become vested. The property right intended being the separate beneficial use of the land free from taxation and involuntary alienation for 25 years from date of trust patent, with fee title thereafter.

[1] There is no question that the government may, in its dealings with the Indians, create property rights which, once vested, even it cannot alter. Williams v. Johnson, 239 U. S. 414, 420, 36 Sup. Ct. 150, 60 L. Ed. 358; Sizemore v. Brady, 235 U. S. 441, 449, 35 Sup. Ct. 135, 59 L. Ed. 308; Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941; English v. Richardson, 224 U. S. 680, 32 Sup. Ct. 571, 56 L. Ed. 949; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; Chase v. U. S., 222 Fed. 593, 596, 138 C. C. A. 117. Such property rights may result from agreements between the government and the Indian. Whether the transaction takes the form of a treaty or of a statute is immaterial; the important considerations are that there should be the essentials of a binding agreement between the government and the Indian and the resultant vesting of a property right in the Indian.

[2] That exemption of land from taxation is a property right is established. Choate v. Trapp, supra. That this Indian had taken possession of and was enjoying this land under such an exemption at the time the Clapp Amendment was passed is undisputed. Therefore, if this exemption came to him as a legal right, it had fully vested. It came as such legal right if it rested on the solid basis of a binding agreement. If there was such an agreement here, it is to be found in the terms of the Nelson Act, read in the light of attendant circumstances. These circumstances are revealed in the communication of the Interior Department recounting the negotiations between the Commissioners and these Indians (Doc. 247, published in volume 32, House Exec. Doc. 51st Cong. 1st. Sess).

'At the passage of that act, the Chippewa Indians were scattered over several reservations in the state of Minnesota. Much of their land was held as tribal by different bands or communities while some was held in severalty. The Indians were in dire need from crop failures. Their condition generally was very unsatisfactory. Their reservations included some supposedly valuable mineral land and much very valuable timber land; the worth of the latter, as stated by the commissioners, having been estimated at from $25,000,000 to $50,000,000. Their title to these lands was unquestioned by the government and sprang from several successive treaties, the last being that of March 19, 1867 (16 Stat. 719). Under such circumstances this act was passed, as its title attests, for their "relief and civilization."

The broad objects of the act were: The concentration of these Indians upon two reservations (White Earth and Red Lake); allotments thereon in severalty; acquirement by the government of title to the surplus beyond these allotments for sale to establish a fund; the net income from this fund to be utilized for 50 years for the support, civilization, and education of these Indians; the final distribution of the fund among them.

With unquestioning recognition of the Indian title to all of these lands, both tribal and allotted, the first sentence of this act provided for the appointment by the President of a commission "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 title and interest in and to all the reservations of said Indians in the state of Minnesota, except the White Earth and Red Lake Reservations, and to all and so much of these two reservations as in the judgment of said commission is not required to make and fill the allotments required by this and existing acts, and shall not have been reserved by the commissioners for said purpose"; such cession and relinquishment to be "for the purpose and upon the terms hereinafter stated." The act provided that, where an allotment of land in severalty had theretofore been made on any reservation, the allottee "shall not be deprived thereof or disturbed therein except by his own individual consent separately and previously given." As to tribal lands the act required the cession to be "assented to in writing by two-thirds of the male adults over eighteen years of age of the band or tribe of Indians occupying and belonging to such reservations," with a like assent by two-thirds of the male adults of all Chippewas in Minnesota as to the Red Lake Reservation. It further provided that such "agreements" should be approved by the President before becoming effective. Section 3 provided for the removal of the Indians and the allotments of lands as soon as "the cession and relinquishment has been obtained, approved, and ratified." Section 4 required the survey and classification for sale of the "lands so ceded to the United States" "as soon as the cession and relinquishment of said Indian title has been obtained and approved as aforesaid." So much for the terms of the

act.

The commissioners provided for in the act secured the written consent of the required number of Indians only after almost six months of patient negotiations. The cession was later ratified by the President and thereupon became effective, the Indians removed to the two reservations, relinquished the balance of their lands, and received allotments in severalty.

Thus the terms of this act, as well as its attendant circumstances, leave no doubt that this act required, before it should become effective, an agreement to its terms by the Indians and the cession by them of very valuable tracts of lands to which their title was unimpeached. The Indians fully performed their part of the agreement, and it was in exact performance upon its side that the government allotted to this Indian his land and was holding it for him at the time the Clapp Amendment was enacted. Such a proposal, acceptance, passage of consideration, and performance between private parties would constitute a valid contract. The character of the transaction is not changed because one of the parties to it is the government.

Appellants seem to regard this allotment as made solely under the General Allotment Act (Feb. 8, 1887, 24 Stat. 388), and clothed only with such rights as might attach to any allotment made under that act alone. This is based on the provision in section 3 of the Nelson 156 C.C.A.-24

Act, which is that the allotment thereunder should be "in conformity with" the General Allotment Act. The Nelson Act, except for its reference to the General Act, is silent as to the character of interest or title to be acquired by the Indians through the allotments. Obviously that would be one, if not the most important, of the considerations in the minds of the Indians. Clearly this, although but a part, would be a vital part of the agreement to them. To execute that part of the plan, the method laid down in the recently enacted General Allotment Act was deemed suitable. Therefore it was, by reference instead of repetition, incorporated into the Nelson Act as a part of that agreement. The General Act, § 5, set this forth in detail. It provided that the title should be held by the President in trust for 25 years free from "all charge or incumbrance," which meant, in effect, freedom from taxation.

If the Nelson Act had set out in detail the terms upon which the allotments were to be made, it could not be successfully contended that those terms were not a part of the agreement, or that any title or rights resulting therefrom when once vested would not be free from alteration. Can this be less true because the allotment method is incorporated by reference? This incorporation of the method outlined in the General Allotment Act by reference made that method part of the agreement with precisely the same effect as though its terms had. first found expression by being set out in full as a section of the Nelson Act. The General Allotment Act was not made applicable to these allotments in any other sense. They were not under the authority of the General Allotment Act at all, but "in conformity with" it under the authority of the Nelson Act.

If there were any doubt as to the status of this matter, the understanding of the Indians as to the agreement would control. Kansas Indians, 5 Wall. 737, 18 L. Ed. 667; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49. Several hundred copies of both the Nelson and of the General Allotment Acts were distributed among the Indians and were discussed by them and the commissioners as constituting parts of one agreement. As to these very matters of title and taxation, the Indians were very inquisitive and solicitous. The commissioners gave them the direct assurance that their alloted lands would not be taxed for 25 years "because the President holds this land in trust for you," and it was so understood by them.

A trust patent in exact compliance with such understanding and agreement was issued this Indian, and under it he has taken and holds this land. His rights are vested and are impervious to alteration against his will except through the sovereign power of eminent domain. One of these rights was freedom from state and local taxation.

The court has not overlooked the decisions in Dickson v. Luck Land Co. (January 8, 1917) 242 U. S. 371, 37 Sup. Ct. 167, 61 L. Ed. 371, and United States v. Waller (April 9, 1917) 243 U. S. 452, 37 Sup. Ct. 430, 61 L. Ed. 843. In the Dickson Case the only question was whether, in a suit between rival grantees of land allotted and patented to a mixed-blood Chippewa Indian in the White Earth Res

ervation, and by him conveyed, the issue of the patent (not a trust patent) was conclusive as to the adulthood of the Indian at the time of its issue. There the Indian had fully availed himself of the terms of the Clapp Amendment, had secured a patent thereunder, and had alienated his land. The suit in this court is based upon refusal of this Indian to change his status by acceptance and exercise of the powers offered in the Clapp Amendment. In the Waller Case the question was whether the government could properly bring a suit to set aside conveyances of land by mixed-blood Chippewa Indian allottees on the ground that the conveyances had been fraudulently obtained. The court held the government was not a proper party because the wardship of the government had been, in respect to their lands, removed from such Indians by the Clapp Amendment. The court says:

"The act thus evidences a legislative judgment that adult mixed-blood Indians are, in the respects dealt with in the act, capable of managing their own affairs, and for that reason they are given full power and authority to dispose of allotted lands."

The instant case is not one depending upon governmental wardship over a dependent and inferior people, but is based upon the legal relation of trusteeship, and springs from the obligation contained in the terms of the trust to preserve the land, so that at the end of the trust period it can be passed to the beneficiary "free of all charge or incumbrance."

The judgment is affirmed.

(243 Fed. 859)

THE BERN.
THE ST. GABRIEL

(Circuit Court of Appeals, Second Circuit. April 20, 1917.)

No. 160.

COLLISION 147-FOG-Tow LYING AT END OF PIER-FAULT OF TUG

It is the duty of a tug, having charge of a flotilla of barges, lying off the end of a pier in a bay, on hearing the fog signals of an approaching vessel, to give warning in some manner of the presence of her tow, and her failure to do so renders her liable for a collision with one of her barges.

Appeal from the District Court of the United States for the Southern District of New York.

Suit in admiralty by the Pennsylvania Railroad Company, owner of tug P. R. R. No. 14, against the steam tug Bern, the Philadelphia & Reading Railway Company, claimant, and the barge St. Gabriel, Kate Dougherty, claimant. Decree for libelant, against the Bern, and her claimant appeals. Affirmed..

Armstrong, Brown & Purdy, of New York City (Pierre M. Brown, of New York City, of counsel), for appellant.

Burlingham, Montgomery & Beecher, of New York City (Chauncey I. Clark, of New York City, of counsel), for appellee Pennsylvania R. Co.

Before COXE, WARD, and ROGERS, Circuit Judges.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ROGERS, Circuit Judge. The libel in this suit was filed to recover contribution from the steam tug Bern for damages which the libelant was compelled to pay by reason of a collision between the libelant's tug, P. R. R. No. 14, and the barge St. Gabriel, in charge of the Bern, at the Packer Dock, Jersey City, on the morning of March 14, 1913. In the District Court the Bern and No. 14 have been held jointly responsible for the damage sustained by the St. Gabriel and the libelant has been allowed to recover from the Bern one-half the amount paid the owner of the St. Gabriel in the suit of Kate Dougherty against tug P. R. R. No. 14. The amount paid under the final decree in the former suit was $3,038.39. The decree in that suit was entered on January 20, 1914, and on January 5, 1915, this libel for contribution was filed. The Bern was not impleaded in the original suit.

The trial of the present suit consisted in offering the record in the former suit and calling of one witness by the Reading Company, a deck hand from the Bern, who testified that he heard no whistles from No. 14. On the morning of the collision the Reading Company's tugs Wyomissing and Bern had tied up a tow at the Packer Dock for the purpose of distributing the several boats in the North and East Rivers. The two tugs left for this purpose. Later a dense fog set in, and the Bern, which had found her way back, was tied up at the dock, and her master had gone to telephone for instructions, leaving a deck hand in the pilot house in charge. The facts may be stated as follows:

The tug P. R. R. No. 14 had left Pier 4, North River, Manhattan, bound for Jersey City. The master of No. 14 was at the wheel, and a lookout was stationed on the bow. The tug proceeded sounding fog signals at intervals and keeping a lookout. When about midstream the fog became more dense; No. 14's engines were stopped, and she proceeded, alternately stopping and starting her engines. While so proceeding, the lookout made out a low-lying object in the water close under the tug's bow. The tug's engines were reversed full speed, but she came into collision with what afterwards proved to be the barge St. Gabriel at an angle of about 45 degrees. The St. Gabriel was damaged considerably and later sank.

In this thick fog the St. Gabriel and 17 or 18 other boats were hung up off the end of the dock. The tow was made up in 4 or 5 tiers of 4 boats in a tier, and extended down stream across the pier ends for 400 or 500 feet. The St. Gabriel was the starboard hawser boat, with 3 boats between her and the pier end, and was about 120 to 125 feet out in the river. The tug Bern was lying just inside the slip at the head tier of the tow, with her stern lapped about 10 feet on a Lehigh Valley boat, which was lying on the end of the pier. The deck hand, who was in the pilot house and in charge of the tug, admitted hearing several fog signals. He seems to have had no conception that it was incumbent upon him to give any warning of the presence of this obstructing flotilla. He admitted that the Bern was equipped with a fog bell, but he does not seem to have been aware that he was under any duty to use it in the fog conditions which prevailed.

There can be no doubt as to the obligation which rested on the Bern to protect this tow. This court in the Jersey Central, 221 Fed. 625, 137 C. C. A. 349 (1915), stated the law as follows: