ‘ (3) That your petitioners have judgment in this court declaring that the actual title to said Pipestone Reservation is in the plaintiff and quieting their title thereto and to the whole thereof; and your petitioner also prays for general relief.’
    “ III. The Ned Pipestone Quarry or Reservation, the subject matter of this controversy, is a tract of land comprising 648.2 acres, more or less, and is located about a mile and a half north of the present town of Pipestone, in the extreme southwest corner of Minnesota, about 7 miles east of the South Dakota line and 30 miles north of the Iowa border, and situated in sections 1 and 2 of township 106 north, range 46 west, and sections 35 and 36 of township 107 north, range 46 west of the fifth principal meridian.
    “ IV. Early in the nineteenth century the Sioux or Dako-tah Indians were divided into two general groups, the Sioux of the Mississippi and the Sioux of the Missouri. The Sioux of the Mississippi were composed of the Sisseton, Wahpeton, Medawakanton, and Wahpekoota Bands of Indians, and the Sioux of the Missouri were composed of the Tetons, Yank-tons of the South and the Yanktons of the North (after-wards known as the Yanktonais and Cut Heads, a branch of the Yanktonais) bands of Indians. The Yankton Sioux Indians, who through their attorney have filed their petition in this case, is the band of Indians that was known as the Yanktons of the South.
    
      
      “ Prior to and. in the year 1849 the several tribes of Indians mentioned in the last preceding paragraph were located in the following territory:
    “ The territory of the Medawakanton Band of Indians was entirely west of the Mississippi River and extended from the Iowa line, including the half-breed reservation, north to some 10 or 20 miles above the St. Peters. The Wapekoota Band of Indians occupied country below and west of the Medawakantons, to the south of the St. Peters, and around the heads of the Cannon and Blue Earth Rivers. The Wahpeton Band of Indians lived north and west of the Wapekootas and their villages extended far up the St. Peters River toward its sources. To the west and southwest of the two last-mentioned bands was the Sisseton Tribe, which claimed all the country west of the Blue Earth River to the Jacques (James). The Teton Band of Indians lived entirely beyond the Missouri River, their territory extending about Cannonball River and south to the Niobrara River. The territory of the Yankton Band of Indians was next beyond that of the Sisseton Tribe, commencing on the western side of Lake Traverse, and extending west of the River Jacques to the Missouri above old Fort Lookout, and to the borders of the land of the Yanktonais. The Yanktonais Band of Indians lived on all that range of country at the heads of the Sioux, Jacques, and Red Rivers, north and west of the Yankton Tribe, nearly to the "White Earth River.
    “ The Red Pipestone Quarry was located on the lands occupied by the Sisseton Band of the Sioux. From time immemorial the Indians of all the surrounding nations have claimed the right to visit and have visited annually said Red Pipestone Quarry for the purpose of procuring material for their pipes for smoking as well as for use in Indian ceremonial affairs. Speaking of the Sisseton Band of Sioux, it is recorded in the Indian Commissioner’s report for the year 1849 (p. 1021) :
    “ £ This band claims the custody of the famous walccm, the Red Pipestone Quarry, near the Coteau des Prairies, toward the River Jacques.’
    
      “ V. By the treaty of July 23, 1851, 10 Stat. 949, commonly known as the treaty of Traverse des Sioux, the Sisse-ton and Wahpeton Bands of Mississippi Sioux ceded all their lands in the State of Iowa and in the then Territory of Minnesota east of a stated line, which embraced the land on which the pipestone quarry was located, to the United States, and the Medawakanton and Wahpekoota Bands of Sioux by the treaty of August 5,1851,10 Stat. 954, known as the treaty of Mendota, ceded all their right, title, and claim to any lands whatever in the State of Iowa or said Territory of Minnesota. The consideration for these treaties, after the payment of certain sums for specified purposes, was to be placed to their credit in the Treasury of the United States at 5 per cent, to be paid to the said bands in 50 annual installments, thereby wiping out the entire consideration, principal and interest.
    “ Subsequent to the treaty of 1851 the Yanktonais Indians visited the upper agencies at nearly every payment of annuities to the Mississippi Sioux, and attempted to procure a share of the annuities of the Sisseton and Wahpeton Indians upon the claim that the Mississippi Sioux by the treaties of 1851 had disposed of land in which they had an interest, particularly the pipestone quarry, and the Yankton and Teton Tribes also made complaint that the Mississippi Sioux had disposed of lands in which they had an interest, and the Yanktons expressed a desire to enter into a treaty with the Government by which they would receive annuities. For the purpose of settling the trouble the Government entered into a treaty with the Yankton Indians in 1853, and also offered to enter into a treaty with the Yanktonais Indians, but they absolutely refused to discuss the matter because the Tetons and other bands residing west of the Missouri could not be present.
    “ YI. The Yankton Sioux by the treaty of April 19, 1858, 11 Stat. 743, ceded all of the lands owned, possessed, or claimed by them, wherever situated, for the sum of $1,650,000, payable in 50 years, and reserved for their occupation 400,000 acres on the Missouri Fiver. The eastern line of their cession was therein defined as the Big Sioux Fiver from Lake Kampeska to its junction with the Missouri Fiver.
    “ The last sentence of Article I thereof reads as follows:
    “ ‘ They also hereby relinquish and abandon all claims and complaints about or growing out of any and all treaties heretofore made by them or other Indians, except their annuity rights, under the treaty of Laramie of September 17, A. D. 1851.’
    “ Article VIII thereof reads as follows:
    “ £ The said Yankton Indians shall be secured in the free and unrestricted use of the Fed Pipestone Quarry or so much thereof as they have been accustomed to frequent and use for the purpose of procuring stone for pipes; and the United States hereby stipulate and agree to cause to be surveyed and marked so much thereof as shall be necessary and proper for that purpose, and retain the same and keep it open and free to the Indians, to visit and procure stone for pipes so long as they shall desire.’
    “ The Yanktonais Tribe also strenuously objected to the sale of the Yankton lands, claiming it belonged to the Sioux Nation, and not to the Yanktons exclusively, and requested their agent at Fort Union in September, 1858, to write their Great Father to stop the treaty. This band of Yanktonais was composed of a proud and haughty people, and rejecting all overtures to placate them continued their opposition as late as 1861, or until the terrible affair of New Ulm in 1862.
    “ VII. At the instigation of one of their chiefs, Struck-by-the-Ree, the Yankton Indians refused to enter into any treaty unless some provision was inserted therein recognizing their right to take stone from the Pipestone Quarry for their pipes, and accordingly, in order to effect a treaty, Article VIII was added.
    “ VIII. In the execution of its agreement under Article VIII of said treaty the United States caused so much of the quarry as appeared to be necessary and' proper for the purposes of the reservation to be surveyed and marked. A diagram and the field notes were duly returned and recorded in the General Land Office, and in the office of the surveyor general of Minnesota, and in February, 1860, copies were transmitted to the surveyor general of the United States for that State, with instructions to respect them when the public surveys reached that locality. Afterwards, for some unexplained reason and in violation of the instructions, the reservation was surveyed with other public lands in the vicinity, whereupon the commissioner directed the surveyor general to locate the reservation on the official plats in his office from the field notes and plat of the original survey, or, if impossible, to direct a resurvey so that the reservation might be located and described upon the official plats and its boundaries respected in accordance with the treaty. In pursuance of these instructions the surveyor general caused a resurvey of the quarry, and its boundaries as resurveyed correspond and are substantially coincident with the lines of the original survey.
    “ IX. A patent issued May 15, 1814, to a settler upon the reservation was held invalid by the Supreme Court of the United States.
    “ X. In 1887 the agent of the Yankton Agency recommended that certain intruders on the Pipestone Reservation be removed, and under date of March 8,1887, the Acting Secretary of the Interior directed the removal of such intruders upon the lands in question, with all their property and effects, and a detachment of the United States Army, acting under orders of April 26 and October 3, 1887, from the War Department, proceeded to the Pipestone Reservation in company with the Indian agent and with an escort of troops, and on October 11, 1887, effected the removal of trespassers thereon.
    “ XI. In 1891 there was received by the United States from the Cedar Rapids & Northern Railway Co. for its right of way through the Pipestone Reservation, Minn., the sum of $1,740 as damages, and under date of January 9, 1891, the Secretary of the Interior granted authority for the Indian agent in charge of the Yankton Agency to pay per capita to the Yankton Indians the said sum ox $1,740, less the expense of appraising the damages to the lands of the Indians ($40), and the Indian agent at Yankton Agency disbursed the sum of $1,657.25 to 1,674 Indians, as shown on the roll dated May 9, 1891, and the further sum of $25.74 to 26 Yankton Indians as per supplemental roll of June 30, 1892.
    “ XII. The commission, which negotiated the treaty of December 31, 1892, ratified by section 12 of the act of August 15, 1894, 28 Stat. 286, 314, 317-319, heard speeches made by certain members of the Yankton Tribe, in which they claimed that the Government, by Article YIII of the treaty of April 19, 1858, gave to the said tribe the fee-simple title and possession of the Red Pipestone Quarry.
    “ Bearing upon this disputed question, Article XYI was inserted, which reads as follows:
    “£ If the Government of the United States questions the ownership of the Pipestone Reservation by the Yankton Tribe of Sioux Indians under the treaty of April 19, 1858, including the fee to the land as well as the right to work the quarries, the Secretary of the Interior shall as speedily as possible refer the matter to the Supreme Court of the United States to be decided by that tribunal. And the United States shall furnish, without cost to the Yankton Indians, at least one competent attorney to represent the interest of the tribe before the court. If the Secretary of the Interior shall not, within one year after the ratification of this agreement by Congress, refer the question of ownership of the said Pipestone Reservation to the Supreme Court as provided for above, such failure upon his part shall be construed as and shall be waiver by the United States of all its rights to the ownership of the said Pipestone Reservation, and the same shall thereafter be solely the property of the Yankton Tribe of Sioux Indians, including the fee to the land.’
    
      “ XIII. The Secretary of the Interior did not within one year from August 15, 1894, the date of the ratification of said treaty by Congress, refer the question of the ownership of the said Pipestone Eeservation to the Supreme Court, as provided by Article XYI of said treaty. The Secretary of the Interior had presented the matter to the Department of Justice for an opinion and had been advised that it was impracticable to comply with said Article XVI. No further action was taken by the Government with reference to the Pipestone Eeservation until, by the Indian appropriation act of June 7, 1897, 30 Stat. 62, 87, the Secretary of the Interior was directed to ‘ negotiate, through an Indian inspector for the Yankton Tribe of Indians of South Dakota, for the purchase of a parcel of land near Pipestone, Minn., on which is now located an Indian industrial school.’
    “ XIY. Under the act mentioned in the last preceding finding Inspector James McLaughlin negotiated an agreement with the Yankton Indians on October 2, 1899, for the transfer of their interests in the Pipestone Quarry to the United States for the sum of $100,000 and transmitted the same to the Department of the Interior on October 9, 1899. That agreement was transmitted to Congress by the department on March 24, 1900, and the report of said inspector, the agreement, and the council proceedings were printed in full as House Document No. 535, Fifty-sixth Congress, first session. On March 3, 1903, Senator Quarles, from the Senate Committee on Indian Affairs, submitted an adverse report on the bill to ratify the agreement, which, after quoting Article VIII of the treaty of April 19, 1858, stated that the only title the Yanktons had was in the nature of an easement, and that it was a legal and practical impossibility for the Secretary of the Interior to have referred the question of title under Article XVI of the agreement of December 31, 1892, to the Supreme Court for construction. Senator Gamble, for himself and two others, submitted a minority report with an argument in favor of the Yanktons’ contention and expressed an opinion that the agreement should be ratified. No action appears to have been taken on the bill. On April 4, 1906, Senator Gamble, from the Senate Committee on Indian Affairs, submitted a favorable report (S. Eep. 2369, 59th Cong., 1st sess.) on S. 2993 for the ratification of said agreement of 1892. No action appears to have been taken upon this bill.”
    III. The Yankton Sioux Indians are still permitted to visit and procure stone for pipes from the said quarries at such times and in such quantities as they may desire, and the said quarries are still “ open and free to the Indians to visit and procure stone for pipes so long as they so desire.”
    The court decided (1) that the only interest possessed by the plaintiffs in and to the land known as the Ned Pipestone Quarries was the right “to the free and unrestricted use of the Ned Pipestone Quarries, or so much thereof as they have been accustomed to frequent and use for the purpose of procuring stone for pipes,” and this right, guaranteed to plaintiffs by Article VIII of the treaty of April 19, 1858 (11 Stat. 743, 746), had been continuously secured to them since the date of said treaty by the United States in strict conformity with the terms of said treaty, and (2) that no amount was “ legally and equitably due from the United States ” to the plaintiffs.
    
      
      Writ of certiorari granted.
    
    
      
       Thirty-sixth.
    
   Booth, Judge,

delivered the opinion of the court:

This is an Indian claim before the court under special jurisdictional acts. The Yankton Sioux is one of the numerous bands of the Great Sioux Nation which anciently inhabited a vast territory in the northwestern section of the country. The Yankton Sioux were known as one of the several bands generally designated as the Sioux of the Missouri. The Government negotiated and concluded various treaties with the different bands, with a view to acquiring title to their lands and providing suitable reservations for their occupancy. As to these treaties, the terms of which appear in the findings of this court in case No. 31253, we need enter upon no discussion. Yankton Sioux v. United States, 53 C. Cls. 67. As usual in such cases disputations arose, claims upon the part of the Indians were asserted, and the controversy with respect to the same culminated in the acts of April 4, 1910, 36 Stat. 269-284, and March 3, 1911, 36 Stat. 1058-1065, referring the case to this court with the limited authority to report back to Congress the court’s findings of fact with respect to the subject matter. The court, from a complete record, reported its findings of fact without comment or allusion to issues of law.

On June 3, 1920, 41 Stat. 738, Congress enacted the special jurisdictional act under which the claim of the Yank-ton Sioux is again before us. The grant of jurisdiction under this statute extended generally to the Sioux Tribe of Indians and comprehended all claims not heretofore determined by the court. Subsequently, on January 9, 1925 (Public No. 318, 68th Cong., 44 Stat. 730), whjle the case was pending under the act of 1920, Congress conferred jurisdiction upon the court to adjudicate the claim of the plaintilf Indians, long asserted and persistently adhered to, for the value of the Bed Pipestone Quarries, as it may or may not appear from¡ the findings of the court in case No. 31253. In other words, the final jurisdictional act recognized the verity of the findings reported in case No. 31253 and granted authority to adjudicate and determine the claim of the plaintiff Indians as the findings in the former case disclose it. The plaintiff Indians did not amend their petition after the passage of the act of 1925. The petition was filed July 31, 1924, and the petition should have been amended. Inasmuch as the record now before us and the original petition itself prefers no claim other than for the Pipestone Quarries, and in view of the fact that the findings in this case, in any event, would be but a duplication of the findings in case No. 31253, we think the state of the record sufficient for us to dispose of the case.

On April 19, 1858, 11 Stat. 743, by express treaty stipulations, the plaintiff Indians ceded all of the lands owned, possessed, or claimed by them, wherever situated, for the sum of $1,650,000, payable in fifty years, at the time reserving for the band a reservation of 400,000 acres on the Missouri River. Not only was this a general relinquishment of all the lands mentioned, but the settlement comprehended all outstanding differences and was designed to conclude the claims of the band against the Government arising from any source whatever. The treaty of 1858 embraced the Pipe-stone Quarries, but from time immemorial the Sioux had enjoyed a common privilege of visiting the quarries and taking therefrom sufficient stone for pipes and Indian ceremonials. Article VIII of the treaty reserved to the Indians this ancient privilege. Manifestly it was at the time, and may now be, a right of value and importance; at least the Yanktons so appraised it and the Government recognized it. The right and privilege, however, was not akin to the right of occupancy, the recognized Indian tribal title. It was in the nature of an easement. Its extinguishment, had the Government ever done so, would not warrant the court in awarding a judgment in any such amount as here claimed. As a matter of fact, however, and the court so finds, the right has not been extinguished by the Government. On the contrary, the easement has been continuously recognized by the Government, and the Yanktons have never been denied the privilege. The quarries are now, and ever have been, open, free, and available to the Indians without let or hindrance upon the part of the Government. There is absolutely nothing in the record to even suggest a contrary finding.

Article XII of the treaty of 1892, ratified by section 12 of the act of August 15, 1894, 28 Stat. 286, 314, 317-319, in nowise constitutes a recognition of title to the lands in question in the Indians. What the legislation covers is a mere grant of authority and direction to determine the validity of the Indians’ persistently asserted claim to the lands. The terms of this article are sui generis. Manifestly, it imposed upon the Secretary of the Interior a duty it was impossible under the law to discharge. The Secretary was powerless to invoke the jurisdiction of the Supreme Court under the law, and the imposition of duty without the added provisions indispensable to its performance was beyond the power of Congress in this respect. This court was confronted with a similar situation in the case of Muskrat v. United States, 219 U. S. 346. Other contentions are advanced by the plaintiff Indians. They are in the main predicated upon inferences said to be deducible from acts of Congress and a decision of the Supreme Court. We have examined them with care. A sufficient answer is found in the apparent fact that Congress, possessed with plenary power and authority over Indian tribal lands and property, in the whole course of its dealings with the matter here involved has carefully refrained from recognizing the validity of the claim here preferred, and in no instance has evinced a willingness to do more than refer the matter to a court for adjudication. This case stands out, in fact, as a conspicuous example of governmental recognition of Indian rights created by treaty stipulations.

The complaint of the plaintiff Indians is, in our view of the record, without merit, and the petition will be dismissed. It is so ordered.

Hay, Judge; Downey, Judge; and Campbell, Chief Justice, concur.

Graham, Judge,

took no part in the decision of this case.  