#### THE SISSETON AND WAHPETON BANDS OF SIOUX INDIANS v. THE UNITED STATES.

[No. 33731.

Decided April 23, 1923.]

*On the Proofs.*

*Plenary power of Congress; Indian tribal lands; jurisdiction.*— Where an act o£ Congress directs the President to assign and set aside for certain hands of Indians a tract of unoccupied land sufficient to enable him to assign to each member thereof a certain number of acres, the courts have no authority to inquire as to how the Government has carried out such provisions of Congress.

*303
      *Indian treaties; fraud and misrepresentation; jurisdiction,*— Where treaties between the Government and Indian tribes have been ratified and confirmed by the Senate, the courts have no jurisdiction to go behind such treaties and inquire whether there was fraud or misrepresentation practiced on said Indians in the inception and execution of such treaties, or to vary their terms by parol testimony, unless expressly authorized by Congress so to do.

*Attorney’s fees; contracts with individual Indians; payment.*— Where an attorney makes contracts with individual Indians for fees to prosecute certain claims, and the Government pays such fees from the funds of bands to which such individual Indians belong, there is no liability on the Government to pay such fees back to said bands.

*The Reporter's*statement of the case:

*Mr. Edward, F. Flynn*for the plaintiffs. *Mr. Mack V. Traynor*was on the briefs.

*Mr. George T.*Stormont, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

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

I. This suit was filed on March 17, 1917, pursuant to a special jurisdictional act of Congress approved April 11, 1916, entitled “An act conferring jurisdiction on the Court of Claims to' hear, determine, and render judgment in claims of the Sisseton and Wahpeton Bands of Sioux Indians against the United States,” 39 Stat. 47, which act provides:

“ That all claims of whatsoever nature which the Sisseton and Wahpeton Bands of Sioux Indians may have or claim to have against the United States shall be submitted to the Court of Claims, with the right to appeal to the Supreme Court of the United States by either party, for the amount due or claimed to be due said bands from the United States under any treaties or laws of Congress; and jurisdiction is hereby conferred upon the Court of Claims to hear and determine all claims of said bands against the United States and also any legal or equitable defense, set-off, or counterclaim which the United States may have against said Sisse-ton and Wahpeton Bands of Sioux Indians, and to enter judgment, and in determining the amount to be entered herein the court shall deduct from any sums found due said Sisseton and Wahpeton Bands of Sioux Indians any and all gratuities paid said bands or individual members thereof subsequent to March third, eighteen hundred and sixty-*304three: Provided, That in determining the amount to be entered herein, the value of the land involved shall not exceed the value of such land on March third, eighteen hundred and sixty-three. If any such question is submitted to said court it shall settle the rights, both legal and equitable, of said bands of Indians and the United States, notwithstanding lapse of time or statute of limitations. Such action in the Court of Claims shall be presented by a single petition, to be filed within one year after the passage of this act, mating the United States a party defendant, which shall set forth all the facts on which the said bands of Indians base their claims for recovery ; and the said petition may be verified by the agent or authorized attorney or attorneys of said bands, to be selected by said bands and employed under contract approved by the Commissioner of Indian Affairs and the Secretary of the Interior, in accordance with the provisions of existing law, upon information or belief as to the existence of such facts, and no other statements or verifications shall be necessary. Official letters, papers, reports, and public records, or certified copies thereof, may be used as evidence.”

II. Prior to July 23, 1851, the eastern, or Minnesota, Sioux Indians, consisting of four bands known as the Meda-wakanton, Wahakoota, Sisseton, and Wahpeton Bands, lived generally along the upper Mississippi Biver, the greater part of them on the west side of the river, but some of the Medawakantons and Wahpakootas on the east side. At an earlier period these Indians had their homes around or in the vicinity of Mille Lac, north and somewhat west of the site of the present city of Minneapolis, where they were encountered by the first white explorers of those regions. The four bands ranged generally to the westward, the Sisseton and Wahpeton Bands ranging over into the Territory of Dakota, and the Medawakanton and Wahpakoota Bands to the Big Sioux Biver, which was the dividing line between them and the Yankton Sioux on the west of them.

The Minnesota Sioux were originally all known as Meda-wakantons, but later split up into the four bands stated. The Sissetons and Wahpetons lived and hunted together, and the Medawakantons and Wahpakootas lived together practically as one band. The number of the Medawakantons and Wahpakootas combined was only about one-half that of the Sissetons and Wahpetons.

*305These Minnesota Sioux were known to the Government as the Sioux of the Mississippi, to distinguish them from the Teton, Yankton, and Yanktonais Sioux on the west, who lived along the Missouri Eiver and were known as the Sioux of the Missouri.

The Medawakanton Indians when living, on Mille Lac were designated Isanyati by the early explorers, derived from the Indian name of that lake, and all of the Minnesota Sioux were often designated as Isanyati by the Sioux of the Missouri. This name, Isanyati, was later corrupted into “ Santee,” and applied exclusively to the Medawakanton and Wahpakootas.

III. In 1851 the four bands of Mississippi Sioux, for certain consideration, ceded to the United States all of their lands in the Territory of Minnesota and the State of Iowa, the Sisseton and Wahpeton Bands by the treaty of July 23, 1851, 10 Stat. 949; and the Medawakanton and Wahpa-koota Bands by the treaty August 5,1851, 10 State. 954.

By article 3 of each of these treaties, as originally drawn and executed, a reservation was set apart for said Indians along the Minnesota Eiver with an average of 10 miles on each side of the river. The reservation for the Sisseton and Wahpeton Bands began on the east at the point where the Tchaytambay Eiver on the north and the Yellow Medicine Eiver on the south enter the Minnesota Eiver opposite each other, and extended northwesterly up the Minnesota Eiver, following its general course, to the westerly limit of the cession under the treaties. The reservation for the Medawakanton and Wahpakoota Bands began at the easterly end of the said Sisseton and Wahpeton Eeservation, and extended southeasterly down the Minnesota Eiver to where the Eock Eiver, on the north, and the Waraju Eiver, on the south, enter the Minnesota Eiver opposite each other.

The four bands were thereupon removed to their respective said reservations, after which the Sissetons and Wahpetons were known as the upper bands, and the Med-awakantons and Wahpakootas as' the lower bands, these designations having reference to their respective locations on the Minnesota Eiver. The Government thereafter, in its *306business dealings with, said Indians, generally referred to them as the annuity Sioux.

When the proposed treaties of July 23 and August 5,1851, came before the United States Senate for ratification they were each amended by striking out article 3, providing for said reservations on the Minnesota River, and in lieu thereof it was provided that the Indians should be paid at the rate of 10 cents per acre for the lands of said reservations, such payment, under each treaty, to be in lieu of the said reservation originally provided for by the treaty, and to be added to the trust fund provided by the treaty for the Indians; and that the President, with the assent of said bands, be authorized to cause to be set apart for said Indians, as soon as might be convenient after they had given their assent to the above-noted amendment, such tracts of country outside of the limits of the territory ceded to the Government by said treaties “ as may be satisfactory for their future occupancy and home ”; provided, that the President might, by the consent of the Indians, vary these conditions if deemed expedient.

The said Senate amendments, upon their submission to said bands of Indians, were accepted and ratified by them on September 4 and 8,1852, 10 Stat. 952, 958.

IY. The consideration of 10 cents per acre provided for by the said Senate amendment to the treaties of July 23 and August 5,1851, for the lands of the reservations on the Minnesota River, originally proposed by said treaties, amounting to the sum of $112,000, was paid to said bands of Indians by its inclusion in the trust funds provided by the treaties for said bands; but no tract or tracts of land for said bands were ever set apart by the President under the provisions and authorization of said amendments to the treaties.

The said bands of Indians continued, respectively, to live on the lands of said reservations on the Minnesota River, originally proposed for them in said treaties; and by act of Congress approved July 31, 1854, 10 Stat. 326, the President was authorized to confirm said reservations to said bands. No formal action under this authorization appears to have been taken by the President, but said bands were *307allowed to remain on these reservations and valuable improvements thereon were made by them.

Y. By similar treaties of June 19, 1858, 12 Stat. 1031, 1037, between the Medawakanton and Wahpakoota Bands and the United States and between plaintiff bands and the United States, it was agreed and provided that those portions of said reservations which lay on the south side of the Minnesota Elver should, respectively, constitute reservations for said bands, and that allotments in severalty should be made to the Indians from said lands, any remaining portions thereof to be held in common by the respective bands “ as other Indian lands are held.”

It was also provided that the questions of the titles of said bands to' the whole of said reservations, and the disposition to be made of the portions of them on the north side of the river, and the prices therefor, should be left to the United States Senate for decision. Pursuant to this provision, the Senate, by resolution .of June 27, 1860, 12 Stat. 1042, declared that said bands had a just and valid right and title to the whole of said reservations, respectively, and that they should be allowed the sum of 30 cents per acre for the portions thereof lying on the north side of the river. The portion of plaintiff’s said reservation lying on the north side of the river consisted of 569,600 acres, for which payment was made to plaintiff, at the rate of said 30 cents per acre, in the sum of $170,880, which payment was provided for by act of March 2, 1861, 12 Stat. 237.

Subsequently plaintiff bands received from the sale of the lands of said reservation lying on the south side of the Minnesota Eiver under the act of March 3,1863,12 Stat. 819, the sum of $647,457.93, making a total of $930,337.93 received by them for and on account of the lands of said reservation.

The entire reservation comprised 1,120,000 acres of land. The value of this land on March 3, 1863, was $1.25 per acre, or a total of $1,400,000.

YI. In August, 1862, there was an outbreak of the Sioux Indians in Minnesota consisting of the plaintiff bands, known as the Upper Sioux, and the Medawakanton and Wahpa-koota Bands, known as the Lower Sioux, during which out*308break a large number of white settlers were massacred and a great amount of property destroyed. Just prior to this outbreak the plaintiff bands, the Sissetons and Wahpetons, had a total population of 4,026 men, women, and children; and the Medawakanton and Wahpakoota Bands had a population of 2,225. By the spring of 1863, as a result of the military operations against said bands following this outbreak, the greater part of the Medawakanton and Wahpa-koota Bands, and a few of the Sissetons and Wahpetons had been captured or had surrendered and were held as prisoners of war at Fort Snelling, Minn.

In consequence of this outbreak, Congress, by act of February 16, 1863, 12 Stat. 652, abrogated and annulled all treaties between said bands of Indians and the United States, so far as said treaties purported to impose any future obligation on the United States, declared all lands and rights of occupancy within the State of Minnesota and all annuities and claims theretofore accorded to the said Indians to be forfeited to the United States, and provided for payment of the damages suffered by the citizens in said outbreak out of the funds in the hands of the Government belonging to said bands.

VII. In further consequence of said outbreak, and of the said act of February 16, 1863, Congress, by act of March 3, 1863,12 Stat. 819, provided that the President should “assign and set apart for the said Sisseton, Wahpeton, Medawakan-ton, and Wahpakoota Bands of Sioux Indians a tract of unoccupied land outside the limits of any State, sufficient in extent to enable him to assign to each member of said bands (who are willing to adopt the pursuit of agriculture) eighty acres of good agricultural lands, the same to be well adapted to agricultural purposes”; and that the several tracts of land within the reservations of said Indians on the Minnesota Fiver should be surveyed and sold, the money from such sale to “be invested by the Secretary of the Interior for the benefit of said Indians in their new homes, in the establishing them in agricultural pursuits.” It was also provided by said act that it should be lawful for the Secretary of the Interior to locate on lands of said reservations any meritorious indi*309vidual Indians of said bands who exerted themselves to save the lives of the white people in said outbreak and massacre, no one of such Indians to be allowed more than 80 acres of such land.

Pursuant to the provisions of this act, a tract of land was shortly thereafter, in the spring of 1863, selected for said bands of Indians at Crow Creek on the Missouri Eiver in Dakota Territory. At or about this time there were being held by the United States military authorities at Fort Snell-ing, Minn., as prisoners, a total of 1,601 members of said four bands of Indians, who had been captured or had surrendered; and some 264 others were held at Davenport, Iowa, under sentence of life imprisonment. Most of the remaining members of said bands were at this time either fleeing from or engaged in warfare with the United States military forces. The prisoners at Fort Snelling numbered 1,489 full-blood Indians and 112 half-breeds. Of these Indians 1,194 of the full-blood Indians were men, women, and children belonging to the Medawakanton and Wahpakoota Bands. The remaining 295 men, women, and children were Sissetons and Wahpetons, among whom were four chiefs and several headmen and influential soldiers of these tribes.

In May, 1863, these prisoners at Fort Snelling, with the exception of the half-breeds and a few scouts, were removed to the said tract of land selected at Crow Creek for said bands, arriving there May 30, 1,306 in number; and on or about July 1 following a tract of land at that point was formally set apart for said Minnesota Sioux, designated “ Sioux of the Mississippi.”

Military operations were continued against the hostile members of said bands until the latter part of 1864, by which time most of them were driven out of the State of Minnesota,, some retreating to the west of the Missouri Eiver and joining with the Teton Sioux, and some escaping north into' Canada. After the cessation of military operations against them, some of them returned eastward; and by the latter part of 1866 there were in the vicinity of Fort Wadsworth, in the eastern part of Dakota Territory, from 600 to 800' members of the Sisseton and Wahpeton Bands. An unsuccessful attempt was made by the Government to negotiate *310a treaty with these fragments of said bands, for the setting apart of a reservation for them and the extinguishment of their claim to lands in Dakota Territory, which claim was considered of doubtful character because of said lands also being claimed by other tribes or bands of Indians.

The greater part of the members of said plaintiff bands, after the cessation of military operations against them, gathered and settled in the vicinity of Fort Wadsworth, where, with the acquiescence of the Government, they remained until the Lake Traverse and Devils Lake Eeserva-tions were set apart for said bands in 1867, as hereinafter related.

It does not appear that any material number of additional members of plaintiff bands ever went to live on the said Crow Creek Eeservation set apart under the act of March 3, 1863, or that any other lands were set apart for plaintiff bands under said act; nor does it appear how many of the members of said bands were willing to adopt the pursuit of agriculture, following said act of March 3,1863.

VIII. One of the provisions of the said treaty of July 23, 1851, was the creation of a trust fund from the funds provided to be paid plaintiff bands for their cession of lands to the Government under said treaty, this trust fund to be held by the Government and 5 per cent interest thereon paid annually to said bands for a period of 50 years, and the payment of which interest was to be in full payment of and to extinguish said trust fund. Under the treaty as submitted to the Senate for ratification the amount of this trust fund would have been $1,360,000; but under the treaty as amended by the Senate and adopted by the parties thereto, it was increased to $1,472,000, by the addition of the 10 cents per acre provided for the lands of their said reservation on the Minnesota Eiver.

Prior to the said Sioux outbreak in 1862, and the said act of February 16,1863, annulling all treaties between the Government and plaintiff bands and forfeiting all annuities and claims theretofore accorded said Indians, the Government had accounted to said bands for the interest on said trust *fund;*and notwithstanding the forfeiture of their rights by said act of February 16, 1863, the Government has, under *311subsequent acts of Congress, also accounted to said Indians for the interest on said trust fund for the remainder of said 50-year period, less the amounts paid citizens for damages sustained by them by reason of said outbreak. No payment has been made by the Government to plaintiff bands for or on account of the principal of said trust fund.

It appears from the evidence that some of the members of plaintiff bands did not understand, at the time of the making of said treaty, that the payment of interest on said trust fund for 50 years was to be in full payment of the principal thereof, but understood that at the end of said 50-year period the principal was to be paid to said bands; but it does not appear that the provision of the treaty on this point was misunderstood by the chiefs and headmen who represented said bands in the making of the treaty.

IX. The said act of March 3,1863, 12 Stat. 819, provided for the sale of the lands of the former reservations of the plaintiff bands and the Medawakanton and Wahpakoota Bands on the south side of the Minnesota River, forfeited by said bands under the said act of February 16, 1863, and the investment of the proceeds thereof by the Secretary of the Interior for the benefit of said Indians in establishing them in agricultural pursuits in their new homes to be provided for them under said act of March 3,1863.

Pursuant to this provision of said act the lands of these two reservations were sold by the Government, beginning in 1865 and continuing on through a long period of time, and the proceeds applied for the benefit of said Indians. The proceeds from the sale of these lands amounted to $950,-063.71. The first $206,753.61 of these proceeds were expended jointly for the benefit of the four bands of said Indians prior to July 15,1870; and the remainder of said proceeds has been disbursed for and on account of the plaintiff bands and the Medawakanton and Wahpakoota Bands in accordance with the following provision in the act of July 15, 1870, 16 Stat. 361, relating thereto:

“That said proceeds shall be distributed and paid equitably to the said Indians, in proportion to their numbers, under the direction of the Secretary of the Interior, and in accordance *312with, existing law: Provided, That this provision shall apply only to the funds to be hereafter distributed.”

It does not appear what part of the said $206,753.61 of said proceeds expended jointly for said four bands prior to July 15,1870, was expended either for the benefit of plaintiff bands or for the benefit of the Medawakanton and Wahpa-koota Bands.

X. By Article II of the treaty of February 19, 1867, between plaintiff bands and the United States, 15 Stat. 505, said bands ceded to the United States the right to construct wagon roads, railroads, mail stations, telegraph lines, and other public improvements over and across “ the lands claimed by said bands,” said; lands being described as bounded on the east by the west treaty line of 1851 and the Bed Biver of the North — that is, by a line running northeasterly from Lake Kampeska to the head of Lake Traverse and thence northward along the western boundary of Minnesota and down the Bed Biver of the North to the mouth of Goose Biver; on the north by Goose Biver and a line running from its source by the most westerly point of Devils Lake to the Chief’s Bluff, at the head of James Biver; on the west by the James Biver, down to the mouth of Moccasin Biver; and on the south by a direct line from the mouth of Moccasin Biver eastward to Lake Kampeska, the point of beginning. And in consideration of this cession by said bands and “ of the faithful and important services said to have been rendered by the friendly bands of Sisseton and Wahpeton Sioux ” represented in the making of said treaty, and “ also in consideration of the confiscation of all their annuities, reservations, and improvements,” it was provided that there should be set apart as a permanent reservation for the members of said bands who had theretofore surrendered to the authorities of the Government and were not sent to the Crow Creek Beservation, and for the members of said bands who were released from prison in 1866, a portion of the southeastern part of the tract of land described in said Article II of the treaty as claimed by plaintiff bands. This reservation lay to the west and southwest of Lake Traverse, and became known as Lake Traverse Beservation. There was also *313provided that there should be set aside for all other members of said bands who were not sent to the Crow Creek Reservation, and also for the Cut Head Bands of Yanktonais Sioux, a reservation on the south shore of Devils Lake, in the northwestern part of said tract of land described in Article II of said treaty, which reservation became known as Devils Lake Reservation.

It was further provided that said reservations should be apportioned among said Indians in tracts of 160 acres to each head of a family and to each single person over 21 years of age who desired to locate thereon permanently and cultivate the soil as a means of subsistence; and that every person who received such an allotment and occupied and cultivated a portion of it for five consecutive years should thereafter be entitled to receive a patent for it as soon as he should have 50 acres of it fenced, ploughed, and in crop.

XI. By act of June 7, 1872, 17 Stat. 281, the Secretary of the Interior was directed to examine and report to Congress what title or interest plaintiff bands had to any portion of the land mentioned and particularly described in the second article of the said treaty of February 19, 1867, by virtue of any law or treaty whatsoever, excepting such rights as were secured to them by the third and fourth articles of said treaty setting apart the said Lake Traverse and Devils Lake Reservations for them; and also to examine and report “ whether any, and if any, what, compensation ought, in justice and equity, to be made to said bands of Indians, respectively, for the extinguishment of whatever title they may (might) have to said lands.”

Under authority of this act the Secretary of the Interior appointed a commission which was instructed to proceed to the reservation of said Indians and there, and from the record, make a full investigation of the Indian title, and if this commission found such title to be valid and complete, to negotiate for the relinquishment of the same upon terms at once favorable to the Government and just to the Indians.

On October 3, 1872, the commission, after investigation of the questions submitted to it, reported that prior to the said treaty of February 19, 1867, the title of plaintiff bands *314to the tract of land in question was doubtful, owing to the fact that up to some time prior to that treaty other bands of Sioux Indians claimed a common interest in said lands; but that the United States had by that treaty recognized the Indian title to this tract of land as being in plaintiff bands and was thereby estopped from later denying their title to it. On the question of compensation the commission reported that it estimated said tract of land to have an area of over 8,000,000 acres, and that the value of the right and title of plaintiff bands therein ought to be fixed at the sum of $800,00, though the Indians, on the one hand, urged $200,000 more than this sum, and one of the commissioners, on the other hand, was of the opinion that $800,000 was more than ought to be allowed under the circumstances.

And with its report the commission submitted a proposed treaty which it had negotiated with plaintiff bands under the date of September 20, 1872 (Kappler’s Ind. Laws and Treaties, Vol. II, p. 1057), under the terms of which said bands were to “ cede, sell, and relinquish to the United States all their right, title, and interest in and to ” the tract of land in question, “as well as all lands in the Territory of Dakota to which they have (had) title or interest,” except the said Lake Traverse and Devils Lake Keservations set apart by the treaty of February 19, 1867. The principal, but not the only,;consideration for the cession of these lands was the payment to said bands of the sum of $800,000, in annual installments of $80,000 each, without interest. This agreement, or proposed treaty, was submitted to Congress by the Secretary of the Interior with a recommendation that it be confirmed; and by act of February T4, 1873, 17 Stat. 456, Congress confirmed merely the portion of it providing for the cession of said lands and consideration of $800,000 and the method of its payment, specifically excepting paragraphs 3 to 9, inclusive, and appropriated for the payment of the first $80,000 installment thereof, after the ratification by said Indians of the agreement as so amended and confirmed.

The agreement as thus amended and confirmed by Congress was ratified by plaintiff bands on May 2, 1873 (Kap-pler’s Ind. Laws and Treaties, Vol II, p. 1059), and Con*315gress thereafter annually appropriated for the remainder of the annual installments due said bands under said agreement, it being specified in the appropriation acts that the sum appropriated was the current installment of the amount provided by said agreement “ for the relinquishment by said Indians of their claim to or interest in the lands described in the second article of the treaty made with them February nineteen, eighteen hundred and sixty-seven.” 18 Stat. 167, 441; 19 Stat. 192, 287 ; 20 Stat. 81, 310; 21 Stat. 127, 497 ; 22 Stat. 81.

In the making of said agreement of September 20, 1872, it was the understanding and belief of the parties thereto that the approximate area of the tract of land to be sold and ceded by the Indians under said agreement was 8,000,000 acres; whereas the actual area of said tract was 11,000,000 acres, or approximately 3,000,000 acres more than was believed to constitute its area. The value of said lands either at the time of the making of said agreement, or on March 3, 1863, is not satisfactorily shown by the evidence.

In plaintiff’s original petition, filed March 17, 1917, the actual area of said tract of land was alleged to be 9,387,-664.12 acres, an excess of 1,387,664.12 acres over and above the 8,000,000 acres supposed to have been its area; and the claim for this alleged excess, at $1.25 per acre, was $1,734,-580.15. In plaintiff’s amended petition, filed March 26, 1920, the actual area of said tract is alleged to be 11,000,000 acres, and the excess area 3,000,000 acres, for which claim is now made, amounting at $1.25 per acre, to $3,750,000.

XII. In the northeastern part of the present State of North Dakota, between Goose River and Devils Lake on the south and the Dominion of Canada on the north and'between the Red River of the North on the east and Turtle Mountains on the west, is a large tract of land now constituting several counties and parts of counties of said State, for which claim is made by plaintiffs in the sixth count of their petition. -

In the early part of the nineteenth century there were conflicting claims by the Chippewa Indians on the north and the Sioux Indians on the south, in the territory now constituting Minnesota and North Dakota, as to the limits or extent of *316their respective lands, or territory, as a result of which an agreement was entered into about the year 1825 between the said Chippewa Indians and the plaintiff band of Sisseton Indians, in which it was agreed that the boundary line between their lands west of the Eed Eiver of the North, in what is now the State of North Dakota, should begin at the mouth of Goose Eiver, where it enters the Eed Eiver of the North, and extend up Goose Eiver to its source, thence due westward through the center of Devils Lake, thence leaving said lake and continuing westward to Maison du Chine, and from there in a northwesterly direction to a point on the Missouri Eiver within gunshot sound of Little Knife Eiver.. This boundary line was practically identical with the north boundary line of the lands claimed by plaintiff bands as described in Article II of the said treaty of February 19, 1867,. 15 Stat. 505, and sold and ceded by them to the United States by said treaty of September 20,1872, as set forth in Finding' XI, as far westward as this latter line extended.

It appears also that approximately the eastern half of this tract of land north of Goose Eiver and Devil’s Lake claimed by plaintiff bands was within the cession by the Chippewa Indians to the United States by treaty of October 2, 1863,13 Stat. 667.

It does not appear that the plaintiff bands of Indians had any valid claim or title to the said tract of land north of Goose Eiver and Devil’s Lake, nor does it satisfactorily appear what was the exact area of said tract or what was its value either when taken by the Government or on March 3, 1863.

XIII. By Article I of an agreement entered into between the plaintiff bands and the United States on December 12, 1889, and ratified and confirmed by Congress on March 3, 1891, 26 Stat. 1035, said bands ceded, sold, relinquished, and conveyed to the United States all their claims, rights, title, and interest in and to all the unallotted lands in their said Lake Traverse Eeservation remaining after the allotments and additional allotments provided for in Article IV of the agreement had been made.

By Article II of said agreement the United States, in consideration of the aforesaid cession, agreed to pay plaintiff *317bands at the rate of $2.50 per acre for the lands ceded; and it was further provided that the money so paid for said lands should be held in the United States Treasury for the sole use and benefit of the said Indians, and should, with interest thereon at 3 per cent per annum, be subject at all times to appropriation by Congress for the education and civilization of said Indians as provided in section 5 of the act of February 8, 1887, 24 Stat. 388.

As it was not known just what would be the amount of land left after the said allotments and additional allotments had been made, the appropriation by Congress in section 27 •of said act of March 3,1891, for the purpose of carrying out the terms of said agreement was based merely upon an estimate by the Interior Department of the amount of land that would be left over after the allotments were made, which estimate was 679,920 acres; and upon this basis the sum of money for deposit in the United States Treasury for the benefit of plaintiff bands was $1,699,800. It was therefore provided by said act that “ the sum of $1,699,800, or so much thereof as may be necessary ” to pay for said lands, :should be placed in the Treasury to the credit of said Indians. Pursuant to this appropriation and the provisions of said act and of said agreement with plaintiff bands, said bands were, •on March 3, 1891, credited with the said sum of $1,699,800, and were thereafter credited annually with the interest on this sum.. It later developed that a greater amount of land than had been estimated was required to make the additional allotments prescribed by Article IY of said agreement, and that the unalloted lands ceded by the Indians under the agreement amounted to only 608,865.56 acres, instead of the 679,920 acres estimated by the Interior Department, a difference of 71,054.44 acres, the value of which at the agreement price of $2.50 per acre, was $177,635.85. And in the meantime interest on this excess amount credited to said bands had accumulated and been paid or credited to them to an aggregate amount of $58,412.98. In order to correct the account between said bands and the United States under •said agreement, the amount of the over credit of $177,635.85 in their favor was, on June 30, 1898, deducted by the Gov■-ernment from the original fund of $1,699,800 deposited to *318their credit, and the said $58,412.98 excess interest paid them was thereafter deducted in six annual installments, from their income in the hands of the Government.

In the making up of the rolls of the Indians entitled to participate in the allotment of the lands of the said Lake Traverse Reservation there was added to the rolls, and later given allotments, a large number of Indians who were claimed by plaintiff bands not to be entitled to such enrollment and allotments, and against which protest was made by said bands. It does not satisfactorily appear what was the number of those whose enrollment was thus protested against, nor does it appear how many, if any, were not entitled to enrollment.

XIV. On July 3, 1877, one John B. Sanborn entered inte 217 separate contracts with members of plaintiff bands to-prosecute their claims against the United States growing-out of the confiscation of their annuities by the said act of February 16, 1863, for a consideration of 33 per cent of the amounts recovered on said claims, said contracts to run for a term of 12 years. In some instances the Indian parties to-these contracts also signed for their wives and children. These contracts were approved by the Secretary of the Interior on September 28, 1882, but with a reduction of the rate of compensation to 10 per cent of the amounts recovered,, which modification was accepted by said Sanborn on October 25, 1882.

By Article III of the said agreement of December 12,, 1889, 26 Stat. 1037, the United States agreed to pay to the Sisseton and Wahpeton Bands of Dakota or Sioux Indians,, parties thereto, per capita, the sum of $342,778.37, “ being the amount found to be due certain members of said bands of Indians who served in the armies of the United States against their own people when at war with the United States, and their families and descendants, under the provisions of the fourth article of the treaty of July 23, 1851,. and of which they have (had) been wrongfully and unjustly deprived by the operation of the provisions ” of the said act of February 16, 1863, said sum of $342,778.37 being at the rate of $18,400 per annum from July 1, 1862, to July 1,. 1888, less said Indians’ pro rata share of the sum of $616,-*319086.52 theretofore appropriated by Congress for the benefit of said bands. It was further provided by said Article III of said agreement that the United States should pay said bands, per capita, the said sum of $18,400 annually from July 1, 1888, to July 1, 1901, the date at which their annuities under the said treaty of July 23, 1851, were to cease. Under these provisions of said agreement of December 12, 1889, a total sum of $581,978.37 was paid, per capita, to plaintiff bands.

Said Sanborn, following the passage of said act of March 3, 1891, ratifying said agreement of December 12, 1889, presented to the Secretary of the Interior his claim for fees under his said contracts, which claim was referred by the Secretary of the Interior to this court on November 28, 1891, for findings of fact and conclusions of law under the provisions of section 12 of the act of March 3, 1887, commonly known as the Tucker Act. This court found, upon the evidence and facts in the case, that said Sanborn had prosecuted the claims of said Indians with reasonable diligence and ordinary skill. It also found, as a conclusion of law, that Sanborn’s said contracts with the Indians took effect from their dates, and were therefore not in force on March 3, 1891, the date of the said act ratifying said agreement of December 12,1889; and as said act of March 3,1891, prohibited the payment of any fees by the Secretary of the Interior to agents or attorneys for said Indians upon contracts not still in force at the time of the passage of the act, Sanborn’s said claim was not paid.

By section 2 of the Indian appropriation act of March 1, 1899, 30 Stat. 924, 946, it was in effect provided that the inhibition in the act of March 3, 1891, against the payment of fees under expired contracts should not apply to contracts for services to the Indians where the claims of the Indians had been prosecuted to their final allowance in the department within the contract period; and it was also provided that such contracts should be held to date from their approval by the Secretary of the Interior and the Commissioner of Indian Affairs. And it was further provided that, within a limit of $45,000, the Secretary of the Interior should cause all claims that were valid under these provisions of *320the act to be audited and paid from the funds of the bands to which said Indians belonged. In accordance with the provisions of this act and the terms of his said contracts, the said Sanborn was on March 30, 1899, paid by the Secretary of the Interior, from the funds of plaintiff bands, the sum of $41,706.21 for his services under said contracts.

XV. In the survey by the Government, Devils Lake Eeservation, set apart by Article IV of the said treaty of February 19, 1867, 15 Stat. 505, for certain portions of plaintiff bands of Indians and for the Cut Head Bands of Yanktonais Sioux, an error was made by reason of which the reservation as surveyed and established contained 64,000 acres of land less than was included within the boundary lines of the reservation as specified in said treaty. This error was discovered in 1883, prior to which time a large number of settlers had in good faith entered upon and acquired rights in portions of the lands thus erroneously excluded from the reservation, believing them to be a part of the public domain. Upon consideration of the matter, the Department of the Interior decided that no change should be made in the boundary lines of the reservation as surveyed and established in 1875, and upon the recommendation of the Commissioner of Indian Affairs, Congress, by the act of March 3,1891,26 Stat. 1010, appropriated $80,000 for payment by the Government “ to the Sisseton and Wahpeton Bands of Sioux Indians, of Devils Lake Eeservation,” for said 64,000 acres of land, at $1.25 per acre, said $80,000 “ to be expended under the direction of the Secretary of the Interior in the purchase of stock and agricultural implements and in promoting the comfort and improvement of said Indians.” The amount thus appropriated was expended in accordance with the provisions of said act with reference to its expenditure.

Upon a subsequent claim by said Indians for additional compensation for said 64,000 acres of land, additional compensation for said land was paid plaintiff bands under the provisions of Article II of the agreement of November 2, 1901, between the Government and said Indians, as amended *321and confirmed by the act of April 27, 1904, 33 Stat. 319, as is more fully set forth in Finding XVI.

XYI. Between the years 1867 and 1890 a military post was maintained by the United States upon the said Devils Lake Indian Reservation, upon lands belonging to the Sisse-ton and Wahpeton Indians of said reservation; and during a portion of this period of time timber on said lands belonging to said Indians was cut therefrom and used by the military forces of the United States, amounting in value to $50,000.

During the negotiations leading up to the said agreement of November 2, 1901, between the Government and said Indians for the sale and cession to the Government of the un-allotted lands of said reservation, 33 Stat. 319, said Indians presented a claim for this timber cut from said reservation, and also a claim for additional compensation for the said 64,000 acres of land erroneously excluded from said reservation, as set forth in Finding XV; and by Article II of said agreement as concluded by the Department of the Interior with said Indians it was provided that the United States should pay to said Indians the sum of $345,000 in consideration of the lands thereby ceded to the Government by the Indians, and in full of all claims and demands of said Indians arising or growing out of the said erroneous survey of their reservation in 1875, and also in full of the said timber taken from said reservation for use of the United States military forces.

As amended and confirmed by Congress, by the act of April 27, 1904, 33 Stat. 319, and later ratified by said Indians, said agreement provided, Article II (p. 321), as follows:

“ In consideration of the land ceded, relinquished, and conveyed by article one of this agreement, and in full of all claims and demands of said Indians of Devils Lake Reservation, North Dakota, arising or growing out of the erroneous survey of the western boundary of their reservation in eighteen hundred and seventy-five, whereby about sixty-four thousand acres were excluded therefrom; also in full for timber taken from their reservation for use of the military post of Fort Totten, from eighteen hundred and sixty-seven to eighteen hundred and ninety (covering the period from *322the time of its establishment to the time of its discontinuance) , the United States stipulates and agrees to dispose of said lands to settlers under the provisions of the homestead and town-site laws, except sections sixteen and thirty-six, or an equivalent of two sections, in each township, and except such lands as may be reserved, as hereinafter provided, and to pay to said Indians the proceeds derived from the sale of said lands; and also the United States stipulates and agrees to pay for sections sixteen and thirty-six, or an equivalent of two sections, in each township, and for such lands as may be réserved for school, agency, church, and mission purposes, at the rate of three dollars and twenty-five cents per acre.”

Under the provisions of said agreement of November 2, 1901, as amended, there was received from the sales of said unallotted lands of the Devils Lake Reservation and placed to the credit of the Indians of said reservation, up to June 30, 1917, the sum of $121,850.21.

Booth:, Judge,

delivered the opinion of the court.

The Congress sent this case to the court by granting jurisdiction to hear and determine it in accord with the following special act:

> “ That all claims of whatsoever nature which the Sisseton and Wahpeton Bands of Sioux Indians may have or claim to have against the United States shall be submitted to the Court of Claims, with the right to appeal to the Supreme Court of the United States by either party, for the amount due or claimed to be due said bands from the United States under any treaties or laws of Congress; and jurisdiction is hereby conferred upon the Court of Claims to hear and determine all claims of said bands against the United States and also any legal or equitable defense, set-off, or counterclaim which the United States may have against said Sisseton and Wahpeton Bands of Sioux Indians, to enter judgment, and in determining the amount to be entered herein the court shall deduct from any sums found due said Sisseton and Wahpeton Bands of Sioux Indians any and all gratuities paid said bands or individual members thereof subsequent to March third, eighteen hundred and sixty-three: Provided, That in determining the amount to be entered herein, the value of the land involved shall not exceed the value of such land on March third, eighteen hundred and sixty-three. If any such question is submitted to said c,ourt it shall settle the-rights, both legal and equitable, of said bands of Indians, and the United States, notwithstanding lapse of time or stat*323ute of limitations. Such, action in the Court of Claims shall be presented by a single petition, to be filed within one year after the passage of this act, making the United States a party defendant which shall set forth all the facts on which the said bands of Indians base their claims for recovery; and the said petition may be verified by the agent or authorized attorney or attorneys of said bands, to be selected by said bands and employed under contract approved by the Commissioner of Indian Affairs and the Secretary of the Interior, in accordance with the provisions of existing law, upon information or belief as to the existence of such facts, and no other statements or verifications shall be necessary. Official letters, papers, reports, and public records, or certified copies thereof, may be used as evidence.” (Act of April 11, 1916, 39 Stat. 47.)

The Sisseton and Wahpeton Indians are Sioux, bands of the original tribe of Sioux Indians. They, in company with the Medawakanton and Wahpakoota Bands of the Sioux Tribe, found some time prior to July 23,1851, in the present State of Minnesota, a habitat along the upper Mississippi River, most of them on the west side of the stream, some few of the latter bands on the east. They were known and spoken of as the eastern, or Minnesota, Sioux, the Government designating them as Sioux of the Mississippi, to distinguish them from the other bands of the same tribe. The four bands ranged over a vast extent of territory and claimed ownership of a vast acreage by reason of that fact. As early as 1851 the Government attempted to reduce the claimed acreage to a reservation basis, and did, on July 23, 1851, 10 Stat. 949, negotiate a treaty with the Sisseton and Wahpe-tons, by the terms of which certain concessions were made to the Government, and on August 5,1851,10 Stat. 954, a treaty was negotiated with the Medawakanton and Wahpekootas, which, in conjunction with the treaty of July 23, 1851, provided for the four bands two reservations along the Minnesota River. The Indians were removed to the reservations, each band being assigned the lands granted by the treaty, after which the Sisseton and Wahpetons were known as the upper bands, and the Medawakanton and Wahpakootas as the lower bands, the Government treating and dealing with them under the general appelation of annuity Sioux.

*324Afterwards, when both of said treaties came before the Senate for ratification, the Senate instead of ratifying them as negotiated, substituted a provision for the purchase of all of said reservations from the four bands for 10 cents an acre, adding this amount to their trust funds, and authorizing the President, with the assent of the Indians, to set apart another reservation outside the limits of the territory ceded to the Government by the treaties for their future home and occupancy. The President was vested with the additional authority to vary the conditions with the consent of the Indians if deemed expedient. The Indians accepted the amendment, and the treaties, as amended, were ratified by them September 4 and 8, 1852, 10 Stat. 952-958. The 10 cents per acre was paid by the Government and the money was duly credited to the trust funds of the bands, but the reservation provided for was never set apart. The Indians, therefore, continued to reside on the said reservations on the Minnesota Eiver. They were not disturbed and made valuable improvements on these reservations. On July 31,1854, Congress enacted a law authorizing the President to confirm said reservations to said bands. There is no record of any official action by the President, but the Indians were in peaceable possession and, as before observed, they were not in any way disturbed.

On June 19, 1858, 12 Stat. 1031-1037, treaties were concluded with the four bands occupying the foregoing reservations, by the terms of which the Indians ceded to the Government the portions of the reservations lying on the north side of the Minnesota River, and there were confirmed to them the lands on the south side, which were to be allotted to the Indians in severalty, the surplus after allotments to be held as other Indian lands. The question of title and the price to be paid for the lands on the north side were left to the United States Senate for decision. The Senate, on June 27, 1860, by resolution, confirmed the Indians’ title to the whole of the reservations, and fixed 30 cents per acre as the sum to be paid for the lands ceded to the Government.

The Sissetons and Wahpetons received under this treaty $170,880 for 569,600 acres, the same being paid in accord with the act of March 2,1861,12 Stat. 237. The allotments, *325however, were never made, because in August, 1862, the Indian beneficiaries under the treaties joined in an intense, prolonged, and exceedingly savage warfare against the Government, a hostility which required a considerable portion of the Army to finally subdue. A large number of whites— men, women, and children — were cruelly murdered and a great amount of property burned and destroyed. At the time of the outbreak the total population of the Sisseton and Wahpeton Bands, including men, women, and children, was 4,026, and the Medawakanton and Wahpakoota Bands comprised 2,225. By the spring of 1863 the military authorities had succeeded, either by capture of surrender, in taking into custody the greater portion of the Medawakanton and Wahpakootas and a few of the Sisseton and Wahpetons, and confined them all as prisoners of war at Fort Snelling. On February 16,1863, 12 Stat. 652, as a further infliction of punishment, by legislation of that date, Congress abrogated and annulled all existing treaties with the Indians and forfeited to the Government all their annuities, charging the same with the payment of all damages occasioned by the outbreak.

On March 3, 1863, 12 Stat. 819, Congress passed an act providing for the creation of a reservation outside the limits of any State, of sufficient proportions to allot to each member of the four bands 80 acres, provided they were willing to adopt the pursuit of agriculture. The act contained a further provision for the sale of the former reservations on the Minnesota Biver and the investment of the money by the Secretary of the Interior for the benefit of the Indians who actually located on the lands of the new reservation. The President, in pursuance of the foregoing enactment, set apart certain lands at Crow Creek on the Missouri Biver in Dakota Territory, and in May following removed thereto all the prisoners of war except half-breeds and scouts confined at Fort Snelling, 1,306 in number. There were at least 295 Sisseton and Wahpetons included in this number, and at least 4 of their chiefs and several headmen and influential soldiers. On July 1, 1863, a formal Executive order was issued, setting apart said lands as a reservation for the “ Sioux of the Mississippi.”

*326The plaintiff Indians on the facts above epitomized assert a demand for damages rested upon the contention that the President of the United States did not under the act of March 3,1863, comply with its terms and set apart a reservation for the Sisseton and Wahpeton Indians; that they were not included in the Crow Creek Eeservation set apart July 1,1863; that on July 1,1863, there were 4,524 of said Indians lawfully entitled to 80 acres each, or 361,920 acres, of land, worth $1.25 per acre. In the face of the record it is difficult to comprehend an insistence that the President was remiss in not setting apart 361,920 acres of land in 1863 for the Sisseton and Wahpetons, when these Indians at the time were fleeing from capture, openly hostile to the Government, and being closely and continuously pursued by the Army of the United States. If the Government was put under the unique obligation by the terms of the act of March 3, 1863, of providing a permanent home for individual Indians fleeing from justice to all points in the West and in Canada, then some measure of weight might be ascribed to the contention. The act of March 3, 1863, was obviously intended to remove from Minnesota these bands of undesirable Indians, and it in express terms allotted to only those individual Indians willing to adopt the pursuit of agriculture, hoping thereby to civilize them. It is inconceivable that Congress intended to do more than provide for Indians in amity with the Government and willing to observe the laws. The major portion of the Sisseton and Wahpeton Bands were scattered, some in Canada, many in the far West, and all removing themselves as far and as rapidly as possible from the range of military activities.

Accentuating this position is the further important circumstance that of the hostile Sisseton and Wahpetons, for whom such a large claim is made, none appear ever to have applied for enrollment or allotment at the Crow Creek Ee-servation, and those in amity who did were cared for. Even the small number of peaceable ones removed were loath to and did not long remain there after the subsequent return of the fugitives. The activities of the Army did not cease until late in 1864, and by this time there were few, if any, Sisseton and Wahpeton Indians in Minnesota, and no such *327number as now claimed for ever did return. Along about tlie year 1866 tbey came drifting back. The Army had been withdrawn from the field and some six or eight hundred were in the vicinity of Fort Wadsworth, in eastern Dakota. The Government attempted on two occasions to treat with them at this place, but was unsuccessful until 1867. In February of that year a treaty was made and two reservations set apart for the members of the plaintiff bands who had not been sent to the Crow Creek Reservation. Finding X details the facts and discloses a final recognition of the Indians’ claimed rights more magnanimous in terms than the act of 1863.

The President under the act of 1863 could not accomplish the impossible, and Congress, by subsequent legislation, did even more as a substitute than was imposed upon him by the prior statute. The President was by law charged with providing for an existing and contemporaneous condition of affairs. How manifestly absurd it would have been for him to set aside this vast and extensive acreage for a band of hostile Indians, when by no possible process of reasoning could he apprehend to what extent it would be taken up by the Indians who had, at least for the time, expatriated themselves. The act of 1863 was no more than a conditional grant, and even if it were otherwise the control and management of Indian tribal lands is exclusively a matter within the jurisdiction of Congress, free from the supervision of the courts. *Cherokee Nation*v. Hitchcock, 187 U. S. 294; *Lone Wolf*v. Hitchcock, 187 U. S. 553.

The next item for which claim is made is rested more upon a supposed moral than a legal obligation. Mutual mistake of fact is assigned as of sufficient force and clearness to warrant the court in revising and substantially reasserting the terms of a treaty and an act of Congress, the whole tone of the contention being more in effect a supplication than an assertion. On June 7, 1872,17 Stat. 281, Congress passed an act directing the Secretary of the Interior to investigate and report what title and interest the plaintiff Indians had in a large and extensive area of lands, outside their reservations at Lake Traverse and Devils Lake, and whether any compensation ought in equity and good conscience to be paid the *328Indians for whatever title they might have. Under the authority of the act the Secretary appointed a commission, which finally reported that in its judgment the treaty of February 18,1867, between the Government and the Indians, recognized the title of the Indians thereto, and that the Government under the facts was estopped to deny it, a very doubtful conclusion in view of the situation at the time, for the title asserted by the plaintiff Indians was sedulously disputed by the Missouri Sioux; and the Government, by the treaty of 1867, confirmed to the plaintiff Indians only so much of the lands as were embraced within the two reservations set apart for them. It is true the Government did acquire rights of way for telegraph lines and public roads, and in this respect did recognize some proprietary interests in the lands, but it may well be that the motive which prompted such generous conduct was more in the interest of composing hostility to be feared from the Indians without so acting.

In any event, the issue is not of great importance, for negotiations progressed to the point of bargain and sale and finally on May 2, 1873, a treaty was fully ratified and confirmed, with the positive assent of the Indians, by the terms of which these lands outside of said reservations, specifically described by metes and bounds, were ceded to the United States for $800,000, and the money subsequently paid as per the terms of the same. Now, more than a half century after the event, a claim is set up that the treaty was procured by misrepresentation and both parties were in error as to the acreage of the cession, the Indians believing they were parting with 8,000,000 acres at 10 cents an acre and the United States believing that to be the extent of the lands. The facts negative the claim, notwithstanding the cession was of 11,000,000 acres, and we may not under the law receive parol testimony to nullify the terms of a treaty, negotiated and ratified in conformity with law. As was said in the case of *United States*v. *Old*Settlers, 148 U. S. 427, 468:

> “ There is nothing in the jurisdictional act of February 25, 1889, inconsistent with the treaty of 1846 (or any other), and nothing to indicate that Congress attempted by that act to authorize the court to proceed in disregard thereof. Unquestionably a treaty may be modified or abrogated by *329an act of Congress, but the power to make and unmake is essentially political and not judicial, and the presumption is wholly inadmissible that Congress sought in this instance to submit the good faith of its action or the action of the Government to judicial decisions, by authorizing the stipulations in question to be overthrown upon an inquiry of the character suggested, and the act, does not in the least degree justify any such inference.”

In 1917 we had before us a contention similar to the one advanced in this case, and the court in disposing of it *(Otoe & Missouria Indians*v. *United*States, 52 C. Cls. 424, 429) used this language: “ That this [act] does not give this court jurisdiction to inquire into the inequity or impropriety of any of these treaties between these Indians and the United States is so obvious as to hardly need citation of authorities.”

The jurisdictional act here involved is not different in any essential from those construed in the citations mentioned and is not so worded as to make it an exception to the well established rule. The item is not allowed.

The plaintiff Indians manifestly misapprehended the scope and character of the jurisdictional act and the limitations of the court thereunder. There is nothing in the act which authorizes us to go into a minute investigation of the Indians’ tribal relations to the Government and delve into the endless negotiations leading up to the consummation of treaties. We can not ascribe fraud and misrepresentation as the motive for legislation or treaties. Our jurisdiction is limited to rights which may or may not accrue under treaties and acts of Congress. When Indian rights of property are fixed by the terms of treaties and statutes we are bound to accept them as so fixed. The Supreme Court has so held innumerable times, the citations appearing in 52 C. Cls. 429.

In view of the foregoing statement there is no necessity for any prolonged discussion of the claims made under items 8 and 4 of the petition.

The Government under the various treaties mentioned purchased the lands described. In 1852 the Indians assented to the arrangement, accepted the benefits stipulated, and have recently recovered in this court the balance of their restored annuities. The development of the situation finally *330culminating in the establishment and sale of the reservation set apart on the north and south sides of the Minnesota River in 1851-1852 has been f ully adverted to. The Indians concede that in so far as the express terms of the treaties are concerned, they were fully complied with, and assuredly we may not go back to contemporaneous times on the faith and credit of parol testimony given at this late date to challenge the Indian signatures appearing on the treaties, and ascribe a wholesale overreaching of the Indians by the Government’s representatives, including the Senate of the United States.

In the case of *Delaware Indians*v. *Cherokee Nation,*193 U. S. 127, 141, the court said: “ We can perceive no room in this case for a departure from the familiar rules of the law protecting written agreements from the uncertainties of parol testimony. The testimony offered was in the main that of interested persons nearly thirty years after the agreement had been reduced to writing and signed by the parties thereto.”

Judgment for $15,443.95 is asked in item 5 on the theory of an overpayment to the Medawakanton and Wahpakoota Bands out of the funds realized from a sale of the reservations of the four bands originally set apart alongside the Minnesota River by the early treaties mentioned in Finding IX.

It is to be recalled that the four bands on the date hostilities were inaugurated by the Indians against the white settlers in 1862 were residing on their respective reservations on the south side of the Minnesota River, adjoining each other. The heretofore alleged landed interests of the bands in Minnesota had by successive treaties been diminished to these limits. In February, 1863, as hereinbefore appears, Congress passed an act annulling all treaties and forfeiting all the annuities of the offending Indians. The effect of the legislation was to forfeit all claims of the Indians theretofore subsisting and erected by former treaties and acts of Congress. *Lone Wolf*v. *Hitchcock, supra.*On March 3, 1863, 12 Stat. 819, at a time when a large majority of the plaintiff Indians were still hostile, and evidently prompted by a desire and intent to provide' for the permanent removal of the two bands of Indians to a distant point away from *331the scenes and surroundings of the then existing warfare, as well as to attempt the civilization of the bands, Congress provided for the sale of their reservations on the Minnesota Liver, forfeited under the preceding act, and the investment of the proceeds by the Secretary of the Interior for the benefit of the Indians in setting them up in agricultural pursuits ■on their new reservation to he provided under the act.

The sale of the reservations began in 1865 and continued for many years, the amount finally realized reaching the total sum of $950,063.71. The record leaves no room for doubt that $206,753.61 of this total sum ivas expended by the Secretary for the joint benefit of the two bands, and it is beyond the range of possibility to apportion accurately the ■amounts expended for each band. On July 15,1870,16 Stat. ■361, Congress directed explicitly the manner in which the balance of the funds should be distributed, and the record conclusively establishes the observance by the Secretary of this act. The plaintiff Indians, if we correctly appraise their ■contention, insist that the proportionate distribution established by the act of 1870 should antedate the passage of the net itself, and apply with equal force to the distribution of the entire sum, thus creating the deficit of which they now ■complain. Laying aside the defense interposed that the entire sum was a mere gratuity given the Indians subsequent to the act of forfeiture and incapable of becoming the subject matter of a cause of action, we believe the claim without merit. There were no express terms in the act of 1863 which divested the Secretary of an exercise of discretion in expending the funds for the benefit of such Indians of the bands as were willing to adopt the pursuit of agriculture, and no hard and fast limitations imposed upon bim in any ■other respect.

The act of 1863 set apart a new home for the bands and those who were willing to go there and abide were to become the beneficiaries of the money to be received from the sale •of their former home. The bands themselves were depleted in ranks because of the Indian war, and apportionment in accord with numbers was impracticable. Later, in 1870, when peace had been established and the returning Indians were capable of enumeration, Congress adopted the method *332of apportionment, and it was followed. There is nothing-in the act of 1870 of a retroactive effect, for the proviso thereto expressly makes it operative prospectively.

In seeking judgment for the value of 3,000,000 acres of land at $1.25 per acre, as alleged in item 6, said not to- have been properly included in the treaty of 1872, plaintiff Indians are obviously and concededly put to the necessity of attempting to vary the plain and unambiguous terms of a treaty, duly ratified in 1872, which specifically provided for the cession to the Government of not only the lands specifically described therein, but also “ all lands in the Territory of Dakota ” to which they had title or interest. Plaintiff' Indians early asserted ownership over an exceedingly large-acreage of territory lying in the northern portion of what subsequently became Minnesota and Dakota Territories. This claim was vigorously disputed by the Chippewa Indians, and frequent clashes ensued. In 1825 the Sissetons. and the Chippewas entered into an agreement respecting the division of the lands and fixed the boundaries thereof, and the boundary so fixed between them corresponds with substantial exactness to the northern boundary of the lands, described in Article II of the treaty of February 19, 1867,. 15 Stat. 505, all of which lands were sold and ceded by plaintiffs to the United States by the treaty of September 20,. 1872.

We have said that the plaintiffs in order to recover attempt to vary the plain terms of a treaty by parol testimony. While this is true, the contention goes much further, and we are asked to annul the treaty of 1872 upon the grounds of fraud and circumvention, said to be established by this-same class of testimony. The mere statement of the proposition is its own refutation. The plaintiffs in their brief concede that the decisions of the Supreme Court present insurmountable difficulties in the way of recovery, and seek to-overcome the same by a not unusual insistence in Indian cases that Congress conferred on this court an unique and *sui generis*jurisdiction, a grant of authority to go behind a consummated agreement as expressed in treaties and acts of' Congress and accept the utterly unreliable and vacillating self-serving statements of witnesses made a half century af*333ter the event, impute fraud, misrepresentation, and all sorts of irregularities and dishonest conduct to those who negotiated and procured the same, a plenary authority to hold ancient treaties inoperative, unilateral, and oppressive. The claim under this item is especially in keeping with this emphasized and repeated contention. The treaty of 1872 (Kappler’s Treaties, Vol. II, p. 1057) unmistakably transfers to the United States all the title the Indians possessed to this tract, the extent of which the Indians were then, and are now, in more or less ignorance, as well as other lands to which they claimed title in the Territory of Dakota, the Government manifestly intending to acquire all outstanding lands claimed by them and conclude all controversy with respect thereto.

It would be a most remarkable situation if at the time the Indians were unaware that this acreage was not included in the treaty. One fact positively negatives the statement. The United States immediately took possession, opened the lands to public settlement, and this they did not do until after the treaty was legally concluded. As a matter of fact, Indian claims to immense territory at the time concerned always presented a matter of great indefiniteness, the Indian asserting title to all the lands over which he hunted, and it was not generally possible — in fact, not usual — to speak of the unlimited claims in terms of acreage. More comprehensive terms were employed, so as to embrace the total claim of the Indian tribe or band. Subsequently when these immense tracts were surveyed and definitely defined many conflicting statements emanated from the Indians challenging the correctness of concessions and grants. So it is with this claim. We can not attach credence to the testimony offered in this case. Assuredly we may not go behind the plain terms and conditions of a treaty and set it aside, when it is properly executed by the tribe or band, on the mere assertion of a few members of the tribe that it was not understood or assented to. *Lone Wolf*v. Hitchcock, *supra.*

In 1889 the Government entered into an agreement with the plaintiff Indians whereby the Indians disposed of all surplus lands, after individual allotments to them, contained in the Lake Traverse Reservation. This agreement was rati*334fied and confirmed by act of Congress of March. 3, 1891, 26 Stat. 1035, section 26, and by its terms the Government obligated itself to pay $2.50 per acre for the lands so ceded, the total sum with 3 per cent interest thereon to be sub ject to appropriation by Congress for the benefit of the Indians in aid of their civilization, as provided in section 5 of the act of 1887, 24 Stat. 388. The agreement of 1889, as finally concluded in 1891, necessarily involved an estimate as to the acreage of surplus lands, for individual allotments were to be made, and while it was apparent that the individual allotments would not consume the total amount, it was likewise impossible to ascertain at the time with certainty how much' of the same they would take up. The Interior Department estimated from information available that the surplus lands would at least amount to 679,420 acres, whereupon Congress adopted the estimate and upon that basis appropriated $1,699,800, *“*or so much thereof as may be necessary,” to meet the Government’s obligation under the agreement of 1891. Subsequent events proved the Government’s estimate of the acreage to be erroneous, and instead of there being a surplus of 679,920 acres the correct amount was 608,865.56 acres, a difference of 71,054.44 acres. Therefore the Government deducted from the amount theretofore appropriated a sum sufficient to cover this shortage, viz, $236,048.83, and judgment for this sum with interest, is claimed under this item.

The contention is predicated upon an assertion of unlawful allotments, the Indians claiming that the Interior Department, in disrespect of law and custom, enrolled a large number of persons who were not entitled to enrollment and thereby consumed this large additional acreage of surplus lands. In support of plaintiff’s effort one witness is produced who testifies that about 350 protests were made at the time of the enrollment, without identifying but one single family of Indians by name. It appears that the witness testifying was disgruntled over the whole proceeding, was not in sympathy with his fellow Indians as to the policy adopted by the band, and not only opposed the sale of the lands but declined to be identified with the agreement in any way. No other testimony is produced. We have cited this as a typical *335instance, relied upon by the plaintiffs to procure a money judgment 30 years or more after tbe transaction. Experience as to Indian enrollments confirms the statement that no single event in Indian tribal life has so great a tendency to engender animosity and provoke controversy as the making of their rolls. The testimony of the single witness produced exemplifies the assertion. It is not claimed that the enlarged enrollment was not made up of Sisseton and Wahpeton Indians, but that members of the band should have been denied participation because not of the full blood. Congress has the power to provide a method of ascertaining citizenship in Indian tribes. Cherokee *Nation*v. Hitchcock, *supra; Gritts*v. Fisher, 224 U. S. 640. While under the jurisdictional act we have the power to adjudicate upon a proper record as to whether an act of Congress or agreement has been observed in accord with its terms and intent, we may not do so in the present instance for a decided lack of proof with respect thereto.

Item 8, Finding XIV, is a claim for reimbursement for the amount of an attorney’s fee paid to John B. Sanborn by the Secretary of the Interior on March 30, 1899. The gravamen of the complaint is that Sanborn’s contracts were with individual Indians and not with the band, and hence was not a legal charge against the latter. The fee was paid from the funds of the plaintiff band, and Sanborn’s employment originated in 217 contracts with individual Indians. Of this there can be no doubt. We had before us the same question in the case of *Winton*v. *Mississippi*Choctaws, 255 U. S. 373, and the Supreme Court held adversely to the plaintiff’s contention here. While the act of March 1, 1899, 30 Stat. 924, 946, is not so broad as the acts involved in the Winton case, still the principle is the same, and on the authority of that case the item fails.

Items 9 and 10, Findings XV and XVI. These items are so obviously devoid of merit that we think the findings fully explain them. The claim itself is concluded by the case of *Lone Wolf*v. Hitchcock, supra, a case almost exactly similar.

The petition will be dismissed. It is so ordered.

Gkaham, *Judge;*Hat, *Judge;*Downet, *Judge;*and Campbell, *Chief*Justice, concur.