
    THE NEW YORK INDIANS v. THE UNITED STATES.
    [No. 17861.
    Decided November 18, 1895.]
    
      On the Proofs.
    
    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 by 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, but desire to pursue their policy of moving all Indian tribes westward. By the treaty 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 be included in any 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 “within five years, or such 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 in 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.
    I. The acceptance of the treaty of Buffalo 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 by 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.
    
      II.The treaty of Buffalo Creek (art. 3) provides that if the Indians do not remove to “their new homes within five years, or such 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 he based only upon a refusal by the Indians to emigrate.
    III. 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 be deemed that Congress were convinced that the one tribe had been injured, but were not convinced that the others had been.
    IV. The Act 88th January, 1898 (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.
    V.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.
    I. In 1780 tbe Six Nations of “New York Indians” consisted of tbe following nations or tribes: Senecas, Cayugas, Onondagas, Oneidas, Tuscaroras, and Mobawks. Tbe Mobawks soon after withdrew to Canada, relinquishing to New York all claim to lands in that State.
    Tbe court finds that tbe Indians described in tbe jurisdictional act sending this case to this court as “tbe New York Indians, being those Indians who were parties to tbe treaty of Buffalo Creek, New York, on tbe 15th of January, 1838,” were tbe following: Senecas, Onondagas, Onondagas residing on tbe Seneca Beservation, Onondagas at Onondaga, Cayugas, Cayugas residing on tbe Seneca Beservation, Cayuga Indians residing in tbe State of New York, Tuscaroras, Tuscaroras residing in tbe State of New York, Oneidas residing in New York, at Green Bay (Wisconsin), and in tbe Seneca Beservation, Oneidas, St. Begis, St. Begis in New York, tbe American party of tbe St. Begis residing in tbe State of New York, Stockbridges, Munsees, Brotbertowns.
    II. Some of the New York Indians between 1810 and 1816 petitioned tbe President of tbe United States for leave to purchase reservations of their western bretbern with tbe privilege of removing to and occupying tbe same, without changing their exisiting relations and treaties with tbe Government or their right to tbe annuities promised in those treaties. (February 12, 1816, the Secretary of War, by authority of the President, gave this permission.) In 1820 and 1821 defendants aided some ten Indians representing plaintiffs in exploring certain parts of Wisconsin with a view to making arrangements with the Indians residing there for a portion of their country, to be inhabited by such of the Six Nations as might choose to emigrate thither. Among the petitioners for leave to purchase reservations were the Onondagas, Senecas, Gayugas, and Oneida nations of New York Indians.
    The President’s approval of the arrangement found in the treaty of'August 18,1821, was signified February 19,1822, as follows:
    “The within arrangement entered into between the Six Nations, the St. Eegis, Stookbridge, and Munsee nations, of the one part, and the Menomonies and Winnebagoes of the other, is approved, with the express understanding that the lands thereby conveyed to the Six Nations, the St. Eegis, Stock-bridge, and Munsee nations are to be held by them in the same manner as they were previously held by the Menomonies and Winnebagoes.
    “Jam:es Monroe.
    “February 19,1822.”
    The $2,000 above mentioned was thus paid: In goods, $900 from the Stockbridges, $400 from the Oneidas, $200 from the Tuscaroras; in cash, $500. The Senecas subsequently denied that they had any title to any lands in Wisconsin. It does not appear that the Gayugas or Onondagas claimed any interest in the lands prior to 1860. The title to one of those tracts was confirmed in the New York Indians by the President, March, 13,1823.
    III. Permission to secure an extension of the cession in the preceding finding recited was given by the Secretary of War, and thereafter, on September 23,1822, the Menomonies, in consideration of $3,000 in goods, made a similar cession of another tract adjoining the above to the Stookbridge, Oneida, Tuscarora, St. Eegis, and Munsee nations, the releasees promising, however, that the releasors should “have the free permission and privilege of occupying and residing upon the lands” in common with the former.
    The President’s approval was given March 13,1823, as follows:
    “Theforegoing instrument is approved, so far as it conveys to the Stookbridge, Oneida, Tuscarora, St. Eegis, and Munsee tribes or nations of Indians tliat portion of tbe country therein described which lies between Sturgeon Bay, Green Bay, Fox River; that part of the former purchase made by said tribes or nations of Indians of the Menomonie and Winnebago Indians on the 8th August, 1821, which lies south of Fox River and a line drawn from the southwestern extremity of said purchase to the head of Sturgeon Bay, and no farther, that quantity being deemed sufficient for the use of the first before-mentioned tribes and nations of Indians. It is to be understood, however, that the lands, to the cession of which to the tribes or nations aforesaid the Government has assented, are to be held by them in the same manner as they were held by the Menomonies previous to concluding and signing the afore-going instrument, and that the title which they have acquired is not to interfere, in any manner whatever, with the lands previously acquired or occupied by the Government of the United States or its citizens.”
    Of the consideration above mentioned, $1,000 were paid by the Stockbridges and Munsees, while $1,000 were to be paid by the Oneidas, Tuscaroras, and St. Regis in one year from September 23,1822, and $1,000 in two years from that date. Of the two latter amounts $1,000 appears to have been paid by the United States out of the funds of the St. Regis about 1825, while $950 were paid by the Brothertown tribe September 18, 1824, in consideration of which a small part of the tract was ceded to them by the releasees January 8,1825. It does not appear whether the Oneidas and Tuscaroras paid any part of the above consideration.
    IY. Thereafter some New York Indians belonging to the Oneida, St. Regis, Munsee, and Brothertown tribes removed to and took possession of the lands in Wisconsin.
    Later, and after 1832, another small portion of the New York Indians removed to the Wisconsin or Green Bay lands.
    March 14, 1840, the Senecas denied ownership of Wisconsin lands, stating that they determined- to have no other home than that of their fathers, where they then resided, and in May and September following, in petitions to the President, the Senate, and the House of Representatives, their council denied that they were parties to the treaty.
    Y. It does not appear that application was made by the tribes or bands or any of them to the Government for removal to the Kansas lands provided for in the Buffalo Greek treaty except as hereafter appears in these findings.
    
      It does not appear tbat any substantial numoer of Indians wished to go to Kansas other than those who made up the Hogeboom party (infra).
    VI. In the year 1838, at the time of the negotiation of the treaty of Buffalo Creek, the Senecas, the Onondagas, the Oneidas, the Cayugas, the Tuscaroras, and the St. Regis each possessed a reservation of land in the State of New York, on which members of the tribes resided and the right of occupancy of which was secured to them by treaty stipulations. The Cayuga Indians had no separate reservation of their own in the State of New York, but made 'their home with and resided upon the reservation and lands possessed by the Seneca Nation; this they did with the consent of the Senecas.
    VII. The lands occupied by the Seneca Nation in the State of New York consisted of four separate and distinct reservations, namely:
    The Buffalo Creek Reservation, in Brie County, containing 49,920 acres; the Cattaraugus Creek Reservation, containing 21,680 acres; the Allegany Reservation, containing 30,469 acres, and the Tonawanda Reservation, in Genesee County, containing 12,800 acres. ■ The lands occupied by the Tuscarora Indians were situated in Niagara County, N. Y., and comprised 6,249 acres. The lands occupied by the Onondaga tribe were situated in Onondaga County, N.Y., and comprised 7,300 acres. The lands occupied by the Oneida tribe were situated in Oneida and Madison counties, N. Y., and comprised 400 acres. The reservation and lands occupied by the St. Regis tribe were situated in Franklin County, N. Y., and comprised about 14,000 acres.
    VIII. For many years prior to the treaty of Buffalo Creek (of 1838) these nations or tribes of Indians had improved and cultivated their lands, on which they resided and from the products of which they chiefly sustained themselves.
    The treaty of Buffalo Creek, as printed in the seventh volume of the Statutes at Large, contains a misprint on the third line of page 556. The word “Oneidas” is in the original treaty “ Onondagas residing on the Seneca Reservation.”
    
      IX.Extract from Executive Journal of June 11,1838.
    
    “The Senate resumed, as in Committee of the Whole, the consideration of the treaty with the New York Indians and the article supplemental thereto,
    
      “On motion by Mr. Wright, and by unanimous consent, the question was taken on agreeing to the amendments reported from the Committee on Indian Affairs, and determined in the affirmative — yeas 33.
    * # * * m # *
    “ No further amendments having been made, the treaty was reported to the Senate, and the amendments were unanimously concurred in.
    “Mr. White then submitted the following resolution of ratification, embracing the amendments as reported from the committee and adopted by the Senate:
    “ ‘Resolved (two-thirds of the Senators present concurring), That the Senate advise and consent to the ratification of the treaty made and concluded at Buffalo Creek, in the State of New York, the 15th day of January, in the year of our Lord 1838, by Ransom H. Gillett, a commissioner on the part of the United States, and the chiefs, headmen, and warriors of the several tribes of the New York Indians, assembled in council, with the following amendments:’
    “ Strike out of article 2, after the word ‘computed,’ in line 29, the following words:
    “ ‘ To have and hold the same in fee simple forever, by patent from the President of the United States, with full power and authority to divide the same among the members of the different tribes, in severalty, with power and authority to sell among each other and their Indian brethren of the Indian Territory, under such laws and regulations as may be adopted by the respective tribes themselves, or by a general council of the New York Indians.’
    “ Insert the following in lieu of the above stricken out:
    “ ‘To have and to hold the same in fee simple to the said tribes or nations of Indians, by patent from the President of the United States, issued in conformity with the provisions of the third section of the act entitled ‘An act to provide for an exchange of lands with the Indians residing in any of the States or Territories, and for their removal west of the Mississippi,’ approved on the 28th day of May, 1830, with full power and authority in the said Indians to divide said lands among the different tribes, nations, or bands of New York Indians, or among the members of said tribes, nations, or bands, in severalty, with the right to sell and convey to and from each other, under such laws and regulations as may be adopted by the respective tribes, acting by themselves, or by a general council of the said New York Indians, acting for all the tribes collectively.’ ’
    “Strike out, in line 45 of the 2d article, the words ‘and at Green Bay.’
    
      “Strike out after tbe word ‘annexed,’ in line 48, tbe residue of tbe 2d article, in tbe following words:
    “ ‘It is further agreed that if tbe United States, by any future arrangement, can procure tbe Cherokee tract lying between tbe Osage lands and tbe State of Missouri, that then tbe New York Indians shall have tbe same, and a like quantity is to be taken off tbe western end of tbe tract herein set apart for tbe New York Indians. And in order to convince tbe New York Indians of tbe great desire of tbe United States to gratify their wishes, it is agreed that tbe President shall invite a delegation of tbe Oherokees, and also a delegation of tbe New York Indians, to assemble at tbe city-of Washington, to participate in tbe negotiations for tbe said Cherokee country, tbe expense of which shall be borne by tbe United States. It is agreed that tbe New York Indians shall confer on their delegates such powers as shall be necessary to relinquish tbe lands proposed to be given in exchange with tbe Governmentfor tbe Cherokee lands, and such other powers as e.ach tribe may confer, relating to the interest of itself.’
    “Strike out tbe third, fourth, fifth, and sixth articles, in tbe following words:
    “ ‘Article 3. Tbe United States stipulate and agree to remove all tbe New York In dians of tbe several tribes described in tbe foregoing article to their new homes, and to supply them with provisions for one year after their arrival there. But if any chief, who shall be, in tbe opinion of tbe agent, competent to take care of and remove himself and family in bis own conveyance or otherwise, wishes to do so, be shall be allowed that privilege, and be shall be allowed the same compensation for each person so removed as it would cost tbe United States, which shall not be less than twenty dollars for each person so removed. And any chief who shall be, in the opinion of the agent, competent to act as a subagent in the removal of his party, and does actually remove them, shall be paid at the rate of five hundred dollars for every party of one hundred persons so by him removed, and in the same ratio, be the number more or less. It is understood that when any chief gives notice to the agent of the Government that he and his party are ready to remove, that the means shall be furnished for that purpose by the Government, and a disbursing agent shall accompany them. It is further agreed that such Indians as prefer to remove by land with their own conveyances shall be permitted to do so, and those who are removed by the Government shall have every attention paid to their health and comfort, by having good and .sufficient conveyances for their accommodation, and a physician to accompany each party of emigrants, if they desire it. It is agreed that the Indians shall be permitted to commute their one year’s support for such a sum as the rations would cost the Government at their new homes.
    
      “ ‘Article 4. It is further agreed that the United States will erect in the country set apart for the New York Indians, for the use of the respective nations,, as many council houses, churches, schoolhouses, sawmills, gristmills, and blacksmith shops, not to exceed one for each nation, except where otherwise specially provided, as shall be necessary and desired by the said nations. But in case any portion of any tribe removes, then a proper proportion of the above-mentioned buildings are to be erected. It is further agreed that the United States shall pay suitable teachers, millers, and blacksmiths, and furnish the necessary coal, iron, steel, and blacksmith’s tools for ten years, and as much longer as the President shall deem proper.
    “ ‘Article 5. It is expressly agreed that if, in the opinion of the President of the United States, he shall hereafter deem it proper to locate the seat of government for the Indian Territory within the territory set apart for the New York Indians, that then he shall be at liberty to select a tract, not to exceed a township, for that purpose, which shall be excepted from the foregoing grant and remain the sole property of the United States; and there shall be added to the territory set apart for the New York Indians a quantity of land which shall be equally valuable.
    “ ‘Article 6. The United States, taking a deep interest in the improvement- of the Indians in useful knowledge, and believing that a literary institution for their instruction in the higher branches of education, to be established in the Indian Territory, will be highly beneficial to the Indians, hereby stipulate to set apart for that purpose as a permanent fund the sum of thirty thousand dollars, to be invested in some safe stock by the President of the United States, the income of which shall be applied to the purchase of the necessary books and apparatus, and the support of suitable teachers, who shall always be selected from among the Indians themselves if persons of the necessary qualifications can be found among them. It is understood that this institution shall be organized under such rules and regulations as the President of the United States shall from time to time prescribe, and to be established at such place as shall be finally selected as the seat of government of the Indian Territory, if that shall be located within the country assigned to the New York Indians; and if not, then the said institution shall be located at such place in said country as shall be determined in a general council of the New York Indians residing there.’
    “Strike out of article 8, after the word ‘Territory,’ in line 21, the following words:
    “ ‘ It is expressly understood and agreed, that if any of the several tribes of New York Indians shall suffer depredations from any other Indian tribes residing in the Indian Territory, or from citizens of tlie United States, and the same is proved to be tbe case to the satisfaction of the agent residing amoug them, and the property can not be recovered nor satisfaction therefor obtained by such agent, that then the United States will pay the Indians so sustaining such loss for the same.’
    “ Strike out the 9th article, in the following words:
    . “ ‘Article 9. The United States agree to pay the New York Indians at their new homes, each year, for five years, ten thousand dollars, in farming utensils, looms, and spinning wheels, and in money to support proper persons to instruct them in the use of the same, and in domestic animals, under such regulations as shall be prescribed by the President of the United States. The rejection of this article by the Senate shall not invalidate the residue of the treaty, and the Senate shall be at liberty to modify and alter this article as they shall deem proper.’
    “Strike out of the 11th article, in lines 5, 6, and 7, the following words:
    “ ‘And the Government will have one of its agents reside among the New York Indians at the West.’
    “ Strike out of the 14th article, after the word ‘ beginning,’ in line 19, the following words: -
    “ ‘But if the President and Senate shall not ratify and confirm this reservation, then the said Williams'is to receive, in lieu thereof, ten thousand dollars, and have the preemption right to purchase the said lands at Government price.
    “Strike out of the 15th article, after the word ‘accommodation,’ in line 8, the following words:
    “‘But in case the Cherokee tract, lying east of the Osages, is obtained by the United States, that then the Senecas are to have that tract, and so much north of it, of the country set apart for the New York Indians, as shall be necessary to make the requisite quantity for them and their friends, the Cayugas and Onondagas, residing among them; and’
    “Strike out of the 15th article all after the word ‘Fellows,’ in line 36, in the following words:
    “ ‘The United States also agree to build, at their new homes, for the Senecas and their friends, the Cayugas and Onondagas, residing among them four sawmills and four gristmills, four council houses, four schoolhouses, four churches, if they desire it, and three blacksmiths’ shops, and one gunsmith shop, and also to provide and pay the necessary millers, teachers, and blacksmiths, and a gunsmith, for ten years and as much longer as the President of the United States shall deem proper, and the United States will also supply the necessary blacksmiths’ tools, iron, steel, and coal for said shops during that period. It is expressly understood that the gunsmith is to do all the work for all the New York Indians who remove west and reside at their new homes.’
    
      “Strike out tbe 19th article, in the following words:
    “ ‘ Article 19. The United States agree to pay the sum of three thousand dollars to the Orchard party of the Oneidas, at Green Bay, and the sum of thirty thousand five hundred dollars to the first Christian party settled at that place, as a remuneration for moneys laid out and expended by the said parties, and for services rendered by their chiefs and agents in securing the title to the Green Bay lands, and the removal to the same; the same to be apportioned and paid out to the several claimants by the chiefs and a United States commissioner, as may be deemed most equitable and just. It is exxiressly agreed that if the Senate of the United States does not ratify and confirm the above, in relation to the Green Bay Indians, it shall not invalidate any of the other provisions of this treaty. It is expressly agreed that if any of the Indians now at Green Bay wish to remove to the country set apart as their future homes, they shall be at liberty to do so, and on relinquishing their possessions and improvements to the United States they shall be paid the value of said improvements; and when a sufficient number of said Indians remove to their new homes to need them the United States will make the provisions for this part of the Oneidas separate from those at Oneida, if-they desire it, which are specified in article fourth of this treaty. This article shall not be construed to authorize the Government to compel them to remove.’
    “Change articles 7, 8, 10, 11,12,13,14,15,16,17,18, and 20, to articles 3, 4, 5, 6, 7, 8, 9,10,11,' 12, 13, and 14, respectively.
    “Add the following as a new article:
    “‘Article 15.-The United States hereby agree that they will appropriate the sum of four hundred thousand dollars, to be appropriated from time to time, under the direction of the President of the United States, in such proportions as may be most for the interest of said Indians, parties to this treaty, for the following purposes, to wit: To aid them in removing to their new homes, and supporting themselves the first year after their removal; to encourage and assist them in education, and being taught to cultivate their lands; in erecting mills and other necessary houses; in purchasing domestic animals and farming utensils, and acquiring a knowledge of mechanic arts.’
    “Strike out Schedule D, in the following words:
    “‘The United States will pay to the persons named below the sums mentioned for them, as a remuneration for their services in procuring the Green Bay country, and for services as delegates in exploring the western country, and for losses sustained in consequence thereof, and for other services, to wit:
    “ ‘To George Jemeson, two thousand dollars.
    “ ‘To Thompson S. Harris, twelve hundred dollars.
    “ ‘To Nathaniel S. Strong, one thousand dollars.
    
      “ ‘ To Seneca White, one thousand dollars.
    “ ‘To Marus B. Pierce, one thousand dollars.
    “ ‘To William Johnson, one thousand dollars.
    “ ‘To James Young, one thousand dollars.
    “ ‘To William King, five hundred dollars.
    “ ‘ The above-mentioned sums to be paid to the persons named on their settling at their new homes at the West.
    ‘“To William Patterson, Israel Jemeson, Little Johnson, White Seneca, Silver Smith, Baptiste Pawlis, Jonathan Jour-dan, Martin Daney, John Anthony, Honyost Smith, Henry Jourdan, James Cusick, and James Young, each the sum of two hundred dollars, to be paid, when an appropriation is made, to the persons mentioned, first deducting the following sums which have been already advanced to them by J. F. Schermer-horn, to wit:
    “ ‘William Patterson, one hundred and fifty dollars; Israel Jemeson, fifty dollars; Little Johnson, sixty dollars; White Seneca, one hundred dollars; James Young, one hundred dollars, and Silver Smith, fifty dollars; which respective sums have been heretofore advanced by said Schermerhorn, and are to be paid to him, they having been with him on the exploring expedition at the west.
    “ ‘The above was agreed to as apart of the treaty before the same was finally excuted.
    “ ‘R. H. Gillet, Commissioner.
    
    ‘‘Strike out Schedule B, in the following words:
    “ ‘The United States will set apart twenty thousand dollars to be paid out in erecting dwellings and making enclosures for such poor persons of the several nations of New York Indians who remove west, after their arrival there, as shall be designated by the chiefs of the respective nations, with the assent of the agent, which shall be expended under such regulations as the President shall prescribe, but the Senate shall have the power to reject or modify this provision without impairing the other parts of the treaty. Whereas the provision in this treaty for a high school or college is supposed not to be large enough to meet the object contemplated, it is therefore provided that the sum of twenty thousand dollars shall be added to the sum so set apart for that purpose, but the Senate shall be at liberty to reject or modify this provision without impairing the other provisions of the treaty.
    “ ‘ The above was made out and agreed to before the final conclusion of the treaty.
    “R. H. Gillet, Commissioner.’
    
    
      “Resolved further {two-thirds of the Senators present concurring), That the Senate advise and consent to the ratification of the supplemental article to the treaty concluded at Buffalo Greek, in the State of New York, January 15,1838, which was made at the council house of St. Regis, on the 13th day of February, 1838: Provided, Tbe chiefs and headmen of the St. Eegis Indians, residing’ in New York, will in general council accept of and adopt the aforesaid treaty, as modified by the preceding resolution of ratification.
    
      “Provided, always, and be it further resolved {tivo-thirds of the Senate present concurring), That the treaty shall have no force or effect whatever, as it relates to any of said tribes, nations, or bands of New York Indians, nor shall it be understood that the Senate have assented to any of the contracts connected with it until the same, with the amendments herein proposed, is submitted and fully and fairly explained by a commissioner of the United States to each of said tribes or bands, separately assembled in council, and they have given their free and voluntary assent thereto; and if one or more of said .tribes or bands, when consulted as aforesaid, shall freely assent to said treaty as amended, and to their contract connected therewith, it shall be binding and obligatory upon those so assenting, although other or others of said bands or tribes may not give their assent, and thereby cease to be parties thereto: Provided further, That if any portion or part of said Indians do not emigrate the President shall retain a proper proportion of said sum of four hundred thousand dollars, and shall also deduct from the quantity of land allowed west of the Mississippi such number of acres as will leave to each emigrant three hundred and twenty acres only.
    “The Senate proceeded, by unanimous consent, to the consideration of said resolutions.
    “ On the question to agree thereto,
    “It was determined in the affirmative, j .
    “ Ordered, That the Secretary lay this resolution before the President of the United States.
    
      “Extract from Executive Journal of March 2,1839.
    
    “On motion by Mr. Sevier,
    “The Senate resumed the consideration of the message of the 22d of January last, communicating the treaty with the New York Indians, and the report thereon from the Committee on Indian Affairs, submitted on the 28th of February last.
    “Mr. Tallmadge submitted the following resolution:
    
      illResolved, That whenever thePresident of theUnited States shall be satisfied that the assent of the Seneca tribe of Indians has been given to the amended treaty of June 11th, 1838, with the New York Indians, according to the true intent and meaning of the resolution of the Senate of the 11th of June, 1838, the Senate recommend that the President make proclamation of said treaty and carry the same into effect.’
    
      “On tbe question to agree thereto,
    26 13
    “ Ordered, That tbe Secretary lay tbe said resolution and tbe treaty transmitted to tbe Senate, with tbe message of tbe 22d of January last, before tbe President of the United States.
    “ Proclamation of the treaty of Buffalo Oreelc.
    
    “Martin Yan Burén, President of tbe United States of America, to all and singular to whom these presents shall come, greeting:
    “Whereas a treaty was made and concluded at Buffalo, in tbe State of New York, on tbe fifteenth day of January, one thousand eight hundred and thirty-eight, by Ransom H. G-illet, a commissioner on the part of the United States, and the chiefs, headmen, and warriors of the several tribes of the New York Indians, assembled in council;
    “And whereas the Senate did, by a resolution of the eleventh of June, one thousand eight hundred and thirty-eight, advise and consent to the ratification of said treaty with certain amendments, which treaty so amended is word for word as follows, to wit: * * ,#
    “And whereas the Senate did, on the twenty-fifth of March, one thousand eight hundred and forty, resolve ‘that in tbe opinion of the Senate the treaty between the United States and the Six Nations of New York Indians, together with the amendments proposed by the Senate of the 11th of June, 1838, have been satisfactorily acceded to and approved of by said tribes, the Seneca tribe included, and that-in the opinion of the Senate the President is authorized to proclaim the treaty as in full force and operation:’
    “ Now, therefore, be it known that I, Martin Yan Burén, President of the United States of America, do, in pursuance of the resolutions of the Senate of the eleventh of June, one thousand eight hundred .and thirty-eight, and twenty-fifth day of March, one thousand eight hundred and forty, accept, ratify, and confirm said treaty, and every article and clause thereof.
    “ In testimony whereof I have caused the seal of the United States to be hereunto affixed, having signed the same with my hand.
    “Done at this city of Washington this fourth day of April, one thousand eight hundred and forty, and of the Independence of the United States the sixty-third.
    “ M. Yan Burén.
    “ By the President.
    [SEAL.]
    “John Forsyth,
    “ Secretary of State.”
    
    
      X. The President of the United States never prescribed anytime for the removal of the claimants or any of them to the lands or any of them set apart by the treaty of Buffalo Creek further than is shown in these findings.
    Many of the Indians have protested against any removal. The Onondagas have officially declared that they would not remove, and treaties subsequent to that of 1838 appear in the statutes in relation to this subject-matter. The Tuscaroras still occupy their reservation in New York.
    After the amended treaty had been assented to, the Senecas, the Oayugas and Onondagas residing with them, and the Tuscaroras continued to protest against the treaty, the Senecas asserting that their declaration of assent was invalid, and that they would never emigrate but on compulsion, and requesting (as did also some Onondaga chiefs) that no appropriation be made to carry the treaty into effect. These protests were continued even after the treaty was ratified and until the treaty of May 20,1842, was made. More than five years from the ratification of the treaty of Buffalo Creek the Tuscarora chiefs declared that the tribe would not part with its reservation nor remove from it, whatever a few individuals might do. The Indian protests against the treaty were based upon the following allegations: (a) That the treaty had been brought about by corrupt means operating upon Indians of influence in their tribes and put in motion by an agent of the preemption owners; (b) that a considerable majority of the Indians wished to remain in New York.
    After the treaty of May 20,1842, was ratified, the lands and improvements on the Buffalo Creek Reservation, in New York, were appraised, and the Indians thereon gradually withdrew to the Cattaraugus and Allegany reservations, in New York.
    XI. Prior to November 24, 1845, some of the New York Indians had applied to the Indian Office for the proper steps to be taken for their emigration. It was not deemed expedient to enter into any arrangements for this purpose until the Department believed that a sufficient number to justify the expenditure incident to the appointment of an agent was prepared to remove.
    No provision was made for the actual removal of more than about 260 individuals of the claimant tribes as contemplated by the treaty of Buffalo Creek, and as shown below; of this number only 32 ever received patents or certificates of allotment of tbe lands mentioned in tbe first article of tbe treaty, and tbe amount allotted to those 32 was at tbe rate of 320 acres each, or 10,240 acres in all.
    In 1845 Abram Hogeboom represented to tbe Government of tbe United States that á number of tbe New York Indians, parties to tbe treaty of 1838, desired to remove to tbe Kansas lands, and upon such representation, and in conformity with such desire, said Hogeboom was appointed special agent of tbe Government to remove tbe said Indians to Kansas.
    Tbe sum of $9,464.08 of an amount appropriated by Oon-gres was expended in the removal of a party of New York Indians under Hogeboom’s direction in 1846.
    From Hogeboom’s muster roll, in tbe Indian Office, it appears that 271 were mustered for emigration. Tbe roll shows that of this number 73 did not leave New York with tbe party; 191 only arrived in Kansas June 15,1846; 17 other Indians arrived subsequently; 62 died, and 17 returned to New York.
    It does not appear that any of tbe 32 Indians to whom allotments were made settled permanently in Kansas.
    XII. A council of tbe Senecas, tbe Cayugas and Onoudagas living with them, and tbe Tuscaroras was called by tbe Indian Commissioner, to be held at Cattaraugus June 2,1846, to learn tbe final wishes of tbe Indians as to emigration. Tbe commissioner who was sent on tbe part of tbe United States reported that the meeting was well attended, but that tbe chiefs were unanimous m tbe opinion that scarcely any Indians who wished to emigrate remained. Tbe commissioner also reported that be held an enrollment for two full days, but that only 7 persons requested to be enrolled for emigration, and these vouched for 5 more as wishing to go.
    XIII, Tbe United States, after tbe conclusion of tbe treaty of Buffalo Creek, surveyed and made part of tbe public domain tbe lands at Green Bay ceded by tbe claimants, and sold or otherwise disposed of and conveyed tbe same and received tbe consideration therefor, except as in these findings shown to tbe contrary. Tbe reservation to “The First Christian and Orchard parties of Oneida Indians,” which was set aside for them by defendants at Green Bay, Wis., contained 65,540 acres, all of which has been allotted in severalty and reserved for school purposes except 84.08 acres.
    
      The Stockbridge Indians acquired a reservation in Wis consin of 11,803 acres, some of which has been allotted in severalty. (9 Stat. L., 955; 11 Stat. L., 663, 679; 16 Stat. L., 404.) The United States never aquired any lands in the State of New York from the Indians of that State. The lands ceded in that State by the Indians thereof were ceded for consideration to the State or to the Ogden Land Company, so called. There may have been some small cessions to individuals, but there was none to the United States.
    XIV. Upon the ratification of the Oneida treaty of February 3,1838, the present Oneida Reservation in Wisconsin was surveyed, containing about 65,000 acres. After the ratification of the treaty of Buffalo Creek the United States surveyed, made part of the public domain, and sold or otherwise disposed of the tract at Green Bay, the Indian title to which had been ceded by that treaty, except the Oneida Reservation as surveyed by J. N. Suydam in 1838, which was treated as if it were the tract reserved from that cession and described in article 1 of the said treaty of January 15,1838. This was treated as if it had been the reservation excepted from the cession in article 1 of that treaty, which latter reservation was never surveyed, and the bounds of which as given in the said article are not the same as those of the former reservation, although the two reservations cover for the most part the same ground and are of about the same area.
    The lands west of the Mississippi, secured to the claimants by the treaty of Buffalo Creek, have been since that treaty surveyed and made a part of the public domain and sold or otherwise disposed of by the United States, which received the consideration therefor; and the said lands were thereafter and now are included within the territorial limits of the State of Kansas. The juice realized by the United States for such of said lands as were sold was at the rate of $ 1.34 per acre, while the cost of surveying, etc., the same was at the rate of about 12 cents per acre, making the net price realized by the United States about $1.22 per acre.
    XV. By treaty with the Tonawanda band of the Senecas, numbering 650 individuals, the United States, November 5, 1857, in consideration of certain releases of claims under the treaties of 1838 and 1842, agree to pay and invest, and did pay and invest, for said band the sum of $256,000.
    
      This snm of $256,000 was equivalent to $1 per acre for tbe lands in Kansas to wbicb tbe Tonawandas would have been entitled bad they all emigrated under tbe treaty of Buffalo Greek, and also to a part of tbe sum of $400,000, proportioned to tbeir numbers as compared with tbe whole number of New York Indians, according to tbe schedule in tbe treaty. A portion of tbe fund, all of wbicb was paid and invested as agreed, was applied to tbe purchase in fee of 7,549.73 acres of tbe Tonawanda Reservation in New York for tbe tribe’s benefit, and tbe Tonawandas still reside thereon.
    XYI. After March 21, 1859, an order o’f tbe Secretary of tbe Interior was made, wbicb directed that tbe tract of land in Kansas Territory known as tbe New York Indian Reserve be surveyed, with a view of allotting a half section each to such of the New York Indians as bad removed there under treaty provisions, after wbicb tbe residue was to become public domain. Thirty-two New York Indians were found to be resident on tbe land, and allotments were made to them. After this, and before tbe proclamation of tbe President of said lands as part of tbe public domain (December 3 and 17,1860), some of tbe New York Indians employed counsel to protect and prosecute tbeir claims in tbe premises, asserting in the powers of attorney that tbe United States bad seized upon tbe said lands contrary to tbe obligations of said treaty, and would not permit tbe said Indians to occupy tbe same or make any disposition thereof. Tbe said Indians have since asserted tbeir said claims.
    XYII. Of tbe sum of $400,000, agreed by tbe treaty of Buffalo Creek to be appropriated for tbe purposes mentioned therein, tbe sum of $20,477.50 was appropriated, and of this $9,797.11 were expended, this expenditure being for tbe removal and subsequent care of tbe Indians who emigrated in 1846. Of this amount $1,034.50 were for shelter, supplies, medical atendance, etc., before tbe start, while' tbe Indians were assembling; $5,800:29 for pay of agent, for transportation and supplies on tbe way, and $2,962.32 for supplies, etc., including $350 for medical attendance and supplies after arrival.
    Tbe following payments were also made under tbe treaty:
    Under article 9, $5,000 to tbe St. Regis tribe.
    Under article 11 and Schedule O, $1,500 to William King, he having emigrated in 1846.
    Under article 13, $6,000 to the chiefs of tbe first Christian and Orchard parties of tbe Oneidas in New York.
    
      Under article 14 and Schedule B, $125 to James Cusiek, he having emigrated in 1846.
    The United States has performed its agreement as to the disposition of the money to be paid the Senecas by Ogden and Fellows, contained in article 10 of the treaty of 1838 as amended by the third provision of the treaty of 1842. Owing to non-emigration the Indians have received the money in New York.
    SYIII. It does not appear that the President ever prescribed any time for the removal of the New York Indians to Wisconsin under the treaties of February 8,1831, and October 27,1832, or that the President prescribed any time for the removal of any New York Indians from Wisconsin and New York to the Kansas lands other than the Hogeboom party, as hereinabove set forth.
    XIX. The following facts, agreed upon by both parties, are at their request found by the court:
    “It is hereby stipulated and agreed between the counsel representing the parties to this case that the court find the following statement of facts, all of which are matters of history:
    “First. Prior to 1786 the title to and sovereignty over the lands then occupied by the New York Indians, except as to their right of possession under their Indian title, was claimed by the States of New York and Massachusetts, respectively, and on December 16th, 1786, Massachusetts ceded to New York the ‘government, sovereignty, and .jurisdiction’ over disputed territory, New York ceding ‘ the right of preemption to the soil of the native Indians’ to Massachusetts, its grantees and assigns forever.
    “The agreement by which the said concessions were made by the said parties is contained in an instrument in writing, made and executed by and between the said States at the city of Hartford, in the State of Connecticut, on the 16th day of December, in the year of our Lord 1786, a copy of which agreement is recorded in the office of the county clerk of the county of Cattaraugus, State of New York, in liber one, at pages 270-280, to which record reference is here made, and either party is at liberty to read the whole or any part thereof on the hearing of this case. The Indian title and right of possession to a part of the said territory was afterwards bought and extinguished by certain grantees of Massachusetts in the year 1789.
    “ The preemption right and estate of Massachusetts in the remaining part of these lands was granted by the said State to Robert Morris, May 11th, 1791, and by him to the trustees of the Holland Land Company in the year 1793, except as to the land known as the ‘Morris reserve,’ and from time to time the Indian title as to the various tracts was extinguished by these parties; but this relinquishment of the Indian title did not include the lands and reservations occupied by the Seneca and Tuscarora Indians mentioned and referred to in the treaty of 1838.
    “The Tuscaroras came from North Carolina prior to the Revolutionary war and formally united themselves with the confederacy of the New York Indians, known at that time as the Iroquois Confederacy, and were assigned to and resided upon the territory of the Oneidas, and thereafter the Iroquois Confederacy became known as the Six Nations; and prior to 1788 the Tuscaroras commenced a settlement by themselves on lands which they now occupy, located in the county of Niagara, and obtained an Indian title to 1,920 acres of land from the Seneca Nation of Indians and the Holland Land Company.
    “In 1804 the Tuscaroras purchased with their own moneys 4,329 acres of land lying adjacent to the tract of land last mentioned, and they now own and occupy the last-mentioned tract in fee simple; and the said two parcels of land comprise the 6,249 acres of land mentioned and referred to in the 11th finding of fact in Congressional case No. 151 as being occupied by the Tuscarora Indians.
    “In 1810 the Holland Land Company conveyed to David A. Ogden its estate and property in the Buffalo Creek, Cattarau-gus, Alleghany, Tonawanda, Tuscarora, and Oaneadea reservations — in all, 196,335 acres — subject only to the right of the native Indians to occupy and possess the same under their Indian title.
    “ On August 1st, 1826, the Seneca Nation sold to Thomas Ludlow Ogden and others, trustees of the Ogden Land Company, the Oaneadea, Oanawaugus, Squawky Hill, and Big Tree reservations, and parts of the Buffalo Creek, Cattaraugus, and Tonawanda reservations, and surrendered possession of the same; but this sale and surrender of lauds did not include any of the lands and reservations mentioned and described in the treaty of 1838 and also in the 11th finding of fact in Congressional case No. 151.
    “ Second. The provisions of the treaty of Buffalo Creek of 1838, whereby the Tuscaroras sold to Ogden and Fellows a part (including the 1,920 acres) of their reservation and conveyed the balance to the United States in trust for sale on their account, were never followed by any surrender of possession by the Tuscaroras, or payment of the purcha.se money by Ogden and Fellows, or any sale of any part of the reservation by the United States, and the Tuscaroras have continued to hold and occupy their entire reservation as before described ever since. The terms and conditions of the sale to Ogden and Fellows and the object and purpose of the same are set forth ill article 14 of the treaty of 1838. and the form of the deed made and executed by the Tuscaróras is attached to the said treaty of 1838 and published therewith, to which reference is here made; and said article 14 and copy of the deeds thereto attached may be read by either party on the hearing.
    “ Third. The Tonawanda band of the Senecas did not, on the execution of the treaties of 1838 and 1842, surrender up the possession of their reservation to Ogden and Fellows under the provisions of the treaties of 1838 and 1842, and when the said Fellows and others proceeded to dispossess one of this band of a part of the reservation an action of trespass guare clausum fregit was brought by the Indian sought to be dispossessed and a judgment rendered in favor of the plaintiff therein in the supreme court of the State of New York, which judgment was affirmed by .the court of appeals of the State of New York, and on appeal to the Supreme Court of the United States the judgment of the court of appeals of the State of New York was affirmed, and the facts and circumstances of the case are stated and set forth in the case entitled Joseph Pellotes, survivor of Robert Kendle, plaintiff in error, against Susan Blacksmith and Pli S. Parker, admrs. of John Blacksmith, deceased.
    
    “This case is reported in the 19th of Howard, page 366, to which case so reported reference is made for the facts and circumstances of the case upon which the said several judgments were based.
    “Fourth. TheOneidasof New York sold and conveyed to the State of New York a further portion of their lands within the State, retaining 350 acres, upon which a portion of the Oneidas now reside; and in 1848 and prior thereto a large number of the said tribe removed to the State of Wisconsin and settled upon that portion of the Green Bay lands which have been occupied by others of the tribe prior to 1838, and which was excepted from the operation of Article I of the treaty of 1838.
    “ J. E. Dodge,
    “ Assistant Attorney-General, for Defendant.
    
    “GuioN Miller,
    
      “Dor Claimants.”
    
    
      Messrs. James B. Jenkins and Henry JE. Davis for the claimants. [Messrs. George Barker, Guión Miller, and Jonas H. McGowan were with them on the brief.)
    1. The claimants gave, and the United States received, value for the Kansas lands. The Green Bay lands, received and sold by the United States, alone made a valid and sufficient consideration for the obligations assumed by the United States in the treaty of Buffalo Creek.
    
      2. The claimants have never forfeited their rights under the treaty of Buffalo Creek. The fact that they did not remove to the Kansas lands does not work a forfeiture. It was the duty of the United States to remove the claimants. Not only does the treaty so read, but it has been twice so declared by the Supreme Court of the United States. (Fellows v. Blacksmith, 19 How., 366; New York v. Dibble, 21 How., p. 371.)
    And as the President (the proper authority) has never prescribed a time for removal, as the United States have never furnished the money for removal, and as, in the meanwhile, the United States have disposed of the lands to which removal was to be made, and so have made removal impossible, the right of the claimants to indemnity is absolute.
    The decision of the Supreme Court of the United States in Fellows v. Blacksmith was acquiesced in and adopted by the United States in making the Tonawanda treaty, which, taken by itself, is an admission by the United States that there had been no forfeiture, and that the rights of the claimants were in full life in November, 1.857. This date, as already stated, was more than seventeen years after the proclamation of the treaty of Buffalo Creek.
    3. The course of the parties to this action after the conclusion of the treaty of Buffalo Creek does not show a mutual abandonment or rescission of that contract.
    There could be no such abandonment and rescission for the conclusive reason that the United States having taken and disposed of the Green Bay lands the parties could not be restored to their original situations. The United States having received the whole consideration coming to them under the treaty, can not be heard to claim abandonment or rescission. They received all they bargained for and have given nothing-in return.
    The isolated objections and protests of some of the claimants against the treaty can not bind the claimants as a whole, and can not avail the United States as a means of escape from its obligations. And the United States never so contended. The Tonawanda treaty is conclusive evidence that the rights of the claimants were fully recognized by the United States nineteen years after the treaty of Buffalo Creek was made, and almost as long after the latest of the isolated objections. Moreover, the treaty of Buffalo Creek did not require the claimants to remove until after provision for tbeir removal had been "made by the United States; wherefore, until after such provision had been made (which was never done), the claimants could not be in position to have abandonment or rescission predicated of their conduct.
    4. The course of the parties to this action, after the conclusion of the treaty of Buffalo Creek, shows only a failure on the part of the United States to perform their obligations under it, and no default on the part of the claimants.
    It is conceded that the President prescribed no time for the removal of the claimants to the Kansas lauds. It is the meaning of the treaty, as declared by the Supreme Court of the United States, that the claimants were not required to remove themselves, but that it was the duty of the United States to remove them. It follows inevitably that as the occasion to call into play the discharge of the claimants’ duty never happened before the discharge of that duty was made impossible by the spoliation of their lands, default can not be attributed to them.
    On the other hand, that the United States failed in their duty is plain. No time was prescribed for removal, no money provided therefor, and no attempt made thereat. Without discharging or attempting to discharge the duty in these particulars prescribed by the treaty the United States put the Kansas lands beyond the possibility of settlement by the claimants and gave nothing in return.
    
      Mr. Charles 0. Binney (with whom was Mr. Assistant Attorney-General Bodge) for the defendants.
    Of the tribes who were really parties to the treaty as proclaimed, viz, the Senecas, Cayugas, Onondagas residing with the Senecas, Tuscaroras, Oneidas at Oneida, and St. Regis, there is no evidence that the three first ever paid anything for the Green Bay lands, while the outlay of the Oneidas and St. Regis was amply compensated for in the grants of $6,000 to the former and $5,000 to the latter, both of which grants have been paid. In any event, all that any of the tribes ever themselves bought at Green Bay was a disputed right of occupancy in common with the Menomonees, and subject to the hunting rights of the latter. A purchase so indefinite necessarily led to disputes, and to preserve peace between'the Menomonees and the New York tribes tbe United States paid the former $20,000 in order to give the latter a valid right to settle on a specific tract of land in Wisconsin. This was a voluntary act, the United States not having in any way guaranteed the New York tribes in the possession of the land they attempted to buy in 1821 and 1822. Its approval of those purchases was necessary, because the Menomonees, having merely a title by occupancy, and the fee being in the United States [Cherokee Nation v. Georgia, 5 Pet., 1,17; Beecher v. Wetherhy, 95 U. S., 517, 525,), could not transfer their title without the consent of the latter, but such consent was in no sense a guarantee as against the Menomonees.
    The title of the New York tribes to any part of the 500,000 acres in Wisconsin depended on actual occupancy within a reasonable time, which the President could terminate whenever he saw fit. Hence the surrender of this terminable right of occupancy of the unoccupied ^portion, a right possessed apparently by the Oneidas, Tuscaroras, and St. Regis only, and for the surrender of which the Oneidas and St. Regis were fully paid in cash, was no real consideration for the reservation of land in the then Indian Territory, and the other promises of the United States in the treaty of 1838. The emigration of the tribes, in accordance with the Government’s policy at that time, was the only real consideration.
    The provision that “ such of the tribes of the New York Indians as do not accept and agree to remove to the country set apart for their new homes within five years, or such other time as the President may from time to timé appoint, shall forfeit all interest in the lands so set apart to the United States,” was an important feature of the original treaty, because in it the United States stipulated to remove all the Indians except the Oneidas at Green Bay and the St. Regis, and all the other tribes that signed the treaty did so accept and agree. When the Senate struck out the stipulation to remove the Indians, and merely agreed that the United States should appropriate money to aid their emigration, it became necessary to provide for the contingency of a partial or total failure to emigrate, and therefore the resolution of June 11,1838, contained a proviso that if any of the Indians did not emigrate the President should withhold a proper proportion of the $400,000 and so much of the land as would leave to each emigrant 320 acres only 5 and tbe final proclamation of tbe treaty was by authority of that resolution, and consequently subject to that proviso. A stipulation added at ratification is as much a part of a treaty as if it bad been originally expressed. (Doe v. Bradly, 16 How., 635.)
    Tbe treaty of 1842 established tbe right of tbe Senecas, aad tbe Oayugas and Onondagas with them, to remain in New York, and in effect rescinded their agreement to remove. Hence tbe proposed general emigration bad dwindled down by 1843 to tbe removal of a possible 250, and even these did not go. Even tbe dicta in Fellows v. Blacksmith (19 How., 366), and State of New York v. Dibble (21 How., 366), as to tbe duty of tbe United States to authorize and superintend tbe emigration, do not countenance tbe idea of a forcible emigration against tbe will of tbe Indians.
    Tbe President was not required to extend tbe period of emigration beyond tbe five years, but could do so if be saw fit. As to tbe Hogeboom party, it is immaterial whether the five years should be counted from 1842 or whether tbe permission given them to emigrate came after tbe five years, counted from 1840. There was no reason to extend tbe period for any other party, as all who wished to go went with Hogeboom. Tbe United States did substantially all that it could for them on their arrival in tbe Indian Territory, but they were apparently not fitted for emigration. Tbe country was not well suited to their needs, tbe season was unhealthy, and hence many died and many others returned. Tbe failure of this emigration was from circumstances beyond tbe control of tbe United States.
    Tbe provisions of tbe “Kansas-Nebraska act” of 1854 (10 Stats., 284) bad reference to tbe lands of a number of tribes, and merely recognized such rights as tbe Indians then bad. It created no new rights, nor revived any that bad lapsed. Tbe Tonawanda treaty of 1857 grew out of a state of facts peculiar to tbe Tonawanda band. Tbe United States bad bad tbe land and improvements at Buffalo Creek appraised, as it was required to do by tbe treaty, but not those on tbe Tona-wanda Reservation. Until these bad been appraised and paid for, the Tonawandas could not be called upon to emigrate, and tbe United States did not begin tbe appraisal till after tbe Kansas lands bad been largely settled by white men. T.he United States having, by its delay, rendered emigration impossible, paid tlie Tonawandas the value of all they could have gained by emigration.
    The President’s proclamations of December 3 and 17, 1860, restoring to the public domain the lands which had been set apart under the treaty, simply announced the fact that in obedience to the Senate’s resolution of June 11,1838, he had deducted “ from the quantity of land allowed west of the Mississippi such number of acres as will leave to each emigrant 320 acres only.” Even had that resolution not explicitly called for such action it would still have been called for by the failure of the Indians to avail themselves of the privileges granted by the treaty, and to perform that consideration which they had promised in return for those privileges.
    The subsequent statements of executive officers or committees of Congress to the effect that these Indians still had rights in these lands, statements which would never have been made had the facts been remembered, do not bind the United States. (Waters v. United States, 4 C. Ols. E.., 389; Allen v. United States, 28 C. Cls. E., 141; Kinlcead v. United States, 150 U. S., 143; Burgess v. Wareham, 7 Gray (Mass.), 345; United States v. Martin, 2 Paine, 68.)
    All the money payments promised in the treaty, and not depending on emigration, have been made, as also all payments due to persons who actually emigrated. The fact that the United States was only called upon to expend a comparatively small sum for the transportation and support of a few Indians, and that ultimately only 32 Indians were in a position to receive allotments, and these never stayed to obtain patents, may show the folly of making such a treaty, but not any failure of performance by the United States.
   Davis, J.,

delivered the opinion of the majority of the court:

What were known in 1784 as the “New York Indians” consisted of six nations or tribes, called Senecas, Onondagas, Cayugas, Tuscaroras, Oneidas, and Mohawks. The Mohawks soon after left the United States for Canada, and in 1797 relinquished by treaty all claims to land in New York. (Treaties of 1784, 1789, and 1797, 7 Stat. L., 15, 33, 61.)

The title to the lands occupied by the New York Indians in New York was prior to 1786 claimed both by New York and Massachusetts, which agreed in 1786 that New York should exercise “government, sovereignty, and jurisdiction” of tbe territory, while Massachusetts reserved “the right of preemption of the soil from native Indians” in certain named parts of the State, the right of preemption as to the rest of the territory being relinquished to New York. The preemption rights of Massachusetts were afterwards (in 1791) granted to Robert Morris and by him were transferred (except as to one tract) to the Holland Land Company.

By various treaties between the United States and the Indians the latter were secured in their right to the lands upon which they were settled and whose boundaries were fixed. In one of these treaties, that of 1794, the United States engaged that they would never claim the lands or disturb either of the Six Nations or their Indian friends united with them in the free use and enjoyment of the lands, but that the Indians should remain upon the lands until they chose to sell them to the United States, the Six Nations upon their part agreeing not to claim any other lands within the United States.

Beginning in 1810, a movement appears to have been made for the removal of the New York Indians to the Northwest, and, with the approval of the United States G-overnment, they purchased from the Menomonie and Winnebago tribes lands in Wisconsin. This transaction was completed in 1823, and thereafter some pf the New York Indians removed to Wisconsin. Dispute there arising between them and the Menomonies, fresh agreements were concluded by the Government, and the Indian rights in the Wisconsin .lands were recognized by the President and the Congress.

The treaty with tiñe Menomonies, assented to by the New Yorks, provided that the lauds in Wisconsin should be held under such tenure as that by which the Menomonies had before held them, “subject to such regulations and alterations of tenure as Congress and the President of the United States shall from time to time think proper to adopt.”

It therefore appears from the treaties and the findings that prior to February, 1831, plaintiffs, with the approbation of the President, had purchased from the Menomonie and Winnebago Indians some rights in land in Wisconsin near Green Bay; that questions had arisen in relation to this purchase which were finally settled by a treaty between the Menomonies and the United States, ratified in 1832.

Coming now to January, 1838, we imd that relatively few New York Indians bad emigrated to Wisconsin; but the reasons why they had not done so were satisfactory to the President, who had the right to prescribe the time of removal. Prior to this, however, some of the New York Indians had asked that their Wisconsin lands should be taken by the Government and a new home provided for them in the West. Thereupon the treaty of January 15, 1838, known as the treaty of “ Buffalo Creek,” was negotiated, and after amendment by the Senate was proclaimed by the President.

Upon this treaty plaintiffs found the alleged rights which they seek to enforce here, and the claim presented, as defined by the special statute, is that of the New York Indians (being those Indians who were parties to the treaty of Buffalo Creek) against the United States growing out of the unexecuted stipulations of said treaty on the part of the United States.

The situation when this treaty was signed was briefly this: The Indians had rights in lands in New York and in Wisconsin,- and these rights had value; relatively few Indians had emigrated to Wisconsin, and the reasons for so small an emigration were satisfactory to the President; a desire had been expressed by 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 were glad of an opportunity to pursue their policy of moving all Indian tribes westward.

■It was therefore, in substance, agreed in the treaty that the Indians cede to the United States all their rights in the Wisconsin lands (except a small reservation); that the United States set apart for them a permanent home west of the Mississippi upon a tract described by metes and bounds; this land the Indians were to hold in conformity with section 3 of the act of May 28,1830, the tract to be divided among the different tribes, nations, or bands in severalty in proportion to population, with some special provisions as to certain tribes. The United States agreed to protect the Indians in their new home, and agreed that the land “should never be included in any State or Territory of the Union.” The United States agreed to pay certain sums to the different nations and tribes on their removal west. The United States agreed to appropriate 8400,000 for the expenses of removal and also to assist the Indians in various ways in beginniug life in their new home.

The defendants have complied with the specific obligations assumed by them under this treaty to this extent alone: In 1846 they removed some 200 or more Indians to the new reservation (all, apparently, who wished to remove), and paid therefor the sum of $9,464.08; they allotted to 32 of these Indians 10,240 acres of land; in 1867 they secured from the Tonawanda band of the Senecas a release of all their rights under the treaty and in the lands, and paid them for this the sum of $256,000. In no other way, so far as appears, have the United States attempted to carry out their obligations under the treaty of Buffalo Creek.

We have given a concise statement of the situation existing when the treaty of Buffalo Creek was negotiated, as we understand it. Our knowledge of this situation is chiefly gleaned from treaties, their recitals, their appendices, and the official action of duly authorized agents of Government in relation to them. Some further facts appear in the findings, but gener-erally the history of the relations of these tribes to the Government and the situation, political and contractual, in 1838 is deduced from the treaties themselves and their appendices, which we will now examine more carefully.

In 1784 the United States by treaty secured the Oneida and Tuscarora nations in the possession of the lands upon which they were settled, and fixed the boundaries of the lands of the Six Nations, it being agreed by the United States that the Six Nations should be secured in the peaceful possession of the lands they then inhabited east and north of the boundaries fixed.

The stipulations of this treaty were renewed and confirmed in 1789, when the boundary was again described in the same terms as in the treaty of 1784, and the Indians relinquished and ceded to the United States the lands west of the defined boundary. The Mohawks were not parties to the treaty of 1789.

In 1794 another treaty was concluded with the Six Nations, guaranteeing peace and friendship perpetual between the parties, acknowledging the lands reserved to the Oneida, Onondaga, and Cayuga nations in their treaty with the State of New York to be their property, engaging that the United States would never claim the same or disturb them, or either of the Six Nations, nor their Indian friends residing thereon and united with them, in the free use aud enjoyment thereof, and agreeing that the said, lands should remain theirs until they chose to sell the same to the United States, who “have the right to purchase.” The land of the Seneca Nation is also described by metes and bounds in this treaty, acknowledged as their property, confirmed as theirs until they chose to sell to the United States, who “ have the right to purchase.” The United States having thus described and acknowledged the lands of the Oneidas, Onondagas, Oayugas, and Senecas, and engaged never to claim the same nor disturb the Sis Nations in the free use and enjoyment thereof, the Six Nations, upon their side, agreed never to claim any other lands within the boundaries of the United States.

In 1810 some of the New York Indians petitioned the Presi-' dent for leave to purchase reservations of their Western brethren, with the privilege of removing to them and occupying them. Thereupon, with the approbation of the President, land at Green Bay, Wis., was bought by them from the Menomonies and Winnebagoes.

Eleven years later the Menomonies ceded to the Stockbridge, Tuscarora, St. Regis, and Munsee nations, for a small money consideration, two tracts of land in Wisconsin. The title to these tracts was confirmed by the President in March, 1823.

Later, Indians belonging to the Oneida, St. Regis, Munsee, and Brothertown tribes moved to the Wisconsin lands, and questions arose which resulted in the .treaty of 1831.

In this treaty (7 Stat. L., p. 342) the Menomonies, after denying that they had sold any lands, make the following statement :

“ For the purposes, therefore, of establishing the boundaries of their country and of ceding certain portions of their lands to the United States, and in order to secure great and lasting benefits to themselves and posterity, as well as for the purpose of settling the long-existing dispute between themselves and the several tribes of New York Indians who claim to have purchased a portion of their lands, the undersigned * _ * * stipulate and agree with the United States as follows,” etc. It will be noted that the agreement is with the United States; that any rights in the New York Indians to Menomonie lands are denied (see Article I); but the Menomonies do agree, at the solicitation of the President, that such lands, within certain boundaries, as he may direct, “ may be set apart as a home to the several tribes of the New York Indians who may remove to and settle upon the same within three years from the date of this agreement.”

Further on in the same article occurs this paragraph:

“ The country ceded to the United States for the benefit of the New York Indians contains by estimation about 500,000 acres. * * * Asitis intended for a home for the several tribes of the New York Indians who may be residing upon the lands at the expiration of three years from this date, and for none others, the President of the United States is hereby empowered to apportion the lands among the actual occupants at that time. * * * And if at the time oi such apportionment any lands should remain unoccupied by any tribe, of New York Indians, such portion as would have belonged to such Indians had it been' occupied shall revert to the United States. * * * It is distinctly understood that the lands hereby ceded to the United States for the New York Indians are to be held by those tribes under such tenure as the Menomonie Indians now hold their lands, subject to such regulations and alteration of tenure as Congress and the President of the United States shall from time to time think proper to adopt.”

For this “ cession to the United States for the benefit of the New York Indians” the sum of $20,000 was to be paid. It was also stipulated that-such part of the treaty as relates to the New York Indians should be immediately submitted to them, and if they refused to accept the provision made for their benefit and to move to the lands set apart for them on the west side of Fox River, that their immediate removal from the Menom-onie country be directed. (Ibid., p. 345.)

Nine days later (February 17, 1831) an amendment to the treaty was signed, induced by certain reasons, one of which was “to make unlimited the time of removal and settlement upon these lands by the New York Indians, but to leave both these matters discretionary with the President of the United States;” so it was agreed that such part of the first article of the treaty as limits the removal and settlement of the New York Indians to three years shall be altered so that the President shall prescribe the time for removal and settlement. No limit is put upon that time.

To the arrangement made by this treaty the New York Indians assented, and thereafter the title to the land described in the treaty has been thus recognized by the Congress-and the President as in the New York Indians — in the treaty with the Menomonies of September 3, 1836; in the treaty with the Stockbridges and Munsees of September 3, 1839, and in the treaty with the Tonawanda band of Senecas of November 5, 1857.

It therefore appears that prior to February, 1831, the plaintiffs, with the approbation of the Government, bad in legal effect purchased from the Menomonie and Winnebago Indians certain rights in Wisconsin lands; that questions had arisen between them and the Menomonies which were finally settled by a treaty between the Menomonies and the United States, ratified in 1832; that this treaty contained a provision securing to the New York Indians, in consideration of $20,000 paid by the United States, 500,000 acres of land at Green Bay, on condition that they should remove to the same within three years or such reasonable time as the President of the United States should prescribe; and the United States set apart out of another tract of land, acquired by the same treaty, three townships for the Stockbridge, Munsee, and Brothertown tribes. It further appears that in January, 1838, no substantial number of the plaintiffs had removed to the Wisconsin lands, but they had been prevented from doing so by reasons accepted as sufficient by the President. (Treaty of 1838, vol. 7, Stat. L., p. 550.) Prior to this date, however, some of the New York Indians had applied to the President to take their Green Bay lands and provide them a new home in the Indian Territory. Pursuing the Government policy of removing the Indians to the west of the Mississippi, the President acted upon this application; the treaty of Buffalo Creek, dated January 15, 1838, was signed, and after amendment was consented to and proclaimed.

The treaty of Buffalo Creek provides (in consideration of certain premises and of the covenants contained in the treaty itself, to be performed by the United States) that the New York Indians cede and relinquish to the United States all their right, title, and interest in and to their Green Bay lands (excepting a small reservation), and in consideration of this cession and relinquishment the United States, in and by the treaty, agree and guarantee as follows:

First. To set apart, as a permanent home for the plaintiffs, a certain tract of country west of the Mississippi Biver (described by metes and bounds), to include 1,824,000 acres of land, to be held in fee simple by the said tribes or nations of Indians by patent from the President of the United States, in conformity with the provisions of section 3 of the act of Congress of May 28, 1830, entitled “An act to provide for an exchange of lands with the Indians residing in any of tlie States and Territories and for their removal west of the Mississippi, the same to be divided among' the different tribes, nations, or bands in sever-alty,” it being understood that the said country was intended as a future home for the following tribes: The Senecas, Ouon-dagas, Cayugas, Tuscaroras, Oneidas, St. Eegis, Stockbridges, Munsees, and Brothertowns; and was to be divided equally among them, according to the number of individuals in each tribe (as set forth in a schedule annexed to the treaty and designated as Schedule A), on condition that such of the plaintiffs as should not accept and agree to remove to the country set apart for them within five years, or such other time as the President might from time to time appoint, should forfeit to the United States all interest in the lands so set apart. The following is the Schedule A :

Census of the New York Indians, as talcen in 18S7.
Number residing on the Seneca reservations:
Senecas. 2,309
Onondagas. 194
Cayugas. 130
2,633
Onondagas at Onondaga. 300
Tuscaroras. 273
St. Eegis in New York. 350
Oneidas at Green-Bay. 600
Stockbridges. 217
Munsees. 132
Brothertowns. 360

Second. The United States agreed to protect and defend the plaintiffs in the peaceable possession and enjoyment of their new homes and to secure their right to establish their own government, subject to the legislation of Congress respecting trade and intercourse with the Indians.

Third. The United States agreed that the lands secured to plaintiffs by the treaty should never be included in any State or Territory of the Union.

Fourth. The United States agreed to pay to the several tribes and nations of Indians hereinafter mentioned, on their removal West, the following sums respectively, namely: To the St. Eegis tribe, $5,000; to the Seneca Nation, the income annually of $100,000, being part of the money due said nation for lands sold by them in New York, and which sum they authorized to be paid to the United States; to the Cayugas, $2,500 cash and tbe annual income of $2,500; to the Onondagas, $2,500 cash and the annual income of $2,500; to the Oneidas, $6,000 cash, and to the Tuscaroras, $3,000.

Fifth. The United States agreed to appropriate the sum of $400,000, to be applied from time to time by the President of the United States for the following purposes, namely: To aid the plaintiff's in removing to their new homes and supporting themselves the first year after their removal; to encourage and assist them in being taught to cultivate their lands; to aid them in erecting mills and other necessary houses; to aid them in purchasing domestic animals and farming utensils and in acquiring a knowledge of the mechanic arts. By supplemental article the St. Regis Indians assented to the treaty, adding this stipulation, viz:

“And it is further agreed that any of the St. Regis Indians who wish to do so shall be at liberty to remove to the said country at any time hereafter within the time specified in this treaty, but the Government shall not compel them to remove.”

The treaty of January 15, 1838, as amended by the Senate June 11, 1838, was assented to September 28, 1838, by the Seneca tribe of New York Indians; August 9, 1838, by chiefs of the Oneida tribe; August 14,1838, by the Tuscarora Nation residing in New York; August 30, 1838, by Cayuga Indians residing in New York; October 9,1838 (with the reservation above noted), by the St. Regis Indians residing in New York; August 31, 1838, by the Onondaga tribe of Indians on the Seneca reservations in the State of New York.

The date of the acceptance of the treaty as amended by the Senate June 11, 1838, by the following tribes: Onon dagas at Onondaga, Oneidas at Green Bay, Stockbridges, Mnnsees, Brothertowns, does not appear, but the court is of opinion, and so holds, that they did accept, and this for the following reasons:

The Senate, after the treaty had been sent to them, resolved that it be ratified, provided, among other things, that the ratification have no effect until the treaty with the Senate amendments be submitted and explained to each of the tribes or bands separately and they have given their free and voluntary consent thereto; that as to those assenting the treaty take effect; .as to the others they should cease to be parties to it, and the President should thereupon make a proportionate reduction from the $400,000 fund and the quantity of land provided for west of tbe Mississippi. Later, when tlie treaty was again before the Senate, a resolution was passed which in substance provided that when the President should be “satisfied that the assent of the Seneca tribe of Indians has been given to the amended treaty” with the New York Indians according to the first resolution, then the President might proclaim the treaty and carry it into effect. It is apparent at this point that, except the Senecas, all the New York Indians in the Senate’s opinion had assented to the amended treaty. This second resolution was adopted March 2, 1839. A year later (March 25, 1840) the Senate passed this resolution:

“That in the opinion of the Senate the treaty between the United States and the Six Nations of the New York Indians, together with the amendments proposed by the Senate of the 11th of June, 1838, have been satisfactorily acceded to, approved by said tribes, the Seneca tribe included, and that in the opinion of the Senate the President is authorized to proclaim the treaty as in full force and operation.”

Thereupon followed the President’s proclamation, wherein we find the following recitals:

“Whereas a treaty was made and concluded at Buffalo, * * * by * * * a commission on the part of the United States and the chiefs, headmen, and warriors of the several tribes of New York Indians assembled in council; and whereas the Senate did * * * advise and consent to the ratification of said treaty with certain amendments; * * * and whereas the Senate did [pass the resolution of March 25, 1840 (supra)]: Now, therefore, be it known that I, Martin Yan Burén, President of the .United States of America, do [pursuant to the two Senate resolutions (supra)] accept, ratify, and confirm said treaty, and every article and clause thereof, * * * [dated April 4th, 1840].”

It therefore appears that the question of assent on the part of all the parties was maturely considered by the treaty-making power at the time, and that piower in both its branches was convinced, and so decided, that all the New York Indians had assented to the treaty as amended. Behind that authoritative decision we are not disposed to look, even if we have the power to do so.

That we have not the power has already been thus decided:

An objection was taken on the argument to the validity of the treaty on the ground that the Tonawanda band of the Seneca Indians was not represented by the chiefs and headmen of the batid in tbe negotiations and execution of it. But the answer to this is that the treaty, after being executed and ratified by the proper authorities of the Government, becomes the supreme law of the land, and the courts can no more go behind it for the purpose of annulling its effect and operation than they can go behind an act of Congress. (Fellows v. Blacksmith, 19 Howard, p. 372.)

Further, the United States, having decided that the treaty was properly executed, can not now say, in this action, that the Indians did not assent to it.

While this treaty of 1838 was being negotiated, the Six Nations had a valuable interest of some, kind in many acres of land in the State of New York. The nature of this interest is not important in this case ; it is enough for our purposes that it had value.

The Indians had also an interest in lands in Wisconsin, the technical legal character of which it may be difficult to define in the language of the common law, but which afforded substantial consideration for any contract with the Government.

It does not seem to us necessary to examine the quality or value of their rights in these lands. This question of the Indian tenure has been so frequently the subject of judicial, legislative, and executive consideration and determination that we can subserve no useful purpose by reexamining and discussing it. Sufficient for the purpose of this action is it that the Indians had substantial rights to barter in any contract they might make with the Government in regard to the surrender of any part of their tenure; and in agreeing to move west of the Mississippi and to surrender their Wisconsin rights the Indians furnished a sufficient consideration for the contract of 1838. That agreement is sustained as a valid agreement, having all the necessary elements of a binding contract. It has long been decided that treaties between the Government and the Indians are to be treated as contracts. (Foster v. Neilson, 2 Peters, p. 314; Headmoney Cases, 102 U. S., p. 540.) The amount and sufficiency of the consideration it is no part of our duty to consider.- W e should not and we can not decide whether the bargain was more advantageous to the plaintiffs or to the defendants. No fraud is shown by the plaintiffs, nor undue influence, nor intimidation, nor mistake. It only remains for us to see whether any rights secured by the treaty have been violated.

We reach now the main point in this litigation, which substantially turns upon the duties imposed by the provisions of the treaty which set apart certain lands in Kansas for plaintiffs, to be divided equally among them, according to a certain schedule, on condition that such of them as shall not accept and agree to remove to the country set apart for them within five years, or such other time as the President may from time to time appoint, shall forfeit to the United States all interest in the lands set apart; upon the provisions which contain an agreement that the United States shall protect and defend the plaintiffs in their new homes, and secure their right to establish their own government, and upon the provisions which stipulate that the Kansas lands secured by the treaty shall never be included in any State or Territory of the Union; upon the provisions which promise to pay a certain fixed sum to each of several of the tribes on their removal West, and to appropriate $400,000 to be applied to aid plaintiffs in removing, to support them for a year after removal, and to aid them in various ways.

The President has fixed no time for removal; few of the Indians have been removed; the lands secured to plaintiffs by the treaty have become part of the. State of Kansas, turned into the public domain, surveyed and sold, and a small part only of the appropriation of $400,000 has been made.

There was one exception to this general statement: In 1845 Abram Hogeboom represented to the Government that a number of the New York Indians desired to remove to the Kansas lands. To aid in the accomplishment of this wish, Hogeboom was appointed special agent of the Government. He reported 271 as mustered for emigration. Some of these did not leave New York, and 191 only arrived in Kansas. This was in June, 1846. Later, 17 other Indians arrived; 62 Indians are known to have died and 17 to have returned to New York. Of all these Indians, only 32 received patents or certificates of allotment of any of the lands mentioned in the first article of the treaty of Buffalo Greek, the allotment being at the rate of 320 acres each, or 10,240 acres in all.

The Kansas lands, then, have been sold or otherwise disposed of by the Government for a consideration, and the Ton-awandabandof the Senecas alone of all the New York Indians have received money compensation for a failure, real or alleged, on the part of the United States to fulfill their part of the contract of 1838. To that band has been paid, by direction of the Congress, a considerable sum upon the consideration of the release by them of claims upon the United States to the lands west of the State of Missouri, of all claim and right to be removed thither, for support and assistance after removal, and all other claims against the United States under the treaties of 1838 and 1842. In addition to this payment to the Tona-wandas, $9,464.08 was expended in the removal to Kansas of the two hundred or so Indians above mentioned, and the substantial result of the transaction is that the New York Indians remain in New York; that they have lost the Kansas lands, and have received from the defendants in this action, the United States, some lands in Wisconsin, the sum paid the Tonawandas, the sum paid in the removal of the Hogeboom band, and the relatively small grants in Kansas.

It is contended that the Indians by their quiescent attitude in not demanding a transfer west, or in the active opposition of the tribes to such a transfer, have forfeited any rights they may have had in the Kansas lands. Upon the following article of the treaty this contention substantially rests:

“Article 3. It is further agreed that such of the tribes of the New York Indians as do not accept and agree to remove to the country set apart for their new homes within five years, or such other time as the President may from time to time appoint, shall forfeit all interest in the lands so set apart to the United States.” (7 Stat. L., p. 552.)

The emigration west was to take place within five years, or such other time as the President might appoint, and might appoint, not at any fixed period, not once for all, but “from time to time.” The intent, then, of the article was not that there should be a wholesale emigration of the tribes, but that the emigration should occur at convenient periods, in such way as the President, in his wisdom, might see fit to direct, either within five years or later. The subject-matter of the removal was left to the discretion of the President, and this discretion was not limited to a period of five years, nor to any other period. As to this nothing can be said which would be clearer than the words of the treaty, “ agree to remove * * * within five years, or such other time as the President may from time to time appoint.”

It therefore seems to us unimportant when the five years began to run, but as matter of interest it may be noted that the treaty was first proclaimed April 4,1840. It was after-wards amended aud again proclaimed August 26, 1842, while prior to November 24,1845, some of the Indians had applied to the War Department, under whose care they then were, for the proper steps tobe taken for their emigration. Prior to Novem-. ber, 1845, the Department had not deemed it expedient to enter into any arrangement for this purpose nor until it was assured that a sufficient number to justify the expenditure incident to the appointment of an agent was prepared to remove.

The treaty of 1838 was designed to release the Eastern lands from Indian tenure and to remove the Indians into a country not then settled by whites. The Wisconsin lands were becoming a matter of concern to the Government in the face of emigration westward, and until the Indian tenure (whatever may have been its quality) was extinguished these lands were debarred from settlement. In the removal of the Indians west the defendants had a political and no financial interest, for they had no property rights in the plaintiffs’ New York lands and acquired none.

It was the right of the Government, given it expressly by treaty, to cause the Indians’ removal; but it never attempted to enforce that right either by fixing a time for removal or by fulfilling the obligation imposed upon it by the fifteenth article, to appropriate $400,000 to be applied by the President for certain purposes, the first of which was, “to aid them [the Indians] in removing to their homes and supporting themselves the first year after their removal.” Many of the Indians did not wish to go to the new country; it may be assumed that without Government aid, by way not only of money but in counsel and leadership, they could not go; it may well be doubted whether these Indians had a right to make the pilgrimage to Kansas by their own initiative, without the President’s permission, and without the protection and care of Government agents. The duty of protection was imposed upon the Government, the relations were those of a superior to an inferior, the parties were not on equal footing, “and that inequality is to be made good by tbe superior justice wbicb looks only to tbe substance of tbe right without regard to technical rules framed under a system of municipal jurisprudence formulating tbe rights and obligations of private persons equally subject to tbe same laws.” (Choctaw Nation v. United States, 119 U. S., pp. 27, 28, and cases cited.)

We have already seen that tbe Supreme Court bolds that no time was fixed for removal (Fellows v. Blacksmith, supra) where tbe court said: “We hold that tbe performance of tbe conditions of tbe treaty was not a duty that belonged to tbe grantees, but to tbe Government, under tbe treaty.”

It is urged that under tbe third article (of tbe treaty of 1838) tbe action, or rather nonaction, of tbe Indians has worked a forfeiture of their Kansas interests. That article provides that those tribes who do not “accept and agree” to remove, and to remove withiD five years or such other time as tbe President may from time to time appoint, shall forfeit all interest in tbe lands. If we are to be purely technical, then there is no forfeiture, for two reasons, first, that all tbe tribes agreed to tbe treaty, hence all accepted it and agreed to remove; and second, tbe President has not yet fixed any time or times for such removal. Beyond this, however, is tbe other point that article 15, wbicb should be read with article 3 (as it relates to tbe same subject-matter), requires tbe United States to provide tbe funds for this wholesale removal, wbicb they have never done in sufficient amount.

A forfeiture at most could be based only upon a refusal by tbe Indians to emigrate, and we do not find that such a refusal was affirmatively made, although undoubtedly and naturally there was a strong disinclination on tbe part of tbe Indians to leave their New York homes for a distant and unknown country. “An interpretation wbicb creates a forfeiture is not to be favored” (Jackson v. Toppin, 1 Wendell, p. 388), and especially where a party to an agreement for an exchange of lands has secured tbe first possession of the premises assigned to him in tbe contract (1 Barbour, p. 634).

Tbe Government could have enforced tbe removal; but it not only took no step to that end, but failed to provide tbe means required of it by tbe treaty to pay for tbe removal; it has been quiescent, tacitly assenting to tbe existing conditions, and tbe Indians have not urged a removal.

When this action was begun, and for years before, the United States were unable by reason of their own acts to carry out the agreement of 1838. The Government had disposed of the lands in Kansas; these have for many years been occupied by settlers, and villages and towns have sprung up upon them. Under such circumstances any formal demand at this time by the Indians for a return of the Kansas lands would be a vain and useless form. The lands they can never recover, and to them the Indians can never be removed. Their only remedy is in a money judgment if they have been wronged. The value of the land as fixed in that treaty we have found as the reasonable value in this case.

As any rights to be enforced in this action rest principally upon the treaty of Buffalo Creek, we must consider that instrument somewhat more fully.

As to the parties to the treaty some question has been made. In the amendments to the treaty made by the Senate July 11, 1838, the Indians are spoken of as “ the New York Indians of the several tribes described in the foregoing article,” and the tribes described in the “foregoing article” (the third article) are the “several tribes described in the foregoing article,” to wit, the second article. Turning now to the second article we find the grant to be to “all the New York Indians now residing in tlie State of New York, or in Wisconsin, or elsewhere in the United States, who have no permanent homes,” and the article thus concludes:

“It is understood and agreed that the above-described country (the Kansas lands described as situated directly west of the State of Missouri) is intended as a future home of the following tribes, to wit: The Senecas, Onondagas, Cayugas, Tuscaroras, Oneidas, St. Regis, Stockbridges, Munsees, and Broth-ertowns, residing in the State of New York, and the same to be divided equally among them according to their respective numbers, as mentioned in a schedule hereto annexed.”

Further on in the treaty we find special provisions made for the following tribes, or special mention made of them, to wit: The Oneidas, Senecas, St. Regis, Cayugas, Onondagas residing on the Seneca Reservation, Oneidas residing in the State of New York, and the Tuscaroras, while the treaty is signed by representatives of the following tribes: Senecas, Tuscaroras, Oneidas residing in the State of New York for themselves and tbeir parties, Oneidas at Green Bay, St. Regis, Oneidas residing on the Seneca Reservation, principal Onondaga warriors in bebalf of themselves and the Onondaga warriors, Oayugas, principal Cayuga warriors in behalf of themselves and the Cayuga warriors; and in the census annexed to the treaty (as Schedule A) are named the Senecas, Onondagas, Oayugas, Onondagas at Onondaga, Tuscaroras, St. Regis in New York, Oneidas at Green Bay, Oneidas in New York, Stockbridges, Munsees, and Brothertowns, while Schedule C is applicable only “to the Onondagas and Oayugas residing on the Seneca reservations.”

Later (February 13, 1838, 7 Stat. L., 561) the St. Regis Indians “having heard a copy of said treaty (of Buffalo Creek) read by Ransom H. Giilet, the commissioner who concluded that treaty on the part of the United States, and he having fully and publicly explained the same * * * the St. Regis who are embraced in its provisions do hereby assent to every part of the said treaty and approve the same.”

August 9,1838, “the undersigned chiefs of the Oneida tribe of New York Indians” gave their free and voluntary assent to the treaty of Buffalo Creek “as amended by the resolution of the Senate of the United States on the 11th day of June, 1838.”

In the following autumn (September 28,1838) the “chiefs of the Seneca tribe of New York Indians residing in the State of New York” “ gave their free and voluntary assent to the foregoing treaty (of Buffalo Creek) as amended by the resolution of the Senate of the United States on the 11th day of June, 1838, and to our contract therewith.” (7 Stat. L., 561.)

Similar consents appear in the statutes (7 Stat. L.) as given by the “ sachems, chiefs, and headmen of the Tuscarora Nation of Indians residing in the State of New York” (ibid., p. 563); by “the chiefs and headmen of the tribe of Cayuga Indians residing in the State of New York” (ibid.); by the “ sachems, chiefs, and headmen of the ‘American party’ of the St. Regis Indians residing in the State of New York,” who prefaced their assent with this condition: “The St. Regis Indians shall not be compelled to remove under the treaty or amendments” (dated October 9,1838, ibid., p. 564); and (August 31, 1838) by the “chiefs, headmen, and warriors of the Onondaga tribe of Indians residing on the Seneca Reservation in the State of New York.”

We tlius find specifically mentioned in tbe treaty or in its appendixes tbe following Indian tribes: Senecas, Onondagas, Onondagas residing on tbe Seneca Eeservation, Onondagas at Onondaga, Cayugas, Cayugas residing on tbe Seneca Eeservation, Cayuga Indians residing in the State of New York, Tuscaroras, Tuscaroras residing in tbe State of New York, Oneidas residing in New York, at Green Bay (Wisconsin), and on tbe Seneca Eeservation; Oneidas, St. Eegis, St. Eegis in New York, tbe American party of tbe St. Eegis residing in tbe State of New York; Stockbridges, Munsees, Brotbertowns.

It appears, then, as a fact that tbe Indians bad full notice ©f tbe treaty and assented to it, thus supporting tbe conclusion reached by tbe President and tbe Senate, a conclusion wbicb, as we bave stated, is conclusive upon us.

It is argued in substance that tbe payment by authority of Congress of a considerable sum of money to tbe Tonawanda tribe involves some admission by tbe defendants of plaintiff’s position, and is in effect an acknowledgment of a right wbicb would lead to plaintiff’s recovery in this cause.

Legislative action is not necessarily a precedent for judicial action, for tbe legislature has a different quality of responsibility and power from tbe courts. Tbe Congress may correct injustice in a matter entirely without judicial jurisdiction, and this right it often exercises. We, however, are limited in this case to tbe grant of jurisdiction given by the special act. Beyond that we can in no event go. If that act fail to give us sufficient power to remedy a wrong (if one bave been done) and to remedy it by judicial method, recourse must again be bad to the legislature.

Tbe Tonawanda appropriation may bave a bearing upon tbe construction of tbe jurisdictional act if that act be obscure, but it does not necessarily show that because tbe Congress believed tbe Tonawandas deserved indemnity therefore tbe other tribes did so equally deserve it. Such an inference is indeed negatived by tbe fact that tbe Congress, while compensating tbe Tonawandas, failed to make any payment to the plaintiffs herein and sent them twice to this court (under different grants of jurisdiction) to prosecute their alleged rights — all this long after tbe Tonawanda appropriation bad been made. The differing action of the Congress in tbe two cases (this case and that of tbe Tonawandas) shows that body to bave been convinced that the Tonawandas were injured, and not to have been convinced that these plaintiffs were injured. As to that the Congress preserved an “open mind.” In the solution of that question they have invoked judicial aid. '

There is a difference in the cases, however, to which as a matter of speculative interest it may be well to refer, for it may have had its influence upon the course pursued.

The treaty of 1842 (7 Stat. L., 588) between the United States and the Senecas embodies what is therein called an indenture between Thomas Ludlow Ogden and Joseph Fellowes and the chiefs and head men of the Seneca Nation of Indians. In the second article of this indenture the Senecas grant to Ogden and Fellowes, in consideration of certain agreements on their part, “ the whole of the said two tracts of land severally called the Buffalo Creek Reservation and the Tonawanda Reservation, and all the right and interest therein of the said nation.” In the third article it is stipulated that for “the sale and release of the said four tracts of land there shall be paid to the said nation a just consideration sum for the release of the two tracts hereby confirmed to the said Ogden and Fellowes, to be estimated and ascertained as follows.” Briefly, the value of the Indian title and improvements was estimated at $202,000, of which $100,000 was fixed as the value of the title to the four tracts, excluding improvements, and $102,000 was fixed as the value of the improvements on them; of this Ogden and Fellowes were to pay to the Senecas “ such proportion as the value of all the lands within the said two tracts called the Buffalo Creek and Tonawanda reservations shall bear to the value of all the lands within all the said four tracts,” with a similar provision as to the money paid for improvements; the amount of the consideration moneys (Article IY) to be determined by arbitrators, one to be named by the Secretary of War and one by Ogden and Fellowes, who were also to award the amount to be paid to each individual Indian “ out of the sum which, on the principles above stated, they shall ascertain and award to be the proportionate value of the improvements on the said two tracts called the “Buffalo Creek Reservation and the Tonawanda Reservation;” provision is made for an umpire. The arbitrators’ report is to be made in duplicate; one is to be filed “ in the office of the Secretary of the Department of War,” the other given to Ogden and Fellowes. - In the fifth article it is agreed that possession of tlie forest or unimproved portion of tlie land shall be given to Ogden and Fellowes within a certain time after the arbitrators’ report had been filed and of the improved portion within two years thereafter: uProvided always, That the amount to be so ascertained and awarded as the proportionate value of the said improvements shall, on the surrender thereof, be paid to the President of the United States, to be distributed among the owners of the said improvements according to the determination and award of the said arbitrators in this behalf: And provided, further, That the consid eration for the release and conveyance of the said lands shall, at the time of the surrender thereof, be paid or secured to the satisfaction of the said Secretary of the War Department, the income of which is to be paid to the said Seneca Indians annually,” and the article concludes with a provision for individual Indians surrendering land and improvements prior to two years. The sixth article relates to Indians desiring to remove from the State of New York “ under the provisions of any treaty made or to be made,” and that the interest or income of their share of the said funds, etc., shall be paid to the Indians in their new homes, and there are provisions as to any future sale of the Cattaraugus and Allegany tracts.

Defendants’ counsel argues that the Tonawandas refused to allow the appraisal to be made, and this appraisal was a duty which fell upon the Government, not Ogden and Fellowes; this the Supreme Court have decided (Fellowes v. Blacksmith, 19 How., 366-372); it then should have been speedily performed, to enable the Tonawandas to emigrate West, had they so desired; “hence, the United States could not, as against them, claim their share of the land in the West or of the fund of $400,000 on account of their nonremoval within that period. The Tonawandas had therefore a right, even in 1857, under the treaties of 1838 and 1842, to call upon the United States to aid in their removal to the Kansas lands, and to perform its other obligations as to their settlement there, or else to compromise for a reasonable sum. The latter course was adopted, and full satisfaetion made for the error of judgment on the part of the United States.”

Whether this argument be sufficient or not we need not determine; sufficient is it for us that the Congress paid the Tonawandas and did not pay the other New York Indians, but. sent them here under the act of January 28, 1893, wherein is found no admission of any Indian rights.' This is the governing clause of that act:

“That jurisdiction is hereby conferred on the Court of Claims to hear and enter up judgment as if it had original jurisdiction of said case, the claim of the New York Indians, being those Indians who were parties to the treaty of Buffalo Creek, New York, on the fifteenth of January, eighteen hundred and thirty-eight, against the United States growing out of the alleged unexecuted stipulations of said treaty on the part of the United States.”

This, with a waiver of the statute of limitations, is the grant of jurisdiction. No specific mention or exception is made of the Tonawandas, and we can only infer that the Congress found a reason for paying them which does not exist as to the other Indians.

This case has a complicated look at first, for the record is full of petitions and other documents relating to a discussion which began many years ago. In fact, the question is a simple one when extraneous matter is stripped from it.

In the first place, it is to be kept clearly in sight that for the promises contained in the treaty of Buffalo Creek the United States were to receive from the Indians no consideration in money or New York land, and (except in the slight emigration West above described) have received no consideration whatever from the Indians.

The defendants’ motive for the treaty was political. They wished the plaintiffs to move West. The plaintiffs have not moved West and defendants have failed in their purpose. This is the substantial condition to-day, for the slight and unimportant Hogeboom party may be eliminated from the transaction, as the movement simply shows, first, that some few Indians were willing to go to Kansas and were taken to Kansas by the Government, whence many of them returned j second, that the mass of the Indians wished to remain in New York, or at least evinced no desire to leave it.

The search for facts in this case has been somewhat beclouded by the movements of small parties dr by the action of individuals of a race not familiar with governmental methods, which did not have adequate form of political expression, and which was temporaily influenced by the greater sagacity of the white men with whom they dealt. By this we do not mean to intimate that they were improperly influenced or influenced by unfair means. The main and important object of tlie defendants was to move the Indians West before the advancing wave of Anglo-Saxon civilization, and the endeavor to accomplish this object (believed to be beneficent for all parties) led, first, to the grant of the Wisconsin lands; that experiment havingslight success, a second effort was made in 1838 with the Kansas lands, and that substantially failed.

The principal facts are that the Indians did not wish to go West, the Government did not force them to do so, and they are in New York to-day. Some individuals or bands went to Wisconsin or Kansas, but of them there is no question here, for they received land as promised. The treaty with the Menomonees promised Wisconsin lands in return for emigration; the treaty of Buffalo Creek promised Kansas lands for emigration; but the New York Indians did not emigrate, and of the New York lands the Government of the United States never received from the Indians an acre, and as the Indians did not leave the State the United States has received no substantial benefit from the plaintiffs and no money value whatever.

When it is remembered (and this must be remembered) that the United States did not acquire the New York lands, nor wished to do so; that it never was intended (except through Indian emigration westward) that the United States should ever receive anything by way of consideration for the treaty of Buffalo Creek, much of the difficulty which seemed to surround this case disappears.

The land in New York was disposed of through the States of New York and Massachusetts in negotiation with the Indians; in these transactions the United States were in any way only indirectly interested, and not at all financially interested. Tne Indian lands in New York did not come into the possession of the United States under the treaty of 1838 or otherwise, and it was never intended that they should do so.

The Buffalo Creek treaty has vanished, leaving no rights or duties behind it in so far as this litigation is concerned. It said in substance to the Indians, If you wish to go West notify us and we will take you and provide for you; o.r, to take the other argument, it empowered the President to order the Indians West if he deemed it wise to do so.

The few Indians who wished to go to Kansas were taken there and given their land, npon which they did not care to remain, and no more Indians tried to follow them. The Indians who wished to go to Wisconsin were there given lands as promised.

The whole transaction, set forth in this opinion and in the findings, was simply an endeavor on the part of the United States to move the Indians out of New York, and this endeavor failed for the one reason that the Indians did not wish to go— and they did not go. Except for the slight emigration to Wisconsin and the still slighter one to Kansas, where, in both instances, the Indians received their lands, there was no desire shown to leave New York.

The treaty failed. It was not rescinded; it was not violated; but it did not accomplish its full purpose. It did not remove the tribes West, but it removed as many of the Indians as wished to go — a very insignificant minority.

Perhaps the President had the power and technical right under the treaty of Buffalo Greek to surround the Indians with troops and force them away from their homes against their will, but it was not a power he must use, and it was not a power which the Indians wished him to use.

It can not be doubted that if the plaintiffs in this action really wished to avail themselves of the treaty grants the Washington Government would have heartily aided a westward emigration, thus clearing for settlement by the approaching immigrant the fertile lands of central New York. But the Government was not prepared to resort to harsh measures, or, against his will, to drive the Indian from his home, so it made a bargain with him in 1838, and that bargain it fulfilled in moving the Hogeboom party, for in doing this it moved all the Indians who then or since (so far as is shown) have ever wished to leave New York for the Kansas lands.

This is not a case in which the Indian has been harshly treated, where his rights have been invaded, or where he has been sacrificed to the Caucasian. On the contrary, he appears to have received the greatest forbearance; in the face of advancing white settlement he has been allowed by the United States to make his own terms with the States and with the land companies or their representatives or assignees, and he has been allowed to remain at home, while provision was made both in Wisconsin and Kansas for his removal westward had he wished to leave New York.

As to the character of the transactions which led to the sale of the lands in New York we have nothing to do further than to note that the United States Government was not a party to them except in one case, where it in terms affirmed an arrangement made with Ogden and Fellowes (acting under State authority) by the Indians.

We have no reason to doubt that the United States took to Kansas all the Indians who wished to go there, and thus substantially fulfilled their share of the contract. Some Indians went to Wisconsin, as they had a right to do, and there received land as was iiromised. The mass of the Indians remained in New York, as they preferred to do and as they had a right to do, and sold their lands or now remain upon them.

The United States took from the Indians no lands in New York; they offered lands in Wisconsin and Kansas, and so far as the Indians wished it they were moved to those lands and took possession of them.

The purpose of the United States in negotiating the treaty of Buffalo Creek has substantially failed, but plaintiffs have not been injured by that failure, for the Government (it seems to us) has fulfilled any obligation imposed upon it by the treaties with the New York Indians, so far as the Indians permitted. The whole transaction has been for many years closed; there is shown in this record no reason for reopening it.

Upon the whole case it appears to us that the Indians did not desire to go to Kansas; that the United States did not wish to enforce an emigration, and both parties remained quiescent until the Government decided to appropriate the Kansas lands and to sell it to white settlers. When this had been done the defendants, by their own act, became unable to fulfill any financial obligations imposed upon them by the treaty of Buffalo Creek, but as the Indians had no wish that these obligations should be fulfilled — on the contrary, were much averse to their fulfillment and preferred the then existing situation — no damage to either side can be said to have been inflicted. This conclusion, if it be correct, eliminates the treaty of 1838 from the discussion and brings us to a consideration of the relations and obligations of the parties prior to the conclusion of that agreement.

So far as this action is concerned the rights of the Indians prior to tbe treaty of 1838 were fixed and defined by the treaty with the Menomonees dated February 8,1831. (7 Stat. L., 342.)

One of the considerations of the treaty was stated in the preamble to be to settle “ the long-existing dispute between themselves and the several tribes of the New York Indians, who claim to have purchased a portion of their lands;” and the following provisions iipon that subject are found in the instrument:

The Menomonees protest—

“That they are under no obligation to recognize any claim of the New York Indians to any portion of their country; that they neither sold, nor received any value, for the land claimed by these tribes; yet, at the solicitation of their Great Father, the President of the United States, and as an evidence of their love and veneration for him, they agree that such part of the land described, being within the following boundaries, as he may direct, maybe set apart as a home to tbe several tribes of the New York Indians, who may remove to, and settle upon the same, within three years from the date of' this agreement, viz: [Here is a description of the New York Indian land, as well as of land for a military reservation, etc.] The country hereby ceded to the United States, for the benefit of the New York Indians, contains by estimation about five hundred thousand acres, and includes all their improvements on the west side of the Fox River. As it is intended for a home for the several tribes of the New York Indians who may be residing upon the lands at the expiration of three years from this date, and for none others, the President of the United States is hereby empowered to apportion the lands among the actual occupants at that time, so as not to assign to any tribe a greater number of acres than may be equal to 100 for each soul actually settled upon the lands, and if, at the time of such apportionment, any lands shall remain unoccupied by any tribe of the New York Indians, such portion as would have belonged to said Indians, had it been occupied, shall revert to the United States; that portion, if any, so reverting to be laid off by the President of the United States. It is distinctly understood that the lands hereby ceded to the United States for the New York Indians are to be held by those tribes under such tenure as the Menomonee Indians now hold their lands, subject to such regulations and alteration of tenure as Congress and the President of the United States shall, from time to time, think proper to adopt.”

For this cession the United States, “for the benefit of the New York Indians,” “consented” to pay to the Menomonees $20,000, in four installments of $5,000 each.

In the sixth article of the same treaty (with the Menoinonees, 1831; 7 Stat. L., 342) the Menomonee chiefs request the President that such part of the treaty as relates to the New York Indians—

“Be immediately submitted to the representatives of their tribes. And if they refuse to accept the provision made for their benefit, and to remove upon the lands set apart for them on the wes fc side of the Fox River, that he will direct their immediate removal from the Menomonee country; but if they agree to accept of the liberal offer made to them by the parties to this compact, then the Menomonee tribe, as dutiful children of their Great Father, the President, will take them by the hand as brothers, and settle down with them in peace and friendship.”

An article supplementary to this treaty was agreed to by the United States and the Menomonees, February 17,1831 (7 Stat. L346), the preamble of which states that it has been represented—

“ That it would be more desirable and satisfactory to some of those interested that one or two immaterial changes be made in the first and sixth articles, so as not to limit the number of acres to 100 for each soul that may be settled upon the land when the President apportions it, as also to make unlimited the time of removal and settlement upon these lands by the New York Indians, but to leave both these matters discretionary with the President of the United States.”

To accomplish these objects the first article provides that such part of the first article of the treaty of February 8,1831, as limits the removal and settlement of the New York Indians upon the Wisconsin lands shall be altered and amended so as to read as follows:

“That the President of the United States shall prescribe the time for the removal and settlement of the New York Indians upon the lands thus provided for them; and at the expiration of such reasonable time he shall apportion the land among the actual settlers in such manner as he shall deem equitable and just. And if within such reasonable time as the President of the United States shall prescribe for that purpose the New York Indians shall refuse to accept the provisions for their benefit, or, having agreed, shall neglect or refuse to remove from New York and settle on said lands within the time prescribed for that purpose, that then, and in either of these events, the lands aforesaid shall be and remain the property of the United States, according to said first article, excepting so much thereof as the President shall deem justly due to such of the New York Indians as shall actually have removed to and settled on tbe said lands. Second, it is further agreed that tbe part of tbe sixth article of tbe agreement aforesaid which requires tbe removal of those of the New York Indians who may not be settled on the lands at the end of three years shall be so amended as to leave such removal discretionary with the President of the United States, the Menomonee Indians having full confidence that in making his decision he will take into consideration the welfare and prosperity of their nation.” (See also note on p. 347,7 Stat. L.)

This, then, opened the Menomonee lands to New York Indian settlement during the pleasure of the President, and some of the New York Indians have settled there.'

The situation as to the Wisconsin lands does not seem to us to differ in principle from that of the Kansas lands. They were opened to the defendant Indians for a small money consideration paid by the United States to the Menomonees. Some New York Indians went there, took up the lands, and lived there. The others were free to go, but did not wish to do so; in fact, so averse were they to such an emigration that the Government was led to the endeavor to move them to Kansas, formulated in the treaty of Buffalo Creek, which attempt also failed, leaving the Indians in the State of New York, where most of them are to-day. The Indians who went to Wisconsin, equally with the few who went to Kansas, received the land promised them; the others preferred to remain at home •and sell their New York lands.

There is no reason to apply in this case with any strictness the general principles governing the relations of guardian and ward, which usually much affect the decision of cases between the Indian tribes and the Government, for the plaintiffs herein have been treated with kindness and consideration, and have in no way been injured or disturbed in their rights and privileges.

Petition dismissed.  