naturalized by the joint action of the authorities of both nations into one of the said na tions of Choctaws and Chickasaws, according to their laws, customs, or usages; but this article is not to be construed to affect parties heretofore adopted, or to prevent the employment temporarily of white persons who are teachers, mechanics, or skilled in agriculture, or to prevent the legislative au

nations, respectively, they shall be entitled | to as much land as they may cultivate for the support of themselves and families, in cases where they do not support themselves and families by hiring, not interfering with existing improvements without the consent of the occupant, it being understood that in the event of the making of the laws, rules, and regulations aforesaid the 40 acres aforesaid shall stand in place of the land culti-thorities of the respective nations from auvated as last aforesaid."

thorizing such works of internal improvement as they may deem essential to the welfare and prosperity of the community, or be taken to interfere with, or invalidate, any action which has heretofore been had, in this connection, by either of the said nations."

By article 46 it was provided: "Of the moneys stipulated to be paid to the Choctaws and Chickasaws under this treaty for the cession of the Leased District, and the admission of the Kansas Indians among them, the sum of one hundred and fifty thousand dollars shall be advanced and paid to the Choctaws, and fifty thousand dollars to the Chickasaws, through their respective

ratification of this treaty, to be repaid out of said moneys or any other moneys of said nations in the hands of the United States; the residue, not affected by any provision of this treaty, to remain in the Treasury of the United States at an annual interest of not less than five per cent, no part of which shall be paid out as annuity, but shall be annually paid to the treasurer of said nations, respectively, to be regularly and judiciously applied, under the direction of their respective legislative councils, to the support of their government, the purposes of education, and such other objects as may be best calculated to promote and advance the welfare and happiness of said nations and their people respectively."

By articles 30 and 43 it was provided: [529] *"Art. 30. The Choctaw and Chickasaw Nations will receive into their respective districts east of the 98th degree of west longitude, in the proportion of one fourth in the Chickasaw and three fourths in the Choctaw Nations, civilized Indians from the tribes known by the general name of the Kansas Indians, being Indians to the north of the Indian territory, not exceeding ten thousand in number, who shall have in the Choctaw and Chickasaw Nations, respectively, the same rights as the Choctaws and Chickasaws, of whom they shall be the fellow citizens, governed by the same laws, and enjoy-treasurers, as soon as practicable after the ing the same privileges, with the exception of the right to participate in the Choctaw and Chickasaw annuities and other moneys, and in the public domain, should the same or the proceeds thereof be divided per capita among said Choctaws and Chickasaws, and among others the right to select land as herein provided for Choctaws and Chickasaws, after the expiration of the ninety days during which the selections of land are to be made as aforesaid by said Choctaws and Chickasaws; and the Choctaw and Chicka- | saw Nations pledge themselves to treat the said Kansas Indians in all respects with kindness and forbearance, aiding them in good faith to establish themselves in their new homes, and to respect all their customs and usages not inconsistent with the constitution and laws of the Choctaw and Chickasaw Nations respectively. In making selections after the advent of the Indians and the actual occupancy of land in said nation, such occupancy shall have the same effect in their behalf as the occupancies of Choctaws and Chickasaws; and after the said Choctaws and Chickasaws have made their selections as aforesaid, the said persons of African descent mentioned in the third article of the treaty shall make their selection as therein provided, in the event of the making of the laws, rules, and regulations aforesaid, after the expiration of ninety days from the date at which the Kansas Indians are to make their selections as therein provided, and the actual occupancy of such persons of African descent shall have the same effect in their behalf as the occupancies of the Choctaws and Chickasaws."

"Art. 43. The United States promise and agree that no white person, except officers, agents, and employees of the government, [530]*and of any internal improvement company, or persons traveling through, or temporarily sojourning in, the said nations, or either of them, shall be permitted to go into said territory, unless formally incorporated and 179 U. S. U. S.. BOOK 45.

"Art. 51. It is further agreed that all treaties and parts of treaties inconsistent herewith be, and the same are hereby, declared null and void." 14 Stat. at L. 769781.

It is unnecessary to refer to any other provisions of the treaty of April 28, 1866; for [531] none of them throw any light on the present inquiry.

The lands in dispute-being tract 5 and marked Wichitas on the above map-constitute a part of the Leased District which was ceded to the United States by the third section of the treaty of 1866. That is admitted. Did that treaty make an absolute, unconditional cession to the United States of these lands, free of any trust, express or implied? Or, stating the question in another form, is it consistent with that treaty to hold, as the court below did, that the lands were ceded to the United States in trust that the lands themselves, or, if they were appropriated or taken by the United States, their value, should be paid to the Indians whenever they ceased to be used exclusively for the settlement of Indians thereon?

There was much discussion at the bar as to the principles that should govern the court when determining the scope and effect of a

20

305

treaty between the United States and Indian | the courts could by mere interpretation or in tribes. All agree that as a general rule in the interpretation of written instruments the intention of the parties must control, and that such intention is to be gathered from the words used-the words being interpreted, not literally nor loosely, but according to their ordinary signification. If the words be clear and explicit, leaving no room to doubt what the parties intended, they must be interpreted according to their natural and ordinary significance. If the words are ambiguous, then resort may be had to such evidence, written or oral, as will disclose the circumstances attending the execution of the instrument and place the court in the situation in which the parties stood when they signed the writing to be interpreted.

To what extent, if at all, have these rules been enlarged or modified when the instrument to be interpreted is a treaty between the United States and Indian tribes? In The Kansas Indians, 5 Wall. 737, 760, sub nom. Blue Jacket v. Johnson County Comrs. 18 L. ed. 667, Wan-zop-e-ah v. Miami County Comrs, 18 L. ed. 674, it was said that enlarged rules of construction have been adopted in reference to Indian treaties, citing as the words of Chief Justice Marshall in Worcester v. Georgia, 6 Pet. 515, 563, 582, 8 L. ed. 483, 502, 508 (but which were in fact the words of Mr. Justice McLean in his concurring opinion in that case) the following: "The language used in treaties with the Indians [582]*should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense." Mr. Justice McLean further said: "How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction." In United States v. Kagama, 118 U. S. 375, 383, 384, 30 L. ed. 228, 230, 6 Sup. Ct. Rep. 1109, the Indian tribes in this country are spoken of as wards of the nation, communities dependent for their food and their political rights, as well as for protection, on the United States. And in Choctaw Nation v. United States, 119 U. S. 1, 28, 30 L. ed. 306, 315, 7 Sup. Ct. Rep. 75, it was said that the relation between the United States and the Indian tribes was that of superior and inferior, and that the rules to be applied in the case then before the court were those that govern public treaties, which, even in case of controversies between nations equally in dependent, were not to be interpreted as rigidly as documents between private persons governed by a system of technical law, "but in the light of the larger reason and the superior justice that constitute the spirit of the law of nations." In Jones v. Meehan, 175 U. S. 1, 11, 44 L. ed. 49, 54, 20 Sup. Ct. Rep. 1, it was said that a treaty between the United States and an Indian tribe must be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.

But in no case has it been adjudged that

"In

deference to its view as to what was right
under all the circumstances, incorporate into
an Indian treaty something that was in-
consistent with the clear import of its words.
It has never been held that the obvious, pal-
pable meaning of the words of an Indian
treaty may be disregarded because, in the
opinion of the court, that meaning may in a
particular transaction work what it would
regard as injustice to the Indians. That
would be an intrusion upon the domain com-
mitted by the Constitution to the political
departments of the government. Congress
did not intend, when passing the act under
which this litigation was inaugurated, to
invest the court of claims or this court with
authority to determine whether the United[533]
States had, in its treaty with the Indians,
violated the principles of fair dealing. What
was said in The Amiable Isabella, 6 Wheat.
1, 71, 72, 5 L. ed. 191, 208, is evidently appli-
cable to treaties with Indians. Mr. Justice
Story, speaking for the court, said:
the first place, this court does not possess any
treaty-making power. That power belongs
by the Constitution to another department
of the government, and to alter, amend, or
add to any treaty by inserting any clause,
whether small or great, important or trivial,
would be on our part an usurpation of pow-
er, and not an exercise of judicial functions.
It would be to make, and not to construe, a
treaty. Neither can this court supply a
casus omissus in a treaty, any more than in
a law. We are to find out the intention of
the parties by just rules of interpretation
applied to the subject-matter; and, having
found that, our duty is to follow it as far
as it goes and to stop where that stops-
whatever may be the imperfections or diffi-
culties which it leaves behind. . . In
the next place, this court is bound to give ef-
fect to the stipulations of the treaty in the
manner and to the extent which the parties
have declared, and not otherwise. We are
not at liberty to dispense with any of the
conditions or requirements of the treaty, or
to take away any qualification or integral
part of any stipulation, upon any notion of
equity or general convenience, or substantial
justice. The terms which the parties have
chosen to fix, the forms which they have pre-
scribed, and the circumstances under which
they are to have operation, rest in the ex-
clusive discretion of the contracting parties,
and whether they belong to the essence or
the modal parts of the treaty, equally give
the rule to judicial tribunals."

So, in Beecher v. Wetherby, 95 U. S. 517,
525, 24 L. ed. 440, 441, which involved the
question whether the fee to certain lands
was in the United States, with the right of
occupancy only in certain Indians, this
court said: "It is to be presumed that in
this matter the United States would be gov-
erned by such considerations of justice as
would control a Christian people in their
treatment of an ignorant and dependent race.
Be that as it may, the propriety or justice
of their action towards the Indians with re-
spect to their lands is a question of govern-
mental policy, and is not a matter open to[534]

discussion in a controversy between third | trust, then the court cannot amend the parties neither of whom derives title from the Indians. The right of the United States to dispose of the fee of lands occupied by them has always been recognized by this court from the foundation of the government."

treaty or refuse to carry out the intent of the parties, as gathered from the words used, merely because one party to it held the relation of an inferior and was politically dependent upon the other, or because in the judgment of the court the Indians may have The same principle was announced in been overreached. To hold otherwise would United States v. Old Settlers, 148 U. S. 427, be practically to recognize an authority in 468, 37 L. ed. 509, 524, 13 Sup. Ct. Rep. 650. the courts, not only to reform or correct That suit was brought under an act of Con-treaties, but to determine questions of mere gress authorizing the court of claims to policy in the treatment of the Indians which pass upon a claim preferred by an Indian it is the function alone of the legislative tribe, the intention of Congress, as stated branch of the government to determine. in the act, being "to allow the said court of It is said in the present case that the inclaims unrestricted latitude in adjusting and terpretation of the treaty in accordance with determining the said claim, so that the the views of the United States would put the rights, legal and equitable, both of the government in the attitude of having acUnited States and of said Indians, may be quired lands from the Indians at a price far fully considered and determined." In that below their real value. Even if this were case it was sought to have the claimants re-true it would not authorize the court in delieved of certain provisions of a treaty, be-termining the legal rights of the parties to cause of fraud and duress alleged to have been practised by the United States. But this court said: "There is nothing in the jurisdictional act of February 25, 1889, inconsistent with the treaty of 1846 (or any ether), and nothing to indicate that Congress attempted by that act to authorize the courts to proceed in disregard thereof. Unquestionably a treaty may be modified or abrogated by an act of Congress, but the power to make and unmake is essentially political and not judicial, and the presumption is wholly inadmissible that Congress sought in this instance to submit the good faith of its own action or the action of the government to judicial decision, by authorizing the stipulations in question to be overthrown upon an inquiry of the character suggested and the act does not in the least degree justify any such inference."

In the jurisdictional act of March 2, 1895, 28 Stat. at L. 876, 898, chap. 188, Congress authorized suit to be brought in the court of claims, so that the rights, legal and equitable, of the United States and of the Choctaw and Chickasaw Nations, and the Wichita and Affiliated Bands of Indians in the premises "shall be fully considered and determined, and to try and determine all questions that may arise on behalf of either party"taking care, however, to add that nothing in the act "shall be accepted or construed as a confession that the United States admit that [595] the Choctaw and Chickasaw Nations have any claim to or interest in said lands or any part thereof." It is thus clear that the court of claims was 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. Those rules, it is true, permit the relations between Indians and the United States to be taken into consideration. But if the words used in the treaty of 1866, reasonably interpreted, import beyond question an absolute, unconditional cession of the lands in question to the United States free from any

proceed otherwise than according to the es-
tablished principles of interpretation, and
out of a supposed wrong to one party evolve
a construction not consistent with the clear
import of the words of the treaty. If the
treaty of 1866, according to its tenor and ob-
vious import, did injustice to the Choctaws
and Chickasaws, the remedy is with the polit-
ical department of the government. As
there is no ground to contend in this case
that that treaty, if interpreted according to
the views of the government, was one beyond
the power of the parties to make, it is clear
that even if the United States did not deal
generously with the Choctaws and Chicka-
saws *in respect of the lands in dispute-and[536)
we do not mean to say that there is any
ground whatever for so contending-the
wrong done must be repaired by Congress,
and cannot be remedied by the courts with-
out usurping authority that does not belong
to them.

Looking now at the treaty of 1866, we are unable to concur in the interpretation placed upon it by the court of claims. In our opinion its words plainly and obviously import a cession to the United States of the territory constituting the Leased District unaccompanied by any condition in the nature of a trust, express or implied, except that the moncy to be paid by the United States in consideration of the cession was to be invested and held by the United States "in trust" for certain specified objects. The declaration of a trust touching the money, and the failure to accompany the cession of the lands with any declaration of a trust in respect to them, manifestly shows that there was an intention to pass to the United States an absolute title to the lands, and to abrogate the existing lease. The words in article 3 of the treaty, "the Choctaws and Chickasaws, in consideration of the sum of three hundred thousand dollars, hereby cede to the United States the territory west of the 98° of west longitude known as the Leased District," and the words in article 46, "of the moneys stipulated to be paid to the Choctaws and Chickasaws under this treaty for the cession of the Leased District," so clearly exclude the idea of trust in reference to

the lands, that a different meaning cannot be attached to them without doing violence to the words used by the parties. It cannot be doubted, as we have heretofore said, that during the negotiations resulting in the treaty of 1866 the parties well knew that the territory constituting the Leased District was held by the United States, not absolutely or in fee, but under lease, for the permanent settlement thereon of the Wichita and certain other tribes or bands of Indians. The treaty of 1855 shows that upon its face. Now there is nothing whatever in the treaty of 1866 that evinces a purpose to preserve the relations of lessor and lessee in respect to the lands constituting the Leased District. On the contrary, the relations of the parties having been disturbed or destroyed [537 by the Civil War, there was a manifest purpose, not to renew and continue the relations of lessor and lessee, but to have the territory in question ceded absolutely to the United States.

to it intended that the lands constituting [533]
that district should continue to be held and
used by the United States as they were then
held and used under the treaty of 1855-
that is, under lease-the treaty of 1866
would not have declared, without qualifica-
tion, that the Choctaws and Chickasaws
"hereby cede" to the United States the ter-
ritory known as the Leased District, and
omitted all words that would, under the most
liberal interpretation, either import a con-
tinuation of the lease then existing or any
trust connected with the territory ceded. It
is a fact not without significance that one
of the persons attesting the treaty of 1866
as a witness was an eminent lawyer who was
of counsel for the Choctaws and Chickasaws
during the negotiations at Washington re-
sulting in that treaty. In the view we take
of the matter, we cannot suppose that he ad-
vised the Indians that the treaty made any
other than an unconditional cession of the
territory known as the Leased District.

If the Indians intended, so far as they
were concerned, to pass an absolute unen-
cumbered title to the United States, it would,
we think, have been impossible to employ
language more appropriate to that object
than is to be found in the treaty of 1866.
Our convictions upon this point are so de-
cided that we feel constrained to say that
if some of the parties had not been Indians
it would never have occurred to anyone that
the cession of territory made by that treaty
was attended by conditions in the nature of
a trust. While the dependent character of
the Indians makes it the duty of the court
to closely scrutinize the provisions of the
treaty and to interpret them "in the light
of the larger reason and the superior justice
that constitute the spirit of the law of na-
tions" (Choctaw Nation v. United States,
119 U. S. 1, 28, 30 L. ed. 306, 315, 7 Sup. Ct.
Rep. 75), the court must take care, when
using its power to ascertain the intention of
the parties, not to disregard the obvious im-
port of the words employed, and thereby, in
effect, determine questions of mere govern-
mental policy. We may repeat, that if
wrong was done to the Indians by the treaty
of 1866, interpreted as we have indicated-
and we are not to be understood as express-
ing the opinion that they were not under all
the circumstances fairly dealt with-the
wrong can be repaired by that branch of the
government having full power over the sub-
ject.

It is said that the treaty of 1866, if interpreted in the light of what occurred at the Fort Smith council held in September, 1865, shows that the parties expected and intended that the lands ceded should be accompanied with a trust in reference to the use of the Leased District for the settlement of Indians. We cannot assent to this view. The persons at that council who represented the United States stated that the new Indian treaties to be made must contain certain stipulations. But no one of those stipula tions had specific reference to the lands constituting the Leased District. It is true that of the stipulations mentioned by Commissioner Cooley at the Fort Smith Council, the fifth declared that "a portion of the lands hitherto owned and occupied by you [the Indians] must be set apart for the friendly tribes now in Kansas and elsewhere, on such terms as may be agreed upon by the parties and approved by the government, or such as may be fixed by the government:" and that by the seventh it was provided that "no white person, except officers, agents, or employees of the government, or of any internal improvement authorized by the government, will be permitted to reside in the territory unless formally adopted into some tribe according to the usages of the band." But those stipulations had no reference to the Leased District then held by the United States under the treaty of 1855 for the permanent settlement of Indians. The reference in the fifth and seventh proposed stipu *It is said that the interpretation placed [539] lations related, so far as the Choctaws and by us upon the Choctaw-Chickasaw treaty of Chickasaws were concerned, to lands "owned 1866 is inconsistent with that placed by the and occupied by them," that is, to the terri- United States upon the treaties made in the tory, respectively, of the Choctaws and same year with the Seminoles and the Creeks Chickasaws east of the 98th degree of west-all of which treaties contemplated a new longitude, which was controlled by them and in which their laws and usages prevailed. Those nations did not then occupy the Leased District, but did own and occupy lands east of that district, and in that territory their laws and usages controlled.

The treaty of 1866 contains no word or clause qualifying or limiting the absolute cession made by article 3 of the territory constituting the Leased District. If the parties

policy for the Indian country and for the
Indians. Let us see what are the facts in
relation to those treaties.

The preamble of the treaty with the Semi-
noles (which was concluded March 21, 1866,
and proclaimed August 16, 1866, 14 Stat. at
L. 755), recited: "Whereas existing
treaties between the United States and the
Seminole Nation are insufficient to meet
their mutual necessities; and whereas the

Creek Nation; and in consideration of said
cession of the west half of their lands, esti-
mated to contain 3,250,560 acres the United
States agree to pay the sum of thirty cents
per acre, amounting to $975,168, in the man-
ner hereinafter provided."

Seminole Nation made a treaty with the socalled confederate states, August 1, 1861, whereby they threw off their allegiance to the United States, and unsettled their treaty relations with the United States, and thereby incurred the liability of forfeiture of all lands and other property held by grant or By the Indian appropriation act of March gift of the United States; and whereas a 2, 1889, chap. 412, 25 Stat. at L. 980, 1004, treaty of peace and amity was entered into the sum of $1,912,942.02 was appropriated between the United States and the Semi-"to pay in full the Seminole Nation of Innole and other tribes at Fort Smith, Sep- dians for all the right, title, interest, and tember 10, 1865, whereby the Seminoles re- claim which said nation of Indians may have voked, canceled and repudiated the said in and to certain lands ceded by article 3" treaty with the so-called confederate states; of the above treaty with the Seminoles. And and whereas the United States, through its by an act approved March 1, 1889, chap. 317, commissioners, in said treaty of peace, prom- 25 Stat. at L. 757, 759, Congress appropriised to enter into treaty with the Seminole ated $2,280,857.10 to pay the Creek Nation Nation to arrange and settle all questions for the lands ceded by the treaty of 1866 relating to and growing out of said treaty with them-the agreement with those Inwith the so-called confederate states; and dians which was the basis of the above act whereas the United States, in view of said reciting, among other things, that the Unit-[541] treaty of the Seminole Nation with the ene- ed States desired that "all of said ceded lands mies of the government of the United States, may be entirely freed from any limitation and the consequent liabilities of said Semi- in respect to the use and enjoyment thereof." nole Nation, and in view of its urgent necessities for more lands in the Indian territory, requires a cession by said Seminole Nation of a part of its present reservation, and is willing to pay therefor a reasonable price, while at the same time providing new and adequate lands for them." And by the 3d article of that treaty it was provided: "In compliance with the desire of the United States to locate other Indians and freedmen thereon, the Seminoles cede and convey to the United States their entire domain, being the tract of land ceded to the Seminole Indians by the Creek Nation under the provi[540]sions of article first, treaty of the United States with the Creeks and Seminoles, made and concluded at Washington, D. C., August 7th, 1856. In consideration of said grant and cession of their lands, estimated at 2,169,080 acres, the United States agree to pay said Seminole Nation the sum of $325,362, said purchase being at the rate of fifteen cents per acre. The United States having obtained by grant of the Creek Nation the westerly half of their lands, hereby grant to the Seminole Nation the portion thereof hereafter described, which shall constitute the national domain of the Seminole Indians."

The treaty concluded with the Creeks June 14, 1866, and proclaimed August 11, 1866, 14 Stat. at L. 785, contained a preamble similar to the one in the treaty with the Seminoles, and which, in addition, stated that "the United States require of the Creeks a portion of their land whereon to settle other Indians." And by the 3d article of that treaty it was provided: "In compliance with the desire of the United States to locate other Indians and freedmen thereon, the Creeks hereby cede and convey to the United States, to be sold to and used as homes for such other civilized Indians as the United States may choose to settle thereon, the west half of their entire domain, to be divided by a line running north and south; the eastern half of said Creek Lands being retained by them shall, except as herein otherwise stipulated, be forever set apart as a home for 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 towards the Seminoles and Creeks than it has been with the Choctaws and Chickasaws. But that cannot 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 towards the Seminoles and Creeks and a different course towards the Choctaws and Chickasaws, it is not for the judiciary to defeat the will of the legis lative branch of the government by giving to an Indian treaty a meaning not justified by

its words.

in the treaties with the Seminoles and Creeks Apart from this last view we find clauses which are not in the treaty with the Choctaws and Chickasaws, and which throw light upon the refusal of the United States to make an appropriation to the latter tribes on account of the particular lands here in question. In the treaties of 1866 with the Seminoles and Creeks, respectively, by which they ceded certain lands to the United States, it is expressly stated that the cession was made "in compliance with the desire of the United States to locate other Indians and freedmen thereon." No such words are found in the treaty of cession concluded with the Choctaws and Chickasaws. When the United States concluded the treaty of 1866 with the Choctaws and Chickasaws it did not need a cession of the lands here in question in order simply to locate Indians and freedmen on them. It already had, by the treaty of 1855, a perpetual lease of those lands for the settlement of Indians. What it needed, perhaps what it required-at any rate, what it obtained-was an unqualified cession of the territory, unaccompanied by any declaration as to the use intended to be made of it, or by any words qualifying the absoluteness of the title passed to the United States. It took an absolute cession, without any declaration as