#### THE MILLE LAC BAND OF CHIPPEWAS v. THE UNITED STATES.

[No. 30447.

Decided May 29, 1911.]

*On the Proofs.*

The case comes into this court under a special jurisdictional act and involves the rights and equities of the Indians by reason of the opening of the Mille Lac Reservation in the State of Minnesota to public settlement under the general land laws. The controversy also involves the construction of treaties and statutes from the treaty 22d February, 1855, to the act 22d July, 1890. The general question in the case is whether the Indians held possession of their reservation under a conceded right of occupancy as their own Indian lands, or whether they retained possession by mere license or favor from the Government.

I.The jurisdictional statute (act 15th February, 1906) refers a cause of action but determines no rights other than the one to litigate, and it provides a forum having authority to adjudicate and enforce rights.

II.The question of damages suffered by Indians, coming into court under a special jurisdictional act, must be determined upon the same legal principles which appertain to controversies between individuals.

III. Where the question at issue rests upon the construction of treaties and statutes and rights acquired thereunder, the question presented is not one of Indian policy immune from the action of the courts.

IV. The proviso to Article XII of the treaties with the Chippewas of 1863, 1864, “ *That owing to the heretofore good conduct of the Mille Lac Indians they shall not be compelled to remove so long as they shall not in any way interfere with, or in any manner molest the persons or property of the whites,”*was intended for some purpose *425not common to the other bands of Chippewas and manifestly conferred some special right. This right was something more than a mere license or favor, or temporary cession, or right of sufferance; it was the continued right of occupancy of Indian lands which they then possessed upon the express conditions named in the proviso.

V.The title to Indian lands which is vested in Indian tribes is the right of occupancy; the ultimate fee is in the United States; the right of conveyance by the Indians is limited ' either to the United States or to some one by their express consent. This rule has obtained without interruption since the case of *John son*v. *Molntosh*(8 Wheat., R., 543).

VI.The intention and understanding of an Indian tribe as to the rights secured to it by conventions are of paramount importance; and to that end the proceedings of councils at which they were ratified are admissible in evidence.

VII.It is incontrovertible that the consideration for the proviso in Article XII of the Chippewa treaties of 1863, 1864 was the good conduct of the Mille Lac Band in refusing to Join in the Indian outbreak in Minnesota in 1862 and in assisting to prevent an Indian uprising of Chippewas.

VIII.The word “ *remove ”*as used in the proviso has especial reference to a change of residence, for that was the subject matter of the negotiations, and was not a mere license to fish and hunt; neither was it a re-cession of reserved lands, but was a reservation to the Indians of the same rights and title they originally had.

IX.The act *“For the relief and- cimlissaMon of the Chippewa Indians,” 14th January, 1889 {25 Stat. L., p. 642),*confirms the title of the Indians to their reservation. The act examined at length; its history and the circumstances attending its enactment set forth.

X.The Interior Department is without authority to issue patents to Indian lands. If such patents have any validity it must rest upon treaty rights or statutes.

XI.The *Act 22d July, 1890*(26 Stat. L., p. 90), treated the Mille Lae Reservation as Indian lands by granting to a railroad a right of way through the reservation, but expressly reserving to the Indians, in their tribal capacity, the damages incident thereto.

XII.The use of the word “ *relinquish*” as distinguished from the word “ *cede*” can not be relied upon in the determination of an Indian title or used to divest the Indians of their right of occupancy. The rule laid down by the Supreme Court stated, and the authorities cited.

*426XIII. The provisos in the act 14th January, 1889, were the initiatory legislation, subsequently confirmed by the joint resolutions 19th December, 1893, and 27th May, 1898, which deprived the claimants of their right of occupancy and entitles them to damages for the opening of the reservation to public settlement as recognized by the jurisdictional act.

XIV. The *Joint Resolution 19th December, 189S*(28 Stat. L., p. 576), was simply intended to *protect*bona fide homestead entries made during a certain, interval. The remaining agricultural lands of the reservation were opened to entry under the act 14th January, 1889.

XV.The *Joint Resolution 27th May, 1898*(30 Stat. L., p. 745), was enacted to put an end to the Land Office controversy by which the whites were first let in and then put out of the reservation. It ratified all previous entries and divested the Indians of their reservation.

XVI.Under the statutes and treaties relating to the Chippewas generally, the claimants’ band is entitled to the full and complete advantages derived from the disposition of Chippewa lands held in common by the tribe. The exception in their favor granted to them by the proviso in the treaties 1863-64 was a reward for their good conduct in 1862, but the money received by reason of the opening up of their reservation to public settlement will become a part of the general fund to be participated in by all the Chipxiewa Indians in Minnesota.

XVII.The act 14th January, 1889, provides for an equitable distribution of tribal funds derived from the sale of land. It is the latest legislation respecting the distribution of tribal lands. The jurisdictional act does not modify or repeal it; and the judgment recovered must be subject to distribution as directed by it.

XVIII. Jurisdictional statutes must have effect given to them where the intent of the legislature can be inferred that the court shall judicially ascertain the merits of the controversy. Doubts are to be resolved in favor of jurisdiction.

*The*Reporters’ statement of the case:

The following are the facts of the case as found by the court:

I. This claim was referred to the court by an act of Congress entitled t£ An act for the relief of the Mille Lac Band of Chippewa Indians in the State of Minnesota, and for *427other purposes,” approved February 15, 1909 (35 Stat. L., 619), which reads as follows:

*“Be it enaeted- by the Senate and House of Representatives of the United States of America in Congress*assembled, That the Court of Claims be, and it is hereby, given jurisdiction to hear and determine a suit, or suits to be brought by and on behalf of the Mille Lac Band of Chippewa Indians in the State of Minnesota against the United States on account of losses sustained by them or the Chippewas of Minnesota by reason of the opening of the Mille Lac Beservation in the State of Minnesota, embracing about sixty-one thousand acres of land, to public settlement under the general land laws of the United States; and from any final judgment or decree of the Court of Claims either party shall have the right to appeal to the Supreme Court of the United States, and the said cause shall be advanced on the docket of the Court of Claims and of the Supreme Court of the United States if the same shall be appealed: Provided, That upon the final determination of such suit or suits the Court of Claims shall have jurisdiction to decree the fees to be paid to the attorney or attorneys employed by the said Mille Lac Band of Indians, and the same shall be paid out of any sum or sums found due said band or to the Chippewa Indians of Minnesota.”

II. On February 22, 1855, the United States entered into a treaty with the Grull Lake, Mille Lac, Sandy Lake, Po-kagomin Lake, Babbit Lake, and Bice Lake Bands of Indians, known as the Chippewas of the Mississippi, and the Pillager and Lake Winnibigoshis Bands of Chippewas. This treaty secured to the United States a cession of all the lands belonging to the various bands of Indians mentioned in the State of Minnesota and set apart for them specific reservations mentioned in the treaty. The reservation set apart for the Mille Lac Indians embraced the following fractional townships: 42 north of range 25 west, 42 north of range 26 west, and 42 and 43 north of range 27 west, and also the three islands in the southern part of Mille Lac, containing 61,028.14 acres of land.

Article 3 of said treaty further provided for the payment to said Mississippi Chippewas of $10,000 in goods to be distributed among their people; also $50,000 in money to enable them to adjust and settle their present engagements, subject to the approval of the Secretary of the Interior; also *428$20,000 “ per annum, in money, for 20 years, provided that $2,000 per annum of the sum shall be paid or expended, as the chiefs may request, for purposes of utility connected with the improvement and welfare of said Indians, subject to the approval of the Secretary of the Interior”; also $5,000 for the construction of a road from Rum River to said Mille Lac Reservation, and a reasonable quantity of land to be plowed and prepared for cultivation in suitable fields at each of the reservations so set apart, not .exceeding in the aggregate 800 acres.

Article 4 provided that the Mississippi Bands should be permitted to employ their own farmers, mechanics, and teachers, and that the amounts heretofore granted them under former treaties for blacksmiths, tools, farmers, carpenters, etc., should be paid to them as their annuities are paid.

III. Prior to August, 1862, the Sioux Indians of Minnesota and the Northwest were hostile to the United States and engaged in massacres and other open hostilities toward the people of the State and vicinity. In August, 1862, Hole-in-the-Day, a chief of one of the Chippewa Bands of Indians, became hostile to the United States and attempted to induce the other Chippewas, among them the Mille Lac Band, to join with him in his warlike demonstrations. Chief Hole-in-the-Day intended to incite an uprising among the Chippewas and unite his forces with the then hostile Sioux and continue the hostilities then in progress by the Sioux. Shaw-vosh-kung, the chief of the Mille Lac Band of Chippewas, refused to participate in the movement of Chief Hole-in-the-Day, and proceeded with 800 of his band to the relief of Fort Fisher, where Commissioner Dole, of the Indian Office, and 35 United States soldiers were located. He was advised by Commissioner Dole to return to his reservation, persist in his loyalty to the Government, and use his efforts to induce Hole-in-the-Day to resume a peaceful attitude toward the people. The chief of the Mille Lac Band, by reason of his refusal to augment the forces of Hole-in-the-Day, and his open demonstrations of loyalty to the Government, prevented the uprising contemplated by Hole-in-the-Day and caused the bands to remain at peace.

*429IY. In March, 1863, Commissioner Dole, in company with the headmen and chiefs of the Chippewa Bands, came to Washington, D. C., and on March 11, 1863, procured their assent to another treaty. (12 Stat. L., 1249.)

This treaty between the Chippewas of the Mississippi and the United States provided in terms for the cession to the United States of the reservations set apart to them under the treaty of 1855, except one-lialf section of land, which was granted in fee simple to a missionary.

Article 2 of the treaty provided for the setting apart to the said Chippewas of the Mississippi the reservation known as the White Earth Reservation, which was 150 miles distant from the reservation set aside to the Mille Lac Indians by the treaty of 1855.

Article 3 of the treaty provided for the extension of the present annuities of the Indians parties thereto for 10 years beyond the time mentioned in existing treaties; to pay toward the settlement of claims for depredations committed by the Indians in 1862, $20,000; to pay to the chiefs of the Chippewas, $14,000; and to pay the expenses incurred by the Legislature of the State of Minnesota in September, 1862, in sending commissioners to visit the Chippewa Indians, $1,338.75.

Article 4 provided for the expenditure of $3,600 in clearing and rendering susceptible to cultivation a certain amount of land on each reservation. For the Mille Lac Band 70 acres was to be so cleared, and out of this sum they were to build for the chiefs of each of said bands a house of a certain description.

Article 5 provided for the expenditure of $1,000 in the procurement of agricultural implements and tools specifically mentioned, and the employment of two carpenters, two blacksmiths, four farm laborers, and one physician.

Article 6 provided for the erection and maintenance of a sawmill at a certain place on the reservation and the removal of the agency to a certain place mentioned therein.

Article 12 provided as follows:

“ It shall not be obligatory upon the Indians parties to this treaty to remove from their present reservations until the *430United States shall have first complied with the stipulations of articles 4 and 6 of this treaty, when the United States shall furnish them with all necessary transportation and subsistence to their new homes, and subsistence for six months thereafter: Provided, That, owing to the heretofore good conduct of the Mille Lac Indians, they shall not be compelled to remove so long as they shall not in any way interfere with or in any manner molest the persons or property of the whites.”

V. On the 7th day of May, 1864, in the city of Washington, D. C., the United States entered into another treaty with the Mississippi Chippewas (13 Stat. L., 693), which treaty was substantially the same as the treaty of March 11,

1863, before mentioned.

Article 1 of this treaty granted one section of land each to Chiefs Hole-in-the-Day, Mis-qua-dace, and Shaw-vosh-kung.

Article 2 of the treaty continued the White Earth Beservation, changing somewhat its former description.

The provisions of article 3 of the treaty were similar to those of article 3 of the treaty of 1863, simply extending the payment of the annuities and the sums therein mentioned for the period of 10 years from the date of the treaty of

1864, and providing $5,000 to be paid to Chief Hole-in-the-Day for the burning of his house and furniture in 1862.

Article 4 of the treaty was the same as article 4 of the treaty of 1863 except a provision for the payment of $7,500 for clearing, grubbing, and planting the amount of land on the reservations mentioned in the same article of the former treaty, and increasing the amount to be expended for the houses to be built for the chiefs to $5,000.

Article 5 of this treaty was the same as article 5 of the treaty of 1863 except' as to the amount, $1,500 being substituted for $1,000.

Article 6 of the treaty provided $1,000 for the support of the sawmill provided in the same article of the former treaty and to expend $7,500 on new roads and bridges, and $25,000 for new agency buildings to be located by the Secretary of the Interior for the common use of the Chippewas of the Mississippi.

*431Article 12 of the treaty was exactly the same as article 12 of the treaty of 1863, with an additional proviso as follows:

*“*That those of the tribe residing on the Sandy Lake Reservation shall not be removed until the President shall so direct.”

VI. At the time of the execution of the treaty of 1863 and 1864 by the Mille Lac Indians the said band of Indians understood and believed that they were reserving to themselves the right to occupy the Mille Lac Reservation set apart to them by the treaty of 1855.

On October 2, 1889, a council of the Mille Lac Indians assembled on the reservation set apart to them by the treaty of 1855, was addressed by Senator Henry M. Rice, one of the commissioners who participated in the procurement and execution of the treaty of 1863, who told the Mille Lac Indians that he knew that it was understood by them that they were reserving their reservation, that he so understood the meaning of the treaty and assisted in its negotiation with that intent. At the same time and place the chiefs and headmen of the Mille Lac Indians insisted and openly proclaimed that such was their intention in the execution of said treaty. (Ex. Doc. No. 247, H. R., 51st Cong., 1st sess., pp. 168-180.)

On October 9, 1886, at a council of the Mille Lac Indians on their reservation, held for the purpose of procuring their assent to the act of May 15, 1886 (24 Stat. L., 44), the Mille Lacs again publicly proclaimed to the commissioners sent by the Government that they intended by the treaties of 1863 and 1864 to reserve said reservation for themselves, and when it was represented to said Indians that they had not done so and their rights on said reservation were simply ones of favor and license and that they had ceded the same to the Government by the treaties of 1863 and 1864, which was supplemented by the following opinion of Secretary Lamar:

“ In view of all the facts connected with the Mille Lac Indians and their reservation, the President hears with great surprise and disappointment that they have refused to give their consent to remove to the White Earth Reservation, where they would be beyond the reach of avaraeious white men, and where they would have good homes with *432peace and plenty. If they persist in remaining on their old reservation, they must do so at their own risk and with the disapprobation of the Government. It is the desire of the. President that the commissioners explain fully to these Indians the condition of affairs; that they have ceded the lands of the Mille Lac Reservation to the United States, and are permitted to remain there only so long as they shall not in any way interfere with or molest the persons or property of the whites. The President desires that the commissioners shall make another effort to induce these Indians to remove to White Earth, where all the Chippewas will be united in one happy and prosperous family. The commission should say to them that it is the earnest desire of the President that they remove to White Earth, and that their interest, and that only, prompts the Government in urging them to take this step. The Indians should give the matter the most careful consideration, as the future welfare and happiness of themselves and children depends upon their decision in this matter,”

they declined further negotiations with the commissioners, withdrew from the council, terminated its existence, and refused their assent to the proposed legislation.

On November 3, 1886, at the same place, another attempt was made to secure their assent to the act of May 15, 1886, and the Indians again refused their assent thereto because of a dispute as to their title to the reservation, which they alleged to have reserved to themselves by the treaties of 1863 and 1864. (Ex. Doc. No. 115, Sen., 49th Cong., 2d sess., pp. 27-37.)

On May 27, 1902, Congress passed an act (32 Stat. L., 268) providing for the payment to the Mille Lac Indians of the sum of $40,000 for improvements made by them, or any of them, upon lands occupied by them on said reservation, being the same set apart to them by the treaty of 1855, the act providing for their assent thereto before any of said sum could be paid. The Mille Lac Indians declined the offer made under said act and refused to sign agreements assenting thereto until there was inserted in said agreement the following language:

“ It is understood that nothing in this agreement shall be construed to deprive the said Mille Lac Indians of any of the benefits to which they may be entitled under existing *433treaties or agreements not inconsistent witb the provisions of this agreement or the act of Congress relating to said Indians approved May 27, 1902.”

The said Mille Lac Indians have, without exception, upon all occasions and in connection with all controversies relating to the title they possessed to the reservation set apart to them by the treaty of 1855, proclaimed and persisted in their claim of the right of occupancy to said reservation and have continually and openly occupied said reservation from that time until subsequent to the passage of the act of January 14,1889.

VII. Subsequent to the execution of the treaties of 1863 and 1864 said Mille Lac Indians protested to the defendants against squatters who were arbitrarily occupying certain portions of their reservation. In April, 1871, filings for homestead and preemption entries were made under the public-land laws, principally in soldiers’ additional scrip, upon the lands of the Mille Lac Indian Reservation.

On August 22, 1871, the Indians complained to the Department of the Interior and protested against permitting white settlers to go upon their reservation, and in response to said protest said department, through its General Land Office, addressed a communication to the local land officers requesting that no part of said reservation should be considered as subject to entry and sale as public lands, and to give public notice to the effect that said settlements would be considered illegal.

On September 11, 1871, the Attorney General of the United States informed the department that he had instructed the United States district attorney to prosecute trespassers on the Mille Lac Reservation, and on September 21, 1871, the General Land Office requested the governor of Minnesota to execute- a relinquishment of the State’s claims to certain tracts within said reservation that had been patented to the State as swamp lands on the 13th of May, 1871.

Settlers were moved off the reservation by Agent Smith, of the General Land Office, and under date of November 13, 1871, said agent reported that after a personal examination of the situation made by going upon the reserva*434tion and diligent inquiry incident thereto he came to the following conclusions:

“ 1. A large part of the free fractional townships that constitute the Mille Lac Reserve has been entered either by half-breed scrip or preemption claims.

“ 2. In all cases the claims selected are upon pine lands, in preference to hardwood lands, which are better adapted to agriculture.

“ 3. Nearly all the half-breed scrip, by reference to the report lately made by the commissioner, will be found to have been fraudulently obtained.

“ 4. The entries by preemption *have been largely made by parties who were employed, and paid by the day and sent up in gangs of from 6 to'35 men to medee improvements, prove up at the land office, and then transfer*their titles to their employers.” (Report No. 1388, H. R., 60th Cong., 1st sess., pp. 6-7.)

VIII. In April, 1871, 57 pieces of Chippewa half-breed scrip were located upon the reservation to the extent of 4,609.98 acres, and in June, July, and August of that year there were preemption claims filed to the total amount of 6,416.44 acres, and at the same time 117 declaratory statements were filed covering several thousand additional acres.

On June 17 and 20,1871, the Interior Department ordered the suspension of all entries made under article 10 of the treaty of 1854 and article 6 of the treaty of February 22, 1855, and directed the refusal of additional entries under either treaty.

On January 24, 1872, the Department of the Interior issued an order canceling all entries theretofore made. On October 31, 1876, Frank W. Folsom, one of the entrymen whose entry had been canceled under the previous order, appealed to the Secretary of the Interior, and Secretary Chandler sustained the validity of his entry, but suspended his decision and directed the local land officials to receive no additional entries until the close of the next regular session of Congress, holding all entries previously made in *statu quo.*

On June 19, 1878, Secretary Carl Schurz issued an order forbidding the receipt of entries by the local land officers upon this reservation and continuing in force that part of his predecessor’s opinion which held the entries theretofore made *435in *statu quo.*Secretary Schurz, in an opinion, held all the land entries invalid.

IX. The returns of the local land office for March, 1819, disclose that notwithstanding the repeated inhibitions against the receipt and filing of additional land entries upon the Mille Lac Indian Reservation, and without any change in the personnel of .the incumbents of the district land office, they had allowed additional homestead entries to the extent of 23,913.46 acres. The allowance of these entries was without authority of law and in violation of positive written instructions from the Secretary of the Interior, and all of the same were subsequently canceled by the Department of the Interior.

In May, 1882, Hon. H. M. Teller,- then Secretary of the Interior, again reviewed the situation respecting the validity of entries made upon this Indian reservation, and in a written opinion confirmed the Indians’ title to said reservation to the extent of land necessary for their habitat and suspended the question as to the validity of land entries until Congress should legislate concerning the rights of the Indians. The effect of this opinion was to reverse the decision of his predecessor in part.

Notwithstanding the opinions of the Secretary and the conflicting decisions emanating from the Land Office, the local land officials permitted the filing of entries upon said reservation, until on March 31, 1884, there had been filings made against 55,976.42 acres of the 61,028.14 acres contained in the said reservation.

On July 4, 1884, Congress passed an act providing “that the lands acquired from the White Oak Point and the Mille Lac Bands of Chippewa Indians on the White Earth Reservation, in Minnesota, by the treaty proclaimed March 20, 1865, shall not be patented or disposed of in any manner until further legislation by Congress.” (23 Stat. L., 98.)

On May 15,1886 (24 Stat. L., 44), Congress appropriated $15,000 for the purpose of securing, through the Secretary of the Interior, from the tribes and bands of Chippewa Indians in Minnesota, including the Mille Lacs, a modification of existing treaties and certain changes in their reservations.

*436The commissioners appointed by the Secretary of the Interior went upon the Mille Lac Eeservation and endeavored under this act to secure the removal of the Mille Lac Indians from the reservation reserved to them by the treaty of 1855. Two futile attempts were made by said commissioners to procure the assent of the Indians to this legislation. The Indians at this time and to these commissioners insisted upon their right of occupancy of the Mille Lac Eeservation and refused to assent to the request of the commissioners because it was asserted by said commissioners that they had no title to said reservation, and nothing further was done.

On January 14, 1889, Congress passed an 642) providing for the classification of lands belonging to the Chippewas of Minnesota into pine lands and agricultural lands and for their sale for the benefit of all Indians in the State of Minnesota, the proceeds arising therefrom to constitute a permanent fund from which annuities would accrue to said Indians for a period of 50 years.

This act further provided the commissioners to negotiate with the Chippewa Indians in Minnesota for the cession of their reservations, and in compliance therewith the commissioners so appointed held councils with the Mille Lac Indians on their reservation, occupied by them since the treaty of 1855, represented to them that they came within the terms of the act of 1889, and by virtue of said representation secured their assent and a written relinquishment of their reservation as contemplated by the act, which instrument is as follows:

“ We, the undersigned, being male adult Indians over 18 years of age of the Mille Lac Band of Chippewas of the Mississippi, occupying and belonging to the Mille Lac Eeser-vation under and by virtue of a clause in the twelfth article of the treaty of May 7, 1864 (13 Stat., p. 693), do hereby certify and declare that we have heard read, interpreted, and thoroughly explained to our understanding the act of Congress approved January 14,1889, entitled ‘An act for the relief and civilization of the Chippewa Indians in the State of Minnesota’ (Public, No. 13), which said act is embodied in the foregoing instrument, and after such explanation and understanding have consented and agreed to said act, and have accepted and ratified the same, and do hereby accept *437and consent to and ratify the said act and each and all of the provisions thereof, and do hereby grant, cede, relinquish, and convey to the United States all our right, title, and interest in and to all and so much of the White Earth Eeser-vation as is not required and reserved under and in accordance with the provisions of said act to make and fill the allotments in quantity and manner as therein provided for the purposes and upon the terms stated in said act; and we do also hereby grant, cede, and relinquish to the United States for the purposes and upon the terms stated in said act all our right, title, and interest in and to the lands reserved by us and described in the first article (ending with the words ‘ to the place of beginning ’) of the treaty with the Chippewas of the Mississippi proclaimed April 18, 1867 (16 Stat., p. 719), and also to the aforesaid Executive addition thereto made and described in an Executive order dated October 19, 1873; and we do also hereby cede and relinquish to the United States all our right, title, and interest in and to all and so much of the Eed Lake Eeservation as is not required and reserved under and in accordance with the provisions of said act to make and fill the allotments to the Eed Lake Indians in quantity and manner as therein provided; and we do also hereby forever relinquish to the United States the right of occupancy on the Mille Lac Eeservation, reserved to us by the twelfth article of the treaty of May 7, 1864 (13 Stat., p. 693).

“Witness our hands and seals hereto subscribed and affixed at Mille Lac, in the State of Minnesota, this 5th day of October, 1889.

“ Henhy M. Eice,

“ Joseph E. Whiting,

“ Commissioners.”

(Then follow the signatures of 189 adult Mille Lac Indians.)

Said agreement was approved by President Harrison on March 4, 1890. (H. E. Doc. 247, 51st Cong., 1st sess., pp. 45-48.)

X. Subsequent to the passage of the act of January 14, 1889, to wit, on January 9, 1891, the Assistant Attorney General for the Interior Department rendered a decision in the case of Amanda J. Walters. (12 L. D., 59.) In deciding this case the department held that the passage of the act of January 14,1889, was the further legislation provided for in, the act of July 4, 1884, and thereby validated all the entries *438theretofore suspended and invalidated which had been made upon the Mille Lac Eeservation.

On September 3, 1891 (13 L. D., 280), in the case of the ■ *Northern Pacific Railway Oo.*v. *Walters,*the Interior Department decided that the Mille Lac Indians were guaranteed the use and occupancy of their reservation, which was in force until extinguished by the act of January 14, 1889, and by a decision of the General Land Office dated April 22, 1892 (14 L. D., 497), the decision in the Northern Pacific Eailway Company case was applied to cut-off entries under the general land laws thereafter.

By a subsequent decision (22 L. D., 388), Secretary Smith in an opinion confirmed the right of occupancy in the Mille Lac Indians under the treaty of 1864, and held that such lands were not public lands in the sense that they might be taken for any other purpose than that specified in the act of 1889. These later decisions were preceded by decisions of various Secretaries found in 5 L. D., 102 and 541, in 8 L. D., 409, and in 10 L. D., 2, all of which concerned the title of the Mille Lacs to their reservation under the treaty of 1864, and are not harmonious.

It appears from the record that in 1882 fraudulent entries of land were made upon the said Mille Lac Eeservation, and that as a result of the disobedience of positive orders of the Department of the Interior issued to circumvent the same that one official of the land office at Taylor Falls, Minn., was removed for his participation therein, and that the timber lands at this time entered were subsequently purchased by the Foley Beam Lumber Company, who denuded the lands thus entered of all valuable pine timber. The pine timber has been cut and removed from all the lands embraced in the Mille Lac Eeservation, and neither said Mille Lac Indians nor the Chippewa Indians of Minnesota have received any of the proceeds derived from the sale thereof.

On December 19, 1893, Congress passed a joint resolution (28 Stat. L., 576) confirming the decision of the Interior Department rendered in the Walters case, and subsequently, on May 27, 1898, passed a joint resolution (30 Stat. L., 745) declaring the Mille Lac Eeservation in the State of Minnesota to be subject to entry by any bona fide qualified set-*439tier under the public-land laws of the United States and ratifying and confirming all preemption entries theretofore made prior to the repeal of the preemption law by the act of March 3, 1891, and declaring said reservation to be subject to the same rules and regulations as applied to the public lands of the United States, which resolution deprived said Mille Lac Indians of the benefits of the act of January 14, 1889, as their reservation was not disposed of as by said act provided.

On May 27, 1902 (32 Stat. L., 268), as hereinbefore set forth in Finding VI, Congress appropriated $40,000 to pay said Mille Lac Indians for improvements made upon their reservation occupied by them since the treaty of 1855.

XI. The Mille Lac Indians never interfered with or molested the persons or property of the whites during their occupancy of their aforesaid reservation.

A report of the Commissioner of Indian Affairs made in 1871, another report made in 1873, another report made in 1874, and another report made in 1878, all stated in positive terms that their conduct had been exemplary.

On May 26, 1880, the Indian Office received a petition numerously signed by the citizens of Morrison County, Minn., a county bordering on the Mille Lac Reservation, commending the Mille Lac Indians in the highest terms for their uniform good conduct, and declaring them to be a peaceable and inoffensive people.

XII. The Mille Lac Indian Reservation, as described in the treaty of 1855, contained 61,028.14 acres of land. Of this total acreage, 20,000 acres was agricultural land, leaving 41,028.14 acres of pine land.

The act of January 14, 1889 (25 Stat. L., 642), was amended on June 27, 1902 ( 32 Stat. L., 401), changing section 5 thereof so as to fix the minimum price at which Norway pine might be sold at $4 a thousand feet on the stump and white pine at $5 a thousand feet.

The court finds that there was 34,360.89 acres of pine land which should be classified as 100,000,000 feet of Norway pine and valued at $4 per thousand feet, and that the remaining portion of said reservation being agricultural lands, ex-*440elusive of 1,667.25 acres reserved for various purposes, should be valued at $1.25 per acre, which amounts to $431,250, upon which the claimants herein are entitled to interest at the rate of 5 per cent per annum for 15 years, 5 months, and 9 days, aggregating the total sum of .$764,210.89.

*Mr. George B. Edgerton*and *Mr. F. W. Houghton,*for the claimants. *Mr. Harvey S. Clapp*and *Mr. Daniel B. Henderson*were on the brief.

*Mr. George M. Anderson*(with whom was *Mr. Assistant Attorney General John Q.*Thompson) for the defendants.

The Government of the United States, acting through its legislative branch, is the guardian of the Indians within its limits, and its policies are carried into effect by the President, acting through the agency of the Secretary of the Interior. Everything that a guardian and a court of probate or a court of chancery may do for the ordinary white citizens may be done by Congress through the President for the Indians, so long as their tribal relations continue. *(Worcester*v. Georgia, 6 Pet., 515; *Elk*v. Wilkins, 112 U. S., 96; *United States*v. Kagama, 118 U. S., 375; *Ohoctaw Nation*v. *United States,*119 U. S., 1; *Cherokee Nation*v. *Southern Kan. By. Co.,*135 U. S., 641; *Taitón*v. *Mayes,*163 U. S., 376; *Rojf*v. *Burney,*168 U. S., 218; *Stephens*v. *Cherokee Nation,*174 U. S., 445; *Jones v.'Meehan,*175 U. S., 1; *Lone Wolf*v. *Hitchcock,*187 U. S., 553; *United States*v. *Rickert,*188 U. S., 432; *United States et al.*v. *Winans et ad.,*73 Fed. R., 72; *Winters*v. *United States,*207 U. S., 564; *Fleming*v. *McCurtain,*215 U. S., 56.)

Prior to 1871 the Government recognized Indian tribes as possessing some of the attributes of nations and entered into numerous treaties for the extinguishment of the title to tribal lands and for other purposes. On March 3, 1871 (16 Stat., 566; sec. 2079, Rev. Stat.), Congress provided that “ no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by a treaty; ” and as was said by the Supreme Court *441. in *In re Heff*(197 U. S., 488-509) “ from that time on the Indian tribes and the individual members thereof have been subjected to the direct legislation of Congress which, for some time thereafter, continued the policy of locating the tribes on separate reservations and perpetuating the communal or tribal life ” (p. 498).

This policy has been justified and sustained by the courts upon the theory that the Indians of all tribes are wards of the United States, and, while recognized as distinct political communities, they are still considered as in a condition of pupilage or dependency and subject to the paramount authority of the United States.

In the case of the *Cherokee Nation*v. *Hitchcock*(187 U. S., 294) the Supreme Court, referring to the case of *Stephens*v. *Cherokee Nation*{supra), said:

*“*The plenary power or control by Congress over the Indian tribes and its undoubted power to legislate, as it has done through the act of 1898, directly for the protection of the tribal property, was in that case reaffirmed; ”

and the opinion closes with the broad statement that—

“ The power existing in Congress to administer upon and guard the tribal property, and the power being political and administrative in its nature, the manner of its exercise is a question within the province of the legislative branch to determine, and is not one for the courts.”

The case of the *Cherokee Nation*v. *Hitchcock*followed the way clearly marked out by earlier decisions of this court.

It will be observed that the act of Congress, the validity of which was in question in the Lone Wolf case, provided, in violation of existing treaties with the Indians, by direct legislation for the allotment of their lands, the sale of their surplus lands, and the disposition of the proceeds of such sales, upon the theory that they were wards of the United States. In concluding its opinion the court, upon the authority of *Stephens*v. *Cherokee Nation {supra),*used language which would appear to indicate that there is no limit to the plenary power of Congress over Indian tribes and their property, and the courts of law have no jurisdiction to interfere with its exercise.

*442This court in the case of *Brown ds Gritts*v. *The United States*(44 C. Cls., 283) said:

*“*Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the Government.” *(Lone Wolf*v. Hitchcock, 187 U. S., 553, 565, quoted in the case of *Matter of*Heff, 197 U. S., 488, 498.) But this question is too well established to require further comment.

During the whole course of events out of which this claim arose the claimants were tribal Indians, and the Mille Lac Reservation at the time it was ceded was tribal property and under the exclusive jurisdiction of Congress.

By the treaties of March 11, 1863, and May 7, 1864, all of the Mississippi Chippewas, consisting of six bands, including the Mille Lac Band, ceded their six reservations, including the Mille Lac Reservation, their interest in all of them being a communal interest in all of the bands and not an exclusive interest in the Mille Lac Band or any other band. If we should admit for the purpose of argument that the Mille Lac Reservation was included in the reservations to be sold for the. benefit of the Chippewas of the Mississippi, it was expressly provided that the funds should be placed to the credit of all of the bands and not to the credit of the Mille Lac Band or any other single band. Therefore Congress exceeded its powers in giving the Mille Lac Band the right to bring this suit alone in the court.

Nothing is to be assumed as established from the language of the jurisdictional act. No additional strength can be given to .a claim by the act of reference. It simply gives to the claimants a forum in which to adjudicate such rights as they may already possess, but it establishes nothing for them except their right to sue where there are proper adversary parties.

This question was definitely settled by the Supreme Court in the case of *Stewart*v. *The United States*(206 U. S., 185).

In the recent cases of *Muskrat <£t Dick*v. *The United States*and *Brown & Gritts*v. *The United States*.(219 U. S., 346) the Supreme Court held that Congress had no power *443to refer to this court, with right of appeal, cases which involved only moot questions or where there were no proper adversary parties.

The term “ Indian country ” has always been used to designate the territory within the limits of the United States to which the Indian title has not been extinguished. *(Bates*v. *Clark,*95 U. S., 204; *Ex farte Crow Dog,*109 U. S., 556; *United States*v. *Forty-three Gallons Whiskey,*93 U. S., 188; *United States*v. *Le Bris,*121 U. S., 278.) While the title of the Indians has always been held by this court to be a right of occupancy only, with the fee in the United States, at a very early date it was also held that their title was one which should be respected by the courts until extinguished by proper authority. *(Fletcher*v. *Peck,*6 Cranch, 142; *Johnson x. McIntosh,*8 Wheats 543.) More recently this court has declared that their right of occupancy should be respected until they have abandoned or voluntarily. ceded their lands to the Government, or to individuals with the approval of the Government; and that the habits and customs of Indians and their means of securing a living should be considered, and the conclusion was reached that their hunting grounds were as much in their actual possession as the cultivated fields of the white man, and that their right to their exclusive use in their own way should be as much respected until abandoned, ceded to the Governmeiit, or sold to individuals with the approval of the Government; and that, although the right of occupancy and possession attached itself to the fee without further grant when abandoned by the Indians, their right of occupancy was as sacred to them as the fee to the Government. *(Mitehel*v. *United States,*9 Pet., 711; *Clark x. Smith,*13 Pet., 195; *United States*v. *Cook,*19 Wall., 591; *Cherokee Nation*v. *Georgia,*5 Pet., 1; *Beecher*v. *1Wetherby,*95 U. S., 517; *United States*v. *Kagama,*118 U. S., 37.)

Claimants contend, throughout their brief, and in fact have asked the court to find that the five other bands of Mississippi Chippewas, with the consent of the United States, ceded all their right, title, and interest in the Mille Lac Reservation to the Mille Lac Band; that the United States was simply a conduit to convey the title to the *444claimants. This contention we do not believe is sustained by the provisions of the treaty of May 7, 1864, which superseded the treaty of March 11, 1863, as we shall presently show.

The six bands of the Mississippi Chippewas, as a tribe, prior to the treaty of May 7,1864, owned an undivided communal interest in each of the six reservations on which they respectively lived, bearing- the same name as the bands, no band having an exclusive interest in any one of the reservations.

By article 1 of the treaty of May 7, 1864, proclaimed March 20,1865, the six bands of Mississippi Chippewas ceded to the United States the Gull Lake, Mille Lac, Sandy Lake, Rabbit Lake, Pokagomin Lake, and Rice Lake Reservations. In the same article the United States granted in fee simple one-half section of land at Gull Lake to Rev. John Johnson; one section at Gull Lake to Chief Hole-in-the-day; one section at Sandy Lake to Chief Mis-qua-dace; and one section at Mille Lac to Chief Shaw-vosh-Kung.

According to a well-known rule of statutory construction, in order to interpret the meaning of any provision of a treaty or agreement every other provision of the instrument may be resorted to in order to throw light upon the provision in question, or, as has been said of wills and other testamentary papers, they should be considered “ from their four comers.”

All of the things agreed upon on the part of the United States to be done for the Mille Lac and the other five bands of the Mississippi Chippewa Indians would have been without meaning or purpose if it had not been intended that the claimants should remove from the Mille Lac Reservation to the reservation set apart for them by article 2.

The reservation ceded to the United States by article 1 had become public lands, and as such open to settlement in various ways. In view of this condition of affairs the claimants were permitted to remain upon their former reservation so long as they did not interfere with its settlement. Their license to remain would be forfeited by the molestation of the property or persons of white settlers coming on the reservation, even though the land on which the claimants were living should not be then required for *445settlement. However, when the whole reservation should become eventually settled upon and patented, their mere presence upon the former reservation would become an interference with the property of the white settlers, and their license to remain would become forfeited without action upon either their part or the part of the Government.

Upon the ratification of the treaty there was another proviso added by amendment in the Senate to article 12: *“*That those of the tribe residing on the Sandy Lake Reservation shall not be removed until the President shall so direct.” It could not be contended for an instant that this license to remain gave the Sandy Lake Band any interest in the reservation, although it might have been possible for them to have remained longer on their reservation than the claimants could have remained on the Mille Lac Reservation.

Entries were made upon the reservation as early as April, 1817 (Rept. No. 1888, p. 12), with Chippewa half-breed scrip, and on March 1, 1877, the Secretary of the Interior held that the license of the claimants to remain upon the reservation by article 12 of the treaty of 1863 did not give them an exclusive right to occupy the land, but, on the contrary, they were subject to sale and disposal by the United States.

The claimants themselves well knew they would ultimately be compelled to remove and acquiesced in it for, by 1872. 25 had removed and by 1882 about 400, until at the beginning of the present year only 174 remained scattered over the former Mille Lac Reservation.

Finally, the mere license to remain during good behavior or until the reservation should become settled and patented can not be considered as the equivalent of the ordinary Indian title by occupation discussed under the preceding caption.

That the Mille Lac Reservation was not intended to be sold under the provisions of the act of 1889 is clearly shown by section 4, which provided tllat upon the relinquishment of the Indian title the *ceded lands*should be surveyed by the Commissioner of the General Land Office as public lands and divided into 40-acre tracts for the purpose of classification as pine lands and agricultural lands.

*446• It is also very clear that the proviso of section 3, which gave to any Indian residing on any of said reservations the right to select an allotment there instead of being removed to White Earth Eeservation, was not intended to apply to the Mille Lac Reservation, because the lands there, as already stated, had been practically disposed of.

It is perfectly plain that none of the provisions of the act of 1889, providing for the sale of pine lands and agricultural lands, and the right of selection by individual Indians of allotments on the reservations where they lived, related to the former Mille Lac Reservation.

The adequacy of the consideration given to the Mississippi Chippewas for the cession of their reservations in the treaty of 1864 has never been questioned, nor has it ever been denied that the claimants have received their full share of the same. The consideration for the cession by the claim•ants, in 1889, of their right, title, and interest in and to the surplus lands of the White Earth and Red Lake Reservations, and their relinquishment of their license to occupy the former Mille Lac Reservation, was acquisition of the right to participate in the sale of the white-pine and agricultural lands *ceded*under the provisions of the act of January 14, 1889, and it has never been denied that the claimants have received their full share of the benefits of this consideration.

This court, in construing article 3 of the treaty of April 28, 1866 (14 Stat., 769), between the United States and the Choctaw and Chickasaw Nations, held in effect that because the consideration named in the treaty for the lands ceded was merely nominal, the cession was thereby qualified and that the Government had agreed to hold the lands in trust for the Indians *(Choctaw and Ohichasaw Nations*v. *United States et al.*(34 C. Cls. R., 17). The Supreme Court in reversing this court (179 U. S., 494) said:

“ It is thus' clear that thé^Court of Claims is without authority to determine the rights of parties upon the ground of mere justice or fairness, much less, under the guise of interpretation, to depart from the plain import of the words of the treaty. Its duty was to ascertain the intent of the parties according to the established rules for the interpre*447tation of treaties. Those rules, it is true, permit the relations between Indians and the United States to be taken into consideration” (p. 535).

Further on the court said:

“ If the treaty of 1866, according to its tenor and obvious import, did injustice to the Choctaws and Chickasaws, the remedy is with the political department of the Government ” (p. 535).

The various acts, it will be readily seen, were passed not in violation of the treaties and agreements between the United States and the claimants and other Mississippi Chippewas, but in pursuance and in execution of those treaties and agreements. Even if the acts had been in violation thereof the claimants would still have had no cause of action-arising therefrom, for, as was held by the Supreme Court in the case of *Lone Wolf*v. *Hitchcock*(187 U. S., 553) :

“As the act of June 6, 1900, as to the disposition of these lands was enacted at a time when the tribal relations between the confederated tribes of the Kiowas, Comanches, and Apaches still existed, and that statute and the statutes supplementary thereto dealt with the disposition of tribal property and purported to give an adequate consideration for the surplus lands not allotted among the Indians or reserved for their benefit, such legislation was constitutional, and this court will presume that Congress acted in perfect good faith and exercised its best judgment in the premises, and as Congress possessed full power in the matter the judiciary can not question or inquire into the motives which prompted the enactment of such legislation.”

The claimants have based their right of recovery upon the alleged failure of the Government to carry out the provisions of the act of January 14, 1889, relating to the sale of pine and agricultural lands, by surveying the Mille Lac Reservation and selling the lands thereof for their benefit.

We have shown that these provisions of the act were not intended to affect the Mille Lac Reservation. Admitting, ^however, for the sake of argument, that they were intended to apply to that reservation, and that the Government had not only failed to carry them out but had incidentally nullified the agreements by the act of December 19, 1893, while confirming the entries made prior thereto, still the claimants *448would have had no right of action arising therefrom, because, us was said by the Supreme Court in the case of *Mitchell*v. *Clark*(110 U. S., 633, 643):

“ It is no answer to this to say that it interferes with the validity of contracts, for no provision of the Constitution prohibits Congress from doing this, as it does the States; and where the question of the *power*of Congress arises, as in the Legal Tender cases and in bankruptcy cases, it does not depend upon the incidental effect of its exercise on con-tracts, but on the existence of the power itself.”

The act of May 27, 1902, set out in Finding XY, appropriated $40,000 for the payment for improvements made by Mille Lac Indians on the Mille Lac Reservation, and that as a condition precedent they were required to enter into an agreement to voluntarily remove from the reservation before receiving it. The improvements, while they may have been at an earlier date of considerable value, were at the time they were appraised of little or no value, and were assessed at what they had been from the best information obtainable.

After it had been thoroughly explained to them by Inspector McLaughlin and Agent Michelet that they parted with all their rights on the Mille Lac Reservation and that they had nothing to gain, but much to lose, by remaining, they entered into an agreement on August 30, 1902, by which they agreed to voluntarily remove to White Earth Reservation.

The money was afterwards distributed, and some of them removed in accordance with the agreement, but there are still 174 remaining, scattered over the reservation.

It is contended on behalf of the claimants that Commissioner Rice, during his negotiations for the agreement of 1889, deceived the Mille Lac Indians into believing that they could take their allotments on the former Mille Lac Reservation. They should have known that this was an impossibility, as the whole reservation had been practically preempted or entered upon as homesteads by white settlers. In addition to this, they had been clearly and emphatically informed by Commissioner Larrabee, while negotiating in 1886 for their voluntary removal, that they had parted with all their interest by the treaties of 1863 and 1864 in the Mille *449Lac Keservation, and were remaining there merely on sufferance. The same statement was made in a letter from Secretary Lamar to the commissioners, which was read to the Mille Lac Indians.

To meet the contention of the claimants that the agreement of 1889 was obtained through misrepresentations, .we would call the attention of the court to the case of the *Old Settlers*(148 U. S., 421), where it was held by the Supreme Court that this court under a jurisdictional act which gave “ unrestricted latitude in adjusting said claim ” could not go behind a treaty for the purpose of determining whether it had been procured by fraud or duress.

Booth, J.,

delivered the opinion of the court:

This case comes to the court under a special jurisdictional act approved February 15, 1909 (35 Stat. L., 619), as set forth in Finding I.

The claim is predicated upon certain rights alleged to have accrued to the claimant Indians under the provisions of treaties executed in 1855, 1863, and 1864, having to do with the disposition of their landed interests, upon which they have resided since time immemorial. The claimants herein are a band of that formerly large and powerful tribe of Ojibwa (now known as Chippewa) Indians, the largest and most important tribe of the Algonquian stock, who inhabited a most extensive territory about the upper Great Lakes in Michigan, Minnesota, Ontario, Manitoba, and adjacent regions, extending westward to Turtle Mountains in Dakota. On February 22, 1855, the United States, through its proper officials, entered into a treaty with the Mississippi Bands of the Chippewas, by the terms of which they ceded to the Government all their right, title, and interest owned or claimed by them to lands embraced within the Territory of Minnesota. In consideration for the cession the six bands known as Mississippi Chippewas received a specific reservation set apart out of the lands so ceded upon which they were to permanently reside. The portion set aside to the Mille Lacs, the claimants herein, embraced four townships bordering on Mille Lacs Lake and three small islands in the lake. The United States agreed to pay certain sums in annuities for 20 *450years, and to expend various other sums in improving the reservations, making them habitable, and otherwise generously providing for the general welfare of the Indians. (10 Stat. L., 1165.)

On March 11, 1863, another treaty was entered into between the same parties at Washington, X). C. The treaty of 1863 (12 Stat. L., 1249) provided for the cession to the United States of the reservations provided for the Indians . in the treaty of 1855; provided them with another reservation set apart by particular description; extended the present annuities for 10years; appropriated $20,000 to pay for depredations committed in 1862; appropriated $16,000 to pay the chiefs of the bands; agreed to pay the expenses of the State of Minnesota incurred in September, 1862, for sending commissioners to visit the Indians, to the extent of $1,338.15; expressly agreed to clear, stump, grub, and plow certain lands on the reservation for each of the bands; to build houses for the chiefs; to furnish oxen, log chains, plows, and other agricultural implements; establish and maintain a sawmill; and •otherwise improve and render susceptible to cultivation and habitation their new reservation, to which they were expected to immediately remove.

j Article 12 of the treaty — the gravamen of this complaint, upon the construction of which the decision herein rests— provided as follows:

> “ It shall not be obligatory upon the Indians, parties to this treaty, to remove from their present reservations until the United States shall have first complied with the stipulations of articles 4 and 6 of this treaty, when the United States sb all furnish them with all necessary transportation and subsistence to their new homes and subsistence for six months thereafter: *Provided,*That owing to the heretofore good conduct of the Mille Lac Indians they shall not be compelled to remove so long as they shall not in any way interfere with or in any manner molest the persons or property of the whites.”

On May 7, 1864, another treaty was entered into between the same parties concerning the same subject. (13 Stat. L., 693.) The annuities were again extended, and certain allotments in fee out of their respective reservations were made to their réspective chiefs. Substantially the same provisions for the cultivation and improvement of their new habitat *451were incorporated therein, although the amounts therefor were increased ($25,000 was appropriated for agency buildings) and article 12 of the treaty of 1863, *supra,*was repeated verbatim as article 12 of the treaty of 1864.

In April, 1811, filings for homesteads and preemption entries were made under the public-land laws, principally in soldiers’ additional scrip, upon the lands of the Mille Lac Indian Reservation. Up to March 31, 1884, 55,976.42 acres of the total acreage of 61,028.14 had been filed upon as open to settlement. On June 20, 1871, the Interior Department ordered the suspension of all entries alleged to have been made under the treaties of 1854 and 1855 and notified the parties that the same would be canceled, and on September 23,1871, all entries made up to that date were canceled. Subsequently, -on March 1, 1877, the Hon. Z. Chandler, then Secretary of the Interior, reversed the preceding decision as to cancellation of above entries, but suspended the execution of his decision and directed the discontinuance of the filing of entries until the close of the next Congress, holding all existing claims in *statu quo.*In 1878 Hon. Carl Schurz, then Secretary of the Interior, reversed the decision of his predecessor and directed the local land office to discontinue filings upon the lands embraced within claimants’ reservation. Notwithstanding the express inhibitions contained in the two decisions of the. Secretary of the Interior, the officers of the local land office, who were the same incumbents of the offices of register and receiver when the decisions were announced, continued the receipt of entries until, in March, 1879, they had allowed soldiers’ additional homestead entries upon the Mille Lac Indian Reservation to the extent of 23,913.46 acres of land. Secretary Schurz promptly canceled all the entries made in contravention of his express orders, designed as they had been to withhold from public settlement this particular Indian reservation until the rights of the Mille Lac Indians therein could be ascertained.

On May 10¡ 1882, Hon. Henry M. Teller, Secretary of the Interior, reviewed at length the legal status of the disputed entries upon the Mille Lac Reservation, and decided that a sufficient acreage of the Mille Lac Reservation necessary to maintain and support the diminished band should be set aside *452for them, and the surplus lands after said ascertainment should be open to settlement as part of the public domain.

In 1884 the Congress passed the act of July 4, 1884 (23 Stat. L., 76, 98), providing that none of the aforesaid lands should be patented or disposed of in any manner until further legislation by Congress. On January 14, 1889, Congress passed an act “ For the relief and civilization of the Chippewa Indians in the State of Minnesota.” (25 Stat. L., 642.)

Section 1 of this latter act provided for the appointment by the President of three commissioners to negotiate with all the different bands or tribes of Chippewa Indians in the State of Minnesota for the complete cession and relinquishment in writing of all their reservations in said States, except the White Earth and Ned Lake Reservations, and so much of said reservations as, in the judgment of the commissioners, was not necessary to fill the allotments required by this act, said cession and relinquishment to be deemed sufficient when assented to by two-thirds of the male adults over 18 years of age residing and belonging to the several reservations, except as to the Red Lake Reservation, which required the assent of two-thirds of all the Chippewa Indians in the State, provision being made for a census to ascertain the percentage of assent, and upon approval by the President to become conclusive and irrevocable.

Section 2 provided for the qualification of the commissioners and fixed their compensation.

Section 3 provided ■ for the removal of all the Indians from their reservations to the White Earth Reservation, except the Red Lake Indians, who were to retain their own reservation. Individual allotments were to be made to the Red Lake Indians on their reservation, and all other Indians so removing were to be allotted lands on the White Earth Reservation, provided, however, that any individual Indian disinclined to remove to the White Earth Reservation might take an allotment on the reservation where he lived at that time.

Section 4 provided that subsequent to the cession and relinquishment the Commissioner of the General Land Office should cause the ■ lands to be surveyed the same as other *453public lands, and after making report thereof to the Secretary of the Interior examiners appointed by the latter should go upon the lands, subdivide the same in 40-acre tracts, appraise at not less than $3 per thousand feet board measure the pine timber thereon, and classify the same into what should be known as “ pine lands ” and those without pine timber into “ agricultural lands.”

Section 5 provided for tire sale at public auction, after extensive public notice, of the “pine lands” mentioned in the preceding section. The pine lands were to be offered in lots of 40 acres each, and in no event to be sold for less than appraised value. The surplus lands failing to sell at auction should be sold at private sale under same conditions.

Section 6 provided for the disposition of the surplus of agricultural lands over the acreage required by the terms of the act. The agricultural lands were to be thrown open to homestead entries to actual settlers only at $1.25 per acre, and, saved by a proviso to said section, previous valid and subsisting preemption and homestead entries to be patented according to the decisions in force at the date of its allowance. It also gave to any person who had not theretofore had the benefit of the preemption or homestead laws and who had failed from any cause to perfect his title the right to avail himself of the provisions of this act.

Section 7 provided that all money accruing from the sales provided for in the previous section, after deducting the expenses incident to the surveys, etc., should be placed in the Treasury to the credit of the Chippewas as a permanent fund, to draw interest at the rate of 5 per centum per an-num for 50 years, said interest to be computed annually and disbursed in annual payments to the Indians: One-half of same to be paid to heads of families and guardians of orphan minors; one-fourth of same to be paid to all other classes of Indians; and the remaining one-fourth to be expended under the direction of the Secretary of the Interior for the establishment and maintenance of public schools. The principal fund was to be distributed per capita at the expiration of the 50-year period among the Chippewas then surviving. The United States further agreed to advance as *454interest upon said fund the sum of $90,000 per annum and continue said advancement until the principal fund herein provided for, exclusive of deductions, should equal or exceed the sum of $8,000,000’, in which event the advancements made herein were to be repaid.

Section 8 simply provided for the necessary expenses of carrying into eifect the provisions of this act.

The respective bands of Chippewa Indians accepted the terms of the act of January 14, 1889, and executed in writing their assent thereto. The relinquishment of the claimant Indians will be found in full in Finding IX.

There was another treaty entered into between the same parties on March 19, 1867, the provisions of which simply changed the boundaries of the reservation ceded to the Indians by article 2 of the treaty of May 7, 1864. It does not modify to any considerable extent the previous status of the Indians, and throws no light upon the controversy referred by the special jurisdictional act.

On December 19, 1893 (28 Stat. L., 576), and again on May 27,1898 (30 Stat. L., 745), the Congress by joint resolutions validated the entries made upon claimant Indians’ reservation and directed the issuance of patents therefor if regular in other respects.

On May 27, 1902 (32 Stat. L., 268), the Congress appropriated $40,000 to pay claimant Indians for improvements upon their reservation upon condition of their removing therefrom and their acceptance in council of the provisions of this act. Provision was made for the reservation to any individual of the tribe of land purchased or leased by him from any person having title thereto from the Government.

The petition herein alleges that the claimant Indians, by virtue of the twelfth article of the treaties of 1863 and 1864, reserved to themselves the right of occupancy of the Mille Lac Eeservation as defined in said treaties; that they never by violation of the condition expressed therein forfeited said right until the same was voluntarily transferred to the United States by their assent to the act of January 14, 1889; ■that the United States failed to carry into execution the provisions of the act of January 14, 1889, and instead of *455appraising and selling their pine and agricultural lands, did, by the resolutions of December 19, 1893, and May 27, 1898, by validating past entries and approving future ones, open to public settlement under the public-land laws all their reservation, of which they have been deprived. The damages claimed, aggregating three millions of dollars, are rested entirely upon the provisions for the sale of their lands found in sections 5, 6, and 7 of the act of January 14,1889.

The jurisdictional statute refers a claim; it determines no rights other than the one to litigate; provides a forum with authority to ascertain, adjudicate, and enforce rights. The question of damages alleged to have been suffered by claimant Indians must be determined by the court upon the same legal principles as appertain to controversies between individuals,' and while it defines the nature of the cause of action and recognizes the justice of its determination, it extends no further as respects the merits of the issue. *(Stewart*v. *United*States, 206 U. S., 185.)

The jurisdiction • of the court is challenged by the defendants. The contention is the plenary authority of Congress over Indian tribes and tribal property. The question of Indian policy is a political one, immune from the action of the courts. *(Cherokee Nation*v. *Hitchcock,*187 U. S., 294; *Lone Wolf*v. *Hitchcock,*187 U. S., 553.) The court recognizes the force of the decisions cited, and if this case came within them would dismiss it immediately. We are not dealing with acts regulating the administration of Indian property and Indian funds in the sense of their validity or invalidity. The question at issue rests upon the construction of treaties and acts of Congress and rights acquired thereunder. The authority of Congress in the premises is not questioned. The jurisdiction conferred extends to an inquiry as to what if any damages the claimants suffered by reason of an alleged taking of their property acquired under treaties which failed of execution because of acts of Congress. It is a warrant of authority to adjudicate results and not determine the means employed to bring about the same. In *Cherokee Nation*v. *Hitchcock, supra,*the court said: “ There is no question involved in this case as to the taking of property; the authority which it is proposed to *456exercise, by virtue of the act of 1898, has relation merely to the control and development of the tribal property, which still remains subject to the administrative control of the Government, even though the members of the tribe have been invested with the status of citizenship under recent legislation.” *Lone Wolf*v. *Hitchcock*followed the Cherokee case, *sufra,*and the court therein was dealing with administrative measures designed to control Indian property, “ a mere change in the form of investment of Indian tribal property.”

This court has in the past considered numerous cases similar to this, one quite recently decided, *The Ute Indians*v. *United States*(45 C. Cls., 440), wherein a judgment for over $3,000,000 was awarded the claimants, and no appeal therefrom taken by the United States. The additional point as to the right of the claimants to sue as an individual band necessarily follows the development of the case and is determined thereby.

The proviso to article 12 of the treaties of 1863 and 1864, “ That owing to the heretofore good conduct of the Mille Lac Indians they shall not be compelled to remove so long as they shall not in any way interfere with or in any manner molest the persons or property of the whites,” is claimed as the basis of claimant Indians’ title to the Mille Lac Reservation. These two treaties, substantially identical in so far as this case is concerned, were negotiated in consonance with the general governmental purpose to acquire the Indian domain and at the same time provide equitably for the Indians until advancing civilization should absolve the Government from their care and maintenance. The Indians at this time were parting with their reservations, a transaction quite solemn on their part. Their savage reverence and almost holy attachment to their native habitats, the place of the burial of their dead, the country of their fathers, caused them more than once to cling to their reservations with a persistence that yielded only to the force of arms or the decrees of nature. They were always reluctant to move. The Mille Lacs, parties to the treaties, were jointly and commonly interested in the reservations of the Mississippi Chippewas, being ceded by the treaties, their assent to the treaties was, or at least was supposed to be, indispensable to its effective execution, and *457the language of the proviso to article 12, repeated in both instruments, was intended for some purpose, and it manifestly-conferred some rights. Was it a reservation of their lands, the right to occupy the same under the express conditions of the reservation, or was it a mere license or favor, a temporary cession, a right of sufferance, as suggested by the .defendants?

The title to Indian lands vested in Indian tribes was the right of occupancy, the ultimate fee in the lands was in the United States, and the right of conveyance by the Indians was limited to the United States or to some one else by their express consent. This rule following the case of *Johnson*v. *McIntosh*(8 Wheat., 548) has obtained without interruption through the whole course of judicial procedure from that early time until the present day. *(Jones*v. Meehan, 175 U. S., 1; *United States*v. *Winans,*198 U. S., 371.)

In construing Indian treaties ambiguities and doubtful clauses should be construed in favor of the Indians. This rule is ancient and elementary. It is predicated upon the disparity in intelligence between the contracting parties, the lack of a comprehensive written language for the Indians, and the innumerable and manifest opportunities to misinterpret the meaning of treaty stipulations. The intention and understanding of the Indian tribe of the rights secured to them by conventions of this character is of paramount importance, and councils at which they were ratified and confirmed are admissible in evidence to this end. They are not to be construed according to the technical meaning of the words employed, but in that generous and comprehensive manner which justice exacts in dealings between a strong and intelligent party on the one side and an illiterate and inferior party on the other. *(Worcester*v. Georgia, 6 Pet., 515; *Choctaw Nation*v. *United*States, 119 U. S., 1; *Jones*v. *Meehan, supra, United States*v. *Winans, supra.)*

A proviso to a statute (likewise a treaty) is purposed to qualify or except from the general operation and effect of the enacting part persons and property, or the conditions upon which persons and property will not be effected by the result sought to be accomplished. Likewise, it is imperative in ascertaining the intention of the parties to a contract ambiguous in terms, that all the surrounding circumstances and *458conditions under which the transaction was consummated shall be taken into consideration.

It will be observed that the treaty of 1863 was executed on March 11 of that year. The date is important, for at the time the United States was engaged in war. In August, 1862, Hole-in-the-Day, a famous Chippewa chief, became hostile to the United States and attempted an uprising among the Indians, with intent to join forces with the then hostile Sioúx, whose terrible atrocities and fearful massacre of innocent men, women, and children terrorized the whole State of Minnesota. It was a disturbance much to be deplored at this particular juncture in the Nation’s history and fraught, as it was, with imminent danger to the poorly protected white people, whose soldiers, previously stationed among them, had been largely drawn into the service of the Government. Shaw-vosh-kung (a name as variable in spelling as pronunciation), the chief of the Mille Lac Band of the Chippewas, headed an expedition to extend relief, if necessary, to Fort Fisher, then in possession of Commissioner Dole, of the Indian Office, and 35 United States soldiers, declined to aid the hostility of Hole-in-the-Day, and by thus withdrawing his support and that of his band, in the neighborhood of 800 strong, and enlisting in the cause of the Government, frustrated the proposed massacre of the whites and forced the peace of the Indians. In a short time thereafter Commissioner Dole- gathered together the chiefs and headmen of the Chippewa bands and, accompanying them to Washington, assisted in and accomplished the execution of the treaty of March 11, 1863. It is conceded and incontrovertible that the consideration for the proviso in article 12 of both treaties was the services rendered the Nation by the' Mille Lac Band of Chippewas in declining to join and in assisting to prevent an Indian uprising in the midst of a civil war. This is the good conduct referred to in the proviso, and to this treaty the name of William P. Dole is attached. The language of the proviso would be difficult to construe in any other way than the granting of a right of occupancy to the Mille Lac Band. That they should not be compelled to remove was certainly equivalent to a right to remain. Remain where? Why, on the Mille Lac Reservation, for all *459other reservations had been by the treaty ceded to the Government. Were the Mille Lacs engaged in the meaningless ceremony of ceding away all their right to the lands to which they were attached with a fondness heretofore described? Was the discrimination in their favor the reward for their signal services of loyalty, a granting of a mere license to live on their reservation, bury their dead there, build their improvements, and then to be dispossessed at the pleasure of the advancing whites ? The governmental policy at the time, as since, was to encourage the Indians to take permanent places of abode, improve their reservations, cultivate the soil, and otherwise acquire the habits and industry of the whites. Every article of the treaty abounds in generous promises of material assistance to this end. Their tenure, it is true, was conditioned upon good behavior toward their white neighbors ; but can it be said that this alone converted the ordinary title of right of occupancy into an anomalous Indian title, one of license and favor? Defendants urge that the condition anticipated settlement of the lands by the whites and the interference inhibited was to approaching settlers. Is it not more reasonable to suppose it referred to the neighboring whites, those adjoining the reservations? It could not possibly have meant any whites on the reservation at the time, for the law expressly prohibited their presence on an Indian • reservation. Article 3 of the treaty set aside $20,000 to pay for depredations committed by the Chippewas in 1862. Is it not just as reasonable to suppose that the provision intended a restraint upon further conduct of this character ?

Commissioner of Indian Affairs Price, in an exhaustive letter upon this subject, written in April, 1882, in analyzing this feature of the claimants’ title, said:

> ’ *“*Manifestly, I think, reference was intended to the white settlers occupying the surrounding country, their neighbors especially, for there could have been no whités lawfully living upon the reservation at that time, and it was hardly intended in anticipation of the entry and settlement of whites upon the reservation and with a view to their protection, for the Indians being in occupation, the introduction of whites into their midst would unquestionably result in conflict at once; indeed, it is not difficult to see that such common occupancy by Indians and whites would be quite impossible. *460The Indians were there, and until they were removed, either by their own consent or by reason of the forfeiture of their right of occupancy, the whites manifestly must keep out. * * * jror the sake of argument, let us suppose that the language of the proviso was intended to apply to settlers coming upon the reservation. Then the Indians, if they would not work a forfeiture of their right of occupancy, must not interfere with or molest either the persons or property of such. Surely nothing more. It does not provide that they shall make way for or vacate or abandon any improvements or shelter they have or land to these people. It is only required that they shall not interfere with or molest either their persons or property. These words (‘interfere’ and ‘ molest ’), when employed in such connection in respect of the conduct or action of Indians, are, I think, to be interpreted in their worst sense. And when it is remembered that only a few months before the treaty was made the whole country there had been thrown into a state of the greatest alarm on account of the uprising of the Indians of that section, it is clear to my mind that the framers of the treaty intended that they should be interpreted in on other way,” ■

The qualifications to the reservation were in most respects surplusage. If the Indians had persisted in bad conduct toward the whites, if they had assumed a hostile attitude toward the people and the Government, the military arm of the United States would have promptly interposed. In addition to all this the Government made no effort by treaty or legislation to dispossess said Indians or in any manner disturb their occupancy of this reservation until 1886, notwithstanding the violent and most persistent controversies, sometimes favorable, sometimes unfavorable, going on between the Land Office and anxious entrymen.

In some Indian treaties the right to hunt over and fish in the waters adjoining the ceded reservation is excepted from the treaty, and in some instances express words have reserved rights to the ceding Indians. The language used to establish said reservations has most generally been positive and unambiguous, leaving no doubt as to the intention of the contracting parties. If a mere license to pursue game was intended, apt language expressed the same; if possessory rights were conferred, doubts as to the extent of title were removed by the context of the article creating the same. (Kappler’s Treaties, vol. 2, pp. 19-22.)

*461No mere license to fish and hunt was conferred upon the Mille Lac Indians by article 12 of the treaty of 1864; if so, the language used would have clearly expressed the same. The distance between White Earth and Mille Lac negatives this intention. What other Indian right then could have been intended save the right of occupancy? The word “ remove ” as used in the treaty has especial reference to a change of residence, for that was the subject matter of the negotiations. The Mille Lac Indians resided on their reservation and had been there since 1855. If they intended to cede their lands and at the same time reserve to themselves a right of residence thereon, a possessory right as strong as they could possibly acquire, then the treaty could have no application to their particular lands, and served as a conveyance of their cotenancy rights in the common reservations of the tribe. It confirmed rather than extinguished their rights under the treaty of 1855. The language of article 12 is not ambiguous and if considered apart from the context of the whole instrument could convey but one meaning. And when considered in connection with the context of the treaty, the purposes to be accomplished, and the circumstances attendant thereon, its meaning is in accord with similar provisions in previous Indian treaties. Why, this very article in the treaty of 1864 by a subsequent provision reserves to the Sandy Lake Indians a coextensive right with the Mille Lacs. The provisos were unquestionably inserted as favorable clauses to secure the free assent of the Indians to the treaties; they were the result of negotiations and the final contract of the parties. They are not unusual or anomalous. There is nothing mysterious about them, for many Indian treaties provide extensive exceptions. The very term “treaty” contemplates a series of mutual concessions and reservations to define explicitly the rights of the contracting parties, and Indian treaties were no exception to the rule.

The White Earth Reservation carved out by the treaties and embracing a vast acreage of land was 150 miles distant from the Mille Lac Reservation. It was to this reservation the Chippewas were to be removed by the articles of the treaties, and extensive appropriations were made to improve *462it and to provide for schools and other civilizing influences. Many comforts, advantages, and conveniences were open to the Mille Lacs if they would remove. The inducements were all extended to accomplish the *removal*of the Indians to secure a cession of their lands that they might be thrown open to public settlement. Under all these circumstances it seems improbable that astute and experienced Indian officers charged with the special duty of securing this treaty would overtly and intentionally leave upon an Indian reservation a large band of loyal Indians 150 miles away from the reservation provided for the other bands with no greater security of title, no greater right than one subject to the cupidity, as it afterwards proved to be, of covetous lumbermen.

Numerous Indian cases have been before this court involving millions of acres of land and millions of dollars in money, but in no one of them, after a most careful examination, can the court find a contention similar to this, wherein Indian title is made to rest upon sufferance, as distinct from their right of occupancy, the greatest title they could possess. It is said by the defendants that the provision in article 4 for the improvement of *70*acres for the Mille Lac Band on the White Earth Reservation evidences an intention to effect their removal thereto. The answer to the contention is twofold. First, why didn’t they do it? The opportunity was at hand, and the Indians were at peace and assented to the treaty. Second, the language of the proviso gave the Mille Lacs an option, a right of election to remain or go. “ They shall not be compelled ” is the language of the proviso. They elected to remain, and during the subsequent years of their occupancy fulfilled the conditions of their tenure, a fact fully attested by every Indian agent and every other witness in the record. It is conceded by the defendants that the claimant Indians did not molest or interfere with the persons or property of the whites. It is true that evil practices contaminated to some extent the personal conduct of individual Indians. The introduction of whisky was the prime cause. White Earth was not free from the same evil and the surroundings there as respects the opportunity to procure and indulge intemperately in this commodity were about the same as at Mille Lac.

*463Tbe Mille Lac Indians understood at tbe time of the execution of tbe treaty that they were securing and reserving to themselves tbe Mille Lác Reservation. The treaty, as before observed, was negotiated in Washington, and no record of the proceedings incident thereto is available. Senator Henry M. Rice, a gentleman of large Indian experience, a devoted and trusted friend of the Indians, was one of the commissioners appointed to assist in the procurement of the treaty, and his name is affixed to the treaty of 1863. In 1889 Senator Rice was again selected to secure the assent of the Indians to the act of January 14, 1889. On October 2, 1889, on the Mille Lac Reservation, addressing a council of the Mille Lac Indians assembled for this purpose, he used this language : “ I wish to refer to an old matter that has given you a great deal of trouble. That is the treaty made at Washington some 25 years ago. I was there, and know all about it. It was a wise treaty, and if it had been properly carried out you would have escaped all the trouble that has befallen you. Men who cared more for themselves than they did for you thought they had found a hole in it, and they would take advantage of that and deprive you of your rights. They knew that the Government was engaged in a great war which occupied all its time. They thought that under the circumstances they would be able to drive you from this reservation. * * * The time has come when I am able to tell you that all he said, all I have said to you, all the chiefs told you who were there and made the treaty, is correct. Here is the acknowledgment of the Government that you were right, that ‘ you have not forfeited your right to occupy the reservation.’ ”

On May 15, 1886 (24 Stat. L., 44), the Congress appropriated $15,000 to enable the Secretary of the Interior to negotiate with the several tribes and bands of Chippewas in Minnesota for modification of existing treaties and such changes in their reservations as might be deemed desirable and best by the Indians and the Secretary. In pursuance of the above act the Secretary appointed Hon. John V. Wright, a jurist, Bishop H. B. Whipple, and Hon. Charles F. Larrabee to carry forward the negotiations. On October 9, 1886, on the Mille Lac Reservation, Mr. Larrabee, in ad*464dressing the Indians in council assembled in the course of an attempt to secure their removal from Mille Lac to White Earth Eeservation, used these words: “ Long ago you peded your reservation to the United States, with the understanding, however, that you were not to be compelled to remove so long as you did not molest or interfere with the persons or property of the whites. That is all the rights you have in this land — a very feeble tenure.” On the following day the Mille Lae Indians expressed great surprise at the statement of Mr. Larrabee, and in more than one public address disclaimed his construction of the treaty, contended for their right of occupancy, and finally grew so indignant over the matter that they withdrew from the council and terminated the negotiations. A subsequent council called for the same purpose, conducted by the same parties, again proved abortive because of a similar statement conveyed to the Indians by the commissioners and supplemented by a written opinion of the Secretary of the Interior. In 1889 and again in 1902 the Indians persisted in their right of occupancy and approved agreements with the distinct understanding that all claims under the former treaties should be preserved. Their complete understanding of the treaty is manifested not only by their words spoken in council meetings, but by the dogged persistence with Avhich they retained their residence on the Mille Lac Eeservation under most discouraging circumstances until subsequent to the cession of 1889.

In the case of *California and Oregon Land Co.*v. *Worden*(85 Fed. R., 94) the Congress in 1864 granted to the State of Oregon alternate sections of public land for three sections in width, to aid in the construction of a military road. Subsequently it appeared that the land so granted was embraced within Indian country. A treaty negotiated with the Indian owners of the land in the same year secured a cession to the United States of the Indian lands, with a proviso, however, that a particular tract embraced within the general cession should be set apart as a reservation for the Indians until otherwise directed by the President. All the lands to the extent of 130,000 acres taken under the congressional grant were located within the lands set apart by the proviso. Plaintiff’s contention was predicated upon the general cession *465of all the Indian lands embodied in the first articles of the treaty, insisting that the proviso was a reservation subsequent to the vesting of their title and invalid. The court held that the Indians had not by the terms of the treaty ceded title to their reservation; that it was not a cession and recession of reserved lands, but a mere reservation to the Indians of the same right and title they originally had. This case is exceedingly apropos.

In *United States*v. *Winans*(198 U. S., 371) the Supreme Court construed a treaty with the Yakima Indians made in 1859. The Indians by the treaty ceded to the United States their vast estate except a certain reservation. Article III of the treaty provided for an exclusive right of taking fish in all streams running through or bordering on their reservation and a similar right at all usual and accustomed places in common with the citizens of the Territory. Subsequently the ceded lands were patented and the Indians were excluded by the owners in fee from the fishing privileges guaranteed by the treaty. Respondents contended that the Indians’ rights under the treaty were no greater than the white man’s under conditions of absolute ownership; that the fee being in him he had a right to exclude the Indians from his premises. The court said in overruling this contention, “In other words, it was decided that the Indians acquired no rights but what the inhabitants of the Territory or State would have. Indeed, acquired no rights but such as they would have without the treaty. This is certainly an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more. * * * In other words, the treaty was not a grant of rights to the Indians, but a grant of rights from them — a reservation of those not granted.” *(Spalding*v. Chandler, 160 U. S., 394.) If the privileges granted by Article III of the above treaty were superior in extent and duration to a mere license, it is quite difficult to reconcile the taking of a home — a supposed place of permanent abode — with the idea of such feeble and uncertain tenure as an estate by sufferance. *(United States*v. Thomas, 151 U. S., 577.)

*466The act of January 14, 1889, following as it did years of discussion as to tbe rights of the Mille Lac Indians to their reservation, would seem to confirm their title in every respect were it not for the second proviso to section 6 thereof. This proviso, validating certain homestead and preemption entries made on Chippewa lands, and extending additional privileges as to entries not theretofore perfected, brings forth a defense that this act does not apply to the Mille Lac Reservation. In other words, the restrictive provisions applying to the sale of the Indian lands extends only to the diminished White Earth, Red Lake, and other reservations not embraced in the cessions of 1863 and 1864. Defendants’ contention is rested upon the various and conflicting decisions of the Interior Department emanating from controversies in the General Land Office. The Mille Lac Reservation, like all the other Chippewa reservations in Minnesota, was rich in pine timber. Squatters had sought to acquire rights in this particular reservation prior to 1871, and the complaints about the same were numerous and persistent. The timber lands were valuable in 1864 and enhancing in value as time progressed. As soon as the treaty of 1864 was proclaimed this controversy arose. If the reports of regular and special Indian agents are to be credited, it was conceived in fraud and developed by deceit and circumvention. The findings show that as early as November 13, 1871, the special agent in charge of Indian affairs in this locality, in conjunction with a special representative of the Indian Office, after a detailed and special examination of all the entries for land up to that date, denounced practically every one of them of every class and description as fraudulent and corrupt. The entries were not made in good faith, but with a notorious attempt to preempt the pine lands to the exclusion of agricultural lands. We have examined with great care the opinions of Secretaries of the Interior Chandler and Teller, alleged to be adverse to claimants’ contention. In each of these opinions the rights of the Mille Lac Indians, acquired under the treaties of 1863 and 1864, are fully respected. Secretary Chandler suspended his decision to await legislation in behalf of claimants, and Secretary Teller confirmed claimant Indians’ right of occupancy to so much of the Mille Lac Reservation actually nec*467essary for tbeir habitat. An opinion of Secretary Lamar, conveyed to the Mille Lacs in council in 1886, is quoted as adverse to claimants’ contention. The opinion is set forth in-the findings. Its brevity alone arouses the suspicion that the Secretary had probably subscribed to a document prepared by some subordinate in the Land Office. It seems most improbable that a jurist of such great eminence would dismiss a subject of such magnitude and prolonged discussion with so few words. The opinion supplementing another at the same time would seem to have been prepared in haste and for the avowed purpose of securing the assent of the Indians to the act of 1886, and which we submit does not in any way negative the conclusions reached herein. Up to January 14, 1889, four Secretaries of the Interior and at least two Commissioners of the General Land Office had delivered conflicting opinions in respect to the claimants’ title to this reservation. The greater proportion of the land entries received and entered by the officials of the local land office were so made in direct violation of express orders from the Interior Department prohibiting the same, an infraction and disobedience which finally became so acute as to result in the dismissal from the service of one of the offending officials.

The defendants in this case ask for a specific finding of a conspiracy between eminent public. officials and the local land officials at Taylor Falls, Minn., to enter over 23,000 acres of this reservation, which was at the time thwarted by the vigilance of the Interior Department. In 1884 Congress halted the whole proceedings, and with the exceptions noted in the findings patents were suspended and entries prohibited. In 1886 Congress attempted the removal of the claimants to make way for settlers and failed. Therefore, in 1889 Congress had before it a controversy with respect to Indian pine lands extending over a period of 18 years. The legislation then enacted superseded the general-land laws, conserved the valuable resources of the Indians, and threw around the disposal of their pine such positive restrictions as to prevent its fraudulent acquirement. Why this great necessity to erect barriers against fraud and corruption save the prevalence of this stealthy practice as against these claimants ? Are we to presume that the salutary legislation *468of 1884 was repealed by a proviso in an enactment made for the general purpose of forestalling the very thing the act of 1884 did prohibit? Repeals by implication are not favored in law. The debates in Congress incident to the passage of the act of January 14, 1889, indicate a legislative intention to prohibit by the terms of the act the unwholesome and corrupt practices previously obtaining as to the acquirement of Chippewa timber lands. - If this proviso was intended to ratify repeated transactions, for the most part fraudulent in character previously committed, and leave the statute operative only as to future transactions, it was a most singular division of justice between unoffending parties. The language of the proviso negatives such contention. Only “ subsisting, valid, preemption, or homestead entries ” were to be proceeded with and in accordance with *the decisions*in force at the date of its allowance. Can it be contended that this language embraced that large and most numerous class of claims entered in positive violation of express instructions? Can it be said that a single case now in issue respecting pine lands, in view of the numerous and conflicting decisions of the Secretaries, was *stare decisis*at the time of its allowance? At the time of the passage of the act of January 14, 1889, comparatively few patents had been issued as against claimants’ lands and absolutely no continuity of decision or construction of law had obtained in reference to rights of entrymen. On the contrary, it was unsettled and uncertain. The language of the proviso only authorized future proceedings in accordance with settled law. In fact, the second and third provisos to section 6 of the statute do not relate at all to pine lands. They are applicable only to agricultural lands and were eminently fair and just. The entire section is devoted to the disposal of agricultural lands and the provisos save to bona fide settlers their lights under the laws in force at the time of their filing. The second proviso, confirming this position, absolutely protects the Indian rights in these same lands and in no wise injuriously affects the generous provisions as to disposition of funds arising from their settlement. The stringent provisions found in the first proviso to section 6 are intended to prevent a recurrence of the particular frauds practiced to *469secure patents which had so generally obtained as to the pine lands. No provision whatever is made for a public settlement upon pine lands; they were to be disposed of by public and private sales. The act in question was securing to the United States a cession of at least 3,000,000 acres of Indian land, the classification of the same being preliminary to its disposition in favor of the Indians. Congress recognized the paramount value of the timber tracts and the danger of their acquirement by lumber corporations for a nominal consideration. The agricultural lands, not so valuable, and hence not so inviting, were to be opened under the provisions of the law to bona fide homesteaders, and the rights of the comparatively few in number who had, in good faith, intending to secure a home, filed thereon were to be respected.

The Department of the Interior, the commissioners appointed by the President to procure the assent of the Indians to the act of January 14, 1899, all treated the Mille Lac Indians as coming within the purview of its provisions. A council extending over several days was held on the Mille Lac Reservation to secure their approval thereto; they were positively and repeatedly assured by the representatives of the Government that they were within its terms; and their *written relinquishment*of their title to the same, executed by a majority of the tribe residing on the reservation, was secured upon the faith of said representations. Absolutely no doubt existed then as to the scope of the law or its applicability to claimant Indians. The fact of allowance of homestead entries to the chief of the band and his son argues little. We need not cite authorities to sustain the proposition that the Interior Department is entirely without authority to issue valid patents to Indian lands. *(United States*v. Carpenter, 111 U. S., 347.) If these patents are at all valid, they must rest upon treaty rights or statutory law.

The Mille Lac Indians were the only band mentioned in the treaties of 1863 and 1864 subsequently asked to relinquish their reservation under the act of January 14, 1889. Surely their status was something different from that of their ancient allies.

The Congress as late as July 22,1890, treated the Mille Lac Reservation as Indian lands, for on that date an act was ap*470proved granting a railway company a right of way and other privileges through and upon the reservation, expressly reserving to the Mille Lacs in their tribal capacity the damages incident thereto. (26 Stat. L., 290.)

The technical language used in the written instrument subsequent to claimants’ assent to the act of January 14,1889, is cited as indicating a difference in title as to claimant Indians. The use of the word “ relinquish ” when speaking of the *Mille*Lac Reservation-as distinguished from the word “cede” when referring to the White Earth and Red Lake Reservations can hardly be relied upon in the determination of Indian title. The words are frequently used in Indian treaties con-junctively, and in so far as they affect the conveyance of Indian title the employment of either word would effectively divest the Indians of their right of occupancy. It is quite true that to the trained lawyer they have a distinct technical significance, but are so, nearly synonymous that even they employ them carelessly. In construing Indian treaties their technical significance vanishes.

In *Worcester*v. *United States*(6 Pet., 236) Chief Justice Marshall, in language so directly applicable to this case that we cite it in full, said: “ It is reasonable to suppose that the Indians, who could not write, and most probably could not read, who certainly were not critical judges of our language, should distinguish the word ‘ allotted ’ from the words ‘ marked out.’ The actual subject of contract was the dividing line between the two nations, and their attention may very well be supposed to have been confined to that subject. When in fact they were ceding lands to the United States and describing the extent of their cession, it may very well be supposed that they might not understand the term employed as indicating that instead of granting they were receiving lands. If the term would admit of no other signification, which is not conceded, its being misunderstood is so apparent, results so necessarily from the whole transaction that it must, we think, be taken in the sense in which it was most obviously used.” The rule established by this case has been followed by the Supreme Court in construing Indian treaties ever since. *(Jones*v. *Meehan; United States*v. *Hitchcock; United States*v. *Winans; Cherokee Intermar*
      *471
      *riage*Cases, 203 U. S., 76, all heretofore cited; and many other cases too numerous to mention.) It is well-settled law.

The Mille Lac Indians in this instrument expressly recited that they were dealing with the Mille Lac Reservation occupied and belonging to them “ by virtue of a clause in the twelfth article of the treaty of May 7, 1864 (13 Stat., p. 693).”

Lastly, granting, arguendo, but not conceding the force of the defense, then in that event the provisos to the act of January 14,1889, were the initiatory legislation subsequently confirmed by the resolutions of December 19, 1893, and May 27, 1898, which deprived claimant Indians of their right of occupancy in the Mille Lac Reservation. The jurisdictional act provides for the assessment of damages “by reason of the opening of the Mille Lac Reservation only * * * to public settlement under the general land laws of the United States.” If this legislation served the purposes contended for by defendants, it likewise opened to public settlement claimants’ reservation by confirming all the entries made thereon previous to its enactment, and the various amounts provided for the Indians can well serve as a basis for damages in this cause.

On January 9, 1891, the Interior Department decided the case of Amanda J. Walters. (12 L. D., 59.) The claimant in the case had previously been allowed to make entries on the Mille Lac Reservation, and the issue was her right to a patent therefor. The Secretary confirmed her right of patent, resting his decision upon the second and third provisos to section 6 of the act of January 14, 1889, asserting therein that said provisos constituted the further legislation provided for in the act of 1884 annulling all the aforesaid entries. The decision mentioned is another of the numerous conflicting views indulged by the Land Office officials in connection with this long controversy. (5 L. D., 102, 541; 8 ib., 409; 10 ib., 2; 13 ib., 230; 14 ib., 497; 22 ib., 388.) The decision in the Walters case was followed in September, 1891, by the case of *N. P. B. B. Go.*v. *Walters*(13 L. D., 230), sustaining the claim of the claimant Indians to their right of occupancy of their reservation, holding the same was in force until ceded by the act of January 14, 1889, and on *472April 22, in an opinion by Secretary of the Interior Noble (14 L. D., 497), the rulings in the previous opinion were applied to prevent entries under the general land laws.

The resolution of December 19, 1893 (28 Stat. L., 576), by its terms was simply intended by the Congress to protect bona fide homestead filings or entries upon the Mille Lac Eeservation which had been made subsequent to the rulings in the Walters case, and by virtue thereof, and before the contrary holding in the N. P. E. E. Co. case, made on April 22, 1892, and under the opinion of April 22, 1892, the remaining agricultural lands of the Mille Lac Eeservation were opened to homestead entry under the terms and provisions of the act of January 14,1889.

The resolution of May 27, 1898 (30 Stat. L., 745), enacted as it was to put an end to the land-office controversy by which the whites were first let in and then put out, unquestionably ratified all previous entries and interposed to deny the claimants the benefits of the act of January 14, 1889. It divested them of their reservation and under its provisions the. lands upon which they so long resided have been almost, if not entirely, taken up by white settlers and lumber companies.

The act of May 27, 1902 (32 Stat. L., 268), appropriated $40,000 to pay the Mille Lacs for the improvements made upon their reservation. It can not affect this controversy and was at the most a tardy and almost inconsequential recompense to secure their removal from a reservation from which they had already been excluded by being divested of their Indian title, and upon which they had remained because of the failure to extend to them the benefits of the act of 1889. All the treaties with the Mille Lacs provided payment of expense of removal to their new reservation. The Congress by the terms of this act recognized their possession of the reservation as a tribe by authorizing the amount appropriated to be paid in accordance with tribal law adopted in council proceedings. The Indians in assenting to the above act reserved in writing all rights to which they were entitled under existing treaties or agreements, and notwithstanding the statements of the commissioners to the Indians that they had no title to the lands (a statement repeatedly contradicted by the Indians), they were assured *473by them, that their assent to the act of 1902 did not in any wise affect their assertion to prior claims arising under previous agreements and treaties. It must not be overlooked that under the act of January 14, 1889, the Mille Lacs were entitled to allotments on their reservation in common with the other Indians.

It has been most forcibly brought to the attention of the court that a judgment in this case results in a double payment to the Mille Lac Indians. In some respects this is true. It can hardly be said to be a double payment, but is more in the nature of an additional allowance or a supplemental benefit, which in any case accrues alike to all the Mississippi Chippewas mentioned in the treaty of 1864. The Mille Lacs have participated in the annuities allowed by the treaties of 1863 and 1864, and the few of the minority of the tribe who removed to the White Earth Reservation received the benefits of treaties, but the great majority of the tribe — the real Mille Lac Band, who remained on the Mille Lac Reservation — received no benefit from the provisions of the treaties providing for schools, blacksmith shops, agricultural implements, etc., on the White Earth Reservation until their removal thereto. In fact, the Mille Lac Indians remained on their reservation, claiming title thereto under the treaty of 1863, without the numerous advantages and profitable perquisites granted to the other bands of Mississippi Chippewas who did at the time remove to the White Earth Reservation. They withstood at times the most intense poverty, and while they were of good reputation among the neighboring whites, under most adverse circumstances, they willingly forbore many of the advantages of White Earth to occupy their ancient home. Under the act of January 14, 1889, they are, and under all other treaties and agreements were, entitled as fully as any other Chippewa Indian Band to the full and complete advantages and emoluments derived from the disposition of Chippewa lands held in common by the tribe. The exception granted to them was a reward for their patriotic conduct in 1862. It rests upon no other consideration, and would fall far short of accomplishing the purpose if they were held to have released all their rights in the vast area of lands set apart for the Mississippi Chippewas and *474received in turn simply their own reservation without the means of livelihood or improving the same. As was well said in the argument of the- case, it was too great a bonus to pay. If payment is now denied them the reward was an empty promise, the sacrifice of years a needless hardship.

In any event the argument is devoid of merit. The question is not one which goes to the considerations for the treaties or benefits to be derived therefrom. That is for the political department of the Government. The courts are confined alone to an interpretation of what rights did accrue, and not as to their justice or injustice. The Congress is Vested with complete authority to determine questions of this character, and its jurisdiction is exclusive.

In *United States*v. *Choctow, etc., Nations*(179 U. S., 541) Mr. Justice Harlan, speaking for the court, said:

> *“*Now, it is argued that if the interpretation placed by the United States upon the treaty of 1866 with the Choctaws and Chickasaws is accepted the result will be that the General Government has been more liberal toward the Seminóles and Creeks than it has been with the Choctaws and Chickasaws. ' But that can not constitute a reason why the court should depart from the ordinary signification of the words used in the treaty with the Choctaws and Chickasaws. If Congress chose to adopt one course toward the Seminóles and Creeks and a different course toward the Choctaws and Chickasaws, it is not for the judiciary to defeat the will of the legislative branch of the Government by giving to an Indian treaty a'meaning not justified by its words.”

In any event it is quite doubtful if any advantages will accrue to the Mille Lac Indians in view of the judgment that will hereafter be rendered in this case. 'Whatever inequality may appear is minimized by the terms and provisions of the act of January 14, 1889. This statute marshals the proceeds from the sale of all the Indian lands therein mentioned and extends to all the Chippewa Indians in Minnesota the right to participate therein. Thus it will be seen that the amount accruing to the Mille Lacs by reason of the opening up of their reservation to public settlement will become a part of the general fund provided for in the act of 1889.

*475The treaties of 1863 and 1864 reserved to the claimants the Mille Lac Reservation. They remained as a band in open, notorious possession of the same, a lawful notice to the world of a claim of title, until the resolutions of the Congress opened their domain to public settlement and divested them of title to their lands. They fulfilled all the conditions of the tenure, remained at peace with the whites, and were fully entitled to the benefits of the act of January 14, 1889, which were denied them. *(United States*v. Thomas, 151 U. S., 577.)

The court is unable to reconcile a conceded right of occupancy to Indian lands with the doctrine of limited and circumscribed tenure by license or mere favor. It is certainly most unusual and an anomalous estate not heretofore carved out of Indian lands. It is repugnant to every intendment of the Government in its conduct toward the Indians, and confuses rather than adjusts the settlement of Indian affairs. It can not be claimed as just to the Indians, failing, as it must, to bring about that permanent repose continually sought for in Indian treaties and acts of Congress. The various conflicting opinions of the Department of the Interior were the result of this contention and have carried this controversy through the long years of its existence.

The jurisdictional act is comprehensive, its evident intention being to afford relief to the clamaints mentioned therein for damages suffered by them as a band or by the Chippewa Indians of Minnesota. The language of the statute, “ a suit or suits to be brought by and on behalf of the Mille Lac Band of Chippewa Indians in the State of Minnesota * * * on account of losses sustained by them or the Chippewas of Minnesota,” precludes the idea of technical objections interposed to limit the parties interested. The suit under this jurisdiction may be brought by the Mille Lac Band of Indians for alleged damages to them as a band, or for dam-' ages accruing to the Chippewas of Minnesota by reason of injuries to them as a component part of the Chippewa tribe. It is conceded that the Congress possesses plenary power in reference to the disposition of Indian tribal lands and tribal funds. The jurisdictional act passed subsequent to the act *476of January 14, 1889, wherein distinct provisions are made with reference to the disposition and division of tribal funds and lands, anticipated ,the very situation which now exists, and intentionally broadened the jurisdiction conferred to the extent of embracing this entire controversy within the terms of the statute, whether the damages occasioned were suffered by the Mille Lac Indians separately or to the Chippewas of Minnesota. If it were not for the act of January 14, 1889, the right of the Mille Lac Indians to prosecute this action in their own name would be indisputable. The act of January 14,1889, by its terms, however, provides for an equitable distribution of the funds arising from the sale of the lands of the Chippewas therein mentioned by saying in section 7 thereof that the distribution shall embrace “ all the Chippewa Indians in the State of Minnesota.” Thus it is apparent that the Mille Lac Indians, as a band, were entitled to institute these proceedings under the jurisdictional act, and that the judgment recovered must be subject to distribution, as provided by the act of January 14,1889. The claimants having brought themselves within the provisions of the act of January 14, 1889, the congressional disposition of their tribal lands and funds follows the same. This would be so even in the event of an individual judgment to the Mille Lac Indians as a band. The jurisdictional act in nowise modifies or repeals the act of January 14, 1889. The law of 1889 being the latest legislation respecting the disposition of Chippewa tribal lands and funds arising thereunder, would apply the judgment as therein provided, for the act of 1889 controls in the matter of management and distribution of Chippewa lands and funds. *(Lone Wolf*v. *Hitchcock, supra.)*Courts are constrained to give effect to jurisdictional statutes where the intent of the legislature can reasonably be inferred from the language thereof to vest authority to judicially ascertain the merits of the controversy. *(Supervisors*v. Stanley, 105 U. S., 305.) Doubts are to be resolved in favor of juristion, unless some established law is violated. *(Endlich on Statutory*Construction, sec. 430; *Butler & Vale*v. *United*States, 43 C. Cls., 497.)

The situation of the parties herein concerned corresponds *to*the relief intended by the jurisdictional act. The Mille *477Lac Indians occupied one of the reservations included in the act of January 14,1889, and their assent thereto was secured. If no controversy was possible over their title to the reservation, their lands could have been classified, sold, and the proceeds arising therefrom disposed of in exactly the same manner as the other Chippewa Indian lands included in the act, i. e., the Mille Lac’s fund would have become part of the general Chippewa fund created by the act of 1889; hence the clause in the jurisdictional act extending the relief to damages occasioned to them or the Chippewas of Minnesota. It is similar in all respects to a suit by the Mille Lac Indians for the use and benefit of the Chippewa Indians of Minnesota. The statute recognized the peculiar relationship between the Mille Lac Band and the other bands of Chippewa Indians as created by the act of 1889 and provided authority to investigate the subject matter of the controversy as presented to the Congress at the time.

The court has experienced great difficulty in attempting to reconcile the testimony in reference to the acreage, and value of the timber thereon, contained in this reservation. The conflicting statements of the witnesses are so wide apart as to make it impossible for the court to accept either the highest or lowest estimate of the amount. Taking into consideration the testimony of the witnesses and the records of the Interior Department submitted herein, we have reached the conclusion that the Mille Lac Indian Reservation contained Cl,028.14 acres of land; that 25,000 acres of said land was swamp or agricultural land upon which no pine timber grew; that upon 34,860.89 acres of said land there was standing 100,000,000 feet of pine timber; and that 1,667.25 acres of said land was reserved for various purposes in the various treaties hereinbefore mentioned.

The amendment to the act of January 14,1889 (25 Stat. L., 642), fixing the minimum price of Norway pine at $4 per thousand feet on the stump and white pine at $5 per thousand feet, made it necessary for a careful investigation of the record in reference to the percentage of the different kinds of pine. Upon this subject the record is entirely silent and it has been absolutely impossible to ascertain with any degree of accuracy whatever the quantity of Norway and white *478pine thereon. In view of this situation the court has treated all the timber as coming within the lower classification, namely, Norway pine, and allowed therefor at the rate of $4 per thousand feet, making a total of $400,000,, to which must be added the amount of $31,250 for the agricultural or swamp lands at $1.25 per acre.

The act of 1889 provided for interest at the rate of 5 per cent per annum on the sums received from the sale of the lands therein mentioned, and the United States expressly agreed to advance the sum of $90,000 per annum to pay said interest until the accumulation should be of sufficient amount to reimburse them for this outlay.

Under this statute there must be added to the principal amount the accumulated interest at the rate of 5 per cent per annum for 15 years 5 months and 9 days, which makes the total sum of $764,210.89, for which amount judgment will be entered in favor of the Mille Lac Indians of Minnesota, to be distributed under the act of 1889, as therein provided, to all the Chippewa Indians of Minnesota.

It is S0‘ ordered.

Judge Howry reserved his' opinion.