
    THE CHOCTAW AND CHICKASAW NATIONS v. THE UNITED STATES AND THE WICHITA AND AFFILIATED BANDS OF INDIANS.
    [34 C. Cls., R. 17; 179 U. S. R., 494.]
    
      On the defendants' Appeal.
    
    Congress refer these cases by the Act 2d March, 1895 (28 Stat. L., p. 876, 898), and confer jurisdiction to hear and determine and render judgment “so that the rights, legal and equitable, of the United States and the Choctaw and Chickasaw nations and theWichita and affiliated hands of Indians in the premises shall he fully considered and determined.” The Choctaws and Chickasaws appear and claim compensation for 743,257.19 acres in the Wichita Eeservation within the leased district, of which about 159,000 acres have been allotted. in severalty to the Wichitas and affiliated bands. The Wich-itas and affiliated hands appear and controvert the right and title of the Choctaws and Chickasaws and set up their own aboriginal title to the leased district and other lands contiguous, and claim the proceeds of the sales of all land in the leased district not allotted to them. The United States contend that the Choctaws and Chickasaws parted with their title to the leased district by the treaty of 1866; also that they never had title to land west of the one hundredth meridian; also that the Wichitas had no title by original occupancy.
    The court below decides:
    1. The treaty of Spain extinguished the title of the .Choctaws to the land west of the one hundredth meridian, but did not impair their right to compensation.
    2. Having treated the Choctaws’ quitclaim to the territory west of the one hundredth meridian as the relinquishment of a substantial right, the Government could not assert that the treaty of 1830 deprived the Choctaws of the right to compensation therefor. The claim of the Choctaws to compensation for all the land west of the one hundredth meridian was distinctly recognized by the treaty of 1855.
    :3. The lease of 1855 was not a sale of the land, but a permit to use it for the settlement of certain Indians, the land remaining open to settlement also by the Choctaws and Chickasaws, and subject to the jurisdiction .of the Choctaw Nation.
    4. It was not the object of the treaty of 1855 to recognize rights of private ownership or change the nature of the Indian title to occupancy. The land contiued to be tribal; the two nations only could deal with it, and when they ceded it their cession extinguished the claims of their citizens.
    5. The Wichitas have never established an aboriginal title by occupancy to any part of the Wichita Reservation.
    •6. In 1866 a new treaty was made between the Choctaws and Chickasaws and the United States. It consisted of many articles. Section 3 . transferred the legal title of the leased district to the United States, but the language following the ceding clause is inconsistent with the absoluteness of the transfer. In the negotiation's for that territory a proposition was submitted by the Indians, which meant tribal occupancy and a future agreement with reference to that kind of occupancy. The scheme set forth in articles II to 37 of the treaty failed. Article 37 did not embody thé proposition referring to tribal occupancy and a future agreement, It was embodied by implication, and the fifth stipulation (the meaning of which is noted hereafter) is wholly omitted from the treaty.
    7. The fifth stipulation submitted in the course of the negotiations by the Choctaws and Chickasaws, and substantially agreed to by the United States, meant tribal occupancy and a future agreement with reference to tribal occupancy, and there is no such agreement to be found in article 30 of the treaty as finally drawn.
    8. The leased district embraced land required by the fifth stipulation in the negotiations to be set apart for friendly Indians.
    9. The practical effect of an absolute cession would have been the taking by the United States for a trifling consideration, to be applied to the benefit of freedmen, several millions of acres of land belonging to the Choctaw and Chickasaw Indians.
    10. The guaranty that whites should be excluded from the country of the Choctaws and Chickasaws continued applicable to the leased district.
    11. The cession in the treaty of 1866 was not intended to divest the Choctaws and Chickasaws of all their interest in the leased district, but was intended to enlarge the scope of the 9th article of the treaty of 1865 by authorizing the settlement of certain Indians who were excluded by that article.
    12. A trust was necessarily implied in favor of the Choctaws and Chica-saws under the terms of the grant.
    13. The receipt by the Choctaws and Chickasaws respectively of the sums of 5150,000 and 550,000 repayable, under article 47 of that treaty, out of the 5300,000 mentioned in article -3 or out of any other moneys of said nations in the hands of the United States, did not estop the Choctaws and Chickasaws from asserting the true character of the cession.
    14. The fact that a cession was made by treaty did not exclude the usual means of ascertaining the intention of the parties, especially if, as in this case, the ceding clause was followed by language raising a , reasonable doubt as to the real intention of the parties.
    15. Congress passed an act acknowledging in express terms the trust character of other lands in the leased district ceded by the same language by which the lands now in dispute of the Choctaws were ceded. (Act of 1891, sec. 15, 26 Stat. L., 989, 1025).
    16. A joint resolution of the Fifty-second Congress established a trust in the case of the lands of the Cheyennes and Arapahoes, which was part of the original Choctaw lands and depending upon the same considerations and conditions. That act was a recognition that no payments had been made for an absolute title to any part of the leased district.
    17. The action -of the Fifty-second Congress acknowledging the trust was qualified by the proviso that neither the passage of the original act carrying the appropriation to pay the Choctaws and Chickasaws for their interest in the lands of the Cheyenne and Arapahoe resolution was subsequently limited by the joint resolution passed January 18, 1893 (27 Stat. L., 753), by which Congress declared the Government should not be committed to the payment of any further sum for an}' interest alleged by the claimants in the remaining lands of the leased district. Following this came the jurisdictional act in the Fifty-third Congress from which it appears that nothing therein contained was to be construed as a confession that the United States admitted that the Choctaw and Chickasaw Nations had any claim to or interest in the remaining part of the leased district. The final question was remitted to the courts.
    18. As far hack as 1881 the General Land Office of the United States did not regard the leased district as the absolute property of the United States. That was the departmental construction by Secretary Teller, in 1884, in a communication to the Senate, February 14, 1884. And again, on January 26, 1885, the Secretary of the Interior elaborated the general conclusion that the United States held the lands directly in trust for the use of the Choctaw and Chickasaw Indians.
    19. The'trust character of the estate in the lands was again recognized in 1890.
    20. The leased district contained 7,713,239 acres of land. If the United States acquired an absolute title to that land, it did so for the sum of ¡5)300,000. The Choctaws and Chickasaws did not so understand the treaty.
    21. If open to settlement as a part of the public domain, the value of the Wichita Reservation, at the Government price of 81-25 per acre, will be 8729,071.48, and that of the leased district 89,641,549.75. The Choctaws, with the negroes within their boundaries, number 18,000; The Chickasaws, with the negroes within their boundaries, number about 6,000; the Wichitaws number about 153 persons; and the Affiliated Bands about 885 persons.
    22. By an act of Congress approved March 2, 1895, it was provided that 160 acres of land in the Wichita Reservation should be allowed in severality to each member of the Wichita and Affiliated Bands, and that when the residue of the land in that reservation should be open to settlement by operation of law or the proclamation of the President, it should be disposed of under the land laws of the United States at 81-25 per acre.
    .23. The act of 1895 ratifying an agreement made in 1891 whereby the United States claimed the right to settle Indians permanently on the lands mentioned in the agreement was a violation of the treaty of 1866 with the Choctaw and Chickasaw Indians.
    The decision of the court below is reversed, with directions to dismiss the petition of the Choctaw and Chickasaw nations, and to make a decree in behalf of the Wichita and Affiliated bands of Indians fixing the amount of compensation to be made to them on account of such lands in the Wichita Reservation as are not needed in order to meet the requirements of the act of Congress of March 2, 1895, chapter 188, and for such further proceedings as may be consistent with law and with the opinion.
   Mr. Justice Harlan

delivered the opinion of the Supreme Court December 10, 1900.  