#### MISSOURI, KANSAS & TEXAS RAILWAY CO. v. THE UNITED STATES.

[47 C. Cls., 59; 235 U. S., 37.]

*On the Plaintiff's Appeal.*

The action is to recover the proceeds of the sale of land in the Indian Territory, and rests upon the land-grant act 25th July, 1866.

The court below decides:

I.The act of 25th July, 1866, 14 *Stat. L.,*p. 236, is anomalous, its purpose being to aid in procuring a connecting line of railroads from the Union Pacific Railroad to the Gulf of Mexico and to induce competition between three parallel lines. But it comes within the purview of what are commonly designated land-grant acts.

II.The Supreme Court has uniformly held that land-grant acts are to be construed most strongly against the grantee; but that the conveyance, being by act of Congress, is always susceptible to a construction in consonance with the legislative intent.

III.The rule applicable to the present case is this: The acts making the grants are to receive such a construction as will carry out the intent of Congress, though it would be difficult to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent the court must look to the condition of the country when the acts were passed as well as to the purpose declared on their face.

*400IV.It lias been uniformly held that where a donation is a portion of the public lands, the grant is *in prmsenti,*to take effect when the line of the road is located, the grant then becoming certain and reaching back to the date of the act.

V.In construing grants *cum onere,*especially where the title outstanding was the Indian right of occupancy, the rule has been that the grant is *in prmsenti,*passing the fee subject to only one condition, the extinguishment of the Indian title, the time, manner, and conditions of extinguishing it resting exclusively in the United States.

VI.The general rule concerning a land-grant act is this: Whether the title conveyed is one *in prmsenti,*or *in futuro,*or is a conditional promise to convey, must be ascertained by taking into consideration the circumstances of the transaction, the condition of the country, and the situation of the parties.

VII.The Indian title was one of occupancy, the fee was in the United States, and the right of conveyance was limited to the United States. But though the Indian title was limited and communal, it was fully respected and generally protected by the United States.

VIII.The Government by three separate treaties with the Indians covenanted to secure them in their title to their lands. The treaties antedate the granting act, 25th July, 1866, and negative an intention to grant the same lands to a railroad company. Therefore Congress by the ninth section of the act imposed two conditions — that the Indian title should be extinguished and that the lands should become a part of the public lands of the United States.

IX.In 1871 began the new policy in pursuance of which the United States ceased to recognize the Indian tribes as dependent sovereignties and began to provide for and maintain the rights of Indians as individuals. The statutes reviewed.

X.In 1893 Congress provided for a commission to negotiate with Creeks, Chickasaws, Choctaws, and Cherokees; and the Dawes Commission procured agreements whereby the entire body of Indian lands, with certain exceptions, became the property of Indians in severalty. But the Indian title was extinguished only in the sense that the individual Indian, having a right of occupancy, acquired the outstanding title of the United States.

XI.The proviso to section 9 of the act 1866, “ *That said lands become a part of the public lands of the United States,”*means such land as is subject to sale or other disposal under general laws. It was inserted to enable the Government to discharge its obligations under the Indian treaties of 1866; *401and was precautionary legislation which in nowise limited it in extinguishing Indian titles, and exempted it from liability if the United States acquired nothing in the property.

XII.Where all the money arising from the sales of certain lands in the Indian Territory were to he credited to the Indian tribes and subsequently paid to the Indians per capita, they can not be considered as public lands of the United States.

XIII. Indian villages held by communal title came within the Indian agreements with the United States, but the United States never acquired title to them, and they were never conveyed or ceded to the United States.

XIV. An obligation to extinguish the Indian title so that a grant might attach can not be implied. It was a matter exclusively within the right of the United States to determine, and they could have continued the Indian reservations indefinitely. The condition was expressly contingent, and performance was reserved exclusively to the grantor.

XV.Where a railroad accepted the grant with the conditions imposed, the court can not enlarge the terms of the granting act so as to cover a vast area of land dedicated at the time of the grant to Indian tribes for Indian purposes.

The decision of the court below is affirmed.

Mr. Justice Holmes delivered the opinion of the Supreme Court November 9, 1914.