
    LANGFORD’S CASE.
    William G. Langford v. The United States.
    
      On the Proofs.
    
    
      The American Board for Foreign Missions occupy a tract as a mission station in Washington (note Idaho) prior to the passage of the Oregon Territorial Act. They involuntarily abandon the station, {being forced away by Indian hostilities,) with the intent of returning. Before they can re-occupy, an Indian agent takes possession of the station for an agency. By subsequent treaty ivith the Nez Percé tribe the premises are reserved as part of an Indian reservation. The American Board sell and convey the premises to the claimant. He recovers judgment in a suit against the Indian agent for illegal occupancy, and is put in possession, but is subsequently evicted by military force. He brings Ms-action to recover for use and occupation.
    
    I. Though a statutory grant of lands (as to which the Indian title has not been extinguished) be absolute in terms, nevertheless it is subject to the outstanding title of the Indians.
    II. Though the Washington Territorial Act (10 Stat. L., 172, § 1) provided that ‘1 the title to the land ” ‘ ‘ occupied as missionary stations prior to the passage of the act establishing the territorial government of Oregon “ be, and is hereby, confirmed and established to the several religious societies to which said missionary stations respectively belong,” nevertheless subsequent Indian treaties, reserving some of such stations as a part of permanent Indian reservations, must he regarded as the paramount law.
    III. Estoppei by matter of record does not arise from a judgment by default in an action against an Indian agent for the wrongful occupation of the premises used as an agency, where he did not come in and set up the title either of the United States or of the Indian tribe in whom it really was. The fact that the agent interposed a demurrer at one stage of the case by order of the Secretary of the Interior does not preclude the Government from setting up the Indian title in a suit against it for use and occupation.
    IV. A judgment in ejectment against an agent of the Government will negative all presumptions of privity of contract in the nature of an implied lease between the owner of the premises and the Government, and will defeat an action for the implied rent during the Government’s prior occupancy.
    
      Y. This court is without jurisdiction to enforce an obligation assumed by the Government for the Indians by treaty. (Rev. Stat., § 1086.)
    VI. Where real property is taken by the Government for temporary use, an action may lie for the implied rent; but where the taking is in perpetuity, as by a treaty of cession for a permanent Indian reservation, the implied relation of landlord and tenant cannot subsist.
    
      The Reporters' statement of the case:
    The court found the following facts:
    I. In November, 1836, the American Board of Commissioners for Foreign Missions, a religious and charitable corporation, established and existing under the laws of the State of Massachusetts, b,y their missionary and agent, the Rev. H. H. Spauld-ing, entered upon and occupied the premises described in the' petition as a permanent missionary station among the Indian tribes in the Territory of Oregon. They subsequently cultivated the land, planted orchards, and erected buildings thereon, which consisted of a.churcb, a school-house, a printing-office, dwelling-houses, mills, and barns. The occupancy was with the assent and the premises were in fact allotted to them by the Nez Percé Indians, who inhabited that portion of the Territory.
    II. The American Board of Commissioners for Foreign Missions continued to occupy and enjoy the said premises as a missionary station until December, 1847, when the Cayuses, a hostile tribe of Indians, advancing upon the station with the intent to destroy the occupants thereof, compelled Mr. Spaulding, the agent of the board, to remove therefrom with his family and servants, and to seek refuge in one of the forts of the Hudson Bay Company. This removal from the mission-station was involuntary, being rendered absolutely necessary by the imminence of great danger, and was made with the intent of returning so soon as he, the agent of the board, might with safety do so. But Mr. Spaulding and the American Board of Commissioners were prevented by Indian hostilities from returning to occupy the said premises until the spring of 1860. During the interval they endeavored at various times to re-occupy the premises and at no time abandoned their intent to maintain a missionary station thereon.
    III. Early in the year 1860, and about the time that Mr. Spaulding returned to occupy the premises before described, tbe superintendent of Indian affairs and the Indian agent of the United States entered upon the same and established there an Indian agency, occupying such of the buildings erected by the American Board of Commissioners as then remained standing. The Indian agent also refused to restore possession when the same was shortly thereafter demanded by the agents of the American Board; and in 1862 he refused to allow a surveyor employed by and on behalf of the board to run the lines or otherwise locate the tract occupied by them as aforesaid. The American Board of Commissioners at various times have demanded possession of the same, but the Indian agents in possession by the express authority of and in pursuance of instructions from the Secretary of the Interior, have refused to surrender possession. The premises, except as hereinafter stated in the fifth finding, have been and now are occupied by the defendants as an Indian agency, and are in the actual possession of the agent and of Indians residing at the agency. Buildings also have been erected thereon for the purposes of the agency by the defendants.
    IY. On the 26th February, 1868, the American Board of Commissioners for Foreign Missions, as plaintiffs, brought an action to recover possession of the before-described premises in the dis*-trict court, first judicial district of the Territory of Idaho, in the county of Nez Percé, against one James O’Neil as defendant, he then being the Indian agent of the United States in control of the agency and in possession of the premises. The defendant, O’Neil, duly appeared in such action and filed a demurrer to the plaintiffs’ complaint. Subsequently such proceedings were had according to the practice of the courts of Idaho that on the 6th October, 1868, W. G. Langford was substituted as plaintiff in the action upon the ground that he had become the sole owner of the premises since the commencement of the action, and on the 6th April, 1869, Bobert Newell was substituted as defendant in the place of James O’Neil, on the ground that O’Neil had delivered the premises in controversy to Newell. On the 6th April, 1869, the demurrer to the complaint was argued by counsel for the respective parties and was overruled by the court, and on the 9th April, 1869, leave was given to the defendant, by stipulation, until the first day of the October term of the court to file his answer. On the 9th October, 1869, the defendant having failed to answer, judgment was entered in favor of the plaintiff, whereby it was adj edged that he should recover possession of the premises. All of which proceedings will more fully and at large appear in the judgment-roll of said action, annexed to and forming part of these findings. At the time that Robert Newell was substituted for James O’Neil as defendant in the action, he, the said Newell, had become and was the Indian agent of the United States at the agency, and was, as such agent, in possession of the premises. During all of the proceedings aforesaid, the action was in fact defended for and on behalf of the United States by and under the authority and direction of the Commissioner of Indian Affairs and the Secretary of the Interior.
    Y. Subsequent to the entry of judgment in the said action described in the fourth finding, a writ of possession issued out of the said court on the 19th December, 1873, directed to the sheriff of Nez Percé County, commanding and requiring him to place the plaintiff in the quiet and peaceable possession of the before-described premises, which writ the Indian agent in possession refused to obey, and the sheriff so returned. On the 14th February, 1874, the Secretary of the Interior authorized and directed the Indian agent to remain in possession of the premises, and to refuse to leave until" forcibly ejected by the sheriff, but instructed him at the same time not to use force or violence in attempting to remain. On the 12th of November, 1874, a second writ issued out of the said court of Idaho to the sheriff, under which the plaintiff acquired possession of the premises on the following day.
    YI. After the claimant had acquired possession, as shown iu the fifth finding, the Indian agent entered into an informal arrangement with him, pursuant to which the employés of the agency became tenants of the claimant, renting of him a portion of the buildings, the premises being used for the purposes of the agency, and the rent being paid by the agent, the claimant retaining possession ofthe remainder of the buildings. Thefacts being reported to the Commissioner of Indian Affairs, he, on the 4th January, 1875, under instruc’ions from the Secretary of the Interior, issued an order to the Indian agent “ to refuse all demands” of the claimant “ for payment of rent of buildings occupied ” by the agent or his employés “ for agency purposes,” and he at the same time directed the agent, “ Should an attempt be made, iu consequence of such refusal, to eject you from the premises, you will call upon the commanding officer of the nearest military post for protection.” The Secretary of the Interior also, on the 25th February, 1875, applied to the Secretary of War to issue orders to the proper military officer “ to dispossess ” the claimant from the premises and£t reinstate ” the Indian agent, “ and afford him such protection as shall enable him to keep possession of the premises.” The Secretary of War, on the 4th March, 1875, by communication addressed to the Secretary of the Interior, refused to issue such orders on the ground that, in his opinion, it must be “presumed” that the claimant was then “ in possession of the premises referred to by due process of lawr and that the Department had no authority to eject him.” But subsequently, in pursuance of an opinion of the Attorney-General, bearing date the 3d May, 1875, (14 Opins. Atty. Gen., 568,) to the effect that the claimant was £l an intruder” upon an Indian reservation, and that “ the President might take such measures and employ such military force as he might judge necessary to remove him from the land,” the Secretary of War, on the 12th May, 1875, issued orders to the commanding officer of the department of the Columbia, directing him “ to protect the Indian agent in possession of the agency in accordance with the opinion of the Attorney-General,” and the commanding officer of the department on the 2d June, 1875, issued his orders directing the officer in command at Fort Lap-wai, Idaho, to “ immediately take steps to place the Government, through the Indian agent, in complete possession of the Indian reservation as designated in the decision of the Attorney-General herein, including all buildings and their appurtenances, as situated on said reservation.” Under these orders an officer with a military force detailed for the purpose, on the 11th June, 1875, forcibly ejected the claimant from possession of all the buildings and premises before described, and put the Indian agent in full and complete possession thereof. The action of these officers was fully reported to the Secretary of War, and their reports were by him transmitted to the Secretary of the Interior, and the defendants have ever since retained and still hold possession of the said premises. At the time of this dispossession of the claimant the buildings and premises were required and needed by the Government for the purposes of an Indian agency.
    Vil. The deed or conveyance of the premises from the American Board of Commissioners for Foreign Missions to the claimant, referred to in the fourth finding, was made and executed while the premises in question were the subject of litigation, as set forth in that finding; and the claimant or grantee was at that time the attorney of record for the plaintiff, the American Board, in that action. The deed, with the certificate or proof of acknowledgment by the grantor, is in the following words:
    Know all men by these presents, that the American Board of Commissioners for Foreign Missions, a corporation bylaw established, (having its offices of direction and business at Boston, in the county of Suffolk, and Commonwealth of Massachusetts,) in consideration of the sum of five hundred dollars paid by Wm. G. Langford, the receipt whereof is hereby acknowledged, does hereby remise, release, and forever quit-claim unto the said Langford the following-described tract of land known and described as follows, to wit: All of that piece or parcel of land heretofore occupied as a missionary station by the missionaries of the said board of missions, and situated on the south side of Clearwater Biver and on each side of the Lapwai Creek, lying and being within the boundaries of the country occupied by the Nez Percés tribe of Indians, and described as follows, to wit: Commencing at a point at the margin of Clearwater Biver, on the south side thereof, which is three hundred yards below where the middle thread of Lapwai Creek empties into said river; run thence up the margin of said Clearwater Biver at low-water mark, nine hundred yards, to a point'; run thence south two hundred and fifty yards to a point;' thence southwesterly in a line to the southeast corner of a stone building partly finished as a church ; thence west three hundred yards to a point; thence from said point northerly in a straight line to the point of beginning; and also the adjoining tract.of land laying southerly of said tract, on the south end thereof, commencing at the said corner of said church and at the point three hundred yards west thereof, and run a line from each of said points, one of said lines running on the east side and the other on the west of said Lapwai Creek, along the foot-hills of each side of said creek, up the same sufficiently far so that a line' being drawn east and west to intersect the aforesaid lines shall ■ embrace within its boundaries, together with the first above-described tract of land, a sufficient quantity of land as to include and comprise six hundred and forty acres:
    
      Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertaining ; and also all the right, title, interest, possession, claim, and demand of the said party of the first part of, in, or to the said premises and every part and parcel thereof, with the appurtenances:
    To have and to hold the above-released premises, with all the privileges and appurtenances to the same belonging, to the said Langford, his heirs' and assigns, to his and their use and behoof forever. And the said American Bo'ard of Commissioners for Foreign Missions,' for itself, its successors and assigns, hereby covenants with the said Langford, his heirs and assigns, that the premises are free from all encumbrances made or suffered by it or under its authority, and that it will, and its successors and assigns shall, warrant and defend the same to the said Langford, his heirs and assigns, forever, against the lawful claims and demands of all persons claiming by, through, or under the said American Board, but against none other.
    In testimony whereof the said American Board of Commissioners for Foreign Missions has hereunto set its common seal, and has also caused these presents to be subscribed in its be-no Ameri- by Langdon S. Ward, its treasurer, (the offl-SSJK iUfSt cerdesignated by the charter of the said corpora-i8Lo. tion to authenticate its deeds, and duly authorized hereunto,) this fourteenth day of February, in the year of Lord eighteen hundred and sixty-eight.
    LANG-DON S. WABD,
    
      Treasurer of the Am. Board of Corns, for For. Missions.
    
    Signed, sealed, and delivered in presence of—
    O. W. STUDLEY.
    JOHN P. LOYETT.
    [50-cent United States int. rev. stamp.]
    COMMONWEALTH OE MASSACHUSETTS,
    
      County of Suffolk, City of Boston .*
    On this fourteenth day of February, A. D. 1868, personally appeared before me, ajudge of the superior court of the Commonwealth of Massachusetts, to me personally known to be the individual whose name is subscribed to the foregoing instrument as the treasurer of the American Board of Commissioners for Foreign Missions, and who acknowledged to me that he executed the same as the treasurer of said corporation, for and in behalf of and iu the name of said corporation, as its free and voluntary act and deed for thauses and purposes therein mentioned, in pursuance of direction of said corporation, by. signing the same as treasurer thereof, and affixing thereunto its corporate seal.
    In witness whereto I have hereunto set my hand and caused the seal of the court to be affixed the day and year above written.
    [the superior court.] SETH AMES,
    
      Chief-Justice Superior Court.
    
    ComMOnwealth of Massachusetts,
    
      Suffolk, ss., Superior Court:
    
    I hereby certify that Seth Ames was, at the date of the within attestation, the chief-justice of said court within and for said Commonwealth, duly commissioned and sworn; that due faith and credit are and ought to be given his official acts; that he is duly authorized to administer oaths and take acknowledgments; and that his signature is genuine.
    Witness my hand and the seal of said court, at Boston, in said county and Commonwealth, this fourteenth day of February, A. D. eighteen hundred sixty-eight.
    [THE SUPERIOR COURT SEAL.] JOS. A. WÍLLABD,
    
      Clerk.
    
    [5-eent int. rev. stamp canceled.]
    YIII. The fair and reasonable rent of the premises for the uses and purposes of the defendants’ Indian agency at the time of the defendants’ entry on the premises in 1860 was $-a year, and at the time of their entry in 1875 was $-a year.
    IS. The occupation of the premises as an Indian agency has always been under a claim of title thereto on the part of the United States.
    
      Mr. Benjamin F. Butler and Mr. Thomas Wilson for the claimant:
    In 1860, or 1861, after the cessation of the Indian war, the United States took possession of the missionary station at the mouth of the Lapwai, and established at that station, and upon the land occupied by Spaulding, its Indian-agency; and it has. continued the use and occupation of that land, which was the property of tbe plaintiff, with a single interruption, from that time until tbe present. In 1868 tbe American Board of Foreign Missions, finding one James O’Neil in possession of that land, and acting as Indian agent for tbe United States, brought suit against him to recover possession of the property. The suit was brought in the territorial courts under the provisions of the territorial code. By the provisions of that code the technicalities of the action of ejectment are abolished and the suit becomes not one solely to try the right of possession, as in the common-law action of ejectment, but one to try the title to the property, and thus determine who is entitled to the possession. Upon the purchase of tbe premises by Langford he became and was substituted by the court as plaintiff in the action, while the same substitution took place on the part of the defendant whenever a new Indian agent was appointed. The United States, as principal, assumed the defense of this action, gave direction to its agent in respect- to the conduct of the suit, employed and paid the attorneys for making the defense, and, in all respects, conducted itself as the real defendant. Judgment was rendered in favor of the plaintiff October 9th, 1869. It is to be found in the record. On this judgment a writ of habere facias was issued and the plaintiff put in possession of a part of the premises. On the 11th day of June, 1875, the plaintiff was dispossessed of said premises by the United States by the use of force and arms.
    Having thus shown the title to the premises to be in the plaintiff — the rendition of a judgment in his favor, virtually against the United States, deciding the premises to be that of the plaintiff, and supplementing this with proof of continued use and occupation on the part of the United States, under the authority and by the direction of the Secretary of the Interior, who is at the head of the Department having charge of Indian affairs, and, virtually, the act of the President — we submit that we have made out our case.
    
      IJr. Horace M. Hastings (with whom was the Assistant Attorney- General) for the defendants:
    The corporation never had any title to convey. It claims through two statutes: one, an Act to establish the territorial government of Oregon, Angustia, 1848, (9 Stat. L., 323, § 1;) the other, an Act to establish the territorial government of Washington, March 2, 1853, (10 Stat. L., 172, § 1.) It is argued that each act was a perfect grant of the fee to the American Board, that each act operated instantly to transfer the estate. The words on which they depend, in the act of 1853, read thus:
    
      “Provided further, That the title to the land, not exceeding six hundred and forty acres, now occupied as missionary stations among the Indian tribes in said Territory, together with the improvements thereon, be confirmed and established in the said several religious societies to which said missionary stations respectively belong.” (9 Stat. L., 323, § 1.)
    The words upon which they depend, in the act of 1853, read thus:
    “ Provided further, That the title to the land, not exceeding six hundred and forty acres, now occupied as missionary stations among the Indian tribes in said Territory, or that may have been so occupied as missionary stations prior to the passage of the act establishing the territorial government of Oregon, together with the improvements thereon, be, and is hereby, confirmed and established to the several religious societies to which said missionary stations respectively belong.” (10 Stat. L., 173, § 1.)
    Now, the United States, as a defense, sets up the Indian title. We insist that the Indian title had not been extinguished when these acts were passed; that the United States always regards the Indian title as it ought, and that' these statutes are not to be considered in derogation thereof; that the Indians then occupied all this region of country; that it was an Indian country — not a white man’s country; all of which is claimed by claimant himself whenever it suits his purpose, and sought to be rejected only where it does not. Claimant answers, “True, you ought to respect the Indian title, but very frequently you do not, and in this case you did not; you, the United States, have the superior title even to the Indians. If you do not wish to recognize it, if you choose to ride over it and convey the land to others without regard to the Indian title, you can do so; you have the legal power to do so, and you did do so when you passed these statutes, and by these very acts themselves you extinguished the Indian title.” This was the argument at the bar, and always has been the argument in this case, wherever made. Our reply to it is, we did, in both of these acts, carefully protect the Indian title; we recognized it in its fullest extent, and declared, in words so clear “that he that runs'may read,” that nothing in these acts should for a moment impair, or in any manner affect, the-title of the Indians to these lands. In both of these statutes the following proviso was introduced into the first section of each act:
    “Provided, That nothing in this act contained shall be construed to affect the authority of the Government of the United States to make any regulation respecting the Indians of said Territory, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to make if this act had never been passed.”
    And subsequently treaties were made by which these Indians ceded these lands to the United States, the United States ceding back to them this very land as a reservation — now claimed as having belonged to the board of missions — guaranteeing them quiet enjoyment and protection. (12 Stat. L., 957, 958, Articles III and IY; 14 Stat. L., 645, 648, Article III, 649, Article IY;.15 Stat. L., 693.- Vide 14 Attorney-Generals’ Opinions, on this very case, 568-573.)
    Treaties are the law of the land, superior to any State legislation, and valid even as municipal regulations until superseded by some act of Congress. ( Ware v. Hylton, 3 Dallas, 236, et seq., and 361; Taylor v. Morton, 2 Curtis, O. G., 454; 1 Story on Const-., § 1838; 6 Pet., 579, et seq.) Hence, a guarantee of quiet enjoyment of lands by an Indian tribe “ extends to the acts of the several States and of all the citizens of the Union.” (Felloios v. Henniston, 23 N. Y., 427, et seq.) Indian rights thereto cannot be invaded by States. (Kansas Indians, 5 Wall., 737; Y. Y. Indians, id., 762; Foster v. Go. Gommis.,1 Minn., 140.) A fortiori cannot be by individuals.
    The private rights of citizens are bound by such treaties. (Lattimer v. Poteet, 14 Pet., 4; The United States v. Stone, 2 Wall., 525.) States are bound. (People v. Gerge, 5 Cal., 381, citing 2 Wheat., 459; 4 Wheat., 453; 8 Wheat.., 464; 9 Wheat., 489; 10 Wheat., 181.)
    “The Indians are acknowledged to have an unquestionable, and heretofore unquestioned, right to the lands they occupy until that right shall be extinguished by a voluntary cession to our Government. * * * Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our Government for protection,” &c., &c. (Oherokees v. Georgia, 5 Pet-., 17.)
    The relation of the Indians to .the Government is peculiar and sui generis. The right to extinguish the Indian title to lauds belongs to the sovereign, and the individual citizen can obtain no title to them, recognizable in our courts, except with the assent of the Government. (Johnson v. McIntosh, 8 Wheat., 543, 603; Cherolcees v. Georgia, 5 Pet., 1, 17, &c.; Worcester v. Georgia, 6 Pet-., 515, 581, &c.; 3 Kent’s Com., *378, et seq.; lee v. Glover, 8 Cowan, 189; Harmon v. Bartier, 12 Sm. and Mar., 425; Act March 30,1802, § 12.)
    The Indian title can only be extinguished by negotiation with the tribe or nation, i. e., by treaty. Hence, the power to receive cession of Indian lands, wherever situate, is exclusively in the Federal Government. (6 Pet., 581, et seq.)
    
    So long as the Federal Government recognizes the tribal existence and condition of an Indian community, so long it constitutes a “domestic, dependent nation” — “ dependent” as'to the United States — though, within territorial limits, imperium in imperio, always to he protected. (5 Pet., 27; Kansas Indians, 5 Wall., 756, 757.)
    Claimant, however, sets up title in himself independent of bis deed from the board of missions. He claims that by virtue of a judgment obtained by default in an ejectment suit in the territorial court in Idaho against Bobert Newell, an Indian agent, wherein he, claimant, was plaintiff, that the United States in some way or other is bound, either as party or privy, from' the mere fact of the judgment having been rendered, or from the additional fact that the United States aided the Indian agent in defending the suit. We confess we have not been able to determine exactly upon what he does seek to maintian this novel proposition, for .he passes from one reason to the other in the same breath, and cites his authorities now as bearing on this and now on that, indiscriminately.
    The authorities which he cites decide this, that in cases where you cannot sue the principal you may sue the agent; because the United States is not suable in any manner you may sue its servant. He cannot protect himself by claiming the non-suability of the United States. Thus, if this suit were against Newell here and now, he could not interpose the objection that the suit was in fact against the United States, he being only an agent, with no interest or claim in the matter himself, and the United States being in fact the real party and not suable, the action could not be maintained against him, (Newell,) for the court would answer, as in these cases cited by the claimant, You are wrong; this suit is not against the United States; no suit can be brought against her, nor can she in manner be proceeded against or bound; it is against you, an individual; against you, Newell, and we will allow you to be sued, for the very reason that the United States cannot be sued.
    This is the reasoning and declaration in every authority cited by claimant. There have been cases where it has been decided that the agent cum avail himself of the non suability of the United States; that because the United States cannot be sued neither can its agent; and it was to overrule those decisions, to destroy that doctrine, that the courts have made the decisions cited by the claimant.
    In the celebrated “Batture” Case, a like case to this in more respects than one, Thomas Jefferson said, “The United States were no party to the suit, nor could they be, having made themselves amenable to no tribunal. Their property can never be questioned in any coqpt but in special cases in which by some particular law they delegate a special power. * * * But a general-jurisdiction of the national demesnes * * * has never been by them, and never ought to be, subjected to any tribunal.’’ (8 vol. Jefferson’s Works, 521, congressional ed.) And Edward Livingston, in his elaborate answer to Jefferson in this his own case, frankly conceded the doctrine, saying, “ I have admitted that the United States, if they claimed an interest in the land in their own right, or for another not a party to the suit, would not be affected by it,” (the judgment.) “The law cited by Mr. Jefferson is a first principle in the civil, and, as far. as my knowledge extends, pervades every other code.” (5 American Law Journal, 266; compare Hunt’s Livingston, 138, 139, 140, 141, 142, with Bandali’s Jefferson, vol. iii, 266, 267, 268.)
    This doctrine is so well settled that it does not often arise in the courts, but it may be found conclusively determined in Beeside v. Walker, (11 How. U. S. R., 290 ;) also JEckford v. United States, (6 Wallace, 484, 487, et seq.) If Langford wishes to pursue Newell on his judgment his authorities decide that he can do so; if he wishes to pursue, not Newell, but the United States, on such judgment, the very same authorities declare that he cannot.
   Nott, J.,

delivered the opinion of the court:

The Act to establish the territorial government of Washington, 2d March, 1853, (10 Stat. L., 172, § 1,) contained this provision :

Provided further, That the title to the land, not exceeding six hundred and forty acres, now occupied as missionary stations among the Indian tribes in said territory, or that , may have been so occupied as missionary stations prior to the passage of the act establishing the territorial government of Oregon, together with the improvements thereon, be, and is hereby, confirmed and established to the several religious societies to which said missionary stations respectively belong.”

And the court has found as a fact that the American Board of Commissioners for Foreign Missions had occupied as a missionary station the land which is the subject of the present controversy prior to the Act establishing the territorial government of Oregon. The point has been made by the defendants that this occupancy had been abandoned when the act of 1853 was passed by Congress; but the court, against the objection, has found that the alleged abandonment was involuntary, being rendered absolutely necessary by the imminence of great danger from a hostile force; that it was made with the intent of returning; and that the missionary in charge did in fact return with the intent of re-occupying at the earliest possible moment. The court entertains no doubt that this enforced temporary absence, accompanied by the animus revertendi and due diligence, did not disturb the legal occupancy of missionaries within the true intent of the statute.

The title thus assured to the American Board was what is known in our public-land law as a “statutory title.” At least one Attorney-General, and when speaking of this identical statute, has said “ that a grant of public land by statute is the highest and strongest form of title known to the law;” and that “it is stronger than a patent, for a patent may be annulled by the judiciary upon a proper case shown of fraud, accident, or mistake, while even Congress cannot repeal a statutory grant.” (Opinion of Attorney-General Bates, May 27, 1864.) The Supreme Court moreover has intimated .in the recent case of the Carondelet Common (11 C. Cls. R., 367) that it is now the settled law that a patent is unnecessary to perfect a statutory grant, and that the title becomes perfect on the completion of the survey necessary to define it.

But at the time the claimant’s entry was made, and at the time the act of 1853 was passed, the public surveys had not been made and the Indian title was not extinguished. Analogous cases enable us to say that if the ordinary course of things had extended to this tract, if in time the public surveys had defined it and the Indian title had been extinguished, the statutory grant would have been perfected and the title of the American Board would have become complete. But here an opposite current of events has flowed, for the tract still remains unsur-veyed and the grant undefined; and by subsequent treaties with the Indians this tract in dispute has become a part of a permanent Indian reservation.

The statutory grant was in absolute terms, and it “confirmed and established” in the claimant’s grantors such title as the Government then had. As in the case of a warranty-deed any subsequent title which the Government might acquire would-inure to the benefit of the grantees. But nevertheless, at that time, as has been said, the Indian title to the property had not been divested, and since then by several treaties between them and the United States this property has been reserved by and ceded to the Indians. (Treaties 11th June, 1855, 12 Stat. L., 957, Art. II; 9th June, 1863, 14 id., 647, Art. II; 13th August, 1868, 15 id., 693, Art. I.) It is therefore a case of statute against treaty; of the former being in direct conflict with the latter; and the question is, which is to be taken as paramount law?

If this question were a new one we should approach the determination of it with reluctance and perhaps in doubt; but it has already been before the Supreme Court, and has received a unanimous and, we must believe, final determination by that tribunal. In the case of Gaines v. Nicholson, (9 How. R., 356,) one party claimed in like manner under a statutory grant, and the other under a subsequent Indian treaty. The language of the Supreme Court is unequivocal, and, as it seems to us, conclusive :

“No previous grant of Congress could be paramount, according to the rights of occupancy which this Government has always conceded to the Indian tribes within her jurisdiction. It was so much carved out of the territory ceded, and remained to the Indian occupant, as he had never parted with it. He holds, strictly speaking', not under the treaty of cession, but under his original title confirmed by the Government in the act of agreeing to the reservation.”

Against the determination of this question upon the merits, the claimant has attempted to set up an estoppel by matter of record arising from a judgment recovered by him in the territorial court of Idaho, in an action in the nature of ejectment brought against the Indian agent in possession, which action was in fact defended by the United States. There are cases (cited by the claimant’s counsel) in the reports of the Supreme Court looking, to say the least, favorable to the doctrine that the Government, though it cannot be sued, yet if it voluntarily interpose and indirectly submit its title to the judgment of a court may be estopped. Certainly in many forms it has been held by the Supreme Court that when the Government brings or submits its rights to the Courts for judicial determination they must be measured and maintained by the same standard of judicial principles that would' be applied to an individual. Thus it has been held that where the Government becomes a party on negotiable paper it is bound to use the diligence which the law of negotiable paper requires; and thus, by a parity of reasoning, it may be held that where the Government seeks to obtain the advantage of keeping its agents in possession, and voluntarily comes into a court and defends a suit brought against them, setting up through the nominal defendants its own title, it will be concluded by the judgment of that court as effectually as though it had come in as plaintiff. But be this as it may, we are nevertheless of the opinion that the doctrine of estoppel cannot here be extended to the issue determinable in this action. The former action was simply for the wrongful occupation of the premises by the defendant, and judgment went by default after a demurrer to the jurisdiction had been overruled. The declaration did not show that the premises were a portion of a permanent Indian reservation, nor that the Indian title had never been divested and had been expressly reserved and confirmed by treaty. The nominal defendant did not come in and set up either the title of the United States or the title of the bfez Percé tribe. All that the judgment on demurrer or by default established was that the claimant was entitled to possession on that day. -It did not establish either as fact or law that the Indian title had become extinct, nor were the Indians directly or impliedly before the court to be estopped by its judgment.

In this case the defendants are sued for use and occupation, and they show that they'do not hold in their own right, but under the Indian title, and as trustees or guardians of the Indians by virtue of that peculiar relation which subsists between the Government and the Indian tribes. They could only be held liable for the rent of these premises in virtue of some privity of contract between themselves and the claimant, or in consequence of some obligation assumed for the Indians and ratified by treaty. As to the former, all presumptions in its favor would be negatived by the judgment in ejectment, certainly up to that time; as'to the latter, no such obligation was established by the judgment, and if it had been this court would be without jurisdiction to enforce it. (Rev. Stat., § 1066.)

It should also be noted that the claimant’s right of action, whatever it may be worth, can hardly be maintained in its present form. This action has been brought under the decision of this court in Johnson's Case. (4 C. Cls. R., 248.) There the court found that the claimant’s property had been taken for temporary use, and accordingly fixed the compensation in the form of an annual rent. In this case the property, if taken from the claimant, was taken by virtue of the treaties ceding it back to the Nez Percé tribe. It is settled that private property cau be taken for public use by the terms of a treaty. (Meade's Case, 2 C. Cls. R., 224.) That a treaty with an Indian tribe is as supreme law as a treaty with a foreign power is clearly shown, if it could be doubted, by the cases cited by the defendants’ counsel. The taking and present holding of this property, under and by virtue of a treaty of cession, must be deemed a taking in perpetuity or of the fee. That taking would exclude the relation of landlord and tenant within the decision of the Supreme Court in Carpenter's Case. (9 C. Cls. R., 18.)

A number of other points have been raised by the defendants’ counsel, but the court confines its decision to the claimant’s title. That title having failed the action must fail.

The judgment of the court is that the petition be dismissed.

Peck, J., was not present when the case was heard, and took no part in the decision.  