Argument for Plaintiff in Error.

203 U.S.

by Acts of Congress of 1790, 1793, 1796 and 1802. Cherokee Nation v. The State of Georgia, 5 Pet. 17; Buttz v. Northern Pacific Railroad, 119 U. S. 67.

The tenure of individual Indians under reservations in treaties negotiated prior to June 30, 1834, was fixed by the act of March 30, 1802. This tenure could not be changed without the consent of both parties, the Indian holder and the Government; or by treaty with the Indian tribe. Schrimpscher v. Stockton, 183 U. S. 290; United States v. Brooks, 10 How. 442.

The act of 1834 did not purport to repeal in any respect the act of 1802, and § 12 of the former act did not in any manner affect tenures acquired. under the latter. At most it did no more than control and regulate tenures under treaties or grants thereafter made. Jones v. Meehan, 175 U. S. 1, 9, 12; Gaines v. Nicholson, 9 How. 365.

The right to protection against improvident alienation, as expressed in the act of 1802, was excepted from the operation of the repeal clause of the Revised Statutes. Sections 5596 et seq.

The reservee and his heirs acquired only such title as was controlled by the act of March 30, 1802. Though an estate of inheritance, it was under this law alienable only with the consent of the Government. Jones v. Meehan, 175 U. S. 1.

Inasmuch as the tract reserved had not been located in any other manner, the patent is essential to designate the land reserved, and the clause restricting alienation without consent of the President was notice to the world of the Government's understanding of the nature of the title granted, and its acceptance by the reservee made this construction conclusive. Best v. Polk, 18 Wall. 116; Niles v. Anderson, 5 How. (Miss.) 365; quoted in Jones v. Meehan, 175 U. S. 20. The patent issued to the reservee in 1827 contained no greater restriction on the power of alienation than was already imposed by the law itself. Doe v. Wilson, 23 How. 457; Crews v. Burcham, 1 Black, 352; Smith v. Stevens, 10 Wall. 321, 327; Auditor v. Williams, 94 Michigan, 180; Worcester v. Georgia, 6 Pet. 582. Stockton v. Williams, 1 Doug. 546, and Dewey v. Campau,

203 U.S.

Argument for Defendant in Error.

4 Michigan, 565, distinguished. The questions and conditions involved are entirely different.

The Bokowtonden patent was a necessary constituent of plaintiff's title. The text of the patent was also evidence of the intent of the contracting parties to the treaty. It was part of the res gesta. Eagon v. Eagon, 60 Kansas, 697, 706; Wharton, Civ. Ev., 8th ed., § 262; Humphreys v. Chilcat C. Co., 20 Oregon, 209; Cross v. Hoch, 149 Missouri, 325; Pickering v. Lomax, 145 U. S. 310, 316.

Though the estate be fee simple, alienation may be restricted. Libbey v. Clark, 14 Kansas, 435; S. C. 118 U. S. 255; 4 Com. Dig. Estates, 1; 7 Stat. 348; The Kansas Indians, 5 Wall. 740.

The claim of title by adverse possession is fraudulent on its face; the original and only instrument granting title showing the incapacity of the grantee to convey.

As the doctrine of prescription is based upon the presumption of a grant, it necessarily follows that. only such rights may be prescribed for as are capable of being granted; and a grant will not be presumed where it could not lawfully be made. 22 Am. Enc. of Law, title "Prescription," and authorities cited thereunder.

Mr. Chester L. Collins, for defendant in error:

By the provisions of the third article of said treaty, the reservees became vested of a present alienable fee-simple title and upon the treaty being executed, all that remained to be done to complete the grant was to designate the land, which was done by a patent, but could have been done by survey and map, or by any other authenticated act of the proper officials.

The patent was not necessary and is void as a conveyance; its only office, if any, was to designate the land, which designation might have been provided for by any sufficient act of the proper officers by means other than by a patent.

Neither the treaty nor the patent mentions the names of the reservees. This is not a defect in the grant of the treaty.

The question as to who were the reservees or their legal heirs. is a question of fact for a court or jury when the question might arise. United States v. Brooks, 10 How. (U. S.) 460; Doe v. Wilson, 23 How. (U. S.) 457; Crews v. Burcham, 1 Black (U. S.), 352; Best v. Polk, 18 Wall. 112; Jones v. Meehan, 175 U. S. 1; Stockton v. Williams, 1 Walker Ch. (Mich.) 120; Stockton v. Williams, 1 Doug. (Mich.) 546; Dewey v. Campau, 4 Michigan, 565 and cases cited on p. 566; Campau v. Dewey, 9 Michigan, 381 and cases cited on p. 433; Francis v. Francis, 136 Michigan, 288.

The provision in the patent limiting the reservee's right to convey the land is void, and is not authorized or permitted by the treaty. Mitchel v. United States, 9 Pet. 760; Pickering v. Lomax, 145 U. S. 310; Lomax v. Pickering, 173 U. S. 26; Lykens v. McGrath, 184 U. S. 169; Schrimpscher v. Stockton, 183 U. S. 290; McGannon v. Straightlege, 32 Kansas, 524; Sheldon v. Donohue, 40 Kansas, 346; Easton v. Salisbury, 21 How. 426; Sherman v. Buick, 93 U. S. 209.

MR. JUSTICE HARLAN delivered the opinion of the court.

This action of ejectment was brought to recover the possession of certain lands in Bay County, Michigan, which the plaintiff, Ann Francis, claims as tenant for her own life, and which are thus described in the declaration: "The east half, the Bokowtonden reserve, excepting land heretofore owned and occupied by F. A. Kaiser, and ten acres heretofore owned and occupied by Edward McGuiness, being in Township Fourteen, north range four east, and being a part of the Bokowtonden Reserve, conveyed by the United States to the children of Bokowtonden and their heirs, by patent, dated November sixth, A. D. 1827."

The defendants pleaded the general issue, giving notice that they would show that for more than twenty years next preceding the commencement of this action they and their grantors had been in open, notorious, exclusive, and adverse possession

and occupancy of the lands in question under claim and color of title.

At the conclusion of the evidence the jury, by direction of the court, returned a verdict for the defendants, upon which judgment was rendered. That judgment was affirmed, upon writ of error, by the Supreme Court of Michigan. 136 Michigan, 288.

By the treaty of September 24, 1819, inde at Saginaw in the Territory of Michigan and proclaimed March 25, 1820, between the United States and the Chippewa Nation of Indians, the lands comprehended within certain boundaries were forever ceded to the United States. But from that cession certain tracts were reserved for the use of the Chippewa Nation of Indians. And by Art. 3 of the treaty it was provided that "there shall be reserved, for the use of each of the persons hereinafter mentioned and their heirs, which persons are all Indians by descent, the following tracts of land: For the use of the children of Bokowtonden six hundred and forty acres, on the Kawkawling River." 7 Stat. 203.

Subsequently, November 6, 1827, a patent was signed by President Adams. It purported to have been issued pursuant to that treaty, for a tract of six hundred and forty acres on Kawkawling River, described by metes and bounds, "unto the said children of Bowkotonden, and their heirs forever," the patent containing these words, "but never to be conveyed by them or their heirs without the consent and permission of the President of the United States."

The particular land here in question is a part of the six hundred and forty acres reserved by the above treaty for the use of the children of Bokowtonden and their heirs, and embraced by the patent of 1827. What rights were acquired, under and by virtue of the treaty, by those children? In Jones v. Meehan, 175 U. S. 1, 8, 21, where one of the questions was as to the nature of the title that passed under an Indian treaty ceding lands to the United States, and which required a certain number of acres to be set apart from the ceded lands

for a named Indian chief, this court said: "Was it a mere right of occupancy, with no power to convey the land except to the United States or by their consent? Or was it substantially a title in fee simple with full power of alienation? Undoubtedly, the right of the Indian nations or tribes to their lands within the United States was a right of possession or occupancy only; the ultimate title in fee in those lands was in the United States; and the Indian title could not be conveyed by the Indians to any one but the United States without the consent of the United States,"-citing Johnson v. McIntosh, 8 Wheat. 543; Cherokee Nation v. Georgia, 5 Pet. 1, 17; Worcester v. Georgia, 6 Pet. 515, 544; Doe v. Wilson, 23 How. 457, 463; United States v. Cook, 19 Wall. 591; United States v. Kagama, 118 U. S. 375, 381; Buttz v. Northern Pacific Railroad, 119 U. S. 55, 67. But in that case, after an extended review of previous decisions, this court further said: "The clear résult of this series of decisions is that when the United States, in a treaty with an Indian tribe, and as part of the consideration for the cession by the tribe of a tract of country to the United States, make a reservation to a chief or other member of the tribe of a specified number of sections of land, whether already identified, or to be surveyed and located in the future, the treaty itself converts the reserved sections into individual property; the reservation, unless accompanied by words limiting its effect, is equivalent to a present grant of a complete title in fee simple; and that title is alienable by the grantee at his pleasure, unless the United States, by a provision of the treaty, or of an act of Congress, have expressly or impliedly prohibited or restricted its alienation."

Did an alienable title in fee simple pass to the children of Bokowtonden by virtue of the treaty of 1819-20? That question was under consideration in the courts of Michigan a long while ago and was answered in the affirmative; and it would seem that their construction of the provisions in question has become a rule of property in that State. In Stockton v. Williams, 1 Walker's Ch. (Michigan) 120, 129, decided in 1840,