#### JOHN T. AYRES, EXECUTOR v. THE UNITED STATES AND THE CHICKASAW NATION.

[Congressional,

11903.

Decided December 14, 1908.]

*On the Proofs.*

Niles and Ayres, in 1839, attempt to purchase from individual Indians lands lying in the Chickasaw Reservation in Mississippi. The Indian grantors, not having been identified, have not complied with the terms of the Chickasaw treaties of 1832, 1834, whereby they could individually acquire the fee and have allotments of the communal lands of the Chickasaws; and at the time of such alleged sales they are not in possession and have no title either legal or equitable. Moreover, if they ever lived on the reservation in Mississippi, such fact is not shown. If they did live there, having removed from the Chickasaw Reservation prior to the treaties and affiliated with the Choctaws, they are not en*49titled to participate in the distribution of Chickasaw communal lands. The consideration given to the grantors, respectively, is merely nominal, and the amounts thereof are not shown. Subsequently the United States dispose of the lands by sale for the benefit of the Chickasaw fund and by allotments to Indians who have complied with the conditions of the treaties. Ayres fails to comply with the fourth article of the treaty of 1834; and the conveyances are not approved by the President. The principal questions in the case relate to the treaty conditions under which the Indians could acquire an individual title to communal lands, and pursuant to which they could convey title to a purchaser. Many minor questions involving the terms of the treaties and the interpretation thereof are considered and decided by the court.

I.Every court has a right to give reasons for its official action; and it is a cardinal principle of Anglo-Saxon jurisprudence that a court shall give reasons for its decisions; and the principle has been extended to quasi-judicial bodies.

II.Prior to the *Chiclsasaio treaties, 20lh October, 1888, and 24th May, 1834*(I.Stat, L., p. 382; id., p. 450), individual Chickasaws were neither tenants in common nor joint tenants and had no individual fee in the lands which they occupied, which were communal and belonged to the Nation collectively.

III. The object of the treaty of 1832 was to rid the State of Mississippi of the Ohickasaws and to provide new homes for them. Continued occupancy was to be merely until new homes should be found.

IV. The treaty of 1832 did not invest individual Indians with title, but contemplated the sale of the land and a resulting fund for the benefit of the Indians. The treaty of 1834 provided for the acquiring of a fee by individual Ohickasaws who had a right of occupancy by virtue of actual residence. The title to the residue of the lands which had been ceded remained in the United States.

V.The treaty of 1834 required as a condition 'to obtaining title ■ individually that the occupant of the soil must be identified as such by certain chiefs and commissioners; and locations were to be made with the assistance of the Indian agent. Other conditions prescribed, examined, and stated by the court.

VI.The whole scheme of the treaty of 1834 was for the benefit of the Ohickasaws, who were parties to it; but they could only be parties to it by living on the land and being in affiliation with the tribe at the time of its execution.

*50VII.Tlie right of participation in the lands did not extend to Indians who, by alliance with another tribe, had ceased to be Chickasaws. The parties entitled and not entitled to participate stated by the court.

VIII.The purpose of the treaties with the Choctaws was to remove all of the tribe; and by a change of domicile the Choctaws lost their old domicile east of the Mississippi.

IX.Chickasaws affiliated with Choctaws, prior to the Chickasaw treaties, can not be considered as Chickasaws, and were not entitled to participate in Chickasaw land. Blood alone was not sufficient to entitle an Indian to participate in the distribution of tribal property. Residence was also necessary.

X.In determining who were the beneficiaries within the intent of an Indian treaty, a court must resort to the actual communities existing at the time of the execution of the treaty, and must disregard Indian rules or customs which will defeat the chief purpose of the treaty.

XI.In the Choctaw Nation there are but two classes entitled to share in Choctaw property under the treaty of 1837; and an applicant must show that his ancestor belonged to one or the other of those classes.

XII.As to Chickasaws by blood, there is only one class entitled to rights in Choctaw lands under the treaty of 1837 — those who were parties to the treaty of 1837 and who removed upon the lands of the Choctaws in pursuance of the treaty between those two tribes and have continuously resided thereon.

XIII. Indians who were not duly enrolled and possessed of land legally reserved and located for them, pursuant to the provisions of the treaties, acquired no title and could give none.

XIV. The proceedings of the representatives of the Chickasaw tribe at the Boggy Depot council are admissible, under the jurisdictional act, and valuable as they aided the Indian Office in determining the status of certain Indian resenes.

XV. Thé United States were authorized to locate and patent the lands claimed by the parties in this action, or to sell and carry the proceeds to the Chickasaw fund.

XVI. The decision of the Secretary of War in 1843 against the claims to lands of Chickasaws who emigrated to the Choctaw country prior to the treaty of 1834, was a departmental rule of construction, acquiesced in at the time by all parties interested and properly exercised by the political department of the Government. The decision annulled nothing, because title did not attach until location.

*51XVII. The construction of the treaty by the Secretary of War was contemporaneous and must be accepted as final unless clearly shown to be erroneous. No error appears in the decision and no proceedings were instituted by a single person under whom Ayres claims title here to set aside the public sales which followed the Secretary's decision.

XVIII. Certain certificates issued by the register showing a reservation under the treaty did not affect anything unless the preliminary steps required by the treaty had been taken. The decisions relating thereto reviewed.

XIX.The accuracy of the register’s certificates may be presumed, but is open to examination, and in this case has been successfully impeached. The deficiencies examined and stated.

XX.The treaty of 1834 required that a list of sixth article locators should be made within a reasonable time by the seven persons prescribed by the treaty and should be filed by the agent. The certificate of correctness was indispensable before the register could properly act. Further provisions concerning the action of the register and the necessity of location examined and stated.

XXI.By the *Act 9th July, 1832*(4 Stat. L., p. 564), it was provided that the direction and management of Indian affairs, under the authority of the Secretary of War, should be “ *agreeably to such regulations as the President might from time to time prescribe."*Regulations directing the exercise of enough supervision to prevent fraud or mistakes were necessary. The history of this claim reviewed.

XXII.Ayres was not an innocent purchaser; the parties from whom he purchased were not in possession; they did not hold a certificate showing a right to possession; the payments made by him were nominal and the amounts have not been shown.

XXIII. An equitable title can not be carved out of instruments which are void under the express words of this treaty. The supreme power has the right to prescribe conditions to be observed in the alienation of land, and the courts can not remove restrictions placed upoit the right of Indian alienation.

XXIV. An equitable title is a right imperfect at law, but which may be perfected by the aid of a court of chancery, either by compelling parties to do that which in good faith they are bound to do, or by removing obstacles interposed in bad faith. When a party’s grantors were not the possessors of a legal right and could neither sell nor convey, he acquired nothing which can be perfected by a court of equity.

*52XXV. The claimant admits that Eli Ayres never acquired a legal title to any of the lands. The court finds that Eli Ayres never acquired an equitable title. Under the jurisdictional act the court further finds that nothing should be paid to the legal representatives of Eli Ayres. Without the acquirement of a title by him the action of the Government in otherwise disposing of the land was *not*wrongful and there is nothing to pay for. The reasons examined and stated.

*The*Reporters’ statement of the-case: This case was first tried, in 1907 and is reported in 42 C. Cls. R., 385. Subsequently the claimants moved to change and modify both findings and opinion and a new trial was had. The following are the facts as now found by the court:

I. Eli Ayres, claimant’s decedent, died September 3, 1890, in the county of Kaufman in the State of Texas, leaving a last will and testament under which John T. Ayres on November 20, 1890, duly qualified as executor in the county court of the county of Kaufman in the State of Texas.

II. As to the lands described in the petition, Eli Ayres, neither at the time of his death, nor at any time during his life, had possession or right of possession to said lands by virtue of any title legal or equitable in or to said lands. Nor did he or those from whom he claimed title ever make entry on said lands; or have any beneficial interest therein.

III. A general partnership existed between one Thomas N. Niles, Eli Ayres, and possibly some others in the effort to procure lands in the Chickasaw Reservation in the State of Mississippi in 1838 and in 1839 and the years following. In 1839, 150 instruments of writing were given by certain Indians under whom Ayres now claims, relating to the aforesaid lands, and which instruments of writing generally bear date in the last year mentioned. Of the 150 in question, 63 appear to be to Eli Ayres as the grantee, and 41 name Eli Ayres, trustee, as grantee, and 46 name Niles and Ayres as grantees. All except 3 of the 150 instruments of writing purport to convey to a plural grantee regardless of the grantee actually named in each instrument. The nature of the trust under which the parties may have held is not proven, nor does it appear who the actual owner may be *53under these instruments, which purport to convey in trust. These instruments of writing were secured through the agency of James Dollarhide, James Dukes, and Robertus Wilson, acting as agents for Ayres and other persons, but the actual division of the interest of all the parties concerned is not proven. Whether Eli Ayres was the surviving partner .of the partnership or whether he became the sole survivor under the joint tenancy described in the instruments of writing is not established to the satisfaction of the court. Endorsements on 19 of these instruments of writing show recording, but the instruments of writing were not recorded according to the laws of the State where the lands are located. There is an affidavit attached to 131 of the deeds by James Dollarhide, made in 1852 before a clerk of probate court, but the said affidavit does not give the 131 instruments of writing any validity as conveyances, nor is the affidavit any evidence of recording. Bargains for the purchase of the lands described in the petition from the 150 persons whose names appear in the instruments of writing hereinbe-fore mentioned were made by Thomas N. Niles and Eli Ayres pending efforts to identify and locate the grantors. These bargains were made in the Indian Territory west of the Mississippi River among the Choctaws and in the country given to that tribe by the United States for a reservation.

IV. Partial payments in amounts considerably below the sums stated in or on the conveyances were made for the lands described in the petition. Such payments, whether made in negroes, horses, cattle, goods, or depreciated paper issues of the state banks of Mississippi, Arkansas, Tennessee, or Louisiana, were made pending the efforts to identify the grantors and in a few weeks after all the statements concerning their identity (not previously sent for the same purpose by the agent first in office) had been forwarded to the Indian Office at the seat of government by the Chickasaw agent from Memphis, Tenn., to be examined by the Commissioner of Indian Affairs and by the President, *but without any certificate of identity of the grantors and with papers affirmatively showing that the full body of commissioners had not acted and without any certificate of correctness of the lists or certificate of believed accuracy as to any lists transmitted for examina**54*tion and without any similar certificate from, the agent transmitting the first lists in his term.*

Pending the examination in the Indian Office of the proofs transmitted (without the necessary agent’s certificates) respecting the right of the persons whose names appeared on the lists to be located, the grantors whose names appear in the conveyances appealed to the department to hasten approval of the efforts to locate them, on the ground that they, *the said*grantors, *were in need of money.*This appeal was made by and through attorneys representing the said grantors after the alleged purchases of Ayres and Niles.

One hundred and twenty-nine (129) of the void conveyances contained no agent’s certificate.of payment. Twenty-one (21) of the void conveyances have the certificate of payment as to capacity and amount. This agent’s certificate appears to have been attached without personal knowledge of any payment and is overthrown by the preponderance of the evidence in the case.

Likewise, such insufficient payments were made with knowledge on the part of speculators and traders in Indian lands who had gone west to buy, that the grantors were residents of the country inhabited by the Choctaws and that they were living and had been living west for years as Choctaws, and not as residents on the Chickasaw Reservation in Mississippi, when the Chickasaws living east of the river were receiving their reservations. Ayres and Niles were among these speculators and traders in Indian lands. While the evidence establishes to the satisfaction of the court that the payments were not made as set forth in the petition but were nominal, the court is unable to fix the amount. The evidence also establishes that more substantial payments than those actually given were not made pending the doubts respecting the right of the grantors to 'acquire the land.

V. Proof of fraud and fraudulent practices on the part of white men speculating in the purchase of lands of the Chickasaws in Mississippi was submitted to the Indian Office from time to time, beginning in 1834, to a period as late as May 14, 1840. These evidences of fraud and imposition so submitted remain in the Indian Office to this day uncontra-dicted.

*55Proof was.made by the first Chickasaw Indian agent; by two of the commissioners provided for by the treaty to make the reservations; by the Member of Congress representing the district in which the Chickasaw lands were situate, and by private citizens.

These proofs disclose white persons giving antedated bills of sale to Indians in exchange for land; Indians signing papers who did not know what part of $100 a third of 1 per cent was; hosts of speculators going over the country hiring half-breeds to interpret for them and giving $5 or $10 for each contract made for land; stratagem and imposition on the ignorance of the Chickasaws, who did not know the value of their land or what they were^to secure, and deeds signed (most of them in blank) on the payment of $5 to $10 in advance, and large companies purchasing with the approbation of some of the commissioners authorized to make the locations. That there were shrewd, active, energetic, and intelligent interpreters taking a census of the nation and being retaken, added to, and corrected, and that after all living east of the Mississippi had been hunted up, brought forward, counted, and located on suitable lands, different traders went west of the Mississippi River into the Choctaw Nation to make search and inquiry for Chickasaws and the descendants of Chickasaws, and that a lot of western claims had been introduced which were unfounded. Among the proofs of fraud submitted was the charge by one of the commissioners that another one of the body charged with the right to make reservations never signed his name to the claims which had been sent to the Indian Office for ratification.

VI. *The persons whose names appear as the grantors of the lands described in the petition were not within the terms of the grant governing the disposition of Ohichasaw lands in the State of Mississippi.*

Before the removal of the Choctaws from the State of Mississippi to the new homes provided for them in the West by and under their treaty of 1830, known as the Dancing-Rabbit Creek treaty with the United States, the Choctaws and Chickasaws were in possession of separate lands in Mis*56sissippi as Indian communal occupants merely. They spoke the same language and intermarried the one tribe with the other. They were, however, distinct tribes in fact and in law with different headmen, and recognized by the United States as different treaty-making people from 1801. The marriage of a Choctaw man with a Chickasaw woman gave such Choctaw husband, according to Indian custom, right of occupation of land occupied by the tribe to which his wife belonged, and if he chose to avail himself of this right and lived on land away from his own tribe with his wife’s people he became an affiliated member, and the children of such union were Chickasaws. So, conversely, the marriage of a Chickasaw man witlUa Choctaw woman gave the Chickasaw husband the right of occupation, according to custom, of land occupied by the tribe to which his wife belonged, and if he chose to avail himself of this right and lived on land away from his own tribe with his wife’s people he became an affiliated member, and the children of such union were Choctaws. Each Indian family obtained rights under treaties according to location. Chickasaw men married to Choctaw women and living among the Choctaws were affiliated Choctaws and entitled to whatever rights the Choctaws obtained under treaties with the United States. So Choctaws married to Chickasaw women and. living among the Chickasaws were affiliated Chickasaws and entitled to whatever rights the Chickasaws obtained under treaties with the United States, and the children of such union were Chickasaws who obtained land under the sixth article.

Benj. Reynolds, Indian agent east of the Mississippi River, stated to the Secretary of War in 1838 at the time he refused to give the certificate of believed accuracy in the locations proposed for the persons under whom Ayres claims, that he knew that some Chickasaws had emigrated west of the Mississippi River with the Choctaws, but said Reynolds as agent did not identify the persons from whom Ayres claims as Chickasaws, nor did he profess to have any knowledge of the extent of Chickasaw blood possessed by any of them or as to their relations with the Choctaws by marriage or otherwise or as to the number, and he expressly stated that the persons claiming were removals before the treaty *57of 1832 between the United States and the Chickasaw Nation. This agent simply stated that he could not give the certificate of believed accuracy. There was never any treaty identification of any of the people living among the Choctaws as members of the Chickasaw tribe entitled to land.

By the fifth article of the treaty of 1834 between the United States and the Chickasaws, reservations were granted to heads of families being Indians or having Indian families, confined, however, to the sections or fractional sections on which the party claiming lived, or to such sections as were contiguous or adjoining the sections resided upon, subject to the restrictions that in cases where there were interferences arising the oldest occupant or settler should have the preference, and, secondly, .where the land (resided upon) was adjudged unfit for cultivation by the agent and three of the seven persons named in- the fourth article, *the party entitled*should be and was authorized to locate his claim upon other lands which might be unappropriated and not subject to any other claim. The register was required to locate full or fractional sections fit for cultivation in the names respectively of the different persons claiming, which should be held by them as tenants in common on the land according to the respective interests of those concerned.

Reservations of a section each were to be granted to persons, male and female — that is, members of Chickasaw families living on the land who were'parties to the treaty, not being heads of families of the 'age of 21 years and upward, a list of whom within a reasonable time should be made out by the seven persons mentioned in the treaty and filed with the agent, upon whose certificate of its believed accuracy the register should cause the reservations to be located upon lands fit for cultivation. Persons thus entitled were to be excluded from the estimated numbers contained in any family enumeration provided for in the fifth article preceding. A rule was then declared for all reserves where the party owning or entitled should die by which their right was not to endure longer than five years nor beyond the period when the Chickasaws might leave their .present for a new home.

YII. Whilst the evidence establishes that a number of the persons known as Chickasaws abandoned whatsoever of *58membership, affiliation, and tribal relation they had with the Chickasaw tribe or nation in Mississippi, and that these persons emigrated with the Choctaws to the new homes acquired by that tribe in the West, before the treaty with the Chickasaws, the evidence does not establish the number of such persons, nor the extent of Chickasaw blood in those of them who so emigrated (whether part Chickasaw and part Choctaw or part white and part Indian). Nor does the evidence establish that the 150 persons under whom Ayres claims to have derived title were of enough Chickasaw blood to have entitled them to be recognized as of that tribe; or that they or any of them ever lived in Mississippi on the land which they attempted to convey, or on any communal property in the occupancy of the Chickasaw tribe in the State of Mississippi. The evidence does establish that, included in the 524 alleged Indians attempted to be listed in 1838 as Chickasaws, there were some persons of former Chickasaw affiliation who had intermarried with Choctaws and had children from such unions, and who with their children were known and recognized by the Choctaws as members of the Choctaw tribe (and not as Chickasaws) from the time such marriages occurred. Intermarriages between the two tribes began long before the execution of the treaties between the two nations and the United States in 1830.

VIII. *Names of persons from whom Eli Ayres and Thomas N. Niles and possibly others attempted to purchase land set forth in the instruments of writing hereinbefore mentioned appear interleaved, and on smaller sheets of paper than other locators, in a certain booh known as booh 13, from pages 83 to 88, inclusive, and on pages 130 to 136, inclusive. None of these persons ever acquired title or beneficial interest in or to the lands which said Ayres undertook to purchase.*

These lists bearing the names of Ayres’s grantors contain no certificate of any chief, commissioner, or agent, and said lists contain no information as to residence, except present Choctaw residence as of 1838-39 and for some years preceding. Two out of the four sheets bear the signature of the Indian agent with no comment whatever. The next list after the list of Ayres’s grantors appearing in the roll book, *59page 100, is entirely regular and shows the certificate with signatures of the Chickasaw commissioners and agents, as on the rolls preceding the list of grantors to Ayres. The claims here do not rest on regular certificates or rolls.

Said book 13 purports to contain the names of persons who were entitled to land under a treaty between the United States and the Chickasaw Nation (7 Stats., 450) made in 1834 and known as the treaty of Washington. All of the persons whose names appear on the sheets of paper interleaved as aforesaid are the same persons who were removed as Choctaws in 1831, 1832, and 1833 with the Choctaw tribe, of Indians from Misissippi at the expense of the United States, and who were furnished with supplies and provisions as members of that tribe for twelve months after reaching the country west of the Mississippi River. They were all persons who were found in 1837 to be residents of the Choctaw country on lands occupied by the Choctaw Indians, and in affiliation with the Choctaws, and included families known as Choctaw families, of men, women, and children, and recognized by the Choctaw .tribe as well as the United States as Choctaws, by reason of removal and residence. They were never mentioned as Chickasaws until search was made for them among the Caddo tribe and. Choctaw tribe of Indians by Eli Ayres, Thomas N. Niles, and Benj. Clements, operating in person or by agents of their employment. There is general proof that some Chickasaws and persons living with the Chickasaws had affiliated in 1831 with the • Choctaws at the outset of the removal of the Choctaw Nation from the country inhabited by them east of the Mississippi River to the country lying west, under the Choctaw treaty with the United States of 1830. But whether these particular persons whose names are mentioned in the instruments of writing set forth in Finding III had ever lived with the Chickasaws on Chickasaw land in Mississippi, does not appear. As many as 524 persons west of the Mississippi River, some years after the Chickasaw treaty of 1834, claimed land, but no particular claimant was ever identified as having resided on the land in Mississippi as a Chickasaw.

When locations were being made for reservations of lands east of the Mississippi to Chickasaw families under the fifth *60article and to Chickasaws unmarried under the sixth article of the treaty of 1834, none of the persons whose names appear in the instruments of writing set forth in Finding III were in the Chickasaw country claiming lands, and none appear to have been residents at any time. It is probable that with the earliest Choctaw emigration in 1831 some persons of Chickasaw blood had joined the Choctaw tribe as members thereof, but the evidence does not disclose how many of such persons of Chickasaw connection or blood so emigrated, or that one of them, when the right of all the jiersons mentioned in the instruments of writing aforesaid was in dispute, offered any evidence to the Indian office or to any court or to any agent or register that he was a Chickasaw and, as such, a party to the Chickasaw treaty. Nor did Ayres and Niles or Clements, or either of them, offer any evidence that the persons named in the instruments of writing aforesaid were Chickasaws entitled to land under the treaty by virtue of being Chickasaws. There is nothing in the record disclosing any claim of Chickasaw residence.

They are the same persons whose status underwent investigation by the Indian office under the authority of the Secretary of War, who then had jurisdiction, as the result of information and charges of fraud against white men trading-in Chickasaw lands in Mississippi and searching for entry-men in the West to obtain reservations for persons not entitled to lands, and pending the examination into the regularity and correctness of certain sheets of paper containing the names of the persons on such slips of paper which had been transmitted without approval by the Chickasaw agents and without the certificates of correctness and believed accuracy as required by the treaty, and without the names of the necessary number of chiefs and commissioners likewise required by the treaty as to the basis of locations, and at a time when there were no claims of actual location, and identify persons applying when no locations according to the requirements of the treaty had in point of fact been made by any register and there was no pretense of action on his part; and they are the same persons whom the Secretary of War decided, upon all the proof before him, both for and against the locations, that “ in the matter of certain claimants *61(Ayres’ grantors) to reservations under tbe treaties of Pon-totoc and Washington, representing themselves to be Chickasaws, the list of these names having been transmitted to the committee, as provided in the fourth article of that treaty, for examination, they have reported against the claimants that, excepting a few named, they are not Chickasaws entitled to reservations, and this report is concurred in by the agent and superintendent, who represents the circumstances under which the decision of the committee was made to have been peculiarly favorable to a full and fair investigation. Without now saying that this report under the provisions of the treaty is conclusive, although I am very much inclined .'to that opinion, yet it commands the highest confidence. ‘The interest of the State of Mississippi requires that this question, which has been so long pending, should be settled, and the large tracts of land necessary to meet these claims should be relieved from this contingent incumbrance, or that it should be made final. As there is no probability that a more full and satisfactory investigation can be had, under all the circumstances, the report of the committee aforesaid, concurred in by the Indian agent, is approved, the claims recommended by them are admitted, and those disallowed by them are rejected.”

“ If, however, they have reported in favor of any Chickasaw who emigrated prior to the treaty of Washington of 1834, such claim can not be allowed, as the utmost liberality of construction can not extend the provisions of the treaty aforesaid beyond the date mentioned.”

They are the same persons who accepted this decision of the Secretary of War and made no proof and made no offer to prove that they were Chickasaws entitled to reservations; who made no proof and made no offer to prove that they had ever resided on the land; made no entry on the lands and made no offer to take possession of said lands, and in point of fact never had possession of an acre of it except in the case of Ho-yo-no-tubby and Bah-o-no-tubby; and took no steps to obtain certificates of location and neved obtained any for themselves, nor instituted proceedings against the persons in possession of the lands under the patents, and never questioned in any form the correctness of the Secre*62tary’s decision, but permitted the statutes of limitation to bar any right of recovery (if they ever had any such right) to the lands for the value of which there is contention under this proceeding. They are the same persons who, for want of proof of their Chickasaw citizenship, have been excluded by that tribe from annuities and rights as members of the Chickasaw Nation and have none, whether of land or annuity, by virtue of residence or affiliation on any kind of Chickasaw land or funds, and never had any in Mississippi under treaty.

IX. *The persons from whom Ayres attempted to purchase the lands mentioned in his petition were not didy listed and enrolled and said lands were not legally reserved and located to said persons according to the requirements of the treaties governing the disposition of Chickasaw lands in the State of Mississippi.*

There is a difference between *lists*and *rolls.*The *lists*imder which Ayres claims, said to have been made by Indian chiefs, were without any cooperation or knowledge of the Indian agents when made and contain no reservations or locations except as to one single name. The *rolls*containing locations to Ayres’s grantors were made by the Indian agents without any cooperation or knowledge of the Indian commissioners. The provisions of the treaty and departmental regulations made necessary the cooperation of commissioners and agents. All lists or rolls other than those under which Ayres claims show such cooperation and joint-action.

The Indian lists were:

1. Paper bearing 18 names, dated April 8, 1838, addressed to no one and purporting to be signed by Benjamin Love, Henry Love, and Ish-to-ho-to-pa (the king of mark), who state their belief that the persons named are Chickasaws who have not obtained or applied for land. 2. A paper dated May 8, 1838, in Choctaw Nation west, addi'essed to Benj. B>ey-nolcls, purporting to be signed by James Colbert, Isaac Alber-son (cross mark), and George Colbert (cross mark), chiefs and commissioners, witnessed by P. P. Pitchlyn, Thomas McKinney, and Benj. Clements, containing a list of 58 additional names. On this list is a note dated June 7, 1838, *63at Chickasaw Nation, Mississippi, asking Benj. Reynolds to have these names enrolled, sighed by Benjamin Love, Henry Love, and Ish-to-ho-to-pa (by mark), with no witnesses. 3. Another list in the same form, signed by the same parties on the same dates as that last mentioned, containing 45 names. 4. A letter dated June 24, 1838, Choctaw Nation west, addressed to Benj. Reynolds, purporting to be signed by Ish-to-ho-to-pa, by mark, Isaac Alberson, by mark, George Colbert, by mark, and James Colbert, witnessed by Alexander Henry, Joseph Dukes, James Dollerhide, and Daniel Overton, containing- a list of 96 names, with the request to have them enrolled. 5. A letter dated June 24, 1838, at Choctaw Agency west, addressed to no one, reciting that the 96 Indians named in the last-mentioned lists are Chickasaws ivho emigrated and resided with the Choctaws, signed by seven Choctaw chiefs, and witnessed by Joseph ‘Dukes, Jas. Dollerhide, Dan Overton.

These lists show no age, sex, or proposed location or reservation, except to one man, no residence or roll numbers, and comprise all the proof as to identity of these Indians in the hands of either Agent Reynolds or his successor, Upshaw. The principals whose names appear on these lists were a part of the commissioners provided for in the treaty of 1834. The persons signing as witnesses were interested in procuring locations either on their own behalf, as attorney, or as the special agents of Ayres and Niles.

X. The rolls showing tentative locations and reservations made by Indian agents without the cooperation, assistance, or knowledge of the Indian commissioners were forwarded to the Indian Office by the agents for official examination with no statement of treaty location and for approval and action as follows: «.

1. By Benj. Reynolds on October 22, 1838, three sheets showing proposed locations under the fifth article of the treaty of 1834, and four sheets showing proposed locations finder the sixth article, and inclosing some of the lists mentioned in Finding VIII. In his letter Agent Reynolds stated that the lists were deficient in not stating ages, districts, etc., and that other roll numbers would be forwarded later, and that he could not attach he usual certificate to *64the rolls, but he was satisfied that many of them emigrated with the earliest Choctaws. He signed the roll merely for identification, but purposely omitted the certificate of accuracy that appears on every roll other than those under which Ayres claims. 2. Another roll of the same kind sent on April 5, 1839, by Agent Upshaw, the successor to Reynolds. No list or other proof accompanied this roll, the same being based on the lists already transmitted by Reynolds. 3. By Agent Upshaw, who on May 4, 1839, transmitted to the Indian Office, a tentative roll based upon the letter from Choctaw chiefs, accompanied bjr the list of June 24, 1838, designated as No. 4 in Finding VIII, and being the balance of the lists mentioned.

These rolls were not certified as correct by anyone. No person of Indian blood ever acted upon or saw them so far as the evidence shows. They are interleaved in a roll book transmitted from the Interior Department, are made up on different paper and on different forms from the regular rolls in the same book. The roll numbers on these incomplete rolls correspond to those set forth in the petition herein.

Neither the lists described in Finding VIII or the rolls mentioned in this finding were made in accordance with the provisions of the treaties and regulations or instructions.

XI. The action taken on these papers by the Chickasaw Indian agents was, first, by Benj. Reynolds at the Chickasaw Agency, October 22, 1838, and on that day he inclosed to the-Commissioner of Indian Affairs sheets 1, 2, and 3, said by that agent to contain locations under the fifth article, and sheets 1, 2, 3, and 4, said by him on information to contain locations under the sixth article of the treaty of 1834; also inclosing the testimony of the Chickasaw and Choctaw chiefs, taken west of the Mississippi, and the two chiefs on this side,' from which testimony the agent represented that he believed it was his duty to admit them to be enrolled and located; but he also said that in making out the western list they neglected to give the district to which the proposed res-ervees belonged, as well as the ages of those under the sixth article, which omission he said he was unable to correct; that from the rolls it would be perceived that numbers 1269 and *651295 under the sixth article were not located, as well as numbers 605, 718, 645, 646, 647, 648, 649, 650, 651, 652, 653, 654, 655, 656, 657, 658, 721, 722, 723, 726, 727, 728, 729, 730, 731, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742, 743, 744, 745, and 746 under the sixth-article, but would be made and forwarded. Thereupon the Chickasaw Indian agent, Reynolds, refused to certify to the accuracy or correctness of the lists, but on the contrary informed the Commissioner of Indian Affairs that he could not attach the usual certificate to the rolls, but was satisfied that many of the Chickasaws emigrated with the earliest Choctaw emigrants. The' two commissioners mentioned by Reynolds as being east of the Mississippi took no active part, but accepted the statement of the three west of the Mississippi to the extent shown on the face of the papers. On the list so transmitted by Agent Reynolds appears merely his name as agent for purposes of identification. None of the lists of rolls have on their face the signatures of the commissioners; none of them have the signature of the agent certifying to the correctness of the reservations named thereon as on all preceding rolls; there is no statement showing whether the location was the residence of the Indian named and no information as to removal to contiguous reservations as required by the treaty. There is no certificate anywhere of correctness as to fifth article res-ervees or that they were heads of families or that they had ever resided on the land, nor is there any certificate anywhere of believed accuracy as to single Indians as required under the sixth article. There is no certificate or statement in the lists containing the Ayres grantors’ names that the commissioners or the agent had personally examined and approved the same, and the lists are not made in accordance with the treaty. Second, the action taken next was by the Chickasaw agent, Upshaw, who, on April 3, 1839, had succeeded Reynolds as Chickasaw agent. There is on file a copy of a paper purporting to show the transfer of rolls from Reynolds to Upshaw containing names and lists from 1256 to. 1302, inclusive. It does not appear from this copy of transfer that Reynolds transferred to Upshaw any other authority, certificates, or proof from the letters or lists sent *66to him from the four Chickasaw chiefs and the chiefs of the foreign tribe west of the Mississippi.

May 4, 1839, Agent Upshaw wrote from Memphis, Tenn., to the Commissioner of Indian Affairs transmitting to him for his examination and the examination of the President of the United States what he said was an original roll of Chickasaws who emigrated west “ some time since ” entitled to land, which roll the agent stated had been signed by the commissioners in the west from which he presumed they had examined the claimants strictly and were perfectly satisfied of the justness of the claims. At the same time was transmitted what the agent said was proof of the Choctaw chiefs, captains, and judges that the claimants were Chickasaws, the agent stating that he had received the papers that day and hastened to lay them before the Commissioner of Indian Affairs for that officer’s prompt action. The paper so transmitted was not a “ roll ” in that it contained any attempt at enrollment, but merely a list not signed by any commissioner; No person of Indian blood certified to the correctness of the lists showing numbers and reservations, and no person of Indian blood ever saw the rolls so far as the testimony discloses. On none of the pages or smaller sheets of paper interleaved in book 13 and transmitted by Agent Upshaw for examination does a certificate of correctness as to heads of families or believed accuracy as to single Indians on the part of the agent appear. There is no certificate anywhere of the correctness as to fifth article reservees, nor is there a certificate anywhere of believed accuracy as to sixth article reservees as required by the treaty. There is no statement showing residences on community land in Mississippi at any time of the persons named. There is no information as to removal to contiguous reservations as required by the treaty. The list so transmitted by Upshaw bears merely his name without certificate or recommendation of any kind. The proofs submitted to the Chickasaw agents show that the persons whose names were proposed for locations emigrated with the Choctaws, under the Choctaw treaty, at the expense of the United States, and that they had resided with the Choctaws for a number of years on land provided for Choctaw Indians only.

*67XII. The Secretary of War ordered a census of the Chickasaws to be taken after the lists were transmitted for examination.

Again, under date of December 9, 1842, the Commissioner of Indian Affairs requested the Chickasaw agent, then at Fort Towson, west of Arkansas, to progress with this census as he traveled through the Chickasaw Nation, and to forward the same to the Indian Office as soon. as completed. This agent never reported in the matter of the census he was ordered to take.

January 6, 1840, the Commissioner of Indian Affairs returned' a letter from Eli Ayres, “ in relation to Chickasaw reservations,” to' Jacob Thompson, then a Member of the House of Representatives, stating that the department had determined to suspend all action on the class of claims referred to by Ayres until the census required to be taken had' been received, which determination was known to the proper agents and chiefs the preceding summer.

In the official report of 1841 the Commissioner of Indian Affairs stated that no complete census was possible of Chickasaws. For want of a complete census and because of information of frauds which had been going on in the attempt to enroll persons not connected with the Chickasaws, instructions were given to investigate the entire matter in the Choctaw country and among the Choctaws themselves, as well as among the Chickasaws, in order to enable the department to determine what should be done.

XIII. The Commissioner of Indian Affairs recommended an investigation. The lists and papers transmitted by the two Chickasaw Indian agents were never approved by the department. It was never made- to appear to the department or to any Chickasaw Indian agent that the chiefs and commissioners designated by the treaty had listed names according to the requirements of the treaty, so far as the persons whose names appear in the petition are concerned. The investigation recommended was made soon after an application had been made in 1841 by attorneys for alleged reservees who had not been located, in which it was claimed that the papers on file were “ virtual ” locations to those persons only whose names had been first transmitted by Agent Reynolds, and *68who they further claimed the department should approve lists transmitted by the Indian agent, because of the identity being established by certificates of the Choctaw chiefs and a majority of the Chickasaw commissioners. No proof was offered at this important juncture in the matter of the identity of the persons whose names appear, or that they were Chickasaws, or that they were parties to the treaty, or that any certificates of correctness by the Indian agent had been given for fifth article reservees, or that any certificates by the Indian agents of believed accuracy had been given as to sixth article reservees. Ayres was not at that time claiming any purchase of the lands.

Instructions were given to the assistant superintendent of Indian affairs for the western country to investigate the entire matter among the Choctaws and among the Chickasaws. This superintendent proceeded to discharge of his duties in the Choctaw country and among the Choctaws themselves, as well as among the Chickasaws who had after they had received their lands in Mississippi emigrated west. The superintendent took eighteen months to perform his duties, and caused a council of Chickasaw chiefs and commissioners and leading men of that tribe to be held on a day and at a time when the Indian annuities were being paid to members of the Chickasaw tribe, of which notice was given. This council was held at Boggy Depot, in the Indian country, and a memorial was there presented showing applications for 524 claims. This memorial was examined and passed upon at the time. In this list of 524 claims for reservations were included the persons whose names appear in the petition, and whose names also appear to be interleaved on smaller sheets of paper in book 13, pages 83 to 88, inclusive, and pages 130 to 136, inclusive. The king, Ish-to-ho-to-pa, and five other commissioners provided by the fourth article of the treaty of 1834 were active participants in the council, and likewise there were present, actively participating, sixteen of the Chickasaw chiefs who had signed the treaty of 1834. (Some of the original commissioners named in the fourth article of the treaty had died, others had resigned, but their places had been filled as required by the treaty.) The persons who composed the Chickasaw council investi*69gating the matter included the leading men of the tribe who had been active in the affairs of the Chickasaws before that time, and who at and after that date were leading citizens and officers of the tribe. Altogether, the six commissioners present, which included the king, were assisted by twenty other leading persons of the tribe. The council had the assistance of the assistant superintendent of Indian affairs for the western country. It prepared a memorial containing the names of the king, Ish-to-ho-to-pa, Isaac Alberson, Col. Slone Love, Col. James Wolf, James Campbell, and Charles Colbert, denying the right of any of the persons from whom Ayres claimed as entitled to land.

XIV. Under date of October 28, 1842, the acting superintendent of Indian affairs for the western territory, transmitted a report from the Choctaw Agency showing that he had paid the Choctaw annuity in 1841 and attended a council of the Chickasaws, convened for the purpose of investigating the claims of individuals for land under the Chickasaw treaty (the same council hereinbefore mentioned), in which report the acting superintendent stated that notice was given to all concerned (there is no evidence to the contrary from any Indian); that he had been as particular in the examination as he could 'be; that the whole business was well understood and explained; that the council was large and that the oldest and most respectable Chickasaws were present. That four Indians whose names appeared on the rolls satisfied the Chickasaw commissioners that, they were really Chickasaws entitled to land under the treaty, and that he, the superintendent aforesaid, was satisfied that the claimants were generally Choctaws,who had been prevailed upon by land speculators to make the attempt to obtain land as Chickasaws; that he was in- the nation as agent all the time and that many of the names were known personally to him to be Choctaws, and were so considered by him at least since their emigration, and that he had no hesitation in stating that the claimants rejected were not entitled to land with the bare possibility that in such a large number there might have been two or three others that could they have been present might have satisfied the commissioners that they were so entitled. In transmitting this report the acting *70superintendent returned the lists hereinbefore mentioned in Finding VII with other papers.

NV. Previous notice had been published of the meeting of the council of Chickasaw Indians at Boggy Depot, and Ayres was fully informed of the proceedings leading up to the convening of that council. No effort was ever made by Ayres or anyone on his behalf to establish the alleged rights of the persons under whom Ayres claims before the acting superintendent of Indian affairs for the western country or before any commissioner or council authorized to consider the same.

. XVI. J. B. Clements, whose name appears as a witness to some of the signatures when the lists were being prepared by three of the seven persons authorized to prepare lists, was interested with Ayres and Niles either personally or as agent in the purchase of the lands. If interested as agent he was operating in connection with Dukes, Overton, Dollarhide, and Wilson. Clements was a white man residing at Fayetteville, Tenn., and very early in 1841, in connection with P. P. Pitchlyn (a Choctaw Indian who before that time had been actively instrumental in preparing lists of people living among his tribe to enable them to get reservations in Mississippi of Chickasaw land), endeavored to have the Secretary of War give effect to the list prepared by less than seven commissioners provided by the treaty to make the lists. Clements was in Washington at Gadsby’s Hotel, and P. P. Pitchlyn aforesaid, either as witness or as attorney, addressed an argument to the said Clements in the form of a letter which on its face showed the said Pitchlyn to be in Washington, February 26, 1841. This argument was used by the said parties before the department, in which it was contended that the persons living among the Choctaws so attempted to be listed were Chickasaws and had married into the Choctaw'Nation — that is, married Choctaw women or men — and by reason of such marriage lived among the Choctaws and had lived among the Choctaws in Mississippi and most ’all of them had emigrated with the Choctaw tribe' before the treaty giving reservations in fee to the Chickasaws. The contention was further that the persons whose *71names were marked in sheets 2, 3, 4, 5, 8, 9, 10, and 11 were the persons and their heirs who were claiming reservations under the Chickasaw treaty without making- any effort to resume residence on the land either for themselves or their families, although it was also represented by Pitchlyn, and by Clements using Pitchlyn’s argument, that certain other Chickasaws living among the Choctaws had returned to their tribe in Mississippi 'and had been allotted reservations under the Chickasaw treaty, but how many does not appear. It was further represented that John McClish, John Perry, Pitman Colbert, and other persons who were sent west by the Chickasaw Nation in 1837 to look out for a permanent home for Chickasaws who had not then left their lands in Mississippi found the persons so attempted to be listed whose names appear on paper which Clements and Pitchlyn signed as witnesses.

XVII. Subsequent to the efforts of interested persons to secure departmental recognition for those whose names appear bn the lists transmitted to the Indian Office because of their alleged right to be listed and to have reservations as Chickasaws, another effort was made for departmental recognition upon wholly different grounds than those urged by the parties through Clements and Pitchlyn.

March 6, 1841, the Choctaw claimants, by their attorneys, Bryan and Iverson, made an argument in writing, addressed to the Secretary of War. Compliance with the requirements of the treaty were neither contended for nor alleged in the matter of location in three particulars:

(1) As’to location by the proper officer.

(2) As to proper identification by the chiefs and commissioners.

(3) As to the necessary certificates by the Chickasaw Indian agents.

1. It was neither contended nor alleged that any of the persons listed had been located by the register and no reference to any action taken by the register appears. On this point the court further finds that there is nothing in the record to show that the register every took action at any time in the matter of making the locations. *722. As to the action of the chiefs and commissioners, it was neither contended for nor alleged by these attorneys that the necessary number of chiefs and commissioners had acted according- to the requirements of the treaty in making up the lists and in identifying the proper parties.

3. As to the Chickasaw Indian agent’s certificate, it was neither contended nor alleged that the certificates were given showing correctness and believed accuracy.

It *was*contended that the agents were neither required nor expected to take any part, but were obliged to rely on the report of seven commissioners. But no effort was made to show that seven commissioners had acted.

The court further finds that the contention of the parties by Bryan and Iverson was that a majority of the commissioners was sufficient to identify and make up lists; that it was wholly unnecessary to adduce proof that the applicants were really Chickasaws or that they were residents of the Chickasaw Nation at the date of the treaty. That the lists sent in for examination by the first agent was a virtual “ if not a literal compliance ” with the treaty — which lists first sent in related to 18 of the applicants. That as to the other lists the certificate of Choctaw chiefs with less than seven of the Chickasaw commissioners was sufficient without any agent’s certificate of accuracy. The court finds that *1*'commissioners were essential to make proper lists, except for heads of families living on the land.

XVIII. The Chickasaws in an early council adopted a rule to leave out those marrying among them whose mother was not a Chickasaw, unless they lived on the land when the treaty was made.

XIX. Under date of November 2, 1848, the Chickasaw people in general council assembled reviewed the whole controversy as to land claims, and transmitted a protest to the President of the United States in which it appeared that a largo number of the claims to reservations in the country ceded by the Chickasaws to the United States by the treaties of 1832 and 1834 had been presented to an earlier council of the Chickasaw Nation, and that after a thorough investigation the claimants were found to be Choctaws, of a very *73remote, if any, relationship to the Chickasaws, affirmed the decision of. the first council.

XX. February 12, 1844, a statement appears among the files of the Indian Office relating to a copy of a protest of J. B. Clements against the sale of Chickasaw lands which includes lands set forth in the lists hereinbefore mentioned. There is no evidence of protest by either Niles or Ayres. ■

March 11,1844, the Commissioner of Indian Affairs stated that no deeds had been presented in a single case to that office for any reservation, and that General Clements, who claimed an interest in the lands and had knowledge of the details concerning the decision of the Chickasaw council, had submitted evidence in connection therewith to that effect.

October 21, 1851, an attorney representing an application for a review of the decision of the Secretary o.f War rejecting the claims of the persons set forth in the lists herein mentioned to land under the sixth article of the Chickasaw treaty of 1834 was informed by the Secretary of the Interior (who had acquired jurisdiction) that the application could not be granted, because no new testimony had been introduced and no errors of fact appeared.

XXI. March 24, 1898, the Commissioner of Indian Affairs reported that “ there is no evidence now on file in this office as to Mr. Ayres’s purchase of the land or as to the amount paid by Mr. Ayres;” that, “from the files and records of this office under date of December 30, 1839,” Hon. Jacob Thompson transmitted to that office a letter from Eli Ayres relative to Chickasaw reservations. In reply Thompson was informed that the department had determined to suspend all action on the class of claims referred to by Mr. Ayres until the census required to be taken by the treaty of 1832 and the regulations prescribed to carry into effect the treaty of 1834 had been received at this office; that “ June 8, 1850, the Secretary of the Interior referred to this office two Chickasaw deeds in favor of Eli Ayres, accompanied by an argument by Charles Abert, esq., urging their approval by the President. June 29, 1850, the commissioner reported that he was precluded by the decisions of the department from entertaining the claims;” that “ November 5, 1875,- TIon. G. E. Harris *74and Richard McAllister, attorneys for Eli Ayres, submitted these same two deeds to the Secretary of the Interior, for the approval of the President, with a full and exhaustive brief;” that “ in a supplemental brief dated March 16, 1876, they stated that these two deeds were representative of others, comprising in all some 194 sections of land.”

XXII. Notwithstanding the register of the land office at Pontotoc officially had notice from the department that the original locations proposed by some of the commissioners were on file unacted upon and entirely unapproved except as to four, and that the said lists did not contain the names of any of the chiefs and commissioners and did not contain any certificates of correctness or of believed accuracy by either Indian agent, and in the face of information communicated to the register that investigation was being had, and in the face of information, also officially given, of the rejection by the Secretary of War of the claims for reservations of the persons with whom Ayres dealt, the register at Pontotoc, on the incomplete and insufficient papers purporting to be copies of the original papers, gave certificates in 1846 to the effect that to two names on the list had been located reservations of land under the sixth article of the treaty upon which proceedings were instituted in one case in the courts of Mississippi for the recovery of the land. Proceedings arose under the second certificate in the district court of the United States. Subsequently (immediately preceding the retirement of this register from office), to wit, on March 2, 1849, said register issued similar certificates for all of the alleged reserves. All of the last said certificates were given about ten years after the alleged locations were said to have been made and were delivered either to Eli Ayres or his agents and not to any of the reservees. No certificate whatever was issued by the register in office under the three administrations when the matter of locations of land was under investigation. The certificates did not show that the roll numbers, reservees, and locations under either the fifth or sixth articles of the treaty embraced Chickasaw Indians, but merely certified that a paper on file in his office was a true copy of the roll numbers, reservees, and locations furnished *75by the Chickasaw agents. None of the certificates show that there was on file any statement of correctness as to the fifth article reservees or any statement of believed accuracy from the Indian agent as to the sixth article reservees. No such certificate appears to have ever been given either agent.

At the time of the delivery of these certificates the land located as to 53 sections included Chicbasaws found really entitled (from whom Ayres had no conveyance), and 141 sections had been sold under Article- XI of the treaty for the benefit of the Chickasaw Nation.

Though the certificates never rested upon anything showing the names of any of the commissioners making the lists, or upon true copies of the agents’ certificates of correctness or of believed accuracy (because the true copies do not show the names of any of the commissioners, nor do the true copies show the agents’ certificates required by the treaty), they show in the copy which one of the agents claimed to have retained and filed that none of the reservees possessed residence qualifications; that the alleged reservees were not listed according to the requirements of the treaty, and that the full body of commissioners had not requested locations, and that agents had not actually identified any of the reservees, but, on the contrary, submitted the whole matter of location to the Indian Office and the President. The certificates do not show any evidence of official action by the register other than the indorsement on his statement that it is a correct copy of the list furnished by the agent.

XXIII. *Whether the persons from whom Ayres attempted to purchase were'entitled to reservations and obtained title for themselves under the treaty or*not, *Eli Ayres failed to comply with the fourth article of the treaty of 18S4-, and the instruments of writing undertaking to convey said lands to him were void as conveyances and unenforceable as contracts. The contract of the treaty made the said conveyances void and unenforceable unless approved by the President of the United States. No such approval was ever given by any President.*

XXIY. No evidence of a purchase of any lands from any of the persons from wThom Ayres and Niles claim to have *76bought was submitted to the Commissioner of Indian Affairs or to the Secretary of War. or to the President of the United States during the year of the alleged purchases in 1839 or for the ten years succeeding the year of the alleged purchases. No evidence has ever been offered by Ayres and Niles or by anyone representing them that any one of the persons under whom they claim were Chickasaws or residents on the land at the time of the treaty of 1832 or the treaty of 1834, or that any one of their grantors ever had a possessory right to any part of the Chickasaw reservation at any time in their lives. No conveyance or instrument of writing purporting to be a conveyance of any of the lands mentioned in the petition was presented to the Indian Office or to the Secretary of War or to the President of the United States for any reservation in behalf of the persons described in the petition for the four years ending March 11, 1844, pending which time steps were being taken to put the lands on the market at public sale under the eleventh article of the treaty of 1834 with the Chickasaws. In 1849 two of the instruments of writing were presented for approval without any evidence, oral or documentary, that the grantors were Chickasaws, or that they were parties to the treaty, or that they were entitled to the land, or that they had been located according to the requirements of the treaty. No proof of any payments for the land was offered or made when the two instruments of writing were presented for approval.

XXY. That the remainder of the said lands alleged to have been reserved and located to the alleged reservees, namely, 53 sections and parcels, was located to Chickasaws entitled to reservations under the treaty by the United States in the years 1840, 1843, 1844, and 1846. These locations Avere made under the treaty by the register on identifications not questioned in this proceeding.

XXYI. That the sum of $48,061.56, the proceeds of the public sales of 141 sections of the said lands, were disposed of and invested by the United States as follows:

The sum of $48,061.56 referred to represents proceeds of sales of Chickasaw lands received and covered into the Treasury under stipulations “ carrying into effect treaty with *77Chickasaws,” under the provisions of the act of April 20, 1836. (5 Stat., p. 10.) '

Computing interest at 5 per cent per annum on' $18,061.56 from May 1, 1846, down to November 1, 1905, the interest would amount to $142,983.14, which, with the principal of $48,061.56, would make a total of $191,044.70. The treaty required interest to be paid annually.

*The register and receiver gave rtotiee of the sale of the 1J¡,1 sections as not having teen located to any Indian.*

XXVII. Neither Eli Ayres in his lifetime nor his legal representatives since have received any reimbursement of such purchase money as was paid by said Ayres for the said lands.

CONCLUSIONS.

Independent of all the issues respecting Indian title to the lands which form the basis of this controversy, the legal representatives of Eli Ayres have no present or enforceable right, title, or claim of any kind or character against the land, and possessed no title, legal or equitable, in or to said lands, or any part thereof, at the time of the death of said Eli Ayres, because of the bar of the statute of limitations of the place where said lands are situate, in the State of Mississippi, in favor of those who under the patents of the Government took possession and who, by virtue of open, notorious, and adverse possession, became entitled to hold the same as against all persons claiming to' be reservees, whether rightfully located or not.

Eli Ayres is not entitled to reimbursement for the nominal and indefinite sums paid out by him on account of the purchase of said lands from the persons named in his petition and nothing should be paid to his legal representatives by the defendants.

Under and by virtue of the laws of the State of .Mississippi provision is made by a partition suit for the division of lands held in joint tenancy, and title by right of survivorship in joint tenancy never vested in Ayres of whatever interest Thomas N. Niles had.

*78*Mr. George O. Hazelton*for the claimant. *Mr. John H. Hazelton*was on the brief.

*Mr. Olarh McKercher*(with whom ivas *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

*Messrs.*Mansfield, *McMurray*& *Cornish*and *Mr. J. H. Shepherd*were on briefs for the Chickasaw Nation.

Howry, J.,

delivered the opinion of the court:

This is a motion by the claimant for a new hearing (and treated as such by consent) and to amend certain findings of fact found by the court and filed under an act approved February 24,1905. (33 Stats., 808; 42 C. Cls. R., 385.)

Strictly speaking there is no new testimony, but some additional matter has been officially certified from the public records and considered.

As these issues have been twice presented in elaborate oral arguments, supplemented by printed brief and manuscript reference at great length, the court has become familiarized with the many details, and with the correction of certain errors of statement, unimportant, to be sure, the case will now be finally acted on. Accordingly the findings now substituted, though not materially different from those heretofore reported, will supersede previous statements of fact, not alone because the additional matter certified since the former hearing has imposed the obligation to recast the facts, but also because, as now reported, the findings deal less with detail and conform more nearly to the rule applicable to this court by making the findings a summary of propositions which the evidence is intended to establish. This has imposed difficulties jarobably never contemplated by Congress, because it has been impossible to avoid the statement of certain details.

The court has also filed an opinion applying the law to the facts to avoid misunderstandings. This has been all the more necessary because rights are claimed under decisions which can not be embodied in the findings. Though it is conceded by claimant’s counsel that an opinion from the court may accompany findings in a certain class of cases it *79is not thought by the counsel that this case is within that class. We think, however, it is. Every court has a right to give reasons for its official action, and it is such a cardinal rule of Anglo-Saxon jurisprudence the principle has been extended to commissions, boards, and quasi-judicial bodies. The jurisdictional act does not exclude an opinion, which would be remarkable if it did, because if the questions here presented do not require a statement of the law applicable to the facts the court knows of no case that does. The report of this court in any case with the accompaniment of an opinion applying the law to the facts is the exercise of the right to make plain the court’s view of the law at discretion in all cases. Under those provisions which require-the publication of all opinions of the court in the volume of annual reports provided for by law the court has never before heard objections to making known its views of the law of the case whenever deemed necessary.

The claim is for the value of 124,000 acres of land in Mississippi which, it is alleged, had been located to 150 Chickasaw Indians under the fifth and sixth articles of a treaty between the United States and the Chickasaw Nation, dated May 24, 1834, known as the treaty of Washington, amenda-tory of a treaty of October 20, 1832, known as the treaty of Pontitock (7 Stats., 450; 382), and which it is further alleged, had been purchased by Eli Ayres and one Thomas N. Niles, but which the United States, subsequent to the alleged purchases had as to 141 sections, sold under article 11 as authorized by the treaty for the benefit of the nation, collectively, and which, as to 53 sections, had been located to other Chickasaws by the terms of the fifth and sixth articles of the amended agreement.

If the persons with whom Ayres bargained had no right to be located, they could transfer nothing which a court, either of law or equity, could enforce as a title. This is so, even though such persons had paper evidence of title, because it was not the certificate of location which conveyed the beneficial interest in the land, but the correctness of the action of those who by treaty were charged with its execution. The legal and equitable title of the persons conveying to *80Ayres was dependent- upon their proper identification and location on the land by competent authority. So, if those Avho were to identify and locate, either fraudulently or mistakenly, located persons not entitled, the equitable beneficial interest to land thus located was in no such person.

The matter of Indian title is the root of the controversy, because if the persons from whom Ayres claims had no right to be located, Ayres, of course, acquired no interest, even if he paid value. In considering this initial matter we leave out of consideration for the present the matter of payment, the matter of location, and that last fatal provision which ojierated to make the conveyances to Ayres void as deeds and unenforceable as contracts. The matter now to be considered arises under the concrete statement set forth in the fifth finding, that:

*The persons whose names appear as grantors of the lands described in the petition were not within the terms of the grant of the treaty.*

Before the first of these treaties was executed the Chickasaws collectively lived on this land in Mississippi as temporary occupants, with only such right to remain on the soil as was accorded to tribes generally in the occupancy of land by the United States. Chickasaws were neither tenants in common nor joint tenants, but like other owners of communal property, where every member of the tribe, not as an individual but as a member and part of the community, held an equal, undistinguishable right of user, and nothing more. Nott, Ch. J., in *Cherokee Nation*v. *United States*(40 C. Cls. R., 325), emphasized the status of such persons by repeating from the previous decision of this court in *Western Cherokees*v. *United States*(27 C. Cls. R.., 1, 53) by saying: *"The individual Gherohee had. no vested right which he could convey or devise or mahe the subject of a suit in partition. If he withdrew from the*community, *he left dll rights behind him; and if a stranger was*admitted, *he acquired a right by virtue of his admission alone.”*

In *Journeycake*(155 U. S., 196, affirming this court), Mr. Justice Brewer declared that all adopted citizens of one of the civilized tribes must be regarded, in the administration *81of their constitutional rights, civil, political, and personal, as citizens of the tribes of their adoption. Where removed individual Indians were absorbed, they were to be absorbed on equal terms in every respect with native citizens. The application of that rule to this case appears under another head.

Chickasaws living on the land as communal occupants only ceded this limited ownership in their treaty of 1832 to all the land then in their possession on the east side of the river to the United States. This treaty contemplated the removal of the Chickasaws to new homes, and by article 4 it was provided that should the Chickasaws fail to procure a country to remove to previous to the first public sale of the lands they were then to select a comfortable settlement for “ every .family in the Chickasaw Nation,” *to be held and occupied until they should -find a country.*United States guaranteed quiet possession and uninterrupted use of these lands so long as the Chickasaws “ might live on and occupy the same,” but the object still existed to rid the State of Mississippi of the Chickasaws and to provide homes for them elsewhere. As these homes were found and they were removed, their occupancy of lands in Mississippi was to cease, and these lands were to be sold by the United States for the benefit of the nation. (Supp., Oct. 22, 1832; 7 Stats., 388.) This treaty did not invest the individual Indian with a title, but the proceeds of the sales were to be for.the benefit of the collective Chickasaws.

The treaty of 1834 is the pathetic story of those Chickasaws who were “ about to abandon their homes ” and had to do so. The treaty discloses as parties on the one side occupants of the soil, but no others. The fee was provided for individual Chickasaws only who by the previous treaty had the right of occupancy by virtue of actual residence. Articles 5 and 6 designated the persons so entitled. By article 14 all the articles of the first treaty inconsistent with the last were revoked, except as to the twelfth and thirteenth. Thus the title to the residue of the lands after the selections and locations had been made under the agreement which conferred the fee to individuals remained in the United States, *82to be sold by the Government and the proceeds devoted to the purposes named in the treaties. *(Holden*v. Joy, 17 Wall., 211.) This final treaty provided for the sale of all lands not located to individuals for the benefit of the Chickasaw Nation and *the only exception to a sale of all the land was for the benefit of residents.*Those individuals having residence qualifications by the terms of the first treaty apparently must have had the same kind of qualifications when the last treaty was executed before they could claim locations. If they were not there occupying the soil as Chickasaws, but incorporated with and obtaining tribal rights along with another and different tribe, they Avere not within the terms of the treaty which conferred the fee.

The second treaty with the Chickasaws gave the right of individual title generally, but before title could be vested in any occupant of the soil (these being the only parties to the new treaty) certain chiefs and commissioners Avere required to identify the residents so entitled, and locations-were required to identify each party claiming. Locations of those properly entitled Avere to be made with the assistance of the Indian agent. Heads of families, being Indians, or having Indian families, Avere provided for, but the reservations Avhich they were to take were expressly directed to be confined to the sections *on which the party claiming might live or to such land as was contiguous or adjoining to the sections resided upon,*subject to the restriction that in cases Avhere there Avere interferences arising the oldest occupant should have the preference; or, secondly, where the land was adjudged unfit for cultivation by the agent and three of the seven persons who Avere to make the locations the party entitled Avas to be located upon other lands which might be unappropriated. Reservations of a section each Avere provided to be granted to all persons not being heads of families of the age of 21 years and upivard, but the list *within a reasonable time*was required to be made out by *the seven persons*mentioned in the treaty and filed Avith the agent, *upon whose certificate, of its believed accuracy the register should cause such reservations to be located*upon lands fit for culti*83vation, but not to interfere with the settlement rights of others. These official acts were necessary to give validity to the terms of the grant. It will thus be seen that with the provision that three commissioners only had the authority to locate fifth-article claimants residing on the land, but were without authority to designate any head of a family not living on the land as a reservee, any action taken to locate heads of families by three chiefs or a majority of the commissioners only could not accomplish the purpose of giving title to such reservee, because the treaty did not so provide. So, if the full body of commissioners authorized to locate persons not heads of families as sixth-article reservees did not act, there was no validity to attempted locations for single Indians. It is nowhere claimed for this claimant that lists were attempted to be made by all those whom the treaty designated to make the locations.

A provision in the treaty stipulating for the appointment of a new commissioner whenever a vacancy occurred on the board being expressly provided for, it was the intention to prevent action by a part of the identifying body. No quorum being provided for, no act of a minority of the board, or, for that matter, of a majority of the board, could" make the identifications complete. Accordingly, if an insufficient number undertook to supersede the terms of the treaty by locating land, their action did not confer rights of location. As an illustration of this rule: There are five judges on this court. But it took an act of Congress to declare three could perform official acts.

The persons who executed the treaty expressed the hope that all Chickasaws who were then *about*to abandon their homes would be able to find a country west of the Mississippi. By that clause of the agreement which provided for persons not heads of families a rule was declared that where the estate given by the sixth article came’ to children, the survivor of such children should be entitled to the same, but this rule was not to endure longer than five years, *nor beyond the yeriod when the GhicJcasaws might leave.*The whole scheme of this treaty was for the benefit of Chickasaw parties to it, and they could only be parties to it by living on the land *84in affiliation, either by blood or marriage, with the tribe as of the time of its execution.

It was further provided that where any white man, before the date of the treaty, had married an Indian woman the reservation he might be entitled to if she were alive should be in her name and no right of alienation should pertain to the husband unless he first divested himself of the title after the mode and manner that feme coverts usually divest themselves of title to real estate. Rights to reservation secured by the agreement were declared to pertain to those theretofore intermarried with Chickasaws, *but residents of the nation.*The dominant idea appears specifically in the last clause of the seventh article, which gave treaty rights to intermarried Choctaws resident on the land, but excluded all Indians affiliated with Choctaws, and having Choctaw rights by *their*treaty, and living on Choctaw soil with Choctaw families.

There was a purpose to limit reservations to residents in the Chickasaw Nation. When the land passed under the treaty only signatories — parties in membership — were meant. The rule of participation embraced all persons whom it was the policy of the Government to remove. The agreement could not relate to airy who by alliance with another tribe had ceased to be entitled to land which if they ever occupied (occupancy is not shown) they had left. The Choctaw married to a Chickasaw living on the land and remaining there became entitled as a fifth-article reservee, because the treaty said so. The children of such union residing there when the agreement was entered into also became entitled to land as sixth-article reservees if single and of age. All Indians intermarried with the Chickasaws and having Indian families in occupancy were entitled to land, whether such Indians had a drop of Chickasaw blood in their veins or not. The white wife, when the treaty took effect, was entitled to land through her husband as a full-blood Chickasaw. The white husband of a Chickasaw wife became entitled. The children of such unions if single and of age were entitled under the sixth article. The children of white mothers and Indian fathers affiliated with the Chickasaws, *85and living there, were reckoned as Chickasaws. The rule in force when the treaty was executed continued to be the rule ever afterwards.

On the other hand, if a Chickasaw intermarried with a Choctaw had gone west under the Choctaw treaty before the execution of the Chickasaw treaty and affiliated with the Choctaws as a Choctaw, he became entitled with the Choctaw tribe to such rights as the treaty with that tribe conferred, because that treaty provided for the tenure of land to the persons so occupying it as Choctaws and to their heirs forever.

These were matters of contract by which Ayres’s grantors must stand or fall. The purpose of the Choctaw treaty was to remove all of that tribe to western homes, which meant everything in the matter of a domicile; and by a change of. domicile such Indians lost their old domicile. If there was individual emigration by an Indian not of Choctaw blood but intermarried with a Choctaw, it was the case of an individual ceasing to be a member of the community such Indian left behind, no matter what tribe he abandoned, provided the Choctaw tribe permitted the incorporation by marriage and agreement for residence among them. Children born to such unions were as much Choctaws by established usage among the two tribes as Choctaw children of full blood. In law the findings established the Ayres grantors to be Choctaws. They could not be both Choctaws and Chickasaws.

Aside from the *want of proof that the persons under whom, Ayres claims title were of actual Ghichasaw Mood or the extent of*it, the contention that Chickasaws affiliated with Choctaws before this treaty were yet parties to the treaty can not be accepted as sound without running counter to every rule declared on the subject, not only by commissions engaged in the work of enrolling proper parties among the Five Civilized Tribes, but also by the courts, including the Supreme Court. Possession of blood alone is not sufficient to entitle an applicant to participation in the distribution of tribal property, either of the Choctaw tribe or the Chickasaw tribe, under the treaty of 1837 between the two tribes.

*86This identical proposition was established in a great case years ago, where very large sums were disbursed and where the court excluded individual emigrants. It said that in determining who were the persons within the intent of a treaty the court must resort to the actual communities existing at the date of the execution of the treaty, so far as the communities could be ascertained, and must carry out the intent without the limitations imposed by Indian, rules or customs which would defeat the chief purpose of its execution. *(New York Indians*v. *United*States, 40 C. Cls. R., 448.)

The possession of blood, is always essential, but the blood established a second inquiry necessarily follows — that is, whether an applicant belongs to any one of these classes of Choctaws or Chickasaws entitled to share in their property under the Choctaw treaty of 1837. In the Choctaw Nation there are but two classes entitled to share in Choctaw property: (1) Those who were parties to the Choctaw treaty of 1830 and who removed west and who with their descendants have continuously lived there in accordance with the agreement contained in the third article of that treaty, and (2) those persons who remained in Mississippi and complied with the requirements of the thirteenth article of the same treaty. Though an applicant might show possession of Choctaw blood, yet if he failed to show that he or his ancestors belonged to one or the other of these classes his application to membership has been continuously denied. As to the Chickasaws, there is only one class of claimants by blood entitled to enrollment, which class comprises those persons only who were parties to, and who complied with, the requirements of the Chickasaw treaty of 1837 and who removed upon the lands of the Choctaws *in pursuance of that*treaty, and who and whose descendants have continuously resided there.

There is a final view to take of this whole matter of great significance. If there is one fact better proved than any other fact in this case, it is that the persons who undertook to convey land to Ayres treated themselves as Choctaws; that not one of them personally ever claimed to have lived on the land; not one of them was on the land when the *87treaty which provided for reservations was executed. There was no incentive, if they did live on the land, for them to leave it before reservations were assigned.

The sixth ultimate finding shows that *“None of the persons from whom Ayres and Niles attempted to purchase land set forth in the instruments of writing purporting to corvoey were duly*enrolled, *and the lands described in the petition were not legally reserved and located for or to them pursuant to the provisions of the treaties governing the disposition of Chickasaw lands in*Mississippi, *and no title was ever acquired by them to the lands which Ayres xmdertoo/c to 'purchase."*

This finding discloses the attempt to locate people living with the Choctaws in the Indian Térritory and the means employed to give them land in Mississippi and the failure to do so. The requirements for certificates to carry out the treaty and to prevent frauds were disregarded. The papers on file affirmatively show that the requirements of the treaty, as -well as certain departmental regulations to insure identification, were not complied with. This is true as to the alleged enrollment of both fifth and sixth article reservees.

Claimant admits that the commissioners provided by article 4 of the treaty to locate sixth-article reservees did not act. He also admits that for fifth-article reservees (heads of families) only a part of the chiefs undertook to act, and the admission includes the fact that the effort of only some of the body of commissioners to locate fifth-article reservees could only act *for those who had residence qualifications.*As to persons claiming reservations under both articles, it is admitted that they were not only nonresidents of Mississippi when the treaty which gave the land was executed, but that they were living among and affiliated with the Choctaws west of the Mississippi. (There have been other counsel in this matter than those now in charge, whose admissions we quote.) But whether admitted or not, the finding is uncontradicted that the people attempted to b'e enrolled had no pretense of residence or occupancy on the land in Missisippi. Heads of families had to live on the land if properly located under the fifth article. Three of *88the seven commissioners were authorized to act only upon *residence qualifications.*Persons not heads of families could only be located by a *list made within a reasonable time*after May 24, 1834, by seven «persons provided to locate sixth-article reservees having a residence on the land ‘at the time of the treaty, upon the condition, of course, that such single persons had qualifications by enough affiliation as a Chickasaw to make such person a party to the agreement.

Six lists bearing the names of the Ayres grantors contain no certificate of anyone, either commissioner or agent. The lists are on different paper in kind and size from persons lawfulfy listed and contain no information as to residence. Two out of the four sheets bear the signature of the Indian agent, with no comment. There is nothing in the first list transmitted to indicate to whom it was addressed or to whom sent; no age or sex indicated, except in one name; no location proposed, except for one name; no residence or roll number shown in any case; the signatures are not witnessed and no witness appears to identify the cross-mark signature of Ish-to-ho-to-pa; there is nothing on the list to shoiv that it was ever received by any Indian agent and it affirmatively appears that it was not made with the assistance, cooperation, or knowledge of any Indian agent. On the lists subsequently transmitted certain names appear assigned to double-roll locations under the fifth article. Other lists embracing 68 Indian names show a request of four commissioners for enrollment, but the lists show affirmatively that no Indian agent ever took any part in making up the lists as required by the treaty and those whose names appear as signing the lists never made any attempt to make locations or to select reservations or to give the required information as to residence or former occupancy. These lists are in every case witnessed by the paid agents of Eli Ayres or by others interested in the purchase of lands from Indians in the West. With these lists as a basis the incomplete papers were sent to the land office. The first agent, on October 22,1838, transmitted four sheets, together with all the testimony relating to the propriety of locating them. This agent thought that it was his duty to admit them to be enrolled and located, but *89also stated that in making out the lists they neglected to give the district to which the parties belonged, as well as the ages of those under the sixth article, and that he was unable to correct the omission. Then this agent expressly stated *that he could not attach the usual certificates to the rolls, hut was satisfied*that many of the Chickasaws emigrated with the earliest Choctaw emigrants. This shows that the persons attempted to be enrolled were parties to neither the treaty of 1832 nor the treaty of 1834. No proof was subsequently offered that any of the persons whose names appear on these lists were Chickasaws at all.

As to all the names appearing on the rolls transmitted by the first Indian agent it appears that the locations were not made either according to the requirements of the treaty or the regulations. It does not appear that the first agent transferred to the second agent any other authority, certificate, or proof than the letters and lists sent to him from the four - Chickasaw chiefs and the Choctaws who were aiding them in procuring locations.

Subsequently, the second agent transmitted *for examination, and also for examination of the President,*other lists of what he said was a roll of Chickasaw Indians who had emigrated west. This was May 4, 1839, from Memphis, Tenn. He stated that the paper was signed by all the commissioners who were *in the 1Vest,*and that he, the agent, *presumed*that they had examined the claims strictly and were satisfied with their justness. The agent also transmitted proofs from the Choctaws. *Prompt action was requested so as to enable the agent to go west.*This agent sent no certificate and the papers contain no certificate of believed accuracy, as required by the sixth article of the treaty, and nothing of the kind exists.

The action of the agents Avas not an approval of the lists. Both properly postponed the exercise of the power conferred upon them by the treaties until the matter could be investigated. Neither agent was present with those of the commissioners who assumed to act for all, but were hundreds of miles distant and kneAV nothing except what the papers disclosed. The lists had no validity for the two reasons appearing on the face of the papers.

*90Rumors of fraud in connection with these, lists reached the seat of government, where the lists were sent for examination, supplemental to the information on file in the land office, that fraud was being perpetrated with respect to the efforts to obtain land under the treaty. Soon after that two •attorneys, professing to represent a number of Indians claiming to be entitled to land, addressed an argument to Hon. John Bell, then Secretary of War, in which it was argued that the letter of the first Indian agent was a virtual, if not a literal, compliance with the requirements of the treaty. There was no pretense, however, in this argument for any of the lists mentioned that the seven persons required to act had taken action.

Upon the recommendation of the Commissioner of Indian Affairs, the Secretary of War ordered an investigation, and thereupon transmitted the lists and accompanying papers to the acting superintendent of Indian affairs for the western country, with directions to refer the matters involved to the commissioners provided for in Article IY of the treaty of 1834. The persons who were thus given power to investigate, so as to enable an agent to certify to the necessary accuracy, constituted the same body which by the treaty was required to make up the lists.

The superintendent went west among the Chickasaws and Choctaws and for eighteen months investigated. A council of the Indians was called, and all of the commissioners duly authorized to act under the fourth article of the treaty, including Ish-to-ho-to-pa, the king, were present except one. The agent appointed to make the investigation provided for a meeting immediately after the annuities for the year 1841 should be paid the Choctaws and stated that this was considered a proper time to give notice to all concerned. It is now said that Ayres was in Mississippi at this time, but one Dol-larhicle, who was his active agent and who wrote the letter showing small cash payments, was undoubtedly present, because he had full notice that the claims of the persons from whom Ayres said he purchased would be investigated, since he said he was there for several years in a store on the line. This private representative of the claimant being in the Chickasaw country had full information, and the record *91affirmatively shows that the claimants of land had full notice of the Chickasaw council and through their attorneys knew that the matters involved would be considered at that council. Besides sis commissioners provided by the fourth article of the treaty, the council was attended by twenty other chiefs and headmen of the tribe. Sixteen of the participants were signers as chiefs of the treaty of 1832 and familiar with the business of the Chickasaws.. The findings show that the council was large and was attended by the oldest and most respectable of the Chickasaws and that the claims were examined. Government had notice that there was no disposition on the part of the Chickasaw commissioners to overlook claims of such, if any there were, entitled to land. The findings show full particulars of the means employed to prove or disprove the correctness of the lists.

The original lists were declared to be erroneous except as to four Indians, and the action of the council was adopted by the king of the Chickasaws and five other commissioners provided for by Article IV of the treaty and by leading members of the tribe which included the sixteen chiefs of the Chickasaws. Thereupon, the superintendent charged with the investigation officially submitted the results, and -these reports received the approval of the President. This excluded about 500 persons not shown to be Chickasaws, including in this number the Ayres grantors.

It is urged that the council was attended by one less than the full board of commissioners; and for want of notice to purchasers of the land was irregular. The action' of the council, however, was as formal and regular as the original acts. Not more than four commissioners for any part of the land professed at the outset to have any knowledge of the identity of the persons, and the official action of this number ivas restricted merely to a request that certain persons be located. The council of revision >vas participated in by the Chickasaw king — the same Ish-to-ho-to-pah who had lent himself to the attempts to get up the lists — and by a representative body of commissioners and chiefs — enough to make their action more valuable as proof of who Avere entitled to locations than the sinall number who originally desired to locate the 524 Avestern people. So this last body was irregu*92lar only in that it was attended by one less than the seven jjrovided by law to act in identifying the proper Indians. The council was not irregular in the sense that the commissioners did not have the right to meet and investigate with or without notice to any attempted purchasers of the land. At that time — and for that matter at any other time before or since' — no right of alienation existed and notice to Ayres was not necessary. He was not only not entitled to notice because his contracts were void, but also because his grantors had nothing to sell for want of previous identification as Chickasaws. They had neither been ■ located according to regulation nor treaty; and not a man among them had any evidence of location. Ayres had been .informed by the Thompson letter that all action relating to the claims for land of the people from whom he was trying to purchase would be suspended until a census could be taken. Ayres was suppressing his interest in the land or concern for anybody but the grantors themselves. They had notice; that was enough.

The finding as to notice is based upon direct proof and the absence of denial and counterproof.

The value of the Boggy Depot council as testimony in that state of affairs, caused by the Indian agent withholding a necessary act under the treaty and asking for instructions, can not be denied, because it aided the Indian Office in determining the status of the alleged reserves and, as proof of a matter then uncertain, the proceedings among the representatives of the Chickasaw tribe are valuable as testimony. The jurisdictional act makes the action of this council competent as testimony, and as there was nothing to contradict its findings the court has given credit to it.

The matters relating to rights of location rested pending efforts of the commissioners to complete their work by finding and identifying every Chickasaw entitled. As many as 53 sections were located to that number of Indians properly identified. (No question now appears as to the proper identification of these 53 persons.) Thereupon, the United States as trustee sold at public vendue 141 sections under that provision of the treaty which carried the proceeds to the credit of the Chickasaw Nation. (Art. XI.) Patents *93were issued and the purchasers went into possession. The land was properly sold, unless the persons attempted to be located had possession or color of title. They had neither. No certificate of location had issued. No authenticated papers existed showing locations. The Secretary had no knowledge of the action of the register and could not have had, because it is certain that the register himself had taken no action in locating. If he did take any steps such action was secret and the locations were made not only without the agent’s certificates of correctness for fifth article reservees and believed accuracy for sixth-article reservees (without which the register was not authorized to act), but also without anything to indicate that the requisite number of chiefs and commissioners had acted at all by supplying proper lists. While it is true that if these alleged reservees had secured the entry of their names upon a roll and the agent had after-. wards neglected his duty by failing to annex a proper certificate to the roll before he returned it to the register’s office, an Indian could not be. prejudiced, at the same time it was essential to a valid enrollment for the papers given to the register to have been made up by the full original locating authority. This Avas not done. The mere entry of names of locators on a blank sheet of paper Avith nothing to shoAV that the commissioners had acted did not authorize the register to act, because he *could not do so on a list not duly authenticated.*Otherwise, we would have the spectacle of the agent. taking the Avhole matter in his hands and, by handing in names not on these lists Avith the sanction of the body designated by the treaty to act, such agent would have superseded the terms of the treaty. The best evidence exists for believing that the register and all persons concerned knew that locations Avere not proper, not only because the field agents had given no certificates of accuracy (and never have), but because the papers themselves in the hands of the register supplied evidence that none of these people lived on the land, and the inchoate attempts of part of the commissioners that requested locations were insufficient. An examination of the papers not only discloses this, but no proceedings were attempted to be taken by a single man of them to set aside *94the public sale of the land soon after that, or to prevent the subsequent sales. None of the persons negotiating for the purchase of the land intervened to suspend action, and no attempts were made to take possession of land except as to two small tracts. . This, to the mind of the court, conclusively establishes the proposition that there was something wrong in connection with the attempts to locate, and that some of the officials knew it. The Secretary of War, who then had jurisdiction to execute the treaty so far as he could exercise his authority, had the right to order an investigation into all matters pertaining to the lists, independent of any departmental regulations, because locations were only in process of ascertainment when he undertook to act, and it is difficult to see why the department should not investigate that about which agents had their doubts, as it affirmatively appeared that the commissioners as well as the agents had not undertaken to exercise their powers, and there was no pretense of the register having acted upon insufficient lists. If the department had no authority, to investigate a matter not closed by the certificate of the agent, when requested by that agent to pass upon the information submitted to him concerning proposed locations, the department certainly had authority to investigate when, by every paper in existence, it appeared that the power delegated to the commissioners had not been exercised.

When the Secretary of War in 1843 rendered his decision in the matter of the 524 claimants, it'included the 150 in issue here. ' He concurred in the report of the investigating superintendent and formally approved it by the allowance of those claims to reservations recommended and.the dis-allowance of those that the superintendent, six commissioners under the treaty, and sixteen chiefs of the nation had rejected. The Secretary also said that the rejected claims could not be allowed because the utmost liberality of construction could not extend the terms of the treaty of 1834 *if*the list embraced any Chickasaws who emigrated prior to that treaty. That was a departmental rule of construction acquiesced in at the time by people who had no certificate of location and who, as a matter of fact, had not been located. It was a construction resting with the political department *95of the Government. The grant of the treaty was *in prce-senti*to the Indians who were parties to it, but title did not attach to anyone until location by the proper authority. When the Secretary took action *he annulled nothing.*

Whether under the rules and regulations then in force the Secretary possessed the authority to pass upon the matter is not necessary now to discuss, because the action of the required number of the commissioners and the necessary agent’s certificate were both wanting. The construction of the Secretary of the terms of the treaty was contemporaneous construction, which in the then state of affairs was proper to be made and must be acceped as final unless clearly shown to be erroneous. “ It is a settled doctrine ” -of the Supreme Court “ that in case of ambiguity the judicial department leans in favor of a construction given to a statute by the department charged with its execution.” (U. *S.*v. *Ala. R. R.*Co., 142 U. S., 621.) If the departmental construction were obviously wrong it would be the duty of the courts to so adjudge; but if there seemed to be doubt as to the soundness of the construction, the action of the Government should be respected and should not be overruled, except for cogent reasons. *(United States*v. Finnell, 185 U. S., 236.)

The, departmental construction is not obviously wrong, but right on the facts. Time has proven its correctness because no effort has ever been made with any administration to show that any of these reservees ever lived on the land or that they had enough Chickasaw blood in their veins to warrant any holding that they were parties to the treaty.

There would now be nothing left to consider in the matter of location and right of location but for the action of the register which caused certain- proceedings to be instituted in the courts. On March 18, 1846, the register issued a certificate showing a reservation under article 6 of the° Chickasaw treaty to one Ho-yo-po-nubby. Thereupon ejectment was instituted in the matter of John Doe, ex dem. *Ho-yo-po-nubby*v. *Wray,*10 Sm. & Mar., 452. This case was followed by *Hardin*v. *Ho-yo-po-nubby's Lessee*(5 Cush., 567). (The latter case is merely an affirmance of the former decision.) The patent to the land had then been issued and the right of property vested in the patentees. The Land De*96partment had made its findings on the facts upon which the land had been sold as provided in article 11 of the treaty, and under the rule that in the absence of fraud or imposition the findings of the Land Department on matters of fact became conclusive. Nothing was then open to inquiry but matters of law involved in the issuance of the patent. *(Love*v. Flahive, 205 U. S., 195.) It has been nowhere said that in issuing these patents any officer of the Government did a fraudulent thing.

It was held on the same facts in both cases in the trial of the ejectment proceeding that the certificate of the register showing that land was reserved under the sixth article *raised a presumption*that the preliminary steps required by the treaty had been taken. No further evidence was offered and no defense made beyond an objection that the certificate was not competent evidence. If the defendant, however, had been in possession of the facts appearing in our findings and offered these facts in evidence, the presumption of the certificate would have been overcome. But none of the facts which the record here shows relative to the illegal and unauthorized attempts to enroll two Indian plaintiffs, and none of the facts relative to the subsequent action taken by the Government and by the chiefs and commissioners charged with the duty of investigating the alleged fraudulent attempts to obtain enrollment for those people was made known to the court'. The two cases, decided entirely upon the formal certificate of the register, were based wholly upon the presumption implied by the certificate. Mr. Justice Clayton, in the foundation case, stated that the reservation certified to by the register was secured before the date of the ¡latent, and had the preference over it *if the location of the land was property] made.*The certificate could not have been given the preference over the patent if the certificate was fraudulent or the result of mistake. The certificate would have been unavailable had the court been put in possession of the proof showing that no location, according to the directions of the treaty, had been made at all. The cases were followed in *Best*v. *Polk*(18 Wall., 112), which was likewise governed by the *presumption of regularity*raised by the register’s statement, because the local decisions furnished a rule of property in *97Mississippi. *Best*v. *Polk*was also an action at law, the only difference between it and the other cases being that Brown, who held the patent, had conveyed to Polk, who found Best in possession of the land, and sued in ejectment to oust Best. The only proof before the court was the patent and the certificate of the register. As this certificate showed that the reserve of the Indian was located on the disputed section, *the assumption*was that the directions of the treaty had been observed. The grant in itself raised the presumption that the incipient steps required to give it validity had been taken. But the court said that if the location were not as stated in the certificate, it was easy to show that fact, and that “ *if the location of the land in controversy was properly*made, *the legal title toas consummated*and the subsequent patent was unauthorized.” This statement furnishes the key to the whole situation, and an inquiry as to the consummation of the legal title was necessary tiefore the court could do anything else but give, effect to the presumption raised by the certificate. Want of proof relative to the alleged enrollments and the right to be enrolled necessarily left the court the simple duty of applying the presumption that the inferior officer who undertook to make evidence for these people had done his duty on the necessary identifications.

All the cases were properly decided, and there is no conflict between what they decided and what this court now decides. With nothing before us but the > register’s certificate there would not only be no difficidty in arriving at the conclusions of the reported cases, but there could be no question of our duty so to do because of the obligation to follow the decision of the Supreme Court. But the accuracy of the register’s certificate is not only questioned but successfully impeached. It rests upon lists not made by those who in the first instance had authority to act. These lists went no further than to embrace names never assented to by the requisite number of chiefs. They were inade-, quate to confer the beneficial interest even if the requisite number had joined in their preparation, because the findings show that none of the persons listed were residents on the land or parties to the treaty, but on the contrary were neither entitled by affiliation or blood to claim a Chickasaw right *98of any kind at any time. The certificate was issued without the agent’s certificate of accuracy. This finding of itself sustains the proposition that not a section of the land was located to Ayres’s grantors according to the requirements of the treaty. The absence to this day of the certificate from the agent to the register establishes the incorrectness of the register’s action, if he took any (and there is no proof that he did), and likewise establishes that the register substituted himself in place of the field agent to provide the missing certificate of accuracy from agents charged with that duty. The treaty did not require the list to be filed with the agent before the location could be made, but it did require that a list of the locators within a reasonable time should be made by the *seven persons*provided by the treaty and filed by the agent at some time. The certificate of correctness was indispensable before the register could properly act and before he could projierly issue the consequent certificate of location. The attempt to locate rested by the terms of the treaty upon something which the register had no authority to supply. This want of authority to issue any certificate of location applies with equal force— and likewise sustains the proposition that locations were not made according to the requirements of the treaty — to the absence of any affirmative action on the part of the necessary number of chiefs.

With proper lists in hand showing enrollments by the necessary number of Indian officers authorized to identify the persons whose names appeared thereon, such persons could not be prejudiced if the agent failed to annex the proper certificate before he returned it to the register’s office. *Wray*v. Doe, supra, so stated, but was followed by the explanation in *Hardin*v. *Ho-yo-po-nubby’s*Lessee, supra, that the location certified to by the register *was evidence*(only) that all the prerequisites were complied with and that a violation of duty on the part of the officer who made the location was *not to be presumed.*Of course not. With such certificate in hand the presumption was that the condition on which the officers were authorized to act had been observed. Without such a presumption a burden not contemplated by the treaty on those who had obtained such evidence would be imposed.

*99But the location had to be fixed before the grant could become operative in favor of an individual Chickasaw. The estate could not become vested until there was proper identification by the proper' officers. The essentials affirmatively appear to be wanting in everything underlying the register’s certificate. As the certificate given by the register does not show any evidence of official action by the register other than that contained in the statement that the papers certified by him were a correct copy of the list furnished by the agent, we must look to the originals on file in the Indian Office; and in comparing these originals with the alleged copy it is manifest that the essentials upon which only the register could act were wanting.

There was nothing sacred in the certificate *nor did its issuance malee it true.*If given as the result of an erroneous conception of duty, it was open to explanation, and if it was a fraud, then, upon the familiar principle that fraud vitiates everything, it was subject to impeachment. The jurisdiction of equity courts was not necessary to show the incorrectness of certificates issued either through fraud or mistake. Matters of defense going to the correctness of the register’s action were proper in ejectment proceedings at law without resort, to courts of equity to uncover all defenses, which under this jurisdictional act we have been obliged to investigate. It has already appeared that the alleged reservees were not Chickasaws entitled to land; that none of them ever established their right to claim as residents of the soil or as parties to the treaty at the date of the execution of either agreement ; that never at any time did they establish affiliation of any kind with people for whom reservations were provided or for whom annuities were ever given in dealing with the United States. Either one of the defenses recited is sufficient in itself to sustain the proposition that the persons from whom Ayres claims title had no title themselves.

The fifth article of the treaty providing for heads of families did not authorize the register to locate the head of any family, except in the contingency of residence as Chickasaws. This article only provided for heads of families on land upon which the party claiming lived at the time, or to such land as *was contiguous or adjoining to the sections resided upon.*

*100This brings us to the matter of the regulations. On the first argument is was urged that the regulations were void. Curiously enough it is now contended that since article 5 did not provide specifically for the form and manner of making lists nor for the particular persons to certify to the same, that matter was left to be controlled by executive regulation, and that reservations and locations under the fifth article did not require list and certification under the treaty. The answer to this is that the reservees under the fifth article were to be listed as provided by the fourteenth article of the treaty of 1832, which provided that these lists showing locations should be made by the chiefs of the tribe with the advice and consent of the agent. The lists purporting to have been transmitted by some of the Chickasaw chiefs were certified by *Ghoctaw*chiefs, and among those Chickasaw chiefs who made the subsequent investigations there were included some of the Chickasaw chiefs who charged and reported to the Government that the lists were' wrongfully made. Moreover, these lists never attempted to show any locations or roll numbers. Furthermore, if the treaty-contracting powers intended that these important matters rested with the Executive, then it is certain none of these claimants had complied with the regulations. If the regulations affected the matter, then the subsequent rejection of the reservations for the fifth-article people was proper, because the same authority that could make regulations could decide what was valid under them.

The court did not deem it material at the outset to decide anything respecting the validity of the regulations, nor is it necessary now (as the findings show that the locations were not made according to the treaty), beyond saying that where the regulations and the treaty conflict the terms of the treaty govern. This view is in line with the opinion of the high court of errors and appeals of Mississippi, but it is also proper to say that the regulations had meaning where not contradicted by the directions of the treaty. Under the act of July 9, 1832 (4 Stats., 564), which was then in force, it was provided that the direction and management of all Indian affairs and all matters arising out of Indian relations under the authority of the Secretary of War “ should be agreeably to *101such regulations as the President might from time to time prescribe; ” and under a similar statute in the matter of citizenship (which is one of the vital things in issue here) Mr. Justice Holmes in a very recent case said that the primary decision must come from the official exercising supervision and that the court of last resort would “hesitate a good deal before saying that this language was not broad enough to warrant a regulation obviously made for the welfare of the rather helpless people concerned.” *(U. S. ex rel. West*v. Hitchcock, 205 U. S., 564.) Besides the general power under the statutes to prevent improper locations the United States as trustee had to properly execute the trust. Regulations directing the exercise of enough supervision to prevent fraud or mistake throughout were necessary upon the Government under the regulations and independently of them. •

It is due the committees reporting on this claim to say that being without the facilities of a trial court and without possession of all the proofs there is no detailed statement of those essentials relating to the status of the alleged reservees and their right to claim land; no allusion to the insufficient methods employed to locate them as Chickasaws, and no showing made of the incorrectness of the register’s certificate which, in the making of - a prima facie showing of title in the alleged reservees, led to decisions which might have been averted by proof. These omissions are not to be wondered at, as the action of the courts created such alarm respecting the title to so much land that the President recommended that steps be taken to determine these titles. These steps were either never begun, or if taken were abandoned, because opportunity was never given the Government nor afforded the patentees to test the validity of adverse claims to the land, although the courts were open to declare title vested in every Indian on the register’s certificate, if such certificate had again been offered as the basis of a claim. *This is highly significant.*It refutes the contention that the belated certificate of the register had value. It is also significant that when Ayres concluded to avoid the courts and to invoke aid from the political department of the Government there were adverse reports to him on that line. *102January 11, 1884, unanimous consent was obtained in the Senate for leave to bring in a bill introduced by request by a member of that body from Mississippi “ to quiet certain land titles in Mississippi,” with a preamble showing that Ayres was willing to accept in lieu of the lands a very large sum of money, stated in the bill, in full satisfaction. This bill was considered by the Committee on Private Land Claims, composed of some of the great lawyers of the Senate (Bayard, of Delaware; Edmunds, of Vermont; Manderson, of Nebraska; Jonas, of Louisiana; and Colquitt, of Georgia) , who reported, that the parties claiming had failed to comply with the provisions of the treaty and that the committee had “ no hesitation in deciding that for want of the performance of the conditions so plainly made necessary by the treaty there was no duty incumbent upon Congress to fortify the defective titles of the claimants.” -The report was accompanied by a recommendation for the indefinite postponement of the bill, which was done and accepted by Senator George, who had previously introduced the bill by request. Subsequently, other bills were introduced for the. relief of Ayres upon the theory that he was in equity entitled to amounts variously stated, and on one of these measures an ajDpropriation for $58,158.46 passed the Senate, which the House rejected. This action subsequently led to the passage of the jurisdictional act.

These reports rest upon the erroneous recitals of a Commissioner of Indian Affairs made as late as 1882 upon an examination that could not have been based upon all the evidence before this court. This initial report- ignores the status of the persons alleged to have been located as nonresident aliens; assumes that locations were made according to the treaty in the face of the fact affirmatively shown that the treaty was not complied with. The report speaks of the Indian title as having been affirmed by the courts while admitting that in the cases so affirmed the identity as Indians of the *two named in the decided eases was not questioned.*The report wrongly assumes locations to have been proper upon the *mere request*of three commissioners whose action in that regard was restricted by the treaty to the location of those -only living on the land (at some time certainly), which was *103not the case, as the overwhelming preponderance of the evidence establishes that none of them ever lived on the land at all even as communal occupants and that not one of the alleged locators ever claimed in anjr court or before any department of the Government or before am*- Indian agent or before any authority that he ever lived upon it. The report assumes that Ayres was an innocent purchaser, that he paid his money, and says “ that various reports and decisions upon this matter *seem*to admit the equity of the claim.” In all this the commissioner was mistaken.

Aj'res was not an innocent purchaser; these so-calléd re-servees were never identified; they were not in possession of a single tract for want of identification, nor had any certificate of the right to possession been issued when the alleged purchases are said to have been made. The instruments of writing under which the claim is made were void and not entitled to be recorded by the law of the State where the land was situate.

As to the payments, a finding would be immaterial except for the special act, as the question naturally arises, What would the Government pay for if Ayres had no title? The court at the outset found that some nominal payments were made, because the payment of something was probably necessary to procure the signature of the Indians from whom the purchases were attempted, but that the amount of the payments was not established.

Upon a careful review the court is strengthened in the correctness of the finding that the payments were small and nominal. The evidence also establishes that substantial payments were not 'made pending the doubts respecting the right of the grantors to acquire the land.

The court is not unmindful that as to 21 of the conveyances an Indian agent certified to full payments generally. But that agent is contradicted by another agent on the spot making special examination; by another witness, who was the agent of Ayres, and that agent, though making his statement in the form of an unsworn letter, contradicting his own affidavit in the same manner. Six of the Indian -officials connected with this treaty also contradicted the statement that payments were made, and there is much proof and many cir*104cumstances in the record to show that all payments were exceedingly nominal and unsubstantial. The agent who gave a certificate as to 21 claimants out of 150 acted upon belief and not upon personal knowledge, because the time intervening from the date of the instruments proves that he knew nothing except upon information acquired the next year-after the instruments of writing were given. The treaty contemplated that the agent should certify to matters within his knowledge and not to information derived from interested sources. No matter what the belief of this agent, the great preponderance of testimony overwhelms his statement.

The findings show that white persons were giving antedated bills of sale to Indians on account of the purchase of lands. Hosts of speculators were hiring half-breeds to interpret for them, and deeds to land were being signed, some of them in blank, upon the payment of $5 to $10 in advance. This is so as regards those Indians about -whom no question existed as to their being properly located. Private memorials exhibited to the Government disclosed frauds on the part of land speculators, and numbers of these were passing into the country of the Choctaws in search of Chickasaws and their descendants. There was continued protest from officials and from the Chickasaw tribe against the methods employed to obtain lands. Ayres and Niles lived in Mississippi, and they and their agents were active in trading with red men wherever found. The language of a council which considered this matter was that the beneficiary “ never had, never will, or never intended to pay the pretended owner one cent.” The language refers specifically to these instruments. It is argued against one prominent witness that he was interested in having his constituents buy land at a nominal price, while Ayres was paying full value. This argument refutes itself. If the land would have sold for a few cents an acre at public sale, why should Ayres have been willing to give more at private sale ?

The proving power of circumstances alone is great enough to overthrow the presumptions arising from the recitals of instruments «which the alleged purchasers must have known were void as deeds and unenforcible as contracts when they were given. Proof of payment of something substantial to *105show divestiture of the supposed Indian interest was never offered to obtain approval; such proof would at least have been suggested to show good faith and secure relief of some kind when witnesses were living. Not only was it not offered, but, with nothing to prevent Ayres from procuring letters of attorney from the alleged reservees, or taking leases from some of them, at all events, and instituting eject-ments or possessory actions for the land, the alleged purchasers were silent. The local courts were open to give effect to the certificates similar to the two given in 1846; and as Ayres had possession of such certificates like those used in the two reported cases for years before the Indian right of entry (if suph right existed) had expired, we must assume that for want of sufficient interest in the land Ayres failed to prosecute.

There is a final view corroborative of the belief that the payments were nominal. Appeals were made to the Government to hasten the investigation upon the ground that *the alleged reservees were in need of money.*Why should such an argument have been .used if Ayres and Niles had paid for the land?

Regardless of Indian rights of location, Ayres never acquired a title of any kind. That he had no legal title is admitted. Nor did he have an equitable title.

The treaty prohibited conveyances except upon conditions never complied with. The restrictions thrown around the transaction (for reasons which can not be questioned by lapse of time) have not removed the difficulty, but, rather, have added to it. That an equitable title can not be carved out of the instruments of writing shown here to be void as deeds was decided under this treaty in Mississippi. It was held by its high court that the supreme power had the right to prescribe the conditions to be observed in alienating and that it might as well be contended that any citizen could dispose of his realty regardless of all statute provisions as to ask the courts to remove the restrictions upon this right of alienation, in the Indian. *(Harmon*v. *Partier,*12 Sm. & Mar., 427.) The Supreme Court of the United States has given effect’ to similar restrictions not merely because of treaty supremacy over any claim of equitable right, but pursuant to *106public policy involved in protecting the ignorant and the weak against the cunning and the strong. Presidential right of approval conferred by treaty has not been- interfered with. *(Pickering*v. *Lomax,*145 U. S., 310; *Lomax*v. *Pickering,*173 ib., 26; *Lykins*v. McGrath, 184 U. S., 173.)

By the rule summarized from the equity jurisprudence of both the English and American systems by that great judge who delivered the opinion in one of these cases, the court finds that an equitable title was not acquired by Ayres. “An equitable title,” said Chief Justice Sharkey, “ is a right imperfect at law, but which may be perfected by the aid of a court of chancery, either by compelling parties to do that which in good faith they are bound to do, or by removing obstacles interposed in bad faith to the prejudice of another.” *(Niles*v. Anderson, 5 How., Miss.) Under this rule equity could have done nothing for Ayres. If it could, he had the right under an act approved February 5, 1841 *(Miss. Code,*1848, 773), if a rightful owner of land in the State, to have conveyances forming a cloud on his own title canceled, whether as a real owner he were in .possession of the land or not. Whether this statute enlarging the jurisdiction for these purposes of *quia timet*bills could have been applied, as the patents were not the common source of title, is unnecessary to inquire. Before the invalidity of the patents could have been shown in equity there must have been a perfect legal or a perfect equitable outstanding title. *(Toulmin*v. *Heidelberg,*32 Mississippi, 268.) There was ample time for judicial investigation, because the statute of limitations had not barred whatever right existed in the supposed muniments of title.

There is nothing in *Niles*v. Anderson, *supra,*to sustain the contention for an equitable title. That case merely enjoined a purchaser from prosecuting a possessory action for land who had obtained a conveyance from a lawfully located Indian, which conveyance Anderson charged had been taken in blank before location of the reservation with knowledge on the part of one Niles that the person asking the injunction had a conveyance to the same land but did not have attached to his conveyance the necessary certificate of the capacity of the Indian to convey. Niles being in possession of the *107certificate, it was charged against him and admitted on demurrer, that, the certificate was secured by misrepresentation by means of substituting one Indian for another. Chancery removed the impediment in the way of the rightful purchaser with the statement that in such a fraud impediments improperly imposed could be removed in a court of equity.

There would be force in the contention that the instruments of writing could not be approved as conveyances until there were sales but for the obligation of the treaty which imposed upon the President the power to examine the matter and Avithhold approval. That provision was intended not alone for the benefit of individuals properly located, but likewise designed to afford protection to the whole tribe against fraud. Purchasers took the risk in bargaining for land of having the conveyances made valid. And when in 1850 the two conveyances actually presented were not approved, Government had knowledge that there was a want of right of location, want of proper identification of the parties as Chickasaws, alleged and proven want of good faith in the matter of the purchases, and that if any payments at all had been made by Ayres such payments were made upon the pretense of location without such location as the treaty required.

A new treaty resulted between the United States and the Chickasaws in 1852, and authority was given to the Chickasaw legislature to determine the claims of all persons who were entitled to land in Mississippi as well as the claims of all persons to membership in the Chickasaw tribe for annuities. (-, Stats.) Whether rights of property could be taken away by subsequent act was not considered or decided by the Supreme Court in *Roff*v. *Burney*(168 U. S., 218), but it was there held that the validity of an act withdrawing citizenship and the rights of citizenship in the Chickasaw Nation when determined by the authorities of that nation was not subject to correction by direct appeal from the judgment of the Chickasaw courts and that personal rights founded on the mere status created, by a prior act fell when the status of citizenship was destroyed. The action of the legislature of the nation in declaring that Ayres’s grantors were not Chickasaws entitled to land did *108not probably destroy such property rights as had become vested, but as to this the court expresses no opinion. The action taken by the Chickasaw legislature, however, is of great value as expressing the contemporaneous sense of a whole nation of civilized people as to the Choctaw status of the Ayres grantors as of the date of the execution of the treaty.

In the face of adverse action all that was necessary for the parties to do was to appeal to the courts for the possession of the land if they had confidence in their evidences of title. Under the rule in Mississippi adverse possession under the patent would not have been a defense against an Indian properly located until the time prescribed by the statute of limitations. *(N. O. J. and Great Northern R. Co.*v. Moye, 39 Miss., 374.) Ayres knew enough to know that he could not succeed under the equity case of *Niles*v. Anderson, *sufra.*But the statute of limitations had not then barred the right of entry of the Indian grantors if they had any such right. Possession had been asserted for two Indians who had conveyed. No explanation is given why possessory proceedings were not taken to the courts by the Indians, and the conclusion is irresistible that it was either because Ayres had not paid for the land or the Indians were unwilling to subject themselves to the results. It was feasible, if Ayres had purchased the land, for him to procure the same kind of authority to bring ejectments in the names of his grantors as was done in the reported cases. Ayres had procured the same certificates; his grantors were then living; there could have been but little difficulty in procuring authority from some at least of his grantors, for the purpose of instituting proceedings. If he had paid for the land, who doubts that many if not all of his grantors would readily have said so and given the necessary authority? The Government became ready to defend its patents whilst witnesses were living, and certainly a trustee ought not now to remove restrictions where the beneficiaries united with the trustee in imposing restrictions that were then thought proper and which time has vindicated as proper. There is no answer to the declaration of the Committee on Private Land Claims of the *109Senate which investigated many years ago, when it declared that “ Nothing can now supply the title.”

Claimant’s objection to the entry of judgment is not of enough importance for the court here to consider, as the findings have been adverse to Ayres, and the results as to him, whether they appear in the form of findings or in a judgment, are essentially the same. Claimant having voluntarily appeared and litigated the matter — which he was not bound to do — the action of the court is at least an award. *(Mason*v. *United*States, 17 Wall., 73.) While the court had great reason to believe that it was the intent of Congress to be guided by the court’s view of the law in determining the existence of a title, and the liability of the Government to pay for the appropriation of the land if the court could find that Ayres really had a title, there was and is room for doubt whether any statement of the court declaring legal grounds for recovery (had a liability been declared) positively meant more than an intention of the legislative body to be morally bound to appropriate. Whether the act of our jurisdiction meant the imposition of the ministerial duty or the exercise of the "judicial function, the intent is the test — not the accidents of language. The ministerial duty excludes mere discretion imposed upon executive officers where under acts requiring certain things to be done by these officers the conflicting decisions mainly- have arisen. Thus, in *Kendall*v. *United States*(12 Pet., 593), the Supreme Court said: “ We all agree that no discretionary power in relation to the award was given to the Postmaster-General; and that the duty enjoined upon him was really ministerial.” (Id., 626.) There the act required by the law to be done was a precise definite act purely ministerial because the Postmaster-General ivas simply to credit the relators with the full amount of the award of the Solicitor of the Treasury in adjusting an account. The fact that under the act of March 3, 1887, known as the Tucker Act, either House of Congress might have sent this claim here without a special act affords strong reason for believing that Congress desired an adjudication from the court as a court; and though the phraseology of the act calls *110for a report, that in itself means nothing under *Irwin's case.*(127 U. S., 125.) The essential thing remains that the action of this court is nominally on the facts but really on the law in many important particulars, and the intent can not bo attributed to Congress to diminish the exercise of judicial power where by any fair construction of the intent the Supreme Court might on appeal review the action taken . in the matter of any liability declared.

As the right to enter j udgment has never been considered by any member of the court as clear, the motion to set aside the action taken is sustained. The reasons for the action heretofore taken appear in a separate opinion because of the genral importance of the question. (P. 122.)

The findings of fact now filed together with the opinion on the merits and on the motion will be substituted for all former action and be transmitted to Congress.