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treaty whatever, or treaty obligation for pro- | the United States as the basis of new treattection by the United States. ies, said:

"We are pleased to learn that you propose to renew your previous relations with us, and we are willing to go into negotiations for the making of a new treaty with the United States, and as a basis of this new treaty accept articles 1st and 7th. In reference to the requirements of the article 2, we desire to say that we wish as far as possible to avoid coming in conflict with our red brethren, should any of them be so unfortunate as to get into conflict with the United States authorities. We are willing to guarantee all our influence in favor of peace in all its bearings with our red brethren, and will not object to any of our citizens volunteering in any war in which the United States may become involved, for the aiding of the United States. We are willing to enter into negotiations for the settlement of all the points contained in the 3d and 4th articles. On certain terms, on which we can doubtless agree with you, we are willing to admit the settlement of other tribes within our territory, as proposed in the 5th article. We are to in the 6th article for the consideration of willing to submit the territorial bill referred our respective general councils, and for this

"Under the terms of the treaties with the United States and the law of Congress of July 5, 1862, all these nations and tribes forfeited and lost all their rights to annuities and lands. The President, however, does not desire to take advantage of or enforce the penalties for the unwise actions of these nations. The President is anxious to renew the relations which existed at the breaking out of the rebellion. We, as representatives of the President, are empowered to enter into new treaties with the proper delegates of the tribes located within the so-called Indian territory and others above named living west and north of the Indian territory. Such treaties must contain substantially the following stipulations: 1. Each tribe must enter into a treaty for permanent peace and amity with themselves, each nation and tribe, and with the United States. 2. Those settled in the Indian territory must bind themselves, when called upon by the government, to aid in compelling the Indians of the plains to maintain peaceful relations with each other, with the Indians in the territory, and with the United States. 3. The institution of slavery, which has existed among several of the tribes, must be forthwith abol-purpose request a copy of that bill for the ished, and measures taken for the unconditional emancipation of all persons held in bondage, and for their incorporation into the tribes on an equal footing with the original members, or suitably provided for. 4. A stipulation in the treaties that slavery or involuntary servitude shall never exist in the tribe or nation except in punishment of crime. 5. A portion of the lands hitherto owned and occupied by you must be set apart for the friendly tribes now in Kansas and elsewhere, on such terms as may be agreed upon by the parties and approved by the government, or such as may be fixed by the government. 6. It is the policy of the governinent, unless other arrangements be made, that all the nations and tribes in the Indian territory be formed into one consolidated government, after the plan proposed by the Senate of the United States in a bill for organizing the Indian territory. 7. No white person except officers, agents, and employees of the government, or of any internal improvement authorized by the government, will be permitted to reside in the territory unless formally incorporated with some tribe according to the usages of the band.

"Brothers: You have now heard and un

principal chief of the Choctaw Nation and for the governor of the Chickasaw Nation.* We accept article 7, and are willing to have the provisions thereof incorporated into the treaty. We are also willing to incorporate & provision that no individual shall be proscribed, or any act of forfeiture or confiscation passed against those who remain friendly to the United States, and that they shall enjoy equal privileges with other members of the nation."

Among the documents in the record is a draft of a treaty between the United States and the Choctaw and Chickasaw tribes which, it was stated, was submitted by the United States commissioners at the council held at Fort Smith. It is said in the opinion of the court of claims-and we think correctly-that this treaty was never agreed upon or executed. It need not therefore be

set out here.

The reports, official and unofficial, of what was said and done before and at the Fort

Smith council, show that the persons in attendance there were aware of the exact situor understanding that the matters then unation. They separated with the expectation der consideration were to be further discussed and a conclusion reached in Washington in the spring of 1866, at which place delegates from the Indian tribes would attend.

derstand what are the views and wishes of the President, and the commissioners, as they told you yesterday, will expect definite In 1866 the negotiations between the answers from each of you upon the questions United States and the Choctaw and Chicka submitted. As we said yesterday, we say saw Nations were resumed at Washington. again, that in any event those who have al-The result was the treaty concluded April ways been loyal, although their nations may have gone over to the enemy, will be liberally provided for and dealt with."

The committee on the part of the Choc taws and Chickasaws, in reply to the proposition submitted by the commissioners of 21 S. C.-11.

28, 1866. 14 Stat. at L. 769. The respec tive rights of the Choctaws and Chickasaw and of the United States, as involved in the present case, depend upon the construction of that treaty.

It is to be taken as beyond dispute that

when the parties entered upon the negotia- | legislatures of the said nations respectively, tions resulting in that treaty, neither overlooked the fact that the Choctaws, by the treaty of 1855, had forever quitclaimed any claim they had to territory west of the 100th degree of west longitude. Nor could either have forgotten that the United States had, by the same treaty, acquired the control of the Leased District, without limit as to time, for the permanent settlement of certain In-deem proper-the United States agreeing, dians, excluding other Indians. Bearing these facts in mind, let us see what was effected by the treaty of 1866.

paid to the treasurer of said nations, respectively, to be regularly and judiciously applied, under the direction of their respective legislative councils, to the support of their government, the purposes of education, and such other objects as may be best calculated to promote and advance the welfare and happiness of said nations and their people respectively."

"Art. 51. It is further agreed that all treaties and parts of treaties inconsistent herewith be, and the same are hereby, declared null and void." 14 Stat. at L. 769781.

in provided for Choctaws and Chickasaws, | be paid out as annuity, but shall be annually after the expiration of the ninety days during which the selections of land are to be made as aforesaid by said Choctaws and Chickasaws; and the Choctaw and Chickasaw Nations pledge themselves to treat the said Kansas Indians in all respects with kindness and forbearance, aiding them in good faith to establish themselves in their new homes, and to respect all their customs and usages not inconsistent with the constitution and laws of the Choctaw and Chickasaw Nations respectively. In making selections after the advent of the Indians and the actual occupancy of land in said nation, such Occupancy shall have the same effect in their behalf as the occupancies of Choctaws and Chickasaws; and after the said Choctaws and Chickasaws have made their selections as aforesaid, the said persons of African descent mentioned in the third article of the treaty shall make their selection as therein provided, in the event of the making of the laws, rules, and regulations aforesaid, after the expiration of ninety days from the date at which the Kansas Indians are to make their selections as therein provided, and the actual occupancy of such persons of African descent shall have the same effect in their behalf as the occupancies of the Choc-hold, as the court below did, that the lands taws and Chickasaws."

"Art. 43. The United States promise and agree that no white person, except officers, agents, and employees of the government, and of any internal improvement company, or persons traveling through, or temporarily sojourning in, the said nations, or either of them, shall be permitted to go into said territory, unless formally incorporated and naturalized by the joint action of the authorities of both nations into one of the said nations of Choctaws and Chickasaws, according to their laws, customs, or usages; but this article is not to be construed to affect parties heretofore adopted, or to prevent the employment temporarily of white persons who are teachers, mechanics, or skilled in agriculture, or to prevent the legislative authorities of the respective nations from authorizing such works of internal improvement as they may deem essential to the welfare and prosperity of the community, or be taken to interfere with, or invalidate, any action which has heretofore been had, in this connection, by either of the said nations."

By article 46 it was provided: "Of the moneys stipulated to be paid to the Choctaws and Chickasaws under this treaty for the cession of the Leased District, and the admission of the Kansas Indians among them, the sum of one hundred and fifty thousand dollars shall be advanced and paid to the Choctaws, and fifty thousand dollars to the Chickasaws, through their respective treasurers, as soon as practicable after the ratification of this treaty, to be repaid out of said moneys or any other moneys of said nations in the hands of the United States; the residue, not affected by any provision of this treaty, to remain in the Treasury of the United States at an annual interest of not less than five per cent, no part of which shall

It is unnecessary to refer to any other provisions of the treaty of April 28, 1866; for* none of them throw any light on the present inquiry.

The lands in dispute-being tract 5 and marked Wichitas on the above map-constitute a part of the Leased District which was ceded to the United States by the third section of the treaty of 1866. That is admitted. Did that treaty make an absolute, unconditional cession to the United States of these lands, free of any trust, express or implied? Or, stating the question in another form, is it consistent with that treaty to

were ceded to the United States in trust that the lands themselves, or, if they were appropriated or taken by the United States, their value, should be paid to the Indians whenever they ceased to be used exclusively for the settlement of Indians thereon?

There was much discussion at the bar as to the principles that should govern the court when determining the scope and effect of a treaty between the United States and Indian tribes. All agree that as a general rule in the interpretation of written instruments the intention of the parties must control, and that such intention is to be gathered from the words used-the words being interpreted, not literally nor loosely, but according to their ordinary signification. If the words be clear and explicit, leaving no room to doubt what the parties intended, they must be interpreted according to their natural and ordinary significance. If the words are ambiguous, then resort may be had to such evidence, written or oral, as will disclose the circumstances attending the execution of the instrument and place the court in the situation in which the parties stood when they signed the writing to be interpreted.

To what extent, if at all, have these rules been enlarged or modified when the instrument to be interpreted is a treaty between the United States and Indian tribes? In The Kansas Indians, 5 Wall. 737, 760, sub nom. Blue Jacket v. Johnson County Comrs. 18 L. ed. 667, Wan-zop-e-ah v. Miami County Comrs. 18 L. ed. 674, it was said that enlarged rules of construction have been adopted in reference to Indian treaties, citing as the words of Chief Justice Marshall in Worcester v. Georgia, 6 Pet. 515, 563, 582, 8 L. ed. 483, 502, 508 (but which were in fact the words of Mr. Justice McLean in his concurring opinion in that case) the following: "The

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language used in treaties with the Indians | It would be to make, and not to construe, should never be construed to their prejudice. treaty. Neither can this court supply If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense." Mr. Justice McLean further said: "How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction." In United States v. Kagama, 118 U. S. 375, 383, 384, 30 L. ed. 228, 230, 6 Sup. Ct. Rep. 1109, the Indian tribes in this country are spoken of as wards of the nation, communities dependent for their food and their political rights, as well as for protection, on the United States. And in Choctaw Nation v. United States, 119 U. S. 1, 28, 30 L. ed. 306, 315, 7 Sup. Ct. Rep. 75, it was said that the relation between the United States and the Indian tribes was that of superior and inferior, and that the rules to be applied in the case then before the court were those that govern public treaties, which, even in case of controversies between nations equally independent, were not to be interpreted as rigidly as documents between private persons governed by a system of technical law, "but in the light of the larger reason and the superior justice that constitute the spirit of the law of nations." In Jones v. Meehan, 175 U. S. 1, 11, 44 L. ed. 49, 54, 20 Sup. Ct. Rep. 1, it was said that a treaty between the United States and an Indian tribe must be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.

casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties by just rules of interpretation applied to the subject-matter; and, having found that, our duty is to follow it as far as it goes and to stop where that stopswhatever may be the imperfections or difficulties which it leaves behind. In the next place, this court is bound to give effect to the stipulations of the treaty in the manner and to the extent which the parties have declared, and not otherwise. We are not at liberty to dispense with any of the conditions or requirements of the treaty, or to take away any qualification or integral part of any stipulation, upon any notion of equity or general convenience, or substantial justice. The terms which the parties have chosen to fix, the forms which they have prescribed, and the circumstances under which they are to have operation, rest in the exclusive discretion of the contracting parties, and whether they belong to the essence or the modal parts of the treaty, equally give the rule to judicial tribunals."

But in no case has it been adjudged that the courts could by mere interpretation or in deference to its view as to what was right under all the circumstances, incorporate into an Indian treaty something that was inconsistent with the clear import of its words. It has never been held that the obvious, palpable meaning of the words of an Indian treaty may be disregarded because, in the opinion of the court, that meaning may in a particular transaction work what it would regard as injustice to the Indians. That would be an intrusion upon the domain committed by the Constitution to the political departments of the government. Congress did not intend, when passing the act under which this litigation was inaugurated, to invest the court of claims or this court with authority to determine whether the United States had, in its treaty with the Indians, violated the principles of fair dealing. What was said in The Amiable Isabella, 6 Wheat. 1, 71, 72, 5 L. ed. 191, 208, is evidently applicable to treaties with Indians. Mr. Justice Story, speaking for the court, said: "In the first place, this court does not possess any treaty-making power. That power belongs by the Constitution to another department of the government, and to alter, amend, or add to any treaty by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power. and not an exercise of judicial functions.

So, in Beecher v. Wetherby, 95 U. S. 517, 525, 24 L. ed. 440, 441, which involved the question whether the fee to certain lands was in the United States, with the right of occupancy only in certain Indians, this court said: "It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their action towards the Indians with respect to their lands is a question of governmental policy, and is not a matter open to* discussion in a controversy between third parties neither of whom derives title from the Indians. The right of the United States to dispose of the fee of lands occupied by them has always been recognized by this court from the foundation of the government."

The same principle was announced in United States v. Old Settlers, 148 U. S. 427, 468, 37 L. ed. 509, 524, 13 Sup. Ct. Rep. 650. That suit was brought under an act of Congress authorizing the court of claims to pass upon a claim preferred by an Indian tribe, the intention of Congress, as stated in the act, being "to allow the said court of claims unrestricted latitude in adjusting and determining the said claim, so that the United States and of said Indians, may be rights, legal and equitable, both of the fully considered and determined." In that case it was sought to have the claimants relieved of certain provisions of a treaty, because of fraud and duress alleged to have been practised by the United States. But this court said: "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 courts to proceed in disregard thereof. Unquestionably a treaty may be modified or abrogated by an act of Congress, but the

power to make and unmake is essentially | that that treaty, if interpreted according to political and not judicial, and the presump- the views of the government, was one beyond tion is wholly inadmissible that Congress the power of the parties to make, it is clear sought in this instance to submit the good that even if the United States did not deal faith of its own action or the action of the generously with the Choctaws and Chickagovernment to judicial decision, by authoriz-aws in respect of the lands in dispute-and ing the stipulations in question to be over- we do not mean to say that there is any thrown upon an inquiry of the character sug- ground whatever for so contending-the gested and the act does not in the least de- wrong done must be repaired by Congress, gree justify any such inference." and cannot be remedied by the courts without usurping authority that does not belong to them.

It is said in the present case that the interpretation of the treaty in accordance with the views of the United States would put the government in the attitude of having acquired lands from the Indians at a price far below their real value. Even if this were true it would not authorize the court in determining the legal rights of the parties to proceed otherwise than according to the es-States. tablished principles of interpretation, and out of a supposed wrong to one party evolve a construction not consistent with the clear import of the words of the treaty. 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. As there is no ground to contend in this case