
    THE MILLE LAC BAND OF CHIPPEWAS v. THE UNITED STATES.
    [No. 30447.
    Decided May 6, 1912.]
    
      On the Proofs.
    
    The question in this case is simply this: Whether under article 12 of the treaty 11th March, 1863, was there reserved to the Indians a continuing right to occupy the ceded lands “ so long as they shall not in any way interfere with or in any manner molest the persons or property of the whites,” or was there merely a right of occupancy in the nature of a license, terminable at the pleasure of the Government, entitling the actual occupants, and no others, to the value of their restricted occupancy?
    I. To ascertain the legal relations of the six bands of Ohippewas with the United States and with each other, the court examined at length the Treaties 22d February, 1855 (10 Stat. L., p. 1165), 11th March, 1868 (12 id., p. 1249, art. 12), 7th May, 1864 (13 id., p. 693, art. 12), and 13th March, 1867 (16 id., p. 719) ; also the acts 4th July, 1884 (23 id., p. 76, 98), 15th May, 1886 (24 id., p. 44), 14th January, 1889 ( 25 id., p. 642), 22d July, 1890 (26 id., p. 290), 19th December, 1898 (28 id., 576), 27th May, 1898 (30 id., p. 745), 27th May, 1902 (32 id., p. 268).
    II. The proviso to article 12 of the treaty of 3803 declared “that owing to the heretofore good conduct of the Mille Lae Indians they shall not be compelled to remove so long as they shall not in any way interfere with or in any manner 
      
      molest the persons or property of the whites." It reserved to tlie Indians the right to occupy their lands under the conditions named, and was more than a mere license or favor or occupancy at sufferance. A conceded right of occupancy can not be reconciled with the doctrine of a limited tenure by license.
    Eli. The consideration for the proviso to article 12 of the treaty of 1863 was the services rendered to the United States by the Mille Lac Band in refusing to join and in assisting to prevent an Indian uprising in the midst of the Civil War. The language of the proviso can not be interpreted in any other way than- the granting of a right of occupancy under the conditions named.
    IY. The Mille Lae Indians as a band were authorized to bring this suit by the jurisdictional act, 13th February, 1909 (36 Stat. L., p. 619), but the act does not repeal or modify the Act ll/th January, 1889 ( 26 id., p. 642, § 7), which provides that the distribution of funds derived from the sale of Chippewa land shall embrace “ all the Ohippewa Indians in the State of Minnesota."
    
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court:
    I. This claim was referred to tbe court by an act of Congress entitled “An act for tbe relief of tbe Mille Lac Band of Chippewa Indians in tbe State of Minnesota, and for other purposes,” approved February 15, 1909- (35 Stat. L., 619), which reads as follows:
    
      “Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled, That the Court of Claims be, and it is hereby, given jurisdiction to bear and determine a suit or suits to be brought by and on behalf of tbe Mille Lac Band of Chippewa Indians in tbe State of Minnesota against tbe United States on account of losses sustained by them or the Chippewas of Minnesota by reason of tbe opening of tbe Mille Lac Reservation in the State of Minnesota, embracing about sixty-one thousand acres of land, to public settlement under the general land laws of tbe United States; and from any final judgment or decree of tbe Court of Claims either party shall have the right to appeal to the Supreme Court of the United States, and the said cause shall be advanced on the docket of the Court of Claims and of the Supreme Court of the United States if the same shall be appealed: Provided, That upon the final determination of such suit or suits the Court of Claims shall have jurisdiction to decree the fees to be paid to the attorney or attorneys employed by the said Mille Lac Band of Indians, and the same shall be paid out of any sum or sums found due said band or to the Chippewa Indians of Minnesota.”
    II. September 30, 1854 (10 Stat. L., 1109), the United States entered into a treaty with the Chippewa Indians of Lake Superior and the Mississippi.
    On February 22, 1855, the United States entered into a treaty with the Gull Lake, Mille Lac, Sandy Lake, Pokago-min Lake, Babbit Lake, and Bice Lake Bands of Indians, known as the Chippewas of the Mississippi, and the Pillager and Lake Winnibigoshis Bands of Chippewas. This treaty secured to the United States a cession of all the lands belonging to the various bands of Indians mentioned in the State of Minnesota and set apart for them specific reservations mentioned in the treaty. The reservation set apart for the Mille Lac Indians embraced the following fractional townships: 42 north of range 25 west, 42 north of range 26 west, and 42 and 43 north of range 27 west, and also the three islands in the southern part of Mille Lac, containing 61,028.14 acres of land.
    Article 3 of said treaty further provided for the payment to said Mississippi Chippewas of $10,000 in goods to be distributed among their people; also $50,000 in money to enable them to adjust and settle their present engagements, subject to the approval of the Secretary of the Interior; also $20,000 “per annum, in money, for 20 years, provided that $2,000 per annum of the sum shall be paid or expended, as the chiefs may request, for purposes of utility connected with the improvement and welfare of said Indians, subject to the approval of the Secretary of the Interior ”; also $5,000 for the construction of a road from Bum Biver to said Mille Lac Beservation, and a reasonable quantity of land to be plowed and prepared for cultivation in suitable fields at each of the reservations so set apart, not exceeding in the aggregate 300 acres.
    
      Article 4 provided that the Mississippi bands should be permitted to employ their own farmers, mechanics, and teachers, and that the amounts heretofore granted them under former treaties for blacksmiths, tools, farmers, carpenters, etc., should be paid to them as their annuities are paid.
    The lands set aside as the Mille Lac [Reservation were lands which had been ceded to the Government by the treaty of July 29, 1837. (7 Stat. L., 536.)
    III. Prior to August, 1862, the Sioux Indians of Minnesota and the Northwest were hostile to the United States, and engaged in massacres and other open hostilities toward the people of the State and vicinity.' The cause of the Sioux uprising was a universal opinion pervading the entire tribe that the Government had not in good faith complied with its treaty stipulations; the Indians were displeased with the conduct of the Indian traders; they charged unfair payments of annuities and were distinctly hostile to the whole system and management of their affairs as it then prevailed. The Sioux outbreak was extensive, atrocious, and terrible in its consequences. At its inception a series of negotiations were had with Hole-in-the-Day, chief of the Chippewas, to induce bim and his tribe to join in the war. The Chippewas could furnish 4,000 fighting men, which added to the then hostile Sioux would have made a total of 5,300 armed and desperate Indians. Hole-in-the-Day was in sympathy with the hostilities; the Chippewas were generally discontented for the same reasons which impelled the Sioux. While they had theretofore been hostile to the Sioux, the prior hostility was to a considerable extent lost in what the Indians termed their mutual grievances against the Government. Little Crow, chief of the Sioux, endeavored more than once to induce Hole-in-the-Day to join forces with him and annihilate the whites, and the union of their forces was the subject of grave concern to Gov. Ramsay, Commissioner Dole, and all others in authority. Negotiations, concessions, and peaceful overtures were unhesitatingly extended to the Chippewas on behalf of the United States to secure their loyalty. The union was successfully prevented by the conduct of the Mille Lac Indians, together with the Sandy Lake Band, in remaining loyal to the United States.
    
      Shaw-vosh-kung, the chief of the Mille Lac Band of Chippewas, refused to participate in the movement of Chief Hole-in-the-Day, and proceeded with 800 of his band to the relief of Fort Ripley, where Commissioner Dole of the Indian Office and 85 United States soldiers were located. He was advised by Commissioner Dole to return to his reservation, persist in his loyalty to the Government, and use his efforts to induce Hole-in-the-Day to resume a peaceful attitude toward the people. The chief of the Mille Lac Band, by reason of his refusal to augment the forces of Hole-in-the-Day, and his open demonstrations of loyalty to the Government, prevented the uprising contemplated by Hole-in-the-Day and caused the bands to remain at peace.
    This was the “ heretofore good conduct ” constituting the consideration for the proviso to article 12 of the treaties of 1863 and 1864 hereinafter mentioned.
    IV. In Mareh, 1863, Commissioner Dole, in company with the headmen and chiefs of the Chippewa Bands, came to Washington, D. C., and on March 11, 1863, procured their assent to another treaty. (12 Stat. L., 1249.)
    This treaty between the Chippewas of the Mississippi and the United States provided in terms for the cession to the United States of the reservations set apart to them under the treaty in 1855, except one-half section of land which was granted in fee simple to a missionary.
    Article 2 of the treaty provided for the setting apart to the said Chippewas of the Mississippi the reservation which thereafter under subsequent changes in boundary limits made by the treaty of March 19, 1861 (16 Stat. L., 719), became known as the White Earth Reservation, which was 150 miles distant from the reservation set aside to the Mille Lac Indians by the treaty of 1855.
    Article 3 of the treaty provided for the extension of the present annuities of the Indians parties thereto for 10 years beyond the time mentioned in existing treaties; to pay toward the settlement of claims for depredations committed by the Indians in 1862, $20,000; to pay to the chiefs of the Chippewas, $14,000; and to pay the expenses incurred by the legislature of the State of Minnesota in September, 1862, in sending commissioners to visit the Chippewa Indians, $1,338.75.
    
      Article 4 provided for the expenditure of $3,600 in clearing and rendering susceptible to cultivation a certain amount of land on each reservation. For the Mille Lac Band 70 acres was to be so cleared, and out of this sum they were to build for the chiefs of each of said bands a house of a certain description.
    Article 5 provided for the expenditure of $1,000 in the procurement of agricultural implements and tools specifically mentioned, and the employment of two carpenters, two blacksmiths, four farm laborers, and one physician.
    Article 6 provided for the erection and maintenance of a sawmill at a certain place on the reservation and the removal of the agency to a certain place mentioned therein.
    Article 12 provided as follows:
    “ It shall not be obligatory upon the Indians parties to this treaty to remove from their present reservations until the United States shall have first complied with the stipulations of articles 4 and 6 of this treaty, when the United States shall furnish them with all necessary transportation and subsistence to their new homes, and subsistence for six months thereafter: Provided, That, owing to the heretofore good conduct of the Mille Lac Indians, they shall not be compelled to remove so long as they shall not in any way interfere with or in any manner molest the persons or property of the whites.”
    Y. On the 7th day of May, 1864, in the city of Washington, D. C-, the United States entered into another treaty with the Mississippi Chippewas (13 Stat. L., 693), which treaty was substantially the same as the treaty of March 11, 1863, before mentioned.
    Article 1 of this treaty granted one section of land each to Chiefs Hole-in-the-Day, Mis-qua-dace, and Shaw-vosh-kung.
    Article 2 of the treaty continued the White Earth Reservation, changing somewhat its former description.
    The provisions of article 3 of the treaty were similar to those of article 3 'of the treaty of 1863, simply extending the payment of the annuities and the sums therein mentioned for the period of 10 years from the date of the treaty of 1864, and providing $5,000 to be paid to Chief Hole-in-the-Day for the burning of his house and furniture in 1862.
    
      Article 4 of the treaty was the same as article 4 of the treaty of 1868, except a provision for the payment of $7,500 for clearing, grubbing, and planting the amount of land on the reservations mentioned in the same article of the former treaty, and increasing the amount to be expended for the houses to be built for the chiefs to- $5,000.
    Article 5 of this treaty was the same as article 5 of the treaty of 1863, except as to the amount, $1,500 being substituted for $1,000.
    Article 6 of the treaty provided $1,000 for the support of the sawmill provided in the same article of the former treaty and to expend $7,500 on new roads and bridges, and $25,000 for new agency buildings to be located by the Secretary of the Interior for the common use of the Chippewas of the Mississippi.
    Article 12 of the treaty was ^exactly the same as article 12 of the treaty of 1863, with an additional proviso as follows:
    “ That those of the tribe residing on the Sandy Lake Reservation shall not be removed until the President shall so direct.”
    VI. At the time of the execution of the treaty of 1863 and 1864 by the Mille Lac Indians the said band of Indians understood and believed that they were reserving to themselves the right to occupy the Mille Lac Reservation set apart to them by the treaty of 1855.
    On October 2, 1889, a council of the Mille Lac Indians assembled on the reservation set apart to them by the treaty of 1855, was addressed by Senator Henry M. Rice, one of the commissioners who participated in the procurement and execution of the treaty of 1863, who told the Mille Lac Indians that he knew that it was understood by them that they were reserving their reservation, that he so understood the meaning of the treaty and assisted in its negotiation with that intent. At the same time and place the chiefs and headmen of the Mille Lac Indians insisted and openly proclaimed that such was their intention in the execution of said treaty. (Ex. Doc. No. 247, H. R,, 51st Cong., 1st sess., pp. 168-180.)
    
      On October 9, 1886, at a council of tbe Mille Lac Indians on their reservation, held for the purpose of procuring their assent to the act of May 15, 1886 (24 Stat. L., 44) ,. the Mille Lacs again publicly proclaimed to the commissioners sent by the Government that they intended by the treaties of 1863 and 1864 to reservé said reservation for themselves, and when it was represented to said Indians that they had not done so and their rights on said reservation were simply ones of favor and license and that they had ceded the same to the Government by the treaties of 1863 and 1864, which was supplemented by the following opinion of Secretary Lamar:
    “In view of all the facts connected with the Mille Lac Indians and their reservation, the President hears with great surprise and disappointment that they have refused to give their consent to remove to the White Earth Reservation, where they would be beyond the reach of avaricious white men, and where they would have good homes with peace and plenty. If they persist in remaining on their old reservation, they must do so at their own risk and with the disapprobation of the Government. It is the desire of the President that the commissioners explain fully to these Indians the condition of affairs; that they have ceded the lands of the Mille Lac Reservation to the United States, and are permitted to remain there only so long as they shall not in any way interfere with or molest the persons or property of the whites. The President desires that the commissioners shall make another effort to induce these Indians to remove to White Earth, where all the Chippewas will be united in one happy and prosperous family. The commission should say to them that it is the earnest desire of the President that they' remove to White Earth, and that their interest, and that only, prompts the Government in urging them to take this step. The Indians should give the matter the most careful consideration, as the future welfare and happiness of themselves and children depends upon their decision in this matter,”
    they declined further negotiations with the commissioners, withdrew from the council, terminated its existence, and refused their assent to the proposed legislation.
    On November 3, 1886, at the same place, another attempt was made to secure their assent to the act of May 15, 1886, and the Indians again refused their assent thereto because of a dispute as to their title to the reservation, which they alleged to have reserved to themselves by the treaties of 1863 and 1864. (Ex. Doc. No. 115, Sen., 49th Cong., 2d sess., pp. 27-37.)
    On May 27,1902, Congress passed an act (32 Stat. L., 268) providing for the payment to the Mille Lac Indians of the sum of $40,000 for improvements made by them, or any of them, upon lands occupied by them on said reservation, being the same set apart to them by the treaty of 1855, the act-providing for their assent thereto before any of said sum could be paid. The Mille Lac Indians declined the offer made under said act and refused to sign agreements assenting thereto until there was inserted in said agreement the following language:
    “ It is understood that nothing in this agreement shall be construed to deprive the said Mille Lac Indians of any of the benefits to which they may be entitled under existing treaties or agreements not inconsistent with the provisions of this agreement or the act of Congress relating to said Indians approved May 27, 1902.”
    The said Mille Lac Indians have, without exception, upon all occasions and in connection with all controversies relating to the title they possessed to the reservation set apart to them by the treaty of 1855, proclaimed and persisted in their claim of the right of occupancy to said reservation and have continually and openly occupied said reservation from that time until subsequent to the passage of the act of January 14,1889.
    VII. Subsequent to the execution of the treaties of 1863 and 1864 said Mille Lac Indians protested to the defendants against squatters who were arbitrarily occupying certain portions of their reservation. In April, 1871, filings for homestead and preemption entries were made under the public-land laws, principally in soldiers’ additional scrip, upon the lands of the Mille Lac Indian Eeservation.
    On August 22,1871, the Indians complained to the Department of the Interior and protested against permitting white settlers to go upon their reservation, and in response to said, protest said department, through its General Land Office, addressed a communication to the local land officer requesting that no part of said reservation should be considered as subject to entry and sale as public lands, and to give public notice to the effect that said settlements would be considered illegal.
    On September 11, 1871, the Attorney General of the United States informed the department that he had instructed the United States district attorney to prosecute trespassers on the Mille Lac Reservation, and on September 21, 1871, the General Land Office requested the governor of Minnesota to execute a relinquishment of the State’s claims to certain tracts within said reservation that had been patented to the State as swamp lands on the 13th of May, 1871.
    Settlers were moved off the reservation by Agent Smith, of the General Land Office, and under date of November 13, 1871, said agent reported that after a personal examination of the situation, made by going upon the reservation and diligent inquiry incident thereto, he came to the following conclusions:
    “ 1. A large part of the free fractional townships that constitute the Mille Lac Reserve has been entered either by half-breed scrip or preemption claims.
    “ 2. In all cases the claims selected are upon pine lands, in preference to hardwood lands, which are better adapted to agriculture.
    “ 3. Nearly all the half-breed scrip, by reference to the report lately made by the commissioner, will be found to have been fraudulently obtained.
    “ 4. The entries by preemption have been largely made by parties who were employed and paid by the day and sent up in gangs of from 6 to 35 men to make improvements, prove up at the land office, and then transfer their titles to their employers.” (Report No. 1388, H. R., 60th Cong., 1st sess., pp. 6-7.)
    VIII. In April, 1871, 57 pieces of Chippewa half-breed scrip were located upon the reservation to the extent of 4,609.98 acres, and in June, July, and August of that year there were preemption claims filed to the total amount of 6,416.44 acres, and at the same time 117 declaratory statements were filed covering several thousand additional acres.
    On June 17 and 20, 1871, tht Interior Department ordered the suspension of all entries made under article 10 of the treaty of 1854 and article 6 of the treaty of February 22, 1855, and directed the refusal of additional entries under either treaty.
    On January 24, 1872, the Department of the Interior issued an order canceling all entries theretofore made. On October 31, 1876, Frank W. Folsom, one of the entrymen whose entry had been canceled under the previous order, appealed to the Secretary of the Interior, and Secretary Chandler sustained the validity of his entry, but suspended his decision and directed the local land officials to receive no additional entries until the close of the next regular session of Congress, holding all entries previously made in statu quo.
    On June 19, 1878, Secretary Carl Schurz issued an order forbidding the receipt of entries by the local land officers upon this reservation and continuing in force that part of his predecessor’s opinion which held the entries theretofore made in statu quo. Secretary Schurz, in an opinion, held all the land entries invalid.
    IX. The returns of the local land office for March, 1879, disclose that notwithstanding the repeated inhibitions against the receipt and filing of additional land entries upon the Mille Lac Indian Reservation, and without any change in the personnel of the incumbents of the district land office, they had allowed additional homestead entries to the extent of 28,913.46 acres. The allowance of these entries was without authority of law and in violation of positive written instructions from the Secretary of the Interior, and all of the same were subsequently canceled by the Department of the Interior.
    In May, 1882, Hon. H. M. Teller, then Secretary of the Interior, again reviewed the situation respecting the validity of entries made upon this Indian reservation, and in a written opinion confirmed the Indians’ title to said reservation to the extent of land necessary for their habitat and suspended the question as to the validity of land entries until Congress should legislate concerning the rights of the Indians. The effect of this opinion was to reverse the decision of his predecessor in part.
    Notwithstanding the opinions of the Secretary and the conflicting decisions emanating from the Land Office, the local land officials permitted the filing of entries upon said reservation, until on March 31, 1884, there had been filings made against 55,976.42 acres of the 61,028.14 acres contained in the said reservation.
    On July 4, 1884, Congress passed an act providing “ that the lands acquired from the White Oak Point and the Mille Lac Bands of Chippewa Indians on the White Earth Reservation, in Minnesota, by the treaty proclaimed March 20, 1865, shall not be patented or disposed of in any manner until further legislation by Congress.” (23 Stat. L., 98.)
    On May 15, 1886 (24 Stat. L., 44), Congress appropriated $15,000 for the purpose of securing, through the Secretary of the Interior, from the tribes and bands of Chippewa Indians in Minnesota, including the Mille Lacs, a modification of existing treaties and certain changes in their reservations. The commissioners appointed by the Secretary of the Interior went upon the Mille Lac Reservation and endeavored under this act to secure the removal of the Mille Lac Indians from the reservation reserved to them by the treaty of 1855. Two futile attempts were made by said commissioners to procure the assent of the Indians to this legislation. The Indians at this time and to these commissioners insisted upon their right of occupancy of the Mille Lac Reservation and refused to assent to the request of the commissioners because it was asserted by said commissioners that they had no title to said reservation, and nothing further was done.
    On January 14, 1889, Congress passed an act (25 Stat. L., 642) providing for the classification of lands belonging to the Chippewas of Minnesota into pine lands and agricultural lands and for their sale for the benefit of all Indians in the State of Minnesota, the proceeds arising therefrom to constitute a permanent fund from which annuities would accrue to said Indians for a period of 50 years.
    This act further provided for the appointment of commissioners to negotiate with the Chippewa Indians in Minnesota for the cession of their reservations, and in compliance therewith the commissioners so appointed held councils with the Mille Lac Indians on their reservation, occupied by them since the treaty of 1855, represented to them that they came within the terms of the act of 1889, and by virtue of said representation secured their assent ,and a written relinquishment of their reservation as contemplated by the act, which instrument is as follows:
    “ We, the undersigned, being male adult Indians over 18 years of age of the Mille Lac Band of Chippewas of the Mississippi, occupying and belonging to the Mille Lac Reservation under and by virtue of a clause in the twelfth article of the treaty of May 7, 1864 (13 Stat., p. 693), do hereby certify and declare that we have heard read, interpreted, and thoroughly explained to our understanding the act of Congress approved January 14, 1889, entitled ‘An act for the relief and civilization of the Chippewa Indians in the State of Minnesota ’ (Public, No. 13), which said act is embodied in the foregoing instrument, and after such explanation and understanding have consented and agred to said act, and have accepted and ratified the same, and do hereby accept and consent to and ratify the said act and each and all of the provisions thereof, and do hereby grant, cede, relinquish, and convey to the United States all our right, title, and interest in and to all and so much of the White Earth Reservation as is not required and reserved under and in accordance with the provisions of said act to make and fill the allotments in quantity and manner as therein provided for the purposes and upon the terms stated in said act; and we do also hereby grant, cede, and relinquish to the United States for the purposes and upon the terms stated in said act all our right, title, and interest in and to the lands reserved by us and described in the first article (ending with the.words ‘to the place of beginning’) of the treaty with the Chippewas of the Mississippi proclaimed April Í8, 1867 (16 Stat., p. 719), and also to the aforesaid Executive addition thereto made and described in an Executive order dated October 19, 1873; and we do also hereby cede and relinquish to the United States all our right, title, and interest in and to all and so much of the Red Lake Reservation as is not required and reserved under and in accordance with the provisions of said act to make and fill the allotments to the Red Lake Indians in quantity and manner as therein provided; and we do also hereby forever relinquish to the United States the right of occupancy on the Mille Lac Reservation, reserved to us by the twelfth article of the treaty of May 7, 1864. (13 Stat., p. 693.)
    “ Witness our hands and seals hereto subscribed and affixed at Mille Lac, in the State of Minnesota, this 5th day of October, 1889.
    “ HeNey M. Rioe,
    “ Joseph R. WhitiNG,
    
      G ommissioners.
    
    
      (Then follow tbe signatures of 189 adult Mille Lao Indians.)
    Said agreement was approved by President Harrison on March 4, 1890. (H. E. Doc. 247, 51st Cong., 1st sess., pp. 45-48.)
    X. Subsequent to the passage of the act of January 14, 1889, to wit, on January 9,1891, the Assistant Attorney General for the Interior Department rendered a decision in the case of Amanda J. Walters (12 L. D., 59). In deciding this case the department held that the passage of the act of January 14, 1889, was the further legislation provided for in the act of July 4, 1884, and thereby validated all the entries theretofore suspended and invalidated which had been made upon the Mille Lac Eeservation.
    On September 3, 1891 (13 L. D., 230), in the case of the Northern Pacific Railway Go. v. Walters, the Interior Department decided that the Mille Lac Indians were guaranteed the use and occupancy of their reservation, which was in force until extinguished by the act of January 14, 1889, and by a decision of the General Land Office dated April 22,1892 (14 L. D., 497), the decision in the Northern Pacific Railway Co. case was applied to cut off entries under the general land laws thereafter.
    By a subsequent decision (22 L. D., 388) Secretary Smith in an opinion confirmed the right of occupancy in the Mille Lac Indians under the treaty of 1864, and held that such lands were not public lands in the sense that they might be taken for any other purpose than that specified in the act of 1889. These later decisions were preceded by decisions of various Secretaries, found in 5 L. D., 102 and 541, in 8 L. D., 409, and in 10 L. D., 2, all of which concerned the title of the Mille Lacs to their reservation under the treaty of 1864, and are not harmonious.
    It appears from the record that in 1882 fraudulent entries of land were made upon the said Mille Lac Eeservation, and •that as a result of the disobedience of positive orders of the Department of the Interior issued to circumvent the same that one official of the land office at Taylor Falls, Minn., was removed for his participation therein, and that the timber-lands at this time entered were subsequently purchased by the Foley Beam Lumber Co., Avho denuded the lands thus entered of all valuable pine timber. The pine timber has been cut and removed from all the lands embraced in the Mille Lac Reservation, and neither said Mille Lac Indians nor the Chippewa Indians of Minnesota have received any of the proceeds derived from the sale thereof.
    On December 19, 1893, Congress passed a joint resolution (28 Stat. L., 576) confirming the decision of the Interior Department rendered in the IValters case, and subsequently, on May 27, 1898, passed a joint resolution (30 Stat. L., 745) declaring the Mille Lac Reservation in the State of Minnesota to be subject to entry by any bona fide qualified settler under the public-land laws of the United States and ratifying and confirming all preemption entries theretofore made prior to the repeal of the preemption law by the act of March 3, 1891, and declaring said reservation to be subject to the same rules and regulations as applied to the public lands of the United States, which resolution deprived said Mille Lao Indians of the benefits of the act of January 14, 1889, as their reservation was not disposed of as by said act provided.
    On May 27, 1902 (32 Stat. L., 268), as hereinbefore set forth in Finding YI, Congress appropriated $40,000 to pay said Mille Lac Indians for improvements made upon their reservation occupied by them since the treaty of 1855.
    XI. The Mille Lac Indians never interfered with or molested the persons or property of the whites during their occupancy of their aforesaid reservation.
    A report of the Commissioner of Indian Affairs made in 1871, another report made in 1873, another report made in 1874, and another report made in 1878, all stated in positive terms that their conduct had been exemplary.
    On May 26, 1880, the Indian Office received a petition numerously signed by the citizens of Morrison County, Minn., a county bordering on the Mille Lac Reservation, commending the Mille Lac Indians in the highest terms for their uniform good conduct, and declaring them to be a peaceable and inoffensive people.
    XII. The Mille Lac Indian Reservation, as described in the treaty of 1855, contained 61.028.14 acres of land, as deter-< mined by surveys made in 1849,1865,1870, and 1902. Of this total acreage, 25,000 acres was agricultural land, leaving 36,028.14 acres of pine land.
    The act of January 14, 1889 (25 Stat. L., 642), was amended on June 27, 1902 (32 Stat. L., 401), changing section 5 thereof so as to fix the minimum price at which Norway pine might be sold at $4 a thousand feet on the stump and white pine at $5 a thousand feet.
    The court finds that there was 36,028.14 acres of pine land, out of which was reserved for various purposes 1,547.25 acres, leaving 34,480.89 acres of pine land which should be classified" as 100,000,000 feet of Norway pine and valued at $4 per thousand feet, and that the remaining portion of said reservation being agricultural lands, as above stated, should be valued at $1.25 per acre, which together amount to $431,250 upon which the claimants herein are entitled to interest at the rate of 5 per cent per annum, from the 19th day of December, 1893, to date of this judgment, making a total of $827,580.72.
    
      Mr. George B. Edgerton and Mr. Daniel B. Henderson for the claimant. Mr. F. W. Houghton and Mr. Harvey B. Olapp were on the brief.
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney General Thompson) for the defendants.
   Booth, J.,

delivered the opinion of the court:

This case now comes before the court on the defendants’ motion for a new trial and the claimants’ motion to amend findings of fact.

The case came to the court under a special jurisdictional act approved February 15, 1909 (35 Stat. L., 619), as set forth in Finding I.

The claim is predicated upon certain rights alleged to have accrued to the claimant. Indians under the provisions of treaties executed in 1855, 1863, and 1864, having to do with the disposition of their landed interests, upon which they have resided since time immemorial. The claimants herein are a band of that formerly large and powerful tribe of Ojibwa (now known as Chippewa) Indians, the largest and most important tribe of the Algonquian stock, who inhabited a most extensive territory about the upper Great Lakes in Michigan, Minnesota, Ontario, Manitoba, and adjacent regions, extending westward to Turtle Mountains in Dakota. On February 22, 1855, the United States, through its proper officials, entered into a treaty with the Mississippi Bands of the Chippewas, by the terms of which they ceded to the Government all their right, title, and interest owned or claimed by them to lands embraced within the Territory of Minnesota. In consideration for the cession the six bands known as Mississippi Chippewas received a specific reservation set qpart out of the lands so ceded upon which they were to permanently reside. The portion set aside to the Mille Lacs, the claimants herein, embraced four townships bordering on Mille Lac Lake and three small islands in the lake. The United States agreed to pay certain sums in annuities for 20 years, and to expend various other sums in improving the reservations, making them haljitable, and otherwise generously providing for the general welfare of the Indians. (10 Stat. L., 1165.)

On March 11, 1863, another treaty was entered into between the same parties at Washington, D. C. The treaty of 1863 (12 Stat. L., 1249) provided for the cession to the United States of the reservations provided for the Indians in the treaty of 1855; provided them with another reservation set apart by particular description; extended the present annuities for 10 years; appropriated $20,000 to pay for depredations committed in 1862; appropriated $16,000 to pay the chiefs of the bands; agreed to pay the expenses of the State of Minnesota incurred in September, 1862, for sending commissioners to visit the Indians, to the extent of $1,338.15; expressly agreed to clear, stump, grub, and plow certain lands on the reservation for each.of the bands; to build houses for the chiefs; to furnish oxen, log chains, plows, and other agricultural implements; establish and maintain a sawmill, and otherwise improve and render susceptible to cultivation and habitation their new reservation, to which they were expected to immediately remove. ■

Article 12 of the treaty — the gravamen of this complaint, upon the construction of which the decision herein rests— provided as follows:

“ It shall not be obligatory upon the Indians, parties to this treaty, to remove from their present reservations until the United States shall have first complied with the stipulations of articles 4 and 6 of this treaty, when the United States shall furnish them with all necessary transportation and subsistence to their new homes and subsistence for six months thereafter: Provided, That owing to the heretofore good conduct of the Mille Lac Indians they shall not be compelled to remove so long as they shall not in any way interfere with or in any manner molest the persons or property of the whites.”

On May 7, 1864, another treaty was entered into between the same parties concerning the same subject. (13 Stat. L., 693.) The annuities were again extended, and certain allotments in fee out of their respective reservations were made to their respective chiefs. Substantially the same provisions for the cultivation and improvement of their new habitat were incorporated therein, although the amounts therefor were increased ($25,000 was appropriated for agency buildings), and article 12 of the treaty of 1863, supra, was repeated verbatim as article 12 of the treaty of 1864.

In April, 1871, filings for homesteads and preemption entries were made under the public-land laws, principally in soldiers’ additional scrip, upon the lands of the Mille Lac Indian Reservation. Up to March 31, 1884, 55,976.42 acres of the total acreage of 61,028.14 had been filed upon as open to settlement. On June 20, 1871, the Interior Department ordered the suspension of all entries alleged to have been made under the treaties of 1854 and 1855 and notified the parties that the same would be canceled, and on September 23,1871, all entries made up to that date were canceled. Subsequently, on March 1, 1877, the Hon. Z. Chandler, then Secretary of the Interior, reversed the preceding decision as to cancellation of above entries, but suspended the execution of his decision and directed the discontinuance of the filing of entries until the close of the next Congress, holding all existing claims in statu quo. In 1878 Hon. Carl Schurz, then Secretary of the Interior, reversed the decision of his predecessor and directed the local land office to discontinue filings upon the lands embraced within claimants’ reservation. Notwithstanding the express inhibitions contained in the two decisions of the Secretary of the Interior, the officers of the local land office, who were the same incumbents of the offices of register and receiver when the decisions were ánnounced, continued the receipt of entries until, in March, 1819, they had allowed soldiers’ additional homestead entries upon the Mille Lac Indian Eeservation to the extent of 28,913.46 acres of land. Secretary Schurz promptly canceled all the entries made in contravention of his express orders, designed, as they had been, to withhold from public settlement this particular Indian reservation until the rights of the Mille Lac Indians therein could be ascertained.

On May 10, 1882, Hon. Henry M. Teller, Secretary of the Interior, reviewed at length the legal status of the disputed entries upon the Mille Lac Eeservation, and decided that a sufficient acreage of the Mille Lac Eeservation necessary to maintain and support the diminished band should be set aside for them, and the surplus lands after said ascertainment should be open to settlement as part of the public domain.

In 1884 the Congress passed the act of July 4, 1884 (28 Stat. L., 16, 98), providing that none of the aforesaid lands should be patented or disposed of in any manner until further legislation by Congress. On January 14, 1889, Congress passed an act “ For the relief and civilization of the Chippewa Indians in the State of Minnesota.” (25 Stat. L., 642.)

Section 1 of this latter act provided for the appointment by the President of three commissioners to negotiate with all the different bands or tribes of Chippewa Indians in the State of Minnesota for the complete cession and relinquishment in writing of all their reservations in said State, except the White Earth and Eed Lake Eeservations, and so much of said reservations as, in the judgment of the commissioners, was not necessary to fill the allotments required by this act, said cession and relinquishment to be deemed sufficient when assented to. by two-thirds of the male adults over 18 years of age residing and belonging to the several reservations, except as to the Eed Lake Eeservation, which required the assent of two-thirds of all the Chippewa Indians in the State, provision being made for a census to .ascertain the percentage of assent, and upon approval by the President to become conclusive and irrevocable.

Section 2 prescribed for the qualification of the commissioners and fixed their compensation.

Section 3 provided for the removal of all the Indians from their reservations to the White Earth Eeservation, except the Eed Lake Indians, who were to retain their own reservation. Individual allotments were to be made to the Eed Lake Indians on their reservation, and all other Indians so removing were to be allotted lands on the White Earth Eeservation, provided, however, that any individual Indian disinclined to remove to the White Earth Eeservation might take an allotment on the reservation where he lived at that time.

Section 4 provided that subsequent to the cession and relinquishment the Commissioner of the General Land Office should cause the lands to be surveyed the same as other public lands, and, after making report thereof to the Secretary of the Interior, examiners appointed by the latter should go upon the lands, subdivide the same in 40-acre tracts, appraise at not less than $3 per thousand feet board measure the pine timber thereon, and classify the same into what should be known as “ pine lands ” and those without pine timber into “ agricultural lands.”

Section 5 provided for the sale at public auction, after extensive public notice, of the “ pine lands ” mentioned in the preceding section. The pine lands were to be offered in lots of 40 acres each and in no event to be sold for less than appraised value. The surplus lands failing to sell at auction should be sold at private sale under same conditions.

Section 6 provided for the disposition of the surplus of agricultural lands over the acreage required by the terms of the act. The agricultural lands were to be thrown open to homestead entries to actual settlers only at $1.25 per acre, and saved by a proviso to said section previous valid and subsisting preemption and homestead entries, to be patented according to the decisions in force at the date of its allowance. It also gave to any person who had not theretofore had the benefit of the preemption on homestead laws and who had failed from any cause to perfect his title the right to avail himself of the provisions of this act.

Section 7 provided that all money accruing from the sales provided for in the previous section, after deducting the expenses incident to the surveys, etc., should be placed in the Treasury to the credit of the Chippewas as a permanent fund, to draw interest at the rate of 5 per centum per annum for 50 years, said interest to be computed annually and disbursed in annual payments to the .Indians: One-half of same to be paid to heads of families and guardians of orphan minors; one-fourth of same to be paid to all other classes of Indians; and the remaining one-fourth to be expended under the direction of the Secretary of the Interior for the establishment and maintenance of public schools. The principal fund was to be distributed per capita at the expiration of the 50-year period among the Chippewas then surviving. The United States further agreed to advance as interest upon said fund the sum óf $90,000 per annum and continue said advancement until the principal fund herein provided for, exclusive of deductions, should equal or exceed the sum of $3,000,000, in which event the advancements made herein were to be repaid.

Section 8 simply provided for the necessary expenses of carrying into effect the provisions of this act.

The respective bands of Chippewa Indians accepted the terms of the act of January 14,1889, and executed in writing their assent thereto. The relinquishment of the claimant Indians will be found in full in Finding IX.

There was another treaty entered into between the same parties on March 19, 1867, the provisions of which simply changed the boundaries of the reservation ceded to the Indians by article 2 of the treaty of May 7, 1864. It does not modify to any considerable extent the previous status of the Indians, and throws no light upon the controversy referred by the special jurisdictional act.

On December 19, 1893 (28 Stat. L., 576), and again on May 27, 1898 (30 Stat. L., 745), the Congress by joint resolutions validated the entries made upon claimant Indians’ reservation and directed the issuance of patents therefor if regular in other respects.

On May 27, 1902 (32 Stat. L., 268), the Congress appropriated $40,000 to pay claimant Indians for improvements upon their reservation upon condition of their removing therefrom and their acceptance in council of the provisions of this act. Provision was made for the reservation to any individual of the tribe of land purchased or leased by him from any person having title thereto from the Government.

The petition herein alleges that the claimant Indians, by virtue of the twelfth article of the treaties of 1863 and 1864, reserved to themselves the right of occupancy of the Mllle Lac Reservation as defined in said treaties; that they never by violation of the condition expressed therein forfeited said right until the same was voluntarily transferred to the United States by their assent to the act of January 14, 1889; that the United States failed to carry into execution the provisions of the act of January 14, 1889, and instead of appraising and selling their pine and agricultural lands, did, by the resolutions of December 19, 1893, and May 27, 1898, by validating past entries and approving future ones, open to public settlement under the public-land laws all their reservation, of which they have been deprived. The damages claimed, aggregating three millions of dollars, are rested entirely upon the provisions for the sale of their lands found in sections 5, 6, and 7 of the act of January 14, 1889.

The jurisdictional statute refers a claim; it determines no rights other than the one to litigate; provides a forum with authority to ascertain, adjudicate, and enforce rights. The question of damages alleged to have been suffered by claimant Indians must be determined by the court upon the same legal principles as appertain to controversies between individuals, and while it defines the nature of the cause of action and recognizes the justice of its determination, it extends no further as respects the merits of the issue. (Stewart v. United States, 206 U. S., 185.)

Tbe jurisdiction of the court is challenged by the defendants. The contention is the plenary authority of Congress over Indian tribes and tribal property. The question of Indian policy is a political one, immune from the action of the courts. (Cherokee Nation v. Hitchcock, 187 U. S., 294; Lone Wolf v. Hitchcock, 187 U. S., 553.) The court recognizes the force of the decisions cited, and if this case came within them would dismiss it immediately. We are not dealing with acts regulating the administration of Indian property and Indian funds in the sense of their validity or invalidity. The question at issue rests upon the construction of treaties and acts of Congress and rights acquired thereunder. The authority of Congress in the premises is not questioned. The jurisdiction conferred extends to an inquiry as to what, if any, damages the claimants suffered by reason of an alleged taking of their property acquired under treaties which failed of execution because of acts of Congress. It is a warrant of authority to adjudicate results and not determine the means employed to bring about the same. In Cherokee Nation v. Hitchcock, supra, the court said:

“ There is no question involved in this case as to the taking of property; the authority which it is proposed to exercise, by virtue of the act of 1898, has relation merely to the control and development of the tribal property, which still remains subject to the administrative control of the Govern-; ment, even though the members of the tribe have been invested with the status of citizenship under recent legislation.”

Lone Wolf v. Hitchcock followed the Cherokee case, supra, and the court therein was dealing with administrative measures designed to control Indian property, “a mere change in the form of investment of Indian tribal property.”

This court has in the past considered numerous cases similar to this, one quite recently decided, The Ute Indians v. United States (45 C. Cls., 440), wherein a judgment for over $8,000,000 was awarded the claimants, and no appeal therefrom taken by the United States. The additional point as to the right of the claimants to sue as an individual band necessarily follows the development of the case and is determined thereby.

The proviso to article 12 of tlie treaties of 1863 and 1864, “ That owing to the heretofore good conduct of the Mille Lac Indians they shall not be compelled to remove so long as they shall not in any way interfere with or in any manner molest the persons or property of the whites,” is claimed as the basis of claimant Indians’ title to the Mille Lac Reservation. These two treaties, substantially identical in so far as this case is concerned, were negotiated in consonance with the general governmental purpose, to acquire the Indian domain and at the same time provide equitably for the Indians until advancing civilization should absolve the Government from their care and maintenance. The Indians at this time were parting with their reservations, a transaction quite solemn on their part. Their savage reverence and almost holy attachment to their native habitats, the place of the burial of their dead, the country of their fathers, caused them more than once to cling to their reservations with a persistence that yielded -only to the force of arms or the decrees of nature. They were always reluctant to move. The Mille Lacs, parties to the treaties, were jointly and commonly interested in the reservations of the Mississippi Chippewas, being ceded by the treaties, their assent to the treaties was, or at least was supposed to be, indispensable to its effective execution, ami the language of the proviso to article 12, repeated in both instruments, was intended for some purpose, and it manifestly conferred some rights. Was it a reservation of their lands, the right to occupy the same under the express conditions of the reservation, or was it a mere license or favor, a temporary cession, a right of sufferance, as suggested by the defendants ?

The title to Indian lands vested in Indian tribes was the right of occupancy, the ultimate fee in the lands was in the United States, and the right of conveyance by the Indians was limited to the United States or to some one else by their express consent. This rule, following the case of Johnson v. McIntosh (8 Wheat., 543), has obtained without interruption through the whole course of judicial procedure from that early time until the present day. (Jones v. Meehan, 175 U. S., 1; United States v. Winans, 198 U. S., 371.)

In construing Indian treaties ambiguities and doubtful clauses should be construed in favor of the Indians. This rule is ancient and elementary. It is predicated upon the disparity in intelligence between the contracting parties, the lack of a comprehensive written language for the Indian, and the innumerable and manifest opportunities to misinterpret the meaning of treaty stipulations. The intention and understanding of the Indian tribe of the rights secured to them by conventions of this character is of paramount importance, and councils at which they were ratified and confirmed are admissible in evidence to this end. They are not to be construed according to the technical meaning of the words employed, but in that generous and comprehensive manner which justice exacts in dealings between a strofig and intelligent party on the one side and an illiterate and inferior party on the other. (Worcester v. Georgia, 6 Pet., 515; Choctaw Nation v. United tSates, 119 U. S., 1; Jones v. Meehan, supra, United States v. Winans, supra.)

A proviso to a statute (likewise a treaty) is purposed to qualify or except from the general operation and effect of the enacting part persons and property, or the conditions upon which persons and property will not be effected by the result sought to be accomplished. Likewise, it is imperative in ascertaining the intention of the parties to a contract ambiguous in terms, that all the surrounding circumstances and conditions under which the transaction was consummated shall be taken into consideration.

It will be observed that the treaty of 1863 was executed on March 11 of that year. The date is important, for at the time the United States was engaged in war. In August, 1862, Hole-in-the-Day, a famous Chippewa chief, became hostile to the United States and attempted an uprising among the Indians, with intent to join forces with the then hostile Sioux, whose terrible atrocities and fearful massacre of innocent men, women, and children terrorized the whole State of Minnesota. It was a disturbance much to be deplored at this particular juncture in the Nation’s history and fraught, as it was, with imminent danger to the poorly protected white people, whose soldiers previously stationed among them had been largely drawn into the service of the Government. Shaw-vosh-kung (a name as variable in spelling as pronunciation), the chief of the Mille Lac Band of the Chippewas, headed an expedition to extend relief, if necessary, to Fort Bipley, then in possession of Commissioner Dole, of the Indian Office, and 35 United States soldiers, declined to aid the hostility of Hole-in-the-Day, and by thus withdrawing his support and that of his band, in the neighborhood of 800 strong, and enlisting in the cause of the Government, frustrated the proposed massacre of the whites and forced the peace of the Indians. In a short time thereafter Commissioner Dole gathered together the chiefs and headmen of the Chippewa bands and, accompanying them to Washington, assisted in and accomplished the execution of the treaty of March 11, 1863. It is conceded and incontrovertible that the consideration for the proviso in article 12 of both treaties was the services rendered the Nation by the Mille Lac Band of Chippewas in declining to join and in assisting to prevent an Indian uprising in the midst of a civil war. This is the good conduct referred to in the proviso, and to this treaty the name of William P. Dole is attached. The language of the proviso would be difficult to construe in any other way than the granting of a right of occupancy to the Mille Lac Band. That they shall not be compelled to remove was certainly equivalent to a right to remain. lie-main where? Why, on the Mille Lac Reservation, for all other reservations had been by the treaty ceded to the Government. Were the Mille Lacs engaged in the meaningless ceremony of ceding away all their right to the lands to which they were attached with a fondness heretofore described? Was the discrimination in their favor the reward for their signal services of loyalty, a granting of a mere license to live on their reservation, bury their dead there, build their improvements, and then to be dispossessed at the pleasure of the advancing whites? The governmental policy at the time, as since, was to encourage the Indians to take permanent places of abode, improve their reservations, cultivate the soil, and otherwise acquire the habits and industry of the whites. Every article of the treat3>- abounds in generous promises of material assistance to this end. Their tenure, it is true, was conditioned upon good behavior toward their white neighbors ; but can it be said that this alone converted the ordinary title of right of occupancy into an anomalous Indian title— one of license and favor ? Defendants urge that the condition anticipated settlement of the lands by the whites and the interference inhibited was to approaching settlers. Is it not more reasonable to suppose it referred to the neighboring whites, those adjoining the reservations? It could not possibly have meant any whites on the reservation at the time, for the law expressly prohibited their presence on an Indian reservation. Article 3 of the treaty set aside $20,000 to pay for depredations committed by the Chippewas in 1862. Is it not just as reasonable to suppose that the provision intended a restraint upon further conduct of this character ?

Commissioner of Indian Affairs Price, in an exhaustive letter upon this subject, written in April, 1882, in analyzing this feature of the claimants’ title, said:

Manifestly, I think, reference was intended to the white settlers occupying the surrounding country, their neighbors especially', for there could have been no whites lawfully living upon the reservation at that time, and it was hardly intended in anticipation of the entry and settlement of whites upon the reservation and with a view to their protection; for the Indians being in occupation, the introduction of whites into their midst would unquestionably result in conflict at once; indeed it is not difficult to see that such common occupancy by Indians and whites would be quite impossible. The Indians were there, and until they were removed, either by their own consent or by reason of the forfeiture of their right of occupancy, the whites manifestly must keep out. * * * For the sake of argument, let us suppose that the language of the proviso was intended to apply to settlers coming upon the reservation. Then the Indians, if they would not work a forfeiture of their right of occupancy, must not interfere with or molest either the persons or property of such. Surely nothing more. It does not provide that they shall make way for or vacate or abandon any improvements or shelter they have or land to these people. It is only required that they shall not interfere with or molest either their persons or property. These words (‘ interfere ’ and ‘ molest ’) when employed in such connection in respect of the conduct or action of Indians are, I think, to be interpreted in their worst sense. And when it is remembered that only a few months before the treaty was made the whole country there had been thrown into a state of the greatest alarm on account of the uprising of the Indians of that section, it is clear to my mind that the framers of the treaty intended that they should be interpreted in no other way.”

The qualifications to the reservation were in most respects ■surplusage. If the Indians had persisted in bad conduct toward the .whites, if they assumed a hostile attitude toward the people and the Government, the military arm of the United States would have promptly interposed. In addition to all this the Government made no effort by treaty or legislation to dispossess said Indians or in any manner disturb their occupancy of this reservation until 1886, notwithstanding the violent and most persistent controversies, sometimes favorable, sometimes unfavorable, going- on between the Land Office and anxious entrymen.

In some Indian treaties the right to hunt over and fish in the waters adjoining the ceded reservation is excepted from the treaty, and in some instances express words have reserved rights to the ceding Indians. The language used to establish said reservations has most generally been positive and unambiguous, leaving no doubt as to the intention of the contracting parties. If a mere license to pursue game was intended, apt language expressed the same; if possessory rights were conferred, doubts as to the extent of title were removed by the context of the article creating the same. (Kappler’s Treaties, vol. 2, pp. 19-22.)

No mere license to fish and hunt was conferred upon the Mille Lac Indians by article 12 of the treaty of 1864; if so, the language used would have clearly expressed the same. The distance between White Earth and Mille Lac negatives this intention. What other Indian right, then, could have been intended save the right of occupancy ?

The word “ remove ” as used in the treaty has especial reference to a change of residence, for that was the subject matter of the negotiations. The Mille Lac Indians resided on their reservation and had been there since 1855. If they intended to cede their lands and at the same time reserve to themselves a right of residence thereon, a possessory right as strong as they could possibly acquire, then the treaty could have no application to their particular lands, and served as a conveyance of their cotenancy rights in the common reservations of the tribe. It confirmed rather than extinguished their rights under the treaty of 1855. The language of article 12 is not ambiguous and if considered apart from the context of the whole instrument could convey but one meaning. And when considered in connection with the context of the treaty, the purposes to be accomplished, and t he circumstances attendant thereon, its meaning is in accord with similar provisions in previous Indian treaties. Why, ibis very article in the treaty of 1864 by a subsequent provision reserves to the Sandy Lake Indians a coextensive right with the Mille Lacs. The provisos were unquestionably inserted as favorable clauses to secure the free assent of the Indians to the treaties; they were the result of negotiations and the final contract of the parties. They are not unusual or anomalous. There is nothing mysterious about them, for many Indian treaties provide extensive exceptions. The very term “ treaty ” contemplates a series of mutual concessions and reservations to define explicitly the rights of the contracting parties, and Indian treaties were no exception to the rule.

The White Earth Reservation carved out by the treaties and embracing a vast acreage of land was 150 miles distant from the Mille Lac Reservation. It was to this reservation the Chippewas were to be removed by the articles of the treaties, and extensive appropriations were made to improve it and to provide for schools and other civilizing influences. Many comforts, advantages, and conveniences were open to the Mille Lacs if they would remove. The inducements were all extended to accomplish the removal of the Indians to secure a cession of their lands that they might be thrown open to public settlement. Under all these circumstances it seems improbable that astute and experienced Indian officers charged with the special duty of securing this treaty would overtly and intentionally leave upon an Indian reservation a large band of loyal Indians 150 miles away from the reservation provided for the other bands with no greater security of title, no greater right than one subject to the cupidity, as it afterwards proved to be, of covetous lumbermen.

Numerous Indian cases have been before this court involving millions of acres of land and millions of dollars in money, but in no one of them, after a most careful examination can the court find a contention similar to this, wherein Indian title is made to rest upon sufferance, as distinct from their right of occupancy, the greatest title they could possess. It is said by the defendants that the provision in article 4 for the improvement of 70 acres for the Mille Lac Band on the White Earth Reservation evidences an intention to effect their removal thereto. The answer to the contention is twofold. Frist, why didn’t they do it? The opportunity was at hand, and the Indians were at peace and assented to the treaty. Second, the language of the proviso gave the Mille Lacs an option, a right of election to remain or go. “ They' shall not be compelled ” is the language of the proviso. They elected to remain, and during the subsequent years of their occupancy fulfilled the conditions of their tenure, a fact fully attested by every Indian agent and every other witness in the record. It is conceded by the defendants that the claimant Indians' did not molest or interfere with the persons or property of the whites. It is true that evil practices contaminated to some extent the personal conduct of individual Indians. The introduction of whisky was the prime cause. White Earth was not free from the same evil, and the surroundings there as respects the opportunity to procure and indulge intemperately in this commodity were about the same as at Mille Lac.

The Mille Lac Indians understood at the time of the execution of the treaty that they were securing and reserving to themselves the Mille Lac Reservation. The treaty, as before observed, was negotiated in Washington, and no record of the proceedings incident thereto is available. Senator Henry M. Rice, a gentleman of large Indian experience, a devoted and trusted friend of the Indians, was one of the commissioners appointed to assist in the procurement of the treaty, and his name is affixed to the treaty of 1863. In 1889 Senator Rice was again selected to secure the assent of the Indians to the act of January 14, 1889. On October 2, 1889, on the Mille Lac Reservation, addressing a council of the Mille Lac Indians assembled for this purpose, he used this language:

“ I wish to refer to an old matter that has given you a great deal of trouble. That is the treaty made at Washington some 25 years ago. I was there, and know all about it. It was a wise treaty, and if it had been properly carried out you would have escaped all the trouble that has befallen you. Men who cared more for themselves than they did for you thought they had found a hole in it, and they would take advantage of that and deprive you of- your rights. They knew that the Government was engaged in a great war which occupied all its time. They thought that under the circumstances they would be able to drive you from this reservation. * * * The time has come when I am able to tell you that all he said, all I have said to you, all the chiefs told you who were there and made the treaty, is correct. Here is the acknowledgment of the Government that you were right, that£ you have not forfeited your right to occupy the reservation.’ ”

On May 15, 1886 (24 Stat. L., 44), the Congress appropriated $15,000 to enable the Secretary of the Interior to negotiate with the several tribes and bands of Chippewas in Minnesota for modification of existing treaties and such changes in their reservations as might be deemed desirable and best by the Indians and the Secretary. In pursuance of the above act the Secretary appointed Hon. John V. Wright, a jurist, Bishop H. B. Whipple, and Hon. Charles F. Larrabee to carry forward the negotiations. On October 9, 1886, on the Mille Lac Reservation, Mr. Larrabee, in addressing the Indians in council assembled in the course of an attempt to secure their removal from Mille Lac to White Earth Reservation, used these words:

“ Long ago you ceded your reservation to the United States, with the understanding, however, that y@u were not to be compelled to remove so long as you did not molest or interfere with the persons or property of the whites. That is all the rights you have in this land — a very feeble tenure.”

On the following day the Mille Lac Indians expressed great surprise at the statement of Mr, Larrabee, and in more than one public address disclaimed his construction of the treaty, contended for their right of occupancy, and finally grew so indignant over the matter that they withdrew from the council and terminated the negotiations. A subsequent council called for the same purpose, conducted by the same parties, again proved abortive because of a similar statement conveyed to the Indians by the commissioners and supplemented by a written opinion of the Secretary of the Interior. In 1889 and again in 1902 the Indians persisted in their right of occupancy and approved agreements with the distinct understanding that all claims under the former treaties should be preserved. Their complete understanding of the treaty is manifested not only by their words spoken in council meetings, but by the dogged persistence with which they retained their residence on the Mille Lac Keservation under most discouraging circumstances until subsequent to the cession of 1889.

In the case of California and Oregon Land Co. v. Worden (85 Fed. R., 94) the Congress in 1864 granted to the State of Oregon alternate sections of public land for three sections in width, to aid in the construction of a military road. Subsequently it appeared that the land so granted was embraced within Indian country. A treaty negotiated with the Indian owners of the land in the same year secured a cession to the United States of the Indian lands, with a proviso, however, that a particular tract embraced within the general cession should be set apart as a reservation for the Indians until, otherwise directed by the President. All the lands to the extent of 130,000 acres taken under the congressional grant were located within the lands set apart by the proviso. Plaintiff’s contention was planted upon the general cession of all the Indian lands embodied in the first articles of the treaty, insisting that the proviso was a reservation subsequent to the vesting of their title and invalid. The court held that the Indians had not by the terms of the treaty ceded title to their reservation; that it was not a cession and recession of reserved lands, but a mere reservation to the Indians of the same right and title they originally had. This case is exceedingly apropos.

In United States v. Winans (198 U. S., 371) the Supreme Court construed a treaty with the Yakima Indians made in 1859. The Indians by the treaty ceded to the United States their vast estate except a certain reservation. Article III of the treaty provided for an exclusive right of taking fish in all streams running through or bordering on their reservation and a similar right at all usual and accustomed places in' common with the citizens of the Territory. Subsequently the ceded lands were patented and the Indians were excluded by the owners in fee from the fishing privileges guaranteed by the treaty. Eespondents contended that the Indians’ rights under the treaty were no greater than the white man’s under conditions of absolute ownership; that the fee being in him he had a right to exclude the Indians .from his premises. The court said in overruling this contention :

“ In other words, it was decided that the Indians acquired no rights but what the inhabitants of the Territory or State would have. Indeed, acquired no rights but such as they would have without the treaty. This is certainly an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more. * * * In other words, the treaty was not a grant of rights to the Indians, but a grant of rights from them — a reservation of those not granted.” (Spalding v. Chandler, 160 U. S., 394.)

If the privileges granted by Article III of the above treaty were superior in extent and duration to a mere license, it is quite difficult to reconcile the taking of a home — a supposed place of permanent abode — with the idea of such feeble and uncertain tenure as an estate by sufferance. (United States v. Thomas, 151 U. S., 577.)

The act of January 14, 1889, following as it did years of discussion as to rights of the Mille Lac Indians to their reservation, would seem to confirm their title in every respect were it not for the second proviso to section 6 thereof. This proviso, validating certain homestead and preemption entries made on Chippewa lands, and extending additional privileges as to entries not theretofore perfected, brings forth a defense that this act does not apply to the Mille Lac Reservation. In other words, the restrictive provisions applying to the sale of the Indian lands extends only to the diminished White Earth, Red Lake, and other reservations not embraced in the cessions of 1868 and 1864. Defendants’ contention is rested upon the various and conflicting decisions of the Interior Department emanating from controversies in the General Land .Office. The Mille Lac Reservation, like all the other Chippewa reservations in Minnesota, was rich in pine timber. Squatters had sought to acquire rights in this particular reservation prior to 1811, and the complaints about the same were numerous and persistent The timber lands were valuable in 1864 and enhancing in value as time progressed. As soon as the treaty of 1864 was proclaimed this controversy arose. If the reports of regular and special Indian agents are to be credited, it was conceived in fraud and developed by deceit and circumvention. The findings show that as early as November 13, 1871, the special agent in charge of Indian affairs in this locality, in conjunction with a special representative of the Indian Office, after a detailed and special examination of all the entries for land up to that date, denounced practically every one of them, of every class and description, as fraudulent and corrupt. The entries were not made in good faith, but with a notorious attempt to preempt the pine lands to the exclusion of agricultural lands. We have examined with great care the opinions of Secretaries of the Interior Chandler and Teller, alleged to be adverse to claimants’ contention. In each of these opinions the rights of the Mille Lac Indians acquired under the treaties of 1863 and 1864 are fully respected. Secretary Chandler suspended his decision to await legislation in behalf of claimants, and Secretary Teller confirmed claimant Indians’ right of occupancy to so much of the Mille Lac Reservation actually necessary for their habitat. An opinion of Secretary Lamar, conveyed to the Mille Lacs in council in 1886, is quoted as adverse to claimants’ contention. The opinion is set forth in the findings. Its brevity alone arouses tie suspicion that the Secretary had probably subscribed to a document prepared by some subordinate in the Land Office. It seems most improbable that a jurist of such great eminence would dismiss a subject of such magnitude and prolonged discussion with so few words. The opinion, supplementing another at the same time, would seem to have been prepared in haste and for the avowed purpose of securing the assent of the Indians to the act of 1886, and which, we submit, does not in any way negative the conclusions reached herein. Up to January 14, 1889, four Secretaries of the Interior and at least two Commissioners of the General Land Office had delivered conflicting opinions in respect to the claimants’ title to this reservation. The greater proportion of the land entries received and entered by the officials of the local land office were so made in direct violation of express orders from the Interior Department prohibiting the same, an infraction and disobedience which finally became so acute as to result in the dismissal from the service of one of the offending officials.

The defendants in this case ask for a specific finding of a conspiracy between eminent public officials and the local land officials at Taylor Falls, Minn., to enter over 23,000 acres of this reservation, which was at the time thwarted by the vigilance of the Interior Department. In 1884 Congress halted the whole proceedings, and, with the exceptions noted in the findings, patents -were suspended and entries. prohibited. In 1886 Congress attempted the removal of the claimants to make way for settlers, and failed. Therefore in 1889 Congress had before it a controversy with respect to Indian pine lands extending over a period of 18 years. The legislation then enacted superseded the general land laws, conserved the valuable resources of the Indians, and threw around the disposal of their pine such positive restrictions as to prevent its fraudulent acquirement. Why this great necessity to erect barriers against fraud and corruption save the prevalence of this stealthy practice as against these claimants? Are we to presume that the salutary legislation of 1884 was repealed by a proviso in an enactment made for the general purpose of forestalling the very thing the act of 1884 did prohibit? Eepeals by implication are not favored in law. The debates in Congress incident to the passage of the act of January 14, 1889, indicate a legislative intention to prohibit by the terms of the act the unwholesome and corrupt practices previously obtaining as to the acquirement of Chippewa timber lands. If this proviso was intended to ratify repeated transactions, for the most part fraudulent in character, previously committed, and leave the statute operative only as to future transactions, it was a most singular division of justice between unoffending parties. The language of the proviso negatives such contention. Only “ subsisting valid preemption or homestead entries ” were to be proceeded with and in accordance with the decisions in force at the date of its allowance. Can it be contended that this language embraced that large and most numerous class of entered in positive violation of express instructions? Can it be said that a single case now in issue respecting pine lands, in view of the numerous and conflicting decisions of the Secretaries, was stare decisis at the time of its allowance ? At the time of the passage of the act of January 14, 1889, comparatively few patents had been issued as against claimants’ lands and absolutely no continuity of decision or construction of law had obtained in reference to rights of entry-men. On the contrary, it was unsettled and uncertain. The language of the proviso only authorized future proceedings in accordance with settled law. In fact, the second and third provisos to section 6 of the statute do not relate at all to pine lands. They are applicable only to agricultural lands and were eminently fair and just. The entire section is devoted to the disposal of agricultural lands, and the provisos save to bona fide settlers their rights under the laws in force at the time of their filing. The second proviso, confirming this position, absolutely protects the Indian rights in these same lands and in no wise injuriously affects.the generous provisions as to disposition of funds arising from their settlement. The stringent provisions found in the first proviso to section 6 are intended to prevent a recurrence of the particular frauds practiced to secure patents which had so generally obtained as to the pine lands. No provision whatever is made for a public settlement upon pine lands; they were to be disposed of by public and private sales. The act in question was securing to the United States a cession of at least 3,000,000 acres of Indian land, the classification of the same being preliminary to its disposition in favor of the Indians. Congress recognized tbe paramount value of the timber tracts and the danger of their acquirement by lumber corporations for a nominal consideration. The agricultural lands, not so valuable, and hence not so inviting, were to be opened under the provisions of the law to bona fide homesteaders, and the rights of the comparatively few in number who had in good faith, intending to secure a home, filed thereon were to be respected.

It is hard to believe that the Government of the United States would by express treaty stipulations grant a right to peaceable, loyal, and well-behaved Indians, a right doubly sacred to them, and then, in not to exceed seven years from the date of said grant, countenance their ejectment from the lands so granted by a series of fraudulent entries under the general land laws. If the Government intended the Mille Lac Indian Reservation to be open to entry and settlement under the general land laws, it would have so announced, removing all doubt, and doing as is usually done under similar circumstances.

The Department of the Interior, the commissioners appointed by the President to procure the assent of the Indians to the act of January 14, 1899, all treated the Mille Lac Indians as coming within the purview of its provisions. A council extending over several days was held on the Mille Lac Reservation to secure their approval thereto; they were positively and repeatedly assured by the representatives of the Government that they were within its terms; and their written relinquishment of their title to the same, executed by a majority of the tribe residing on the reservation, was secured upon the faith of said representations. Absolutely no doubt existed then as to the scope of the law or its applicability to claimant Indians. The fact of allowance of homestead entries to the chief of the band and his son argues little. We need not cite authorities to sustain the proposition that the Interior Department is entirely without authority to issue valid patents to Indian lands. (United States v. Carpenter, 111 U. S., 347. If these patents are at all valid they must rest upon treaty rights or statutory law.

The Mille Lac Indians were the only band mentioned in the treaties of 1863 and 1864 subsequently asked to relinquish their reservation under the act of January 14, 1889. Surely their status was something different from that of their ancient allies.

The Congress as late as July 22, 1890, treated the Mille Lac Reservation as Indian lands, for on that date an act was approved granting a railway company a right of way and other privileges through and upon the reservation, expressly reserving to the Mille Lacs in their tribal capacity the damages incident thereto. (26 Stat. L., 290.)

The technical language used in the written instrument subsequent to claimants’ assent to the act of January 14, 1889, is cited as indicating a difference in title as to claimant Indians. The use of the word “ relinquish ” when speaking of the Mille Lac Reservation as distinguished from the word “ cede ” when referring to the White Earth and Red Lake Reservations can hardly be relied upon in the determination of Indian title. The words are frequently used in Indian treaties conjunctively, and in so far as they affect the conveyance of Indian title the employment of either word would effectively divest the Indians of their right of occupancy. It is quite true that to the trained lawyer they have a distinct technical significance, but are so nearly synonymous that even they employ them carelessly. In construing Indian treaties their technical significance vanishes.

In Worcester v. United States (6 Pet., 236) Chief Justice Marshall, in language so directly applicable to his case that we cite it in full, said:

“ It is reasonable to suppose that the Indians, who could not write, and most probably could not read, who certainly were not critical judges of our language, should distinguish the word £ allotted ’ from the words ‘ marked out.’ The actual subject of contract was the dividing line between the two nations, and their attention may very well be supposed to have been confined to that subject. When in fact they were ceding lands to the United States and describing the extent of their cession, it may very well be supposed that they might not understand the term employed as indicating that instead of granting they were receiving lands. If the term would admit of no other signification, which is not conceded, its being misunderstood is so apparent, results so necessarily from the whole transaction that it must, we think, be taken in the sense in which it was most obviously used.”

The rule established by this case has been followed by the Supreme Court in construing Indian treaties ever since. (Jones v. Meehan; United States v. Hitchcock; United States v. Winans; Cherokee Intermarriage Cases, 203 U. S., 76; all heretofore cited, and many other cases too numerous to mention.) It is well-settled law.

The Mille Lac Indians in this instrument expressly recited that they were dealing with the Mille Lac Reservation occupied and belonging to them by virtue of a clause in the twelfth article of the treaty of May 7, 1864 (13 Stat., p. 693).”

Lastly, granting, arguendo, but not conceding the force of the defense, then in that event the provisos to the act of January 14,1889, were the initiatory legislation subsequently confirmed by the resolutions of December 19, 1893, and May 27, 1898, which deprived claimant Indians of their right of occupancy in the Mille Lac Reservation. The jurisdictional act provides for the assessment of damages “ by reason of the opening of the Mille Lac Reservation * * * to public settlement under the general land laws of the United States.” If this legislation served the purposes contended for by defendants, it likewise opened, to public settlement claimants’ reservation by confirming all the .entries made thereon previous to its enactment, and the various amounts provided for the Indians can well serve as a basis for damages in this cause.

On January 9, 1891, the Interior Department decided the case of Amanda J. Walters (12 L. D., 59). The claimant in the case had previously been allowed to make entries on the Mille Lac Reservation, and the issue was her right to a patent therefor. The Secretary confirmed her right of patent, resting his decision upon the second and third provisos to section 6 of the act of January 14, 1889, asserting therein that said provisos constituted the further legislation provided for in the act of 1884 annulling all the aforesaid entries. The decision mentioned is another of the numerous conflicting views indulged by the Land Office officials in connection with this long controversy. (5 L. D., 102, 541; 8 Ib., 409; 10 Ib., 2; 13 Ib., 230; 14 Ib., 497; 22 Ib., 388.) The decision in the Walters ease was followed in September, 1891, by the case of N. P. R. R. Co. v. Walters (13 L. D., 230), sustaining the claim of the claimant Indians to their right of occupancy of their reservation, holding the same was in force until ceded by the act of January 14, 1889, and on April 22, in an opinion by Secretary of the Interior Noble (14 L. D., 497), the rulings in the previous opinion were applied to prevent entries under the general land laws.

The resolution of December 19, 1893 (28 Stat. L., 576), by its terms was simply intended by the Congress to protect bona fide homestead filings or entries upon the Mille Lac Reservation which had been made subsequent to the rulings in the Walters ease, and by virtue thereof, and before the contrary holding in the N. P. R. R. Co. ease, made on April 22, 1892, and under the opinion of April 22, 1892, the remaining agricultural lands of the Mille Lac Reservation were opened to homestead'entry under the terms and provisions of the act of January 14, 1889.

The resolution of May 27, 1898 (30 Stat. L., 745), enacted as it was to put an end to the land-office controversy by which the whites were first let in and then put out, unquestionably ratified all previous entries and interposed to deny the claimants the benefits of the act of January 14, 1889. It divested them of their reservation and under its provisions the lands upon which they so long resided have been almost, if not entirely, taken up by white settlers and lumber companies.

The act of May 27, 1902 (32 Stat. L., 268), appropriated $40,000 to pay the Mille Lacs for the improvements made upon their reservation. It can not affect this controversy and was at the most a tardy and almost inconsequential recompense to secure their removal from a reservation from which they had already been excluded by being divested of their Indian title, and upon which they had remained because of the failure to extend to them the benefits of the act of 1889. All the treaties with the Mille Lacs provided payment of expense of removal to their new reservation. The Congress by the terms of this act recognized their possession of the reservation as a tribe by authorizing the amount appropriated to be paid in accordance with tribal law adopted in council proceedings. The Indians in assenting to the above act reserved in writing all rights to. which they were entitled under existing treaties or agreements, and notwithstanding the statements of the commissioners to the Indians that they had no title to the lands (a statement repeatedly contradicted by the Indians), they were assured by them that their assent to the act of 1902 did not in any wise affect their assertion to prior claims arising under previous agreements and treaties. It must not be overlooked that under the act of January 14, 1889, the Mille Lacs were entitled to allotments on their reservation in common with the other Indians.

It has been most forcibly brought to the attention of the court that a judgment in this case results in a double payment to the Mille Lac Indians. In some respects this is true. It can hardly be said to be a double payment, but is more in the nature of an additional allowance or a supplemental benefit, which in any case accrues alike to all the Mississippi Chippewas mentioned in the treaty of 1864. The Mille Lacs have participated in the annuities allowed by the treaties of 1863 and 1864, and the few of the minority of the tribe who removed to the White Earth Reservation received the benefits of treaties, but the great majority of the tribe — the real Mille Lac Band, who remained on the Mille Lac Reservation — received no benefit from the provisions of the treaties providing for schools, blacksmith shops, agricultural implements, etc., on the White Earth Reservation until their removal thereto. In fact, the Mille Lac Indians remained on their reservation, claiming title thereto under the treaty of 1863, without the numerous advantages and profitable perquisites granted to the other bands of Mississippi Chippewas who did at the time remove to the White Earth Reservation. They withstood at times the most intense poverty, and while they were of good reputation among the neighboring whites, under most adverse circumstances, they willingly forebore many of the advantages of White Earth to occupy their ancient home. Under the act of January 14, 1889, they are, and under all other treaties and agreements were, entitled as fully as any other Chippewa Indian Band to the full and complete advantages and emoluments derived from the disposition of Chippewa lands held in . common by the tribe. The exception granted to them was a reward for their patriotic conduct in 1862. It rests upon no other consideration, and would fall far short of accomplishing the purpose if they were held to have released all their rights in the vast area of lands set apart for the Mississippi Chippewas and received in return simply their own reservation without the means of livelihood or improving the same. As was well said in the argument of the case, it was too great a bonus to pay. If payment is now denied them the reward was an empty promise, the sacrifice of years a needless hardship.

In any event the argument is devoid of merit. The question is not one which goes to the considerations for the treaties or benefits to be derived therefrom. That is for the political department of the Government. The courts are confined alone to an interpretation of what rights did accrue, and not as to their justice or injustice. The Congress is vested with complete authority to determine questions of this character, and its jurisdiction is exclusive.

In United States v. Choctaw, etc., Nations (179 U. S., 541) Mr. Justice Harlan, speaking for the court, said:

“ Now, it is argued that if the interpretation placed by the United States upon the treaty of 1866 with the Choctaws and Chickasaws is accepted the result will be that the General Government has been more liberal toward the Seminóles and Creeks than it has been with the Choctaws and Chickasaws. But that can not constitute a reason why the court should depart from the ordinary signification of the words used in the treaty with the Choctaws and Chickasaws. If Congress chose to adopt one course toward the Seminóles and Creeks and a different course toward the Choctaws and Chickasaws, it is not for the judiciary to defeat the will of the legislative branch of the Government by giving to an Indian treaty a meaning not justified by its words.”

In any event, it is quite doubtful if any advantages will accrue to the Mille Lac Indians in view of the judgment that will hereafter be rendered in this case. Whatever inequality may appear is minimized by the terms and provisions of the act of January 14, 1889. This statute marshals the proceeds from the sale of all the Indian lands therein mentioned and extends to all the Chippewa Indians in Minnesota the right to participate therein. Thus it will be seen that the amount accruing to the Mille Lacs by reason of the opening up of their reservation to public settlement will become a part of the general fund provided for in the act of 1889.

The treaties of 1863 and 1864 reserved to the claimants the Mille Lac Reservation. They remained as a band in open, notorious possession of the same, a lawful notice to the world of a claim of title, until the resolutions of the Congress opened their domain to public settlement and divested them of title to their lands. They fulfilled all the conditions of the tenure, remained at peace with the whites, and were fully entitled to the benefits of the act of January 14, 1889, which were denied them. (United States v. Thomas, 151 U. S., 577.)

It is seriously contended that the court in the Fond du Lac case (34 C. Cls., 426) decided the issue here involved and denied relief under similar circumstances. The case mentioned was determined under a limited, specific, and mandatory jurisdictional act. While the proceedings were similar to a suit at law, the relief to be afforded was distinctly equitable. Any judgment found due predicated upon treaty rights was to depend for its finality upon two equitable considerations expressly named in the jurisdictional act, viz, whether subsequent to the treaty there had been any equitable adjustment made to the Indians because of failure to execute the treaty stipulations; and what, if any, advantages accrued to the Indians under the act of January 14, 1889. The court found and so reported that the injury resulting from failure to execute the treaty was fully recompensed by the subsequent proceedings, composed the differences, and dismissed the petition. Of course the Fond du Lacs received distinct advantage by reason of the right to participate in the common fund provided for in the act of January 14, 1889, and Congress expressly, or as said in the opinion, “commands us by the imperative shaIV balance this advantage against the prior injury and determine results accordingly. The court found the exact number of acres included in the treaty reservation, and had the jurisdictional act in that case been similar to the one in this case, viz, to adjudicate rights under express treaty stipulations without qualification, doubtless the result would have been different. Charged, however, as we were' in the Fond du Lac case, to treat both the legal and equitable phase of the situation, evidently in the first instance occasioned by mistake in excluding the improved portions of the Indian lands, Congress extended the privileges of a forum and the right to prosecute and adjudicate to a simple determination of what was just under existing conditions. The Indians had accepted the changed reservation, occupied it without protest or manifestation of displeasure, their interests had been enhanced thereby, they got what they originally wanted and manifestly intended to get, they knew no different until years afterwards, and while within the strict letter of the law as applied to lands other than Indian lands the excluded portion might have been included, and the included portion excluded, the Congress in the exercise of its plenary power over Indian lands and Indian tribal affairs was not willing to submit that question to this court for determination. The act of jurisdiction was sui generis; it is in nowise similar to the one in this case. If the situation of the Fond du Lac and the Mille Lac Indians as respects benefits under the act of January 14, 1889, were in any respect similar, the court might lend some weight to defendants’ contention. The Fond du Lacs ceded their reservation containing, as the court found, 100,121 acres of land. ' Under the provisions of the statute the full value of this reservation, certainly as rich in pine timber and agricultural lands as the exceedingly conservative value given by the court to the Mille Lac Reservation, was to become part of the common Chippewa fund. At a most conservative estimate it can not escape notice that the Fond du Lacs thus contributed to the common fund in the first instance a sum approaching $2,000,000, which considerably augmented the final per capita distribution of the whole proceeds. The Mille Lac Reservation was not so treated; its rich pine and agricultural lands were not classified and sold as the act provided; they were denied permission to augment the common fund by a contribution, which while not so large, was nevertheless substantial and in the end would have likewise inured to increase the per capita allowance. The right to dispose of their lands under the act, the same as the Fond du Lacs disposed of theirs, was denied them. The failure to include the Mille Lac Reservation within the provisions of the act of January 14, 1889, indisputably militates against them rather than for them. They realize nothing for a vast forest of valuable timber and acres of agricultural lands.

The court is unable to reconcile a conceded right of occupancy to'Indian lands with the doctrine of limited and circumscribed tenure by license or mere favor. It is certainly most unusual and an anomalous estate not heretofore carved out of Indian lands. It is repugnant to every intendment of the Government in its conduct toward the Indians, and confuses rather than adjusts the settlement of Indian affairs. It can not be claimed as just to the Indians, failing, as it must, to bring about that permanent repose continually sought for in Indian treaties and acts of Congress. The various conflicting opinions of the Department of the Interior were the result of this contention and have carried this controversy through the long years of its existence.

The jurisdictional act is comprehensive, its evident intention being to afford relief to the claimants mentioned therein for damages suffered by them as a band or by the Chippewa Indians of Minnesota. The language of the statute, “ a suit or suits to be brought by and on behalf of the Mille Lac Band of Chippewa Indians in the State of Minnesota * * * on account of losses sustained by them or the Chippewas of Minnesota,” precludes the idea of technical objections interposed to limit the parties interested. The suit under this jurisdiction may be brought by the Mille Lac Band of Indians for alleged damages to them as a band, or for damages accruing to the Chippewas of Minnesota by reason of injuries to them as a component part of the Chippewa Tribes. It is conceded that the Congress possesses plenary power in reference to the disposition of Indian tribal lands and tribal funds. The jurisdictional act passed subsequent to the act of January 14, 1889, wherein distinct provisions are made with reference to the disposition and division of tribal funds and lands, anticipated the very situation which now exists, and intentionally broadened the jurisdiction conferred to the extent of embracing this entire controversy within the terms of the statute, whether the damages occasioned were suffered by the Mille Lac Indians separately or to the Chippewas of Minnesota. If it were not for the act of January 14, 1889, the right of the Mille Lac Indians to prosecute this action in their own name would be indisputable. The act of January 14,1889, by its terms, however, provides for an equitable distribution of the funds arising from the sale of the lands of the Chippewas therein mentioned by saying, in section 7 thereof, that the distribution shall embrace “ all the Chippewa Indians in the State of Minnesota.” Thus it is apparent that the Mille Lac Indians, as a band, were entitled to institute these proceedings under the jurisdictional act, and that the judgment recovered must be subject to distribution, as provided by the act of January 14, 1889. The claimants having brought themselves within the provisions of the act of January 14,1889, the congressional disposition of their tribal lands and funds follows the same. This would be so even in the event of an individual judgment to the Mille Lac Indians as a band. The jurisdictional act in no wise modifies or repeals the act of January 14, 1889. The law of 1889 being the latest legislation respecting the disposition of Chippewa tribal lands and funds arising thereunder would apply the judgment as therein provided, for the act of 1889 controls in the matter of management and distribution of Chippewa lands and funds. (Lone Wolf v. Hitchcock, supra.) Courts are constrained to give effect to jurisdictional statutes where the intent of the legislature can reasonably be inferred from the language thereof to vest authority to judicially ascertain the merits of the controversy. (Supervisors v. Stanley, 105 U. S., 305.) Doubts are to be resolved in favor of jurisdiction, unless some established law is violated. (Endlich on Statutory Construction, sec. 430; Bufler & Vale v. United States, 43 C. Cls., 497.)

The situation of the parties herein concerned corresponds to the relief intended by the jurisdictional act. The Mille Lac Indians occupied one of the reservations included in the act of January 14,1889, and their assent thereto was secured. If no controversy was possible over their title to the reservation, their lands could have been classified, sold, and the proceeds arising therefrom disposed of in exactly the same manner as the other Chippewa Indian lands included in the act, i. e., the Mille Lac’s fund would have become part of the general Chippewa fund created by the act of 1889; hence the clause in the jurisdictional act extending the relief to damages occasioned to them or the Chippewas of Minnesota. It is similar in all respects to a suit by the Mille Lac Indians for the use and benefit of the Chippewa Indians of Minnesota. The-statute recognized the peculiar relationship between the Mille Lac Band and the other bands of Chippewa Indians as created by the act of 1889 and provided authority to investigate the subject matter of the controversy as presented to the Congress at the time.

The court has experienced great difficulty in attempting to reconcile the testimony in reference to the acreage, and value of the timber thereon, contained in this reservation. The conflicting statements of the witnesses are so wide apart as to make it impossible for the court to accept either the highest or lowest estimate of the amount. Taking into consideration the testimony of the witnesses and the records of the Interior Department submitted herein, we have reached the conclusion that the Mille Lac Indian Reservation contained 61,028.14 acres of land; that 25,000 acres of said land was swamp or agricultural land upon which no pine timber grew; that upon 34,360.89 acres of said land there was standing 100,000,000 feet of pine timber; and that 1,661.25 acres of said land was reserved for various purposes in the various treaties hereinbefore mentioned.

The amendment to the act of January 14,1889 (25 Stat. L., 642), fixing the minimum price of Norway pine at $4 per 1,000 feet on the stump and white pine at $5 per 1,000 feet, made it necessary for a careful investigation of the record in reference to the percentage of the different kinds of pine. Upon this subject the record is entirely silent, and it has been absolutely impossible to ascertain with any degree of accuracy whatever the quantity of Norway and white pine thereon. In view of this situation the court has treated all the timber as coming within the lower classification, namely, Norway pine, and allowed therefor at the rate of $4 per 1,000 feet, malting a total of $400,000, to which must be added the amount of $31,250 for the agricultural or swamp lands at $1.25 per acre.

The act of 1889 provided for interest at the rate of 5 per cent per annum on the sums received from the sale of the lands therein mentioned, and the United States expressly agreed to advance the sum of $90,000 per annum to pay said interest until the accumulation should be of sufficient amount to reimburse them for this outlay.

Under this statute there must be added to the principal amount the accumulated interest at the rate of 5 per cent per annum for 18 years 4 months and 17 days, which makes the total sum of $827,580.72, for which amount judgment will be entered in favor of the Mille Lac Indians of Minnesota, to be distributed under the act of 1889, as therein provided, to all the Chippewa Indians of Minnesota.

The defendants’ motion for a new trial is overruled. The claimants’ motion to amend findings is allowed in part and overruled in part, and amended findings and modified opinion this day filed. The former judgment is vacated and set aside and judgment now entered on the findings for the claimants in the sum of $827,580.72.

Peelle, Ch. J.,

dissenting:

When this case was originally argued I was in doubt as to the claimants’ right to recover, but yielded to the judgment of the majority. Since the argument of the motion for a new trial I am in still greater doubt, and therefore dissent from the action of the majority of the court in overruling the motion for a new trial.

Without analyzing the various treaties and r •; of Congress — referred to and commented on in the opinion of the court — dealing with the Chippewa Indians, of which the claimant band is a part, my reasons for dissenting are briefly these: The jurisdictional act confers upon the court authority to “ hear and determine ” the suit of the claimant Indians “ on account of losses sustained by them or the Chippewas of Minnesota by reason of the opening of the Mille Lac Beservation in the State of Minnesota, embracing about 61,000 acres of land, to public settlement under the general land laws of the United States.”

The act does not create a claim, nor does it perform any office except to give the Indians a forum in which to determine their suit on account of losses sustained as aforesaid. (Stewart v. United States, 206 U. S., 185; Sac and Fox Indians, 220 U. S., 481.)

The lands here in controversy, with others, were by article 1 of the treaty of 1864 (13 Stat. L., 693) ceded to the United States in consideration of certain lands set apart by article 2 to six bands of Chippewas in common, including the claimant band, and of moneys paid and to be paid them, as shown in articles 3 to 11 of said treaty, in which consideration the •claimants herein shared on equal terms with all other Indians parties to the treaty. And in addition thereto, for their peaceful conduct (in compliance with former treaties to keep the peace) during the Sioux outbreak in 1862 they were, by the proviso to article 12 of the treaty (1864), permitted to continue their occupancy of the lands so ceded “ so long as they shall not in any way interfere with or in any manner molest the persons and property of the whites.” At most, this was a naked right of occupancy, and this is the only right of which the claimants were deprived by opening the lands to settlement under the public-land laws of the United States.

After the treaty of 1864 the lands here in controversy were surveyed, and as early as 1811 entries thereon had been made, and up to 1884, though the Secretary of the Interior had forbidden entries, more than 55,000 acres of the tract had been entered and patents, though withheld, had been issued for over 7,000 acres.

By reason of adverse rulings by various Secretaries of the Interior respecting the rights of these entrymen all entries were suspended to await the action of Congress. Congress, by the act of July 4, 1884 (23 Stat. L., 76, 98), provided in substance that none of the lands should be patented or disposed of in any manner until further legislation by Congress. This act operated to suspend all entries theretofore made until the act of January 14, 1889 (25 Stat. L., 642); which was passed, as expressed in the title, “ For the relief and civilization of the Chippewa Indians of the State of Minnesota.” Pursuant to this act said Indians, by agreement with the commissioners appointed thereunder by the President, ceded all their interest in and to the reservations so set apart to them in common with such other Indians by article 2 of the treaty of 1864, in consideration of sharing with all said Indians in the proceeds of the timber and surplus lands and'allotments as in said act provided; and in respect "to the lands here in controversy, as the claimant Indians were, by the proviso, permitted to continue to occupy same by the grace of the Government they were required not to cede but to relinquish their right of occupancy. This was authorized by the act.

In January, 1891, the Secretary of the Interior (Noble) rendered a decision in the case of Walters et al. (12 L. D., 52), holding that the act of 1889 was the further legislation contemplated by the act of 1884, and therefore all entries theretofore suspended were validated; and he directed that if otherwise regular and valid such entries should proceed to patent; that is to say, that prior to the act of 1889 the claimant Indians were, by virtue of the proviso to article 12 of the treaty of 1864, entitled to the use and occupation of the lands (Northern Pacific Railway Co. v. Walters, 13 L. D., 230), but not thereafter.

Congress, by the ..joint resolution of December 19, 1893 (28 Stat. L.,'576), approved the ruling of the Secretary of the Interior holding that the entries made thereon were valid and authorized the issuance of patents therefor; and later, by the act of May 27, 1898 (30 Stat. L., 745), Congress declared all lands so occupied by the claimant band subject to entry, followed by the act of May 27, 1902 (32 Stat. L., 268), appropriating $40,000 to pay the claimant Indians for their improvements on said lands, on condition of their removal therefrom, granting them, however, the privilege of making their allotments on the lands so occupied or on the White Earth ^Reservation at their election.

• But it is contended by the claimants that the cession by article 1 of the treaty (1864) by all the Chippewas of the Mississippi was defeated as to the claimant Indians by the proviso to article 12, which they contend operated to set apart to the claimant Indians the lands* so ceded as a reservation for their occupancy “ so long as they shall not in any way interfere with or in any manner molest the persons or property of the whites ”; and never having broken the conditions, they were unlawfully deprived of the lands. But, conceding this to be true, the authority of Congress over the tribal property of Indians, as has been held by the Supreme Court in many cases, is plenary, and courts “ must presume that Congress acted in perfect good faith in their dealings with the Indians.” Therefore courts can not inquire into the wisdom of such legislation, even though some rights may thereby be taken away. (Worcester v. Georgia, 6 Pet., 515; Stephens v. Cherokee Nation, 114, 445; Lone Wolf v. Hitchcock, 187 U. S., 553, 565.)

There can be no question but that the lands here in controversy were ceded to the United States by article 1 of the treaty of 1864, and the Indian title was- thereby extinguished, the lands paid for, and the claimant Indians, independent of their occupancy of the lands here in controversy, were placed on equal terms with all other Chippewas parties to the treaty of 1864.

In the case of the Fond du Lac Indians (34 C. Cls., 426) the question turned on the acceptance by the Indians of the terms and provisions of the act of 1889, whereby they were permitted to share in the proceeds of nearly 4,000,000 acres of land in addition to the lands set apart to them in severalty. The claimants herein, independent of their right of occupancy of the lands here in controversy, were given equal rights in and to the lands and timber so to be sold.

The jurisdictional act requires us to hear and determine what losses the Chippewa Indians sustained, if any, “by reason of the opening of the Mille Lac Reservation * * * to settlement under the general land laws of the United States.”

What loss have the claimant Indians sustained by reason of opening the lands to public settlement except their right of occupancy, the value of which is not shown, nor is it claimed in this action except as such occupancy is connected with the value of the lands or the timber thereon. But, of course, the Indians had no right to dispose of the lands so occupied, or to sell the timber therefrom for their own benefit, so that any loss which they may have sustained arises, if at all, not under the provisions of any treaty, but alone under the act of 1889.

Section 4 of this act provides in substance that as soon as the cession and relinquishment of the Indian title shall have been obtained the Commisioner of the General Land Office shall “ cause the lands so ceded to the United States to be surveyed.” No provision is there made for the survey of the lands the occupancy of which was alone relinquished by the claimant Indians. The act clearly makes a distinction between the cession of the Indian title to the reservation set apart to them by article 2 of the treaty of 1864 and the relinquishment by the claimants of their right of occupancy to the lands here in controversjL The lands so relinquished were not offered for sale under said act, as were the lands so ceded; and this may be taken as a construction of the act by the officers of the Government charged with its execution, especially when coupled with the entries of nearly all the lands involved herein under the public-land laws of the United States prior to the passage of the act of 1889 and the subsequent ratification thereof by act of Congress, as herein-before stated.

It is manifest that a recovery in this case amounts to double payment for the lands, in addition to the peaceful occupancy thereof by the claimant Indians for a period of about 25 years. That is to say, the consideration expressed in the treaty of 1864 was for the cession of the six reservations set apart to the Chippewas of the Mississippi by clause 2 of article 2 of the treaty of 1855, of which the reservation here involved was one; and that consideration, be it remembered, was not diminished by the proviso permitting the claimant Indians to continue their occupation of the lands. If not, then any judgment rendered herein for the value of the lands or the timber thereon would, of necessity, be additional to the consideration therefor under the treaty of 1864. This I do not believe was contemplated by Congress by the act of 1889; and, if not, then the jurisdictional act has nothing upon which to operate.

The situation is not relieved by awarding judgment in favor of the claimant Indians and decreeing that the proceeds thereof be shared in common by all the other Chippewas of the Mississippi, since such other Chippewas are not parties to this action, nor were they given any right of occupancy by the grace of the Government by the proviso to article 12. That right was given to the claimant Indians alone, and it is a denial of that right in opening the lands to settlement under the public-land laws that gives rise to this action.

The intent of Congress by the appropriation to pay for the improvements, and the approval of the ruling of the Secretary of the Interior holding the entries made on the lands in controversy as valid must be construed by the court as a legislative construction of the act of 1889 excluding the lands here in controversy from the provisions thereof. This certainly was the view of the executive officers in disposing of the other lands and timber after their classification under the act of 1889, in which the lands here in controversy were not included.

In my view of the case the action of Congress with respect to the claimant Indians, coupled with the ruling of the Interior Department, so approved by Congress, is final, and, thus believing, I think the jurisdictional act should be construed in harmony therewith.

For these reasons, I think, the motion for a new trial should be allowed and the petition dismissed.

Howex, J.,

dissenting:

The same reasons which influenced me not to j oin the other members of the court in awarding judgment for $764,210.89 constrain me now, after an increase of the judgment to $825,484.37, to state the reasons why at the outset I was unable, and am yet unable, to concur in the judgment for any amount at all in favor of either the Mille Lac Indians as a band or of the Chippewas of Minnesota as a tribe.

The jurisdictional act creates no liability against the United States, nor is there any admission that the Government is liable for losses of any kind which the plaintiffs might have sustained except such as necessarily arose out of the act of the Government to the injury of the rights of the plaintiffs in opening the Mille Lac Reservation to public settlement under the general land laws of the United States. But the opinion of my brethren of the majority, whilst conceding (on the authority of Stewart v. United States, 206 U. S., 185) that the question of damages alleged to have been suffered by the plaintiffs must be determined by the court upon legal principles, goes a step further when it says that the jurisdictional act “ is a warrant of authority to adjudicate results and not determine the means employed to bring about the same.” And, further, that the jurisdictional act is so comprehensive as to “make evident the intention” of Congress to afford relief to plaintiffs for the damages of which they complain.

The two propositions involve contrary and different rules from those to be followed under the act conferring jurisdiction and can not stand with the terms of the act if we are to omit from consideration the validity of the joint resolution of 1893 of the Congress ratifying and confirming the entries on the old Mille Lac Reservation and the validity of the subsequent joint resolution of 1898 declaring the old Mille Lac Reservation open to entry as public land under the general land laws of the United States. Nor can we read into the act conferring jurisdiction a supposed intent to obtain results by merely assessing damages for the value of the lands, which by reason of public entry on a part of these lands (by virtue of a final understanding) had the effect finally of causing the removal of the remnant of the plaintiff band from their former reservation.

If it is intended to convey the idea that the jurisdictional act is a warrant of authority to adjudicate results and not determine the means employed to bring about the same, and that the court can merely draw a conclusion of fact as to the amount of timber destroyed or taken, then there is nothing to appeal from on the court’s findings of fact thus restricted to values. The right of appeal conferred by the act would have no meaning if liability according to strict legal principles were not provided for on the merits with results in the form of damages to follow only when the court should first find the existence of the necessary liability. The intention of Congress to afford relief can not, therefore, be said to be evident, because the act conferring jurisdiction neither undertook to determine rights in advance nor to create new rights of any kind, but merely to provide for a full trial on the merits.

As in the case of the Sac and Fox Indians, 220 U. S., 489, something must be shown in the present case amounting to a right in law, because a merely moral claim can not be the foundation for a possible recovery.

As a matter of fact, there is no question of the moral right involved that can be considered separately from the legal right. There is no room for the court to speculate upon the matter of moral obligation, inasmuch as by the opinion of the majority it is in any event “ quite doubtful if any advantages (by the judgment) will accrue to the Mille Lac Indians” because of the provisions of the act of January 14, 1889, 25 Stat., 642, by which the Mille Lacs were given an interest in the proceeds of the sale of about 4,000,000 acres of land, accompanied with the further right to have allotments in severalty to other lands given to them for occupancy, and that all Chippewa Indians in Minnesota have such a right to participate in the judgment rendered that the amount accruing to the Mille Lacs (by reason of the opening up of the old reservation occupied by them) would amount practically to nothing.

My objections to the judgment are:

(1) That the intent and scope of the various treaties between the United States and the parties for whom judgment is rendered contemplated and provided for the opening of the Mille Lac Keservation to public settlement by the whites, and that in the exercise of full plenary power over the subject matter Congress has so interpreted its obligations, duties, and rights as to provide, by valid and constitutional acts, full, fair, and adequate compensation to plaintiffs which the court can not disregard but must carry out.

Many cases establish the rule that the plenary authority over the tribal relations of the Indians is a political power not subject to be controlled by the judicial department of the Government. So far has the court of final review gone, it was said in Cherokee Nation v. Hitchcock, 187 U. S., 294, that “ the power existing in Congress to administer upon and guard the tribal property, and the power being political and administrative in its nature, the manner of its exercise is a question within the province of the legislative branch to determine, and not one for the courts.” The principle had great emphasis in the case of Lone Wolf v. Hitchcock, 187 U. S., 565, where upon the authority of Stephens v. Cherokee Nation, 174 U. S., 445, the court said that it “must presume that Congress acted in perfect good faith in dealing with the Indians of which complaint is made, and that the legislative branch of the Government exercised its best judgment in the premises. In any event, as Congress possessed full power in the matter, the judiciary can not question or inquire into the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress, and not to the courts. The legislation in question was constitutional.”

In Choctaw and Chickasaw Nations, 179 U. S., 494, the court said that “ the Court of Claims is without authority to determine the rights of parties upon the ground of mere justice or fairness, much less under the guise of interpretation to depart from the plain import of the words of the treaty. Its duty was to ascertain the intent of the parties according to the established rules for the interpretation of treaties,” concluding with the further statement that if the treaty there under consideration “ did injustice to the Choctaws and Chickasaws the remedy is with the political department of the Government.”

In the last-mentioned case the treaty had, as between the United States and the Choctaws and Chickasaws, provided for cession of a vast domain, which included a payment to the tribes of the inconsiderable sum of $300,000, which sum (according to what these tribes yet say) was never paid to the Choctaws and Chickasaws.

(2) My next objection to the judgment as rendered is that, the treaty by which the Mille Lacs relinquished their right in and to the old reservation did not, provide for an exclusive right in them to the lands, nor did it wholly exclude said lands from sale or disposal by the United States, and further, that as the Mille Lacs have received an ample equivalent by way of consideration for the abandonment of their occupancy of their former reservation, they should not receive another and double consideration for the mere sentiment involved in their desire to remain where they were in barbarism and idleness at Government expense.

Judicial notice will be taken of most everything upon which the findings are predicated, but for convenience and a better understanding of the merits attention is directed to those parts of public documents supposed to be material in determining the issues.

The treaty of September 30, 1854; 10 Stat., 1109, is important in that it partitioned the Chippewa lands in Minnesota between the Chippewas of Lake Superior and the Chippewas of the Mississippi. The scheme of that treaty as it appears was to encourage each family to cultivate the soil and to advance the Indian civilization.

The treaty of February 22, 1855, 10 Stat., 1165, mentioned in the second finding of the court, was made with the Chippewas of the Mississippi, and not with the Gull Lake, Mille Lac, Sandy Lake, Pokamogin Lake, Eed Lake, and Pice Lake Bands of Indians. Nor were the tracts of land reserved as a home for the Mississippi Chippewas designated as reservations until the treaty of 1863 and 1864. They were held in common by the whole tribe of the Chippewas of the Mississippi.

The map prepared by the General Land Office and filed as an exhibit in this case throws much light upon the questions to be considered. In fact, it is almost impossible without it to obtain a clear idea of the numerous cessions made by the various treaties between the United States and the Chippewa Indians.

The third finding of the court, is objected to by the defendants as contradictory to the official reports. The Government contends that the outbreak of the annuity Sioux in Minnesota did not start until August, 1862, and that no massacres or depredations were committed until August 17,1862,, and tbat a union of the Chippewas with the hostile Sioux was defeated by the hereditary enmity of the Chippewas and the promises of certain white men who had influence with them that a treaty would be made redressing their grievances. The history of the matter, if important, is to be found in Heard’s History of the Sioux War and Massacres, pages 52, 339; Sisseton and Wahpeton Indians v. United States, 42 C. Cls., 416; 108 U. S., 561. The finding sets forth that Shaw-vosh-kung went to the relief of Fort Ripley with 800 of his band, where the Commissioner of Indian Affairs happened to be with 35 soldiers.

Defendants urge that this statement incorporated in the findings is not sustained by the contemporaneous reports of the Commissioner of Indian Affairs, who was on the ground at the time. The report of the Secretary of the Interior for 1862, pages 223, 224, 227, 228, 229, 230, 231, discloses a state of affairs apparently establishing two things: First, that the Mille Lac Band was restrained by the presence of a number of United States troops equal to their own number from acts of hostility; and, secondly, that there were no promises made to them that they might remain on the land then occupied by them. Whether any effect can be given to these reports in the appellate court on the judicial notice there taken of what the reports show must be determined there. But the report of the Commissioner of Indian Affairs on the ground acting for the United States at the time of the Chippewa troubles, together with the reports of the Secretary of the Interior, are both important in arriving at the intent of the Government and the Indians in the subsequent treaties of 1863 and 1864.

The treaty of 1863 was superseded by article 14 of the treaty of 1864. The White Earth Reservation was not set apart for the home of the Mississippi Chippewas by th'e treaty of 1864, but was set apart for them by the treaty of March 19,1867, 16 Stat. L., 719. The commission appointed under the act of May 15, 1886, 24 Stat., 44, described the White Earth Reservation as “ set apart for the permanent home of the Mississippi Chippewas by the treaty of March 19, 1867, 16 Stat., 719, as part of the consideration for a large and valuable tract of land ceded to the Government.” (Sen. Ex. Doc. No. 115, 49th Cong., 2d sess., 14.) In the agreements made under the act of January 14, 1889, between the United States and the different bands, including the Mille Lacs, the surplus lands of the White Earth Eeservation not needed for allotment there ceded were described as having been set apart for the Indians by the treaty of March 19, 1867. (H. R. Doc. No. 247, 51st Cong., 1st sess., 45-48.)

Defendants object to that part of Finding VI showing that the Mille Lac Indians believed they were reserving to themselves the Mille Lac Eeservation in the execution of the treaty of 1863 and treaty of 1864, because (1) this treaty was not made with the Mille Lac Indians but with the Mississippi Chippewas, who had a common interest in each of the six reservations ceded by the treaty of 1864, and the right to occupy the old reservation was granted as a favor to one band, and not reserved by the Indians at all; and (2) because the statement is a conclusion of law drawn from certain acts of the Indians in their dealings with the Government and should have no place in a finding of fact; and (3) that the treaty of 1864 must be interpreted according to the recognized rules of construction without reference to what each party to the agreement believed it meant, citing Old Settlers case, 148 U. S., 427; Choctaw and Chickasaw Nation v. United States, 179 U. S., 494. Defendants also objects to the second paragraph of the sixth finding, because of its immateriality as to what the commissioner for the United States thought of the purpose of article 12 of the treaty of 1864 or what the Indians thought of it in reaching an agreement under the act of January 14, 1889. The fifth paragraph of the sixth finding is also objected to by the defendants, because the act of May 27, 1902, and the proceedings thereunder are separate and distinct transactions from the negotiations of 1886. The report of the commissioners appointed under the act approved May 15, 1886, 24 Stat., 44, to negotiate with the Chippewa Indians in Minnesota for modifications of existing treaties and changes of reservation, discloses the purpose of securing an agreement for the removal of that portion of the Mille Lac Band (about 200 in number) then residing on the old White Earth Eeservation. (Sen. Ex. Doc. No. 115, 49th Cong., 2d sess., 21, 27, 32, Serial No. 2449.) This report also discloses that though they refused to enter into an agreement there were not more than 200 of the entire band pretending to occupy the Mille Lac Reservation, and but few of those were actually living there, but were scattered through the country south of the reservation; that with the exception of three or four shanties there was not a house on the reservation; that these remnants of.the band were living summer and winter in birch-bark wigwams; and that the women and children were in a state of barbarism.

The act of July 4, 1884, 23 Stat., 76, 98, as originally drafted appropriated $15,000 for the removal and settlement of the White Oak Point and Mille Lac Bands on the White Earth Reservation. The appropriation was afterwards stricken out by the conference committee, and the act as passed provided “ That the lands acquired from the White Oak Point and Mille Lac Bands of Chippewa Indians on the White Earth Reservation in Minnesota shall not be patented or disposed of in any manner until further legislation by Congress.” (Plouse bills, 48th Cong., vol. 199; Conference Rep., Cong. Rec., vol. 15, pt. 6, pp. 5800, 5801.) The appropriation was evidently stricken out because the Mille Lac Band had already been settled on the White Earth Reservation, and only a few scattered Indians remained on the old reservation.

Pursuant to the act of January 14, 1889, three commissioners appointed by the President took a census of the Chippewa Indians of Minnesota. The total number of Chippewa Indians in Minnesota was found to aggregate 8,304, and the quantity of land in all the Chippewa reservations in that State aggregated 4,747,931 acres, of which the Mississippi Chippewas were interested in 796,672 acres (H. R. Doc. No. 287, 51st Cong., 1st sess., 9,15, 27); and thereafter, on different dates, by different agreements with the different bands, there were ceded and relinquished to the United States the Grand Portage Reservation, the Fond du Lac Reservation, the Boise or Wood Fort Reservation, the Deer Creek Reservation, and the surplus, lands of the White Earth and Red Lake Reservations not required for allotment in severalty to said Indians who had become parties to the agreements. Each separate agreement made with each of the bands of the Chippewas in Minnesota was separately approved, in accordance with the act of January 14, 1889, by President Harrison, including the relinquishment of the right of occupancy of the former Mille Lac Eeservation under article 12 of the treaty of May 7, 1864. The agreement entered into with the Mille Lac Band under the act of January 14, 1889, 25 Stat., 612, discloses the relinquishment of the right of occupancy of the Mille Lac Eeservation. The signatures of 189 adult Mille Lac Indians appear to the agreement, which was approved by the President March 4, 1890. (H. R. Doc. No. 247, 51st Cong., 1st sess., 45-48.)

By the treaty of May 7, 1864, six reservations were ceded to the United States, but prior to that treaty the Chippewas as a tribe owned an undivided communal interest in each of the six reservations. By the treaty the Chippewas of the Mississippi as a tribe ceded to the United States the Gull Lake, Mille Lac, Sandy Lake, Eabbit Lake, Pokagomin Lake, and Eice Lake Eeservations. By article 2 a reservation was set apart by boundaries to the six bands ceding the lands, including the Mille Lacs, and by article 3 these Mississippi Chippewas, including' the Mille Lacs, were given a money consideration. Then followed stipulations for expenditures on the reservation set apart by article 2 in improving the property for cultivation and residence, specifying 70 acres for the Mille Lac Band.

The twelfth article of this treaty of May 7, 1864, 13 Stat., 693, upon which the claim is predicated, provided as follows:

“ It shall not be obligatory upon the Indians parties to this treaty to remove from their present reservation until the United States shall have first complied with' the stipulations of articles four and six of this treaty, when the United States shall furnish them with all necessary transportation and subsistence to their new homes and subsistence for six months thereafter: Provided, That owing to the heretofore good conduct of the Mille Lac Indians they shall not be compelled to remove so long as they shall not in any way interfere with or in any manner molest the persons or property of the whites.”

It is conceded that the Government complied with the stip-, illations of articles 4 and 6 of the treaty; and, though a contemporaneous privilege was granted to the Mille Lacs, it was evidently not the intention of the parties to the treaty, taking into consideration all the circumstances, that the Mille Lac Band should forever remain where they were and yet reap the benefits of those provisions of the treaty which looked to their true interests, civilization, comfort, and ultimate location somewhere else.

The treaty, which included article 12, was a cession by the Mississippi Chippewas of their six reservations to the United States. It is a mistake to assume that by the first part of this article the Government receded (or intended to recede) to the Mille Lac Band the reservation. By the cession the United States either acquired a right to the reservation as a reservation or it did not acquire a right. A party can not be both grantor and grantee of the same premises, in the same right, in the same stipulation. In California & Oregon Land Co. v. Worden, 85 Fed. Rep., 94, it was said that such a thing ivas impossible. The stipulation permitting the small number of Mille Lacs to remain on lands (which for a consideration the band had just relinquished to the United States) was not a recession of such title as the band had before, nor a recession of such character as that the band could lawfully object to the entry of the whites where the land was not necessary for Indian use by the election of the band to remain. The treaty ceding the land to the United States was purposeless if, by the same instrument or by any contemporaneous qualification, the United States did not acquire the right to open the land to such public settlement as would not interfere with the limited use and occupancy of the band. The purpose of the treaty agreement was to open the lands to public settlement, except such land as the band should cultivate as long as it remained.

If defendants did not acquire the right to open all that part of the old reservation (to white settlement) not necessary for the occupancy and subsistence of the band as long as the band remained, then the conditions imposed by the twelfth article must be held to have operated to destroy the manifest intention of the Government at the time to provide homesteads for white settlers and the manifest intention of the Mille Lac Band to adjust themselves to the expectations of the United States in that behalf. The United States could not have intended that the band should remain indefinitely as vagrants and practically in a state of barbarism. From all that occurred the manifest intent stated must control.

The thing the Government did do in taking over the six reservations was to give a money consideration for the cession of these lands to the United States, and then, by way of grace, provide that, because of past good conduct, the Mille Lacs should not be compelled to remove so long as they should not in any way interfere with or molest the persons or property of the whites who might come on the reservation by the permission of the Government.

Why should the Government stipulate in the proviso that if the band remained they should neither interfere with nor molest the persons and property of the whites if the Government, by necessary implication from the language used, had not reserved the right to place whites somewhere on the reservation? Certainly at the time of the treaty there were no whites there, because the reservation up to the promulgation of the agreement was Indian country. Such whites as may have unlawfully come in as trespassers on the reservation before the treaty was made were without the protection of the Government and continued without protection of any kind until opportunity was afforded to each white person unlawfully there to have entry by Government permission.

By the treaty, 16 Stat, 707, under which the case of the California & Oregon Land Co. v. Worden, supra, was decided there was a proviso that “ within the country ceded a tract of land was set apart as a residence for the tribe making cession to be held and regarded as an Indian reservation.” As to the land thus reserved and expressly declared to be a reservation, the right of occupancy originally in those who made the cession of a large tract remained precisely the same after the treaty as before the cession for the small tract reserved for residence purposes. The case at bar is entirely different. Here the privilege of remaining on the premises did not have the effect of perpetuating the right of the Mille Lacs to the 61,000 acres, because of the stipulation necessarily implied that the whites who might be put on such part of the land as was not actually in Indian use should not be interfered with or molested by the band. Any other interpretation would have had the effect of destroying the treaty entirely. Nor did the right to remain confer any such privilege as gave the band the right to the timber taken off by trespassers or by permission of the Government, except such timber as was incidental to the use of the land.

In United States v. Cook, 19 Wall., 591, the Government by treaty with the Menomonees, 7 Stat., 344, paid $20,000 for a cession of land. The Oneidas, to whom a part of the Menomonee cession had been apportioned, ceded to the United States all the lands set apart to them except a small tract to each individual, which they reserved to themselves ■to be held as other Indian lands. A small number of the occupants cut timber from a part of the reservation not occupied in severalty, which they removed and sold to Cook. Beplevin by the United States against Cook was brought to recover possession of the timber which had been converted into saw logs. Following the early case of Johnson v. McIntosh, 8 Wheat., 574, the Supreme Court held that, for the purposes of agriculture, tribes as occupants might clear the lands of the timber to such an extent as might be reasonable. But the improvement of the land to justify any cutting of the timber must be done in good faith, as the improvement was the principal thing and the cutting of the timber the incident only. The court further held that the severance of timber for purposes of improvement only was a legitimate use, but that if timber should be severed for purposes of sale the cutting would be wrongful and the timber when cut would become the absolute property of the United' States.

If the Mille Lac Band in the present case had cut timber for sale upon the faith of their right to remain as occupants such timber would instantly have become the property of the United States, discharged of any Indian rights conferred by the privilege given to remain, because the fee to the land was in the Government. As by the privilege to remain the Mille Lac Band could not acquire any such right in the timber as to justify the court in rendering a judgment in their favor for the waste, how then are we to measure the value of the occupancy ?

By the act of March 3, 1865, 13 Stat., 541, appropriations were made for fulfilling the stipulations of the treaty of May 7, 1864, including appropriations for removal and subsistence. Thereafter appropriations were made annually for the benefit of the tribes, including plaintiffs, pursuant to the same treaty. (14 Stat., 273, 496; 15 Stat., 202; 16 Stat., 19, 339, 549; 17 Stat., 169, 443.)

Subsequently another treaty between the United States and the Chippewas of the Mississippi was proclaimed April 18, 1867, 16 Stat., 719, whereby the Chippewas received large benefits pursuant to the scheme of removal.

On March 31,1884, out of 61,028.14 acres contained in the former Mille Lac Reservation 55,976.42 acres had been entered under the general land laws, of which 7,792.16 acres had been patented.

As further showing the intent of the Mille Lac Band, 25 had removed to White Earth prior to 1872, and by May 10, 1882, nearly 400 had removed to the latter reservation. (H. Doc. 1388, 60th Cong., 1st sess., pp. 8, 12.) Prior to December 1, 1886 (as previously stated), not more than 200 of the Mille Lacs remained to avail themselves of the privilege of remaining, and but few of these lived on their former reservation permanently. (Report of Commissioners, Sen. Ex. Doc., 115, 49th Cong., 2d sess., p. 21.) On August 30, 1902, there were 125 male adults on the old Mille Lac Reservation, and quite a number of these had received allotments on the White Earth Reservation. On January 31, 1911, there were 174 of the Mille Lacs scattered around on the former reservation. (Report of Commissioner Hall.) The endeavor on the part of the Government in the latter part of the year 1886 was not really an effort to remove from the old Mille Lac Reservation any of the band, because, as hereinbefore shown, but 200 of the entire band had not removed to their new homes on the White Earth Reservation. The 200 unprovided for were, according to official reports, scattered through the country south of the reservation, and the efforts of the Government to remove the remnant of the band were principally directed to collecting them together from where they principally were south of their old reservation and giving them allotments on the land provided for them by treaty and by legislation.

The allotments of land came under the provisions of a treaty with the Chippewa Indians proclaimed April 18,1867, and certain acts of Congress relating to such Indians. On February 8, 1887, Congress passed an act “ to provide for the allotment of lands in severally to Indians on the various reservations.” This act was amended February 28, 1891. Then followed amending acts unecessary to be stated. Then came the act of April 28, 1904, entitled “An act to provide allotments to Indians on White Earth Reservation in Minnesota.” This was known as the Steenerson Act.

By an act approved May 27, 1902, 32 Stat., 268, the sum of $40,000 was appropriated to pay the Mille Lac Band for improvements made by them on their former reservation upon an appraisement by the Secretary of the Interior; but there was a provision that anyone of them who had leased or purchased any Government subdivision of land within the old reservation from or through a person having title from the Government should not be required to move. Thus it appears that the individuals of the Mille Lac Band were treated fairly and justly by the Government throughout, because every member of the band had the privilege of staying* there by purchase, as the land was opened up for public settlement. Then they were given equal rights in the lands provided for the other Chippewas. The band also acquired rights in the- timber to be sold from the new reservations which had been provided by the Government for all the Chippewas. The band participated in the annuities allowed by the treaties of 1868 and 1864 for purposes of subsistence, and if its members did not avail themselves of the benefit of schools, blacksmith shops, agricultural implements, and other advantages growing out of the removal to the White Earth Reservation it was their neglect or improvidence, as by removal they could have had these benefits at any time they desired to share in such advantages.

The improvements at the time the appraisement was made were practically of no value, and were assessed at what they Lad been previously, the object being to secure the removal of the Indians to the White Earth Reservation.

The clause in the agreement that nothing contained therein should be construed to deprive said Indians of any benefits to which they might be entitled under existing treaties or agreements not inconsistent with agreement then entered into, or the act of May 27, 1902, is the same provision which has been inserted in every agreement made with Indians, since 1896, and has no special significance in this agreement.

(3) My third objection to the judgment is that it represents the value of the Mille Lac Reservation itself and not the value of the right of occupation given to the small band who claimed the right to remain. The judgment does not inure strictly to the benefit of the Mille Lac Indians, nor is it yet restricted to the benefit of the Chippewas of the Mississippi, who held title to the reservation prior to its cession to the United States in 1864, but does provide for all the Chippewas of Minnesota. Most of the Minnesota Chippewas never at any time had any interest in the Mille Lac Reservation. The Lake Superior, Red Lake, and Pembina Bands certainly had no interest. None of these had any interest in the occupation by the Mille Lac Band, who were of the Mississippi Chippewas.. The treaty of September 30, 1854, supra, discloses that the Chippewas of Lake Superior and the Chippewas of the Mississippi had partitioned their land in Minnesota between themselves, the Lake Superior people acquiring lands east of a defined boundary and the Chippewas of the Mississippi acquiring the lands west of that boundary. The treaty of February 22,1855, supra, discloses that the Chippewas of the Mississippi ceded their lands west of the defined boundary line to the United States, out of which five reservations were set apart for their use, to be held in common— the Gull Lake, Sandy Lake, Rabbit Lake, Pokamogin Lake, and Rice Lake Reservations; and another, also to be held in common, the Mille Lac Reservation, which had been ceded by the Chippewas, prior to the partition of their lands, by the treaty of July 29, 1837, supra.

The beneficiaries in the judgment are principally those Indians who were guilty of the outbreak in 1862. Thus the right of occupation given as a reward for good conduct to a Small band is made by the judgment to have been an occupation for the benefit of the Indians engaged in the massacre of the whites.

The claims of the Chippewa Indians for compensation arising from an alleged difference in area of the reservation as actually set apart for them and that provided to be set apart under treaty with the Chippewas of Lake Superior and the Mississippi was heard by this court by virtue of a special jurisdictional act to determine the difference between the area actually set apart to the Fond du Lac Band and that pi’ovided to be set apart in the treaty there mentioned to that band, 34 C. Cls. R., 431. The question in that case involved the acceptance by that band of the terms of the later act of 1889. The Mille Lac Band was given equal rights in and to the lands and timber provided for the Fond du Lacs and other Chippewas besides the reservation to the Mille Lacs of their right to separate allotments. It would now seem that the act of 1889 settled adversely the rights of all the parties declared by the majority of this court to be entitled to share in- the present judgment. The other Chippewas of Minnesota, including the Fond du Lac Band, certainly have no further claim growing out of the occupancy by the Mille Lac Band of the old reservation.

Undoubtedly the Congress have the power at will to make such payment for Indian claims within the category of rights as may seem meet to the Legislature, as well as the right to pay demands by way of gratuity. But when a claim has been presented to a court having jurisdiction and the right of such claimant has been determined by the entry of judgment the right involved in the matter as a claim strictly speaking is res judicata.

But whether the rights of all or any of the Chippewas have or have not been adjudicated under the treaty of 1889 the later acts negative the contentions of all the parties (including the Mille Lac Band) to any further lands or to any other and further compensation for the value of such lands as are not now in their possession.  