seen, however, that the tenancy in common | of the Secretary of the Interior, was adthere mentioned referred to the right to oc- judged by this court, speaking by Mr. Jus cupy, use, and enjoy the land in common tice Davis, to be void, upon the single with the government, and had no relation to ground "that the statute, having provided the legal title." 1 Black, 356, 357, 17 L. the way in which these half-breed lands ed. 92. could be sold, by necessary implication prohibited their sale in any other way." 10 Wall. 321, 326, 19 L. ed. 933, 935.

By those two decisions it was determined that the "reservations," created by the treaty with the Pottawatomies of October By the treaty with the Chickasaws of May 27, 1832, in favor of individual Indians, by 24, 1834, it was agreed, in article 5, that the words "the United States agree to grant" "the following reservations be granted in to each of them sections of land, "which fee: To heads of families, being Indians or lands shall be conveyed to them by patent," having Indian families," a certain number of had the effect of granting a present and al- sections of land; and, by article 6, "also resienable interest to each. In both those deci-ervations of a section to each shall be sions Chief Justice Taney concurred-which granted to" other members of the tribe, of is worthy of special notice in view of the dif- the age of twenty-one years and upwards, acferent opinion, above cited, which he had cording to a list to be made out by seven given, when Attorney General, upon the ef- chiefs named in the treaty, and filed with fect of similar reservations in a treaty made the agent, "upon whose certificate of its bewith another band of Pottawatomies seven lieved accuracy the register and receiver days earlier, but promulgated by the Presi- shall cause said reservations to be located dent at the same time as this treaty. 7 upon lands fit for cultivation." 7 Stat. at Stat. at L. 378, 399. And the two decisions L. 451, 452. It may be observed that arti were cited and approved by this court, speak-cle 6, differing in these respects from article ing by Mr. Justice Matthews, in Prentice v. Stearns 2 (1885) 113 U. S. 435, 446, 447, 28 L. ed. 1059, 1063. See also the opinion delivered by Mr. Justice Miller in the circuit court in Prentice v. Northern P. R. Co. (1890) 43 Fed. Rep. 270, 275.

5, used the future tense, "shall be granted," and omitted the words "in fee." Yet in Best v. Polk (1873) 18 Wall. 112, 21 L. ed. 805, this court held that the treaty itself conferred a full title upon an Indian to whom lands were reserved by article 6, and, again In the treaty of June 3, 1825, between the speaking by Mr. Justice Davis, said: "Can United States and the Kansas nation of In- it be doubted that it was the intention of dians, it was provided, by article 6, that both parties to the treaty to clothe the resfrom the lands thereby ceded to the United ervees with the full title? If it were not so, States there should be made reservations of there would have been some words of limita1 mile square for each of the half-breeds tion indicating a contrary intention. Innamed; and, by article 11, that "the said stead of this, there is nothing to show that Kansas nation shall never sell, relinquish, or a further grant, or any additional evidence in any manner dispose of the lands herein of title, were contemplated. Nor was this' reserved, to any other nation, person, or per- necessary, for the treaty proceeded on the sons whatever, without the permission of the theory that a grant is as valid by a treaty United States for that purpose first had and as by an act of Congress, and does not need obtained." 7 Stat. at L. 245, 247. The act a patent to perfect it. We conclude, thereof Congress of May 26, 1860, chap. 61, after fore, that the treaty conferred the title to reciting that the lands so reserved had been these reservations, which was complete when surveyed and allotted to each of the half- the locations were made to identify them." breeds in accordance with article 6 of the 18 Wall. 116, 21 L. ed. 807. "The treaty treaty, enacted that "all the title, interest, granted the land, but the location had to be and estate of the United States is hereby fixed before the grant could become operavested in the said reservees, who are now liv- tive. After this was done, the estate became ing, to the land reserved, set apart, and al-vested and the right to it perfect, as much lotted to them," and in the heirs of those de- so as if the grant had been directly executed ceased, "but nothing herein contained shall to the reservee." 18 Wall. 118, 21 L. ed. be construed to give any force, efficacy, or 808. In support of that conclusion, this binding effect to any contract, in writing or court cited decisions of the highest court of otherwise, for the sale or disposition of any the state of Mississippi, in which, after lands named in this act, heretofore made by quoting the words of article 6 of the treaty, any of said reservees or their heirs;" and it it was said: "By this language, a title in was further enacted that if any of the reser-fee passed to such persons as were above the vees, or the heirs of anyone deceased, should age of twenty-one. The term 'reservation' not desire to occupy the lands to which they was equivalent to an absolute grant. The were entitled by the provisions of this act, title passed as effectually as if a grant had the Secretary of the Interior, upon their re been executed." "The treaty has not conquest, should be authorized to sell the lands templated a further grant, or other evidence for their benefit, and to issue patents to the of title, showing conclusively that by the purchasers. 12 Stat. at L. 21. In Smith terms used it was intended that a perfect v. Stevens (1870) a deed made by one of title was thereby intended to be secured. The those half-breeds, shortly after the passage Indian, then, under whom complainants of that act, without the authority or assent claim, had in herself an absolute and un5 Sup. Ct. Rep. 547,

conditional title in fee simple. The title | treaty itself converts the reserved sections was conferred by the treaty; it was not, into individual property; the reservation, however, perfect until the location was unless accompanied by words limiting its made; location was necessary to give identity. The location it seems was duly made, and thus the title to the land in controversy was consummated by giving identity to that which was before unlocated." Niles v. Anderson (1841) 5 How. (Miss.) 365, 383; Wray v. Doe, Ho-ya-pa-nubby (1848) 10 Smedes & M. 452, 461.

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.

The letters of the Commissioner of Indian Affairs, referred to in the supplemental brief of the defendant, expressing the views entertained in his office at sundry times as to the effect of a reservation in an Indian treaty to particular Indians without words of present grant, or of inheritance, were for the most part written before the subject had been considered by this court; and they fall far short of establishing such a uniform practical construction of the term by the Executive Departments as would warrant the court in overruling its own opinions as expressed in the cases above stated.

The treaty of October 2, 1863, between the United States and the Red Lake and Pembina bands of Chippewa Indians, now before the court, contains in itself peculiarly strong evidence that it was intended to vest in the elder chief Moose Dung a full and complete title in the land reserved to him.

In the treaty of June 24, 1862, between the United States and a tribe of Ottawa Indians, article 3 provided as follows: "It being the wish of said tribe of Ottawas to remunerate several of the chiefs, councilmen, and headmen of the tribe for their services to them many years without pay, it is hereby stipulated that five sections of land is [are] reserved and set apart for that purpose, to be apportioned among the said chiefs, councilmen, and headmen as the members of the tribes shall in full council determine; and it shall be the duty of the Secretary of the Interior to issue patents in fee simple of said lands, when located and apportioned, to said Indians." 12 Stat. at L. 1238. In Libby v. Clark (1886) 118 U. S. 250, 30 L. ed. 133, 6 Sup. Ct. Rep. 1045, this court, approving and affirming the judgment of the supreme court of Kansas, delivered by Mr. Justice Brewer, in 14 Kan. 435, held that a deed to a white person from one of those chiefs, of land patented to him pursuant to the treaty, but executed before he had become a citizen of the United States, was void, for the single reason that the treaty itself, as construed by the court, expressly provided, in article 7, that no Indian should alien or encumber the land allotted to him until he had, according to the terms of the treaty, become a citizen of the United States. In the treaty of Prairie du Chien of July 29, 1829, between the United States and certain nations of Chippewa, Ottawa, and Pot- By the 8th article, it is "agreed that tawatomie Indians, article 4, by which "there the United States shall grant to" each male shall be granted by the United States" to adult half-breed or mixed-blood who is reeach of the persons named, being descend-lated by blood to these Indians, who has ants from Indians, sections of land, it was adopted the habits and customs of civilized provided that "the tracts of land herein stip-life, and who is a citizen of the United ulated to be granted shall never be leased States, a homestead of one hundred and or conveyed by the grantees, or their heirs, sixty acres, to be selected out of the tract to any persons whatever, without the per- ceded, and in conformity with the official mission of the President of the United surveys when made. That article was States." 7 Stat. at L. 321. Of course, un-amended by the Senate by providing that no der such a provision, no alienation could be valid without the approval of the President. Pickering v. Lomax (1892) 145 U. S. 310, 36 L. ed. 716, 12 Sup. Ct. Rep. 860; Lomax v. Pickering (1899) 173 U. S. 26, 43 L. ed. 601, 19 Sup. Ct. Rep. 416.

The clear result 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

According to the decisions above cited, such would be the construction of the ninth article, taken by itself, by which "upon the urgent request of the Indians, parties to this treaty, there shall be set apart from the tract hereby ceded a reservation of six hun. dred and forty acres near the mouth of Thief river for the chief Moose Dung, and a like reservation of six hundred and forty acres for the chief Red Bear on the north side of Pembina river." And this construction is fortified by other provisions of the treaty quoted at the beginning of this opinion.

scrip should be issued under its provisions, and no assignment should be made of any right, title, or interest before the issue of a patent, and no patent should be issued until cultivation, as required by the homestead due proof of five years' actual residence and

act.

Stat. at L. 392; Rev. Stat. §§ 2289, 2291.
Act of May 20, 1862, chap. 75; 12,

The reservations of four times as much land to each of the chiefs Moose Dung and Red Bear under the ninth article were not made subject, by any provision of the original treaty, or of the Senate amendments, to the condition of adopting the habits and customs of civilized life, or of becoming a titizen of the United States, or of five years' ao

Another question of importance, fully argued at the bar, is whether Moose Dung the younger inherited all his father's rights in the reservation. This question is presented by the record in a peculiar aspect.

In the amended bill (which is the only one in the record transmitted to this court) the plaintiffs claimed title under the lease made to them by Moose Dung the younger on November 7, 1891, and alleged that at the date of that lease he was the owner in fee simple of the lands in question.

tual residence and cultivation. But by the | alienation conferred by the treaty under fifth article, with the avowed objects "to en- which the allotment was made. courage and aid the chiefs of said bands in preserving order, and inducing, by their example and advice, the members of their respective bands to adopt the habits and pursuits of civilized life," each chief was to be paid, not only a certain sum annually out of the annuities payable to the bands by the treaty, but also, at the time of the first payment, a further sum of five hundred dollars "to enable him to build for himself a house." The provisions of that article are wholly inconsistent with the theory that the title of the chiefs Moose Dung and Red Bear respectively in the reservation of six hundred and forty acres each, unconditionally set apart for them, was to be less absolute than the title of the half-breeds in their homesteads would be after the conditions of the treaty respecting them had been complied with.

In the answer filed January 15, 1895, to that bill, the defendant denied its allegations; and claimed title under the reservation to Moose Dung the elder in the treaty, his se lection of lands and the setting apart of them by the government as such reservation, and the lease executed by Moose Dung the younger (so the answer alleged, in substantial accord with the form of the lease itself)

The only reasonable construction of all the provisions of the treaty, taken together. is that the ninth article, by which "there"as his oldest son, heir at law, and successor shall be set apart from the tract hereby ceded a reservation of six hundred and forty acres near the mouth of the Thief river for the chief Moose Dung," and a reservation of a like quantity of land at another place designated for the chief Red Bear was intended by the United States and was understood by the Indians, and took effect, as a present grant to each of these two chiefs of an alienable title in fee in that quantity of land at the designated place, subject only to its se lection in due form, and to the definition of its boundaries by survey and patent.

Such being in our opinion the construction and effect of the terms of the treaty itself, it is unnecessary to consider the competency of the extrinsic evidence, offered by the plaintiffs, of what took place between the representatives of the parties at the negotia tions which preceded its execution; for, whether that evidence be admitted or reject ed, the conclusion must be the same.

as chief of the Red Lake band of Chippewa
Indians,"" to the defendant, on July 20, 1894,
as afterwards amended and approved by the
Secretary of the Interior; and alleged that
the government, ever since its setting apart
of the reservation, "conceded, treated, and
designated said selection as a reservation
which said Moose Dung was entitled to pos-
sess and control, subject, however, to the con-
trol of the overseers and agents of the gov-
ernment of the United States."
The plain-
tiff's filed a general replication to the answer.
The testimony in the case was taken, un-
der order of the court, by a special examiner,
before whom (as appears by the record) the
following proceedings were had, at the dates
mentioned below:

On May 21, 1895, the plaintiffs introduced the deposition of John George Morrison, who testified that he was fifty-five years old, was a Scotch half-breed and had a quarter of Chippewa blood, had lived with the Red Lake band of Chippewa Indians all his life, spoke both English and Chippewa, was a special interpreter at the negotiation of the treaty, and was acquainted with the laws, customs, and usages of the Chippewa Indians; and that, according to those laws, customs, and usages, a chief like the elder Moose Dung had the right to select a piece of land and to use it as his home, and upon his death his eldest son would inherit all his land, and succeed to his office and powers as chief of the band; and the witness was not cross-examined on this point.

Nor is it necessary to consider particularly the argument of the plaintiffs, founded upon the citizenship acquired by Moose Dung the younger under that provision of the act of February 8, 1887, chap. 119, § 6, by which "every Indian born within the territorial limits of the United States, to whom allotments shall have been made under the provisions of this act, or under any law or treaty," is "declared to be a citizen of the United States, whether said Indian had been or not by birth or otherwise a member of any tribe of Indians within the territorial limits of the United States, without in any manner On June 8, 1895, while the defendant was impairing or otherwise affecting the rights putting in evidence in support of his title of any such Indian to tribal or other proper- as alleged in the answer, "it was admitted ty." 24 Stat. at L. 390. That provision by complainants' solicitor that the living might not enable individual Indians to al- chief Monsimoh was the eldest son and sucienate lands which were not before aliena-cessor to all rights of his father under the ble. Beck v. Flournoy Live Stock & Real Estate Co. 27 U. S. App. 618, 65 Fed. Rep. 30, 12 C. C. A. 497; Eells v. Ross, 29 U. S. App. 59, 64 Fed. Rep. 417, 12 C. C. A. 205; Coombs, Petitioner, 127 Mass. 278. But it certainly does not take away a power of

treaty of October 2, 1863, and the son of the chief Monsimoh who signed that treaty."

On July 15, 1895, the plaintiffs put in evidence the complaint in an action brought by this defendant against them on February 15, 1895, containing an allegation that, upon the

death of the old chief Moose Dung, "his son. | in the estate, and were all of legal age; afMonsimoh, commonly called and known as fidavits, taken March 5, 1895, of those Moose Dung, survived him and became the sole heir at law and successor of the said Moose Dung, deceased, and thereby succeeded to, has ever since held and does now hold all the right, title, and interest in and privileg es pertaining to said premises, as such heir at law and successor of the said deceased chief Moose Dung."

answer; on September 17, 1895, the cause | Kan. 299, held that lands which, pursuant was argued and submitted; and on Novem- to the treaty of May 10, 1854, between the ber 9, 1895, the court entered the final decree United States and the Shawnee nation of In-* for the plaintiffs. dians (10 Stat. at L. 1053), had been patented to a chief of that nation, were not subject to taxation by the state of Kansas so long as the tribal organization remained and was recognized by the political department of the government; and Mr. Justice Davis, in detheir own customs and laws by which they are governed. Because some of those customs have been abandoned, owing to the proximity of their white neighbors, may be an evidence of the superior influence of our race, but does not tend to prove that their tribal organization is not preserved. There is no evidence in the record to show that the Indians with separate estates have not the same rights in the tribe as those whose estates are held in common." "As long as the United States recognize their national character, they are under the protection of treat ies and the laws of Congress, and their property is withdrawn from the operation of state laws." 5 Wall. 756, 757, 18 L. ed. 673. See also the opinion delivered by Judge Woods, with the concurrence of Mr. Justice Harlan, in the circuit court, in Wau-pe-manqua v. Aldrich (1886) 28 Fed. Rep. 489, 495.

The present contention of the defendant that the right of the elder Moose Dung in the reservation passed, upon his death, not to his eldest son alone, but to the other children and grandchildren jointly with the eldest son, was clearly inadmissible under the alle-livering judgment, said: "This people have gations of the original answer. The question whether a supplemental answer should be allowed was a matter within the discretion of the court, largely depending upon the circumstances of the particular case. Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141, 5 Sup. Ct. Rep. 771; Smith v. Babcock,3 3 Sumn. 583. The reasons for denying the motion in this case are not stated in the record. They may have been the late stage of the case at which the motion was made, and a failure to satisfy the court that the facts now attempted to be set up were not known, or, at least, easily accessible, to the defendant or his solicitor long before. But as this court might, even now, if justice appeared to require it, allow an amendment of the pleadings, this part of the case may be more satisfactorily disposed of by consider. ing what the effect of those facts would have been, had they been duly pleaded. Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 447, 32 L. ed. 788, 794, 9 Sup. Ct. Rep. 469; Wiggins Ferry Co. v. Ohio & M. R. Co. 142 U. S. 396, 413, 414, 35 L. ed. 1055, 1061, 12 Sup. Ct. Rep. 188.

The Department of the Interior appears to have assumed that, upon the death of Moose Dung the elder, in 1872, the title in his land descended by law to his heirs general, and not to his eldest son only.

But the elder Chief Moose Dung being a member of an Indian tribe, whose tribal organization was still recognized by the government of the United States, the right of inheritance in his land, at the time of his death, was controlled by the laws, usages, and customs of the tribe, and not by the law of the state of Minnesota, nor by any action of the Secretary of the Interior.

In United States, Davis, v. Shanks, (1870) 15 Minn. 369, it was adjudged by the supreme court of Minnesota that a probate court of the state had no jurisdiction over the estate of a chief of a tribe of Chippewa Indians to whom a section of land, to be located by the Secretary of the Interior, had been "granted in fee simple" by the treaty between the United States and that tribe of May 7, 1864 (13 Stat. at L. 693), and had accordingly been located and a patent therefor issued to him. See also Dole v. Irish (1848) 2 Barb. 639; Hastings v. Farmer (1850) 4 N. Y. 293, 294.

In one of the cases reported under the name of The Kansas Indians (1867) 5 Wall. 737, Blue Jacket v. Johnson County Comrs. 18 L. ed. 667, this court, reversing the judg. ment of the supreme court of Kansas in Blue Jacket v. Johnson County Comrs. 3

Fed. Cas. No. 13,008.

• Gil. 302.

Following that decision of this court, it was held by the supreme court of Kansas, in an opinion delivered by Mr. Justice Brewer, that land patented to an Indian woman of the Shawnee tribe under the treaty of 1854 descended, upon her death, according to the law of her tribe, and not according to the Kansas statute of descents. Brown V. Steele (1880) 23 Kan. 672.

In Richardville v. Thorp (1886) 28 Fed. Rep. 52, which concerned the inheritance of land patented by the United States to a member of the confederated tribes of Kaskaskia, Peoria, Pinkeshaw, and Wea Indians, and in which there was no evidence of any particular law or custom of those tribes, it was held that the rightful heirs of the patentee might maintain their title in the cir cuit court of the United States for the district of Kansas against one claiming under a deed from two of those heirs, approved by the Secretary of the Interior upon a certificate of two chiefs of the tribe that the two grantors were the sole heirs of the patentee; Mr. Justice Brewer, then circuit judge, saying" that the Secretary of the Interior "had no judicial power to adjudge a forfeiture, to decide questions of inheritance, or to devest the owner of his title without his knowledge or consent."

Upon the evidence contained in this record, it is quite clear that, by the laws, usages, and customs of the Chippewa Indians, old Moose Dung's eldest son and successor as chief inherited the land of his father, to the exclusion of other descendants. Both the half-breed Morrison and the younger Moose Dung, being fully examined on this point, so testified; and there was no direct testimony to the contrary. Morrison had lived with the Red Lake band of Chippewas all his life, spoke their language, and knew their