Opinion of the Court.

mentary, and the four leagues of land shall be laid off" etc. It was held that these words gave to the reservees a fee simple to all rights which the Caddoes had in those lands, as fully as any patent from the government could make one.

Fremont v. United States, 17 How. 542, was a case of a Mexican grant of a tract of land known as "Las Mariposas,' within certain undefined boundaries. The grant was of ten square leagues, subject to certain conditions, and was to be made definite by a future survey. The grant purported to convey a present and immediate interest, in consideration of previous public services, and it was decided to be in præsenti upon the authority of Rutherford v. Greene, 2 Wheat. 196that the conditions were conditions subsequent, but that noncompliance with them did not amount to a forfeiture of the grant. Two members of the court dissented, being of opinion that the case was controlled by those of United States v. Boisderé, 11 How. 63, 96; Glenn v. United States, 13 How. 250, 259, and Vilemont v. United States, 13 How. 261.

In the cases arising under the railroad land grants, of which Schulenberg v. Harriman, 21 Wall. 44, is a leading one, the language of the granting clause was in the present tense, "there be, and hereby is, granted," etc.; and it has always been held that these were grants in præsenti, although the lands could not be identified until the map of the definite location of the road was filed, when the title, which was previously imperfect, acquired precision and became attached to the land. The doctrine of this case has been affirmed so many times that the question is no longer open to argument here. Lessieur v. Price, 12 How. 59; Leavenworth, Lawrence &c. Railroad v. United States, 92 U. S. 733; Missouri, Kansas & Texas Railway Co. v. Kansas Pacific Railway, 97 U. S. 491; Railway Company v. Alling, 99 U. S. 463, 475; St. Paul & Pacific Railroad v. Northern Pacific Railroad, 139 U. S. · 1; Deseret Salt Company v. Tarpey, 142 U. S. 241.

The same doctrine has also been applied to grants of swamp and overflowed lands by the acts of September 28, 1850, and June 10, 1852. Railroad Company v. Smith, 9 Wall. 95; Wright v. Roseberry, 121 U. S. 488.

VOL. CLXX-2

Opinion of the Court.

One or two cases, which apparently hold a contrary doctrine, are readily reconcilable. That of Heydenfeldt v. Daney Gold & Silver Mining Co., 93 U. S. 634, arose under the school land grant contained in the act of March 21, 1864, c. 36, enabling the people of Nevada to form a state government. 13 Stat. 30. The seventh section of the act provided "that sections numbered 16 and 36 in every township shall be, and are hereby, granted, to said State." These words were held, under the peculiar language of the act, not to constitute a grant in præsenti, but an inchoate and incomplete grant until the premises were surveyed by the United States, and the survey properly approved. "We do not seek," said the court, "to depart from this sound rule;" (in Schulenberg v. Harriman,) "but, in this instance, words of qualification restrict the operation of those of present grant." "A grant, operating at once, and attaching prior to the surveys by the United States, would deprive Congress of the power of disposing of any part of the lands in Nevada, until they were segregated from those granted. .. Until the status of the lands was fixed by a survey, and they were capable of identification, Congress reserved absolute power over them."

In Hall v. Russell, 101 U. S. 503, the language of the grant was "that there shall be, and hereby is, granted to every white settler or occupant of the public lands," and it was held that, as the land was not identified and the grantee was not named, there could not be a present grant. "There cannot be a grant unless there is a grantee, and consequently there cannot be a present grant unless there is a present grantee. If, then, the law making the grant indicates a future grantee and not a present one, the grant will take effect in the future and not presently. In all the cases in which we have given these words the effect of an immediate and present transfer, it will be found that the law has designated a grantee qualified to take, according to the terms of the law, and actually in existence at the time."

In the case of Rice v. Railroad Co., 1 Black, 358, the granting clause of the act was in the present tense, but there was a further clause expressly declaring that no title should vest nor

Opinion of the Court.

any patent issue till certain portions of the road had been completed.

From this summary of cases it is evident that the language of the granting clause is not conclusive, but the intent of Congress must be gathered from the whole scope of the instrument, and the facts to which it was intended to apply. Applying the principle of the cases above cited to the one under consideration, we are of the opinion that the grant in question was intended to invest a present legal title in the Indians, for the following reasons:

First. There is no doubt that the cession by the Indians of their interest in the Wisconsin lands, in the first article of the treaty, was an absolute, unconditional and immediate grant, and it is improbable that the Indians would have consented, or that the United States would desire, that they should accept from the Government a mere promise to set apart for them in the future the tract in Kansas. If we are to adopt such a construction it would follow that the title of the Indians, not only to the tract in Kansas, but to the lands in Wisconsin, was made dependent upon their removal to their new home. While it might be reasonably contended that their failure to remove should result in a cancellation of the treaty and a restoration to them of their rights in the Wisconsin lands, that construction is precluded by the language of the first article, which contains a present and irrevocable grant of the Wisconsin lands, and puts it beyond their power to revoke the bargain. The object of the treaty was evidently to effect an exchange of lands in pursuance of the act of May 28, 1830, c. 148, 4 Stat. 411, the third section of which provides "that in the making of any such exchange or exchanges it shall and may be lawful for the President solemnly to assure the tribe or nation with which the exchange is made that the United States will forever secure and guaranty to them and their heirs or successors the country so exchanged with them; and, if they prefer it, that the United States will cause a patent or grant to be made and executed to them for the same: Provided always, That such lands shall revert to the United States if the Indians become extinct or abandon the same."

Opinion of the Court.

Second. The lands covered by the treaty were identified, described by metes and bounds, and an appropriation was made to aid in the immediate removal of the Indians to their new home. There was no uncertainty as to the lands granted, or as to the identity of the grantees, which, in the case of Heydenfeldt v. Daney Mining Co., 93 U. S. 634, was held to turn it into a grant in futuro.

Third. While the granting clause is in the future tense, an agreement to set apart, the habendum clause is in the present tense: "To have and to hold the same in fee simple to the said tribes, or nations of Indians, by patent from the President of the United States, issued in conformity with the provisions of the third section of the act entitled 'An act to provide for an exchange of lands with the Indians residing in any of the States or Territories, and for their removal west of the Mississippi,' approved on the 28th day of May, 1830, with full power and authority in the said Indians to divide said land among the different tribes, nations or bands, in severalty, with the right to sell and convey to and from each other." The object of the habendum clause is said to be "to set down again the name of the grantee, the estate that is to be made and limited, or the time that the grantee shall have in the thing granted, or demised, and to what use." Sheppard's Touchstone, 74. It may explain, enlarge or qualify, but cannot contradict, or defeat, the estate granted by the premises, and where the grant is uncertain, or indefinite concerning the estate intended to be vested in the grantee, the habendum performs the office of defining, qualifying or controlling it. Jones on Real Prop. 563; Devlin on Deeds, § 215.

In this case if the habendum clause were alone considered, there could be no doubt whatever that the Indians would take a present title to a fee simple. There is certainly no conflict between the granting and habendum clauses. Admitting that the former, if standing alone, would engender a doubt as to when the grant should take effect, the habendum clause removes that doubt, and imports a present surrender of a defined tract. The addition of the words, "by a patent from the President of the United States," is immaterial, since it refers.

Opinion of the Court.

to, and is intended to be construed in connection with the third section of the act of May 28, 1830, in which the issue of a patent is merely spoken of as an optional or preferential method of acquiring full title to the land.

Fourth. By Article X a special provision was made for the Senecas by which the easterly part of the tract was set apart for them, and a deed made by them of their New York lands to Ogden and Fellows was recognized and approved of by the Government, and the consideration invested for their use. And by Article XIV another special tract of the lands granted was set off for the Tuscaroras, who conveyed to the United States 5000 acres of land in New York to be held in trust for them, and another deed to Ogden and Fellows of lands in New York was assented to and sanctioned by the Government.

These proceedings, by which these tribes divested themselves of their title to lands in New York, indicate an intention on the part, both of the Government and the Indians, that they should take immediate possession of the tracts set apart for them in Kansas.

3. There is, however, another consideration which must not be overlooked in this connection, and which raises the only difficult point in the interpretation of the treaty. It is found by the court below (finding 10) that, when the treaty was laid before the Senate for ratification, June 11, 1838, the third, fourth, fifth, sixth, ninth and nineteenth of the original articles were stricken out, several others were amended by eliminating particular clauses, a new article was added as Article XV, and the ratification made subject to the following condition:

"Provided always, and be it further resolved, (two-thirds of the Senate present concurring,) That the treaty shall have no force or effect whatever, as it relates to any of said tribes, nations or bands of New York Indians, nor shall it be understood that the Senate have assented to any of the contracts connected with it until the same, with the amendments herein proposed, is submitted and fully and fairly explained by a commissioner of the United States to each of said tribes or bands, separately assembled in council, and they have given