Mr. Justice CLIFFORD
delivered the opinion of the court.
Concessions made in the bill favorable to the respondent are to be regarded- as facts undisputed by the complainant, and matters well pleaded, in favor of the complainant, are, in view of the demurrer, to be considered as facts admitted by the respondent. Viewed in that light, as the pleadings must be, it will be most convenient to inquire, in the first place, whether the title claimed by the respondent is a valid one, ns if it is, the decree must be affirmed, and if it is not, the decree must be reversed, and the complainant may perhaps be entitled to relief.
.Disturbances, and in some instances collisions, of a threatening character, occurred between the Cherokee nation of Indians and certain citizens of the States or Territories in which they resided, in consequence of which the United States and-the Cherokee nation became anxious to make some arrangement whereby the difficulties which had arisen by the residence of the Indians within the settled parts of the United States, under the jurisdiction and laws of the States or Territorial governments, might be terminated and adjusted. Measures of various kinds had been devised and tried without effectually accomplishing the object, as will be seen by reference to some of the early treaties with that nation and the acts of Congress upon the subject.
Treaties of the kind were concluded with that nation of Indians on the 6th of May, 1828, and on the 14th of February, 1833, in both of which the United States agreed to possess the Cherokees of seven million- acres of land west of the-Mississippi River, bounded as therein described, and to guarantee it to them forever, upon the terms and conditions therein stipulated and agreed. Enough appears in those treaties to show that it was the policy of the United States to induce the Indians of that nation, resident in any of the States or organized Territories of the United States, to surrender their lands and possessions to the United States, and emigrate and settle in the territory provided for them in those treaties. Sufficient is known, as matter of history, to justify the remark, that those measures, as well as some of like kind of an earlier date, were unsuccessful, aud that the difficulties continued and became more and more embarrassing.
Prior measures having failed to accomplish the object of quieting the disturbances or removing the difficulties, the United States, on the 29th of December, 1835, concluded a new treaty with the Cherokee nation, with a view to reunite their people in one body and to secure to them-a permanent
home for themselves and their posterity in the country selected for that purpose, without tlqe territorial limits of the State sovereignties, and where they could establish and enjoy a government of their choice, and perpetuate such a state of society as' might be consonant with their views, habits, and condition.
By the first article of the treaty the Cherokee nation “cede, relinquish, and convey to the United States all the lands owned, claimed, or possessed by them east of the Mississippi River,” and released all their claims for spoliations of every kind, for and in consideration of the sum of $5,000,000, to be expended, paid, and invested in the manner stipulated and agreed upon in other articles of the treaty.
. Reference is made in the second article of the treaty to the respective articles of the two before-mentioned treaties, in which the United States agreed to possess'the Cherokees of seven million acres of land, situated and bounded as therein described, and guaranteed it to them forever upon the terms and conditions therein stipulated and agreed. Apprehension,'it seems, was felt by the Cherokees that the cession contained in those treaties, and confirmed in the new treaty, did not contain a sufficient quantity of laud for the accommodation of the whole nation on their removal, and in view of that fact the United States, in consideration of $500,000, covenanted and agreed to convey to the said Indians and'their descendants, by patent in fee simple, a certain tract of land, situated and bounded as therein described, estimated to contain eight hundred thousand acres of land,ever afterwards known as the Cherokee neutral lands, and it. is admitted in the bill of complaint that it includes the tract in controversy.
Authority was conferred upon the President by the first section of the act of the 28th of May, 1830, to cause so much of any territory belonging to the United States, west of the Mississippi, not included in any State or organized Terri
tory, and to which the Indian title had been extinguished, “as he may judge necessary,” to be divided into a suitable number of districts, for the reception of such tribes or nations of Indians as may choose to exchange the lands where they now reside, and to remove there, and to cause each of said districts to be so described by natural or artificial boundaries as to be easily distinguished from every other.
Power is also conferred upon the President by the second section of the act to exchange any or all of such districts with any tribe or nation of Indians residing within the limits of any of the States or Territories, for the whole or any portion of the territory, claimed and occupied by such tribe or nation, within the bounds of any one or more of the States or Territories, subject to certain conditions therein •prescribed. Section three provides that iu making such exchanges the President may solemnly assure the tribe Or nation that the United States will forever secure and guarantee ■ to them and their heirs and successors the countiy so exchanged with them, and that, if they prefer it, the United States wall cause a patent or grant to be made and executed to them for the same, provided that such lauds shall revert to the United States-if the Indians become extinct or abandon the territory.
Much reason exists to suppose that Congress in framing those provisions had in view the stipulations of the treaty concluded two years earlier, and it is equally probable that the President and Senate in negotiating and concluding the two treaties of later date were largely governed by the several provisions in that act of Congress, but they were not controlled by these enactments, as is evident from the fact that the later of the two contains many stipulations differing widely from the provisions of that act, as for example the United States, in the supplemental article enlarging the quantity of laud set apart for the accommodation of the nation, expressly covenant and agree to convey the additional tract to the said Indians and their descendants by. patent, in fee-simple title,'and the article does uot contain auy such provision as that contained in the third section of
the act of Congress, that the land shall revert to the United States if the Indians become extinct or abandon the territory.
Attempt is made in argument to show that the last-named treaty was negotiated by force of the act of Congress to provide for an exchange of lands with the Indians, but it is clear that ihe proposition cannot be sustained, as the treaty differs widely in many respects from the provisions of that act of Congress. Doubtless the intent and purpose were the same —to quiet the disturbances and to induce the Indians remaining in the States and.Territories to emigrate and settle in the district of country set apart for them without the limits of the several States and organized Territories — but the treaty, though concludedLto promote the same object as the act of Congress, adopts very different instrumentalities. It is a treaty to confirm to the Indians the possession of the seven million acres of land previously granted to the nation, and to purchase their lands east of the Mississippi River for the sum of $5,000,000, to be expended, paid, and invested in the manner therein stipulated and provided.
Such prior grant of land was made or defined under the two treaties before mentioned to secure a new home for the Indians, without the limits of the several States and Territories, and to induce the Indians still residing_ within those limits to emigrate and settle in the country long before set apart for that purpose. Large numbers of the Cherokees emigrated and settled there under the treaty of the 8th of July, 1817, and measures of various kinds had been adopted, at later periods, to induce the residue of the nation to follow those who had accepted the proffered protection, but without much success.
Even treaties proved ineffectual, as one after another failed to accomplish the desired end. They would not emigrate without compensation for their improvements, and many were reluctant to accept any of the terms proposed, upon the ground that the quantity of land set apart for the aecom
modation of the whole nation was not sufficient for the purpose. Twice the United States offered the seven million acres of laud, with other inducements, but the terms, though formally accepted, did not have the effect to accomplish the end. Experience showed that better terms were required, and the government agreed to purchase their lands for the consideration named in the treaty and to convey to the Indians in fee-simple title, the additional tract- of eight hundred thousand acres, for $500,000, to be deducted from the consideration stipulated to be paid for the purchase of their lands.
Other important stipulations are contained in the treaty, among which are the following: (1.) That the United States agree that the lands ceded shall all be included in one patent, executed by the President, to the Cherokee nation, according to the provision of the before-mentioned act of Congress. (2.) That the United States agree to extinguish, for the benefit of the Cherokees, the titles to the reservations within their country, made in the Osage treaty to certain half-breeds, and for that purpose the United States agree to pay to the persons to whom the titles belong the sum of $15,000, according to the schedule accompanying the treaty. (8.) That the United States shall pay the American Board of Commissioners for Foreign Missions for the improvements they have on the ceded country the sums at which the same shall be appraised, and that the money allowed for the improvements shall be expended in schools among the Osages, and for improving their condition.' (4.) That the land ceded to the Cherokee nation shall, in no future time, be included, without their consent, within the territorial limits or jurisdiction of any State or Territory. (5.) That the United States agree to protect the Cherokee nation from domestic strifes and foreign enemies and against intestine Wars between'the several tribes. (6.) That the United States agree to remove the Cherokees to their new homes and to subsist them for one year after their arrival. (7.) That the United States Shall liquidate claims for reservations and pay the sums awarded to the claimants; and many other stipula
tions which were of great value and highlv beneficial to the Cherokee nation.
Valid treaties were made by the President and Senate cluring that period with the Cherokee nation, as appears by the decision of this court in several cases.
Indeed, treaties have been made by the United States with the Indian tribes ever since 'the Union was formed, of which numerous examples are to be found in the seventh volume of the public statutes.
Indian tribes are States in a certain sense, though not-foreign States, or States of the United States, within the meaning of the second section of the third article of the Constitution, which extends the judicial power to controversies between two ór more States, between a State and citizens of another State, between citizens of different States, and between a State or the citizens thereof and foreign States, citizens, or subjects.- They are not States within the meaning of any one of those clauses of the Constitution, and yet in a certain domestic sense, and for certain municipal purposes, they are States, and have been uniformly so treated siuce the settlement of our country and throughout its history, and numerous treaties made with them.recognize them as a people capable of maintaining the relations of .peace and war, of being responsible, in their political character, for any violation of their engagements," or for any aggression committed'on the citizens of the United States by any individual of their community. Laws have been enacted by Congress in the spirit of those treaties, and the acts of our government, both in..the executive aud legislative departments, plainly recognize such tribes or nations as States, and the courts of the United States are bound by those acts.
Express power is given to the President, by aud with the advice aiid consent of the Senate, to make treaties, provided
two-thirds of the senators present concur, and inasmuch as the power is given, in general terms, without any description of the objects intended té be embraced within its scope, it must be assumed that the framers of the Constitution intended that it should extend, to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our government and the relation between the States and the United States.
Beyond doubt the Cherokees were the owners and occupants of the territory where they resided before the first approach of civilized man to the western continent, deriving their title, as they claimed, from the Great Spirit, to whom the whole earth belongs, and they were unquestionably the sole and exclusive masters of the territory, and claimed the right to govern themselves by their own laws, usages, and customs. Guided by nautical skill, enterprising navigators were conducted to the New World. They found it, says Marshall, C. J., in possession of a people who had made small progress in agriculture or manufactures, and, whose general employment was war,-hunting, and fishing. Expeditions were fitted out by all the great maritime powers of the Old World, and they visited many parts of the newly discovered continent, and each made claim to such part of the country as they visited. Disputes arose and conflicts were in prospect, which made it necessary to establish some principle which all would acknowledge, and which should decide their respective rights in case of conflicting pretensions. Influenced by these considerations they agreed that discovery should determine the right, that discovery should give title to the government by whose subjects, or by whose authority, it was made, against all other governments, and that the title so acquired might be consummated by possession.
As a necessary consequence the principle estab
lished gave to the nation making the discovery the sole right of acquiring the soil and of making settlements on it. Obviously this principle regulated the right conceded by discovery among the discoverers, but it could not aifect the rights of those already in possession, either as aboriginal occupants or as occupants by virtue of a-more ancient discovery. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell. Colonies were planted by Great Britain, and the United States,'by virtue of the revolution and the treaty of peace, succeeded to the extent-therein provided to all the claims of that government, both political and territorial. Throughout, the Indians as tribes or nations, have been considered as distinct, independent communities, retaining their original, natural rights as the undisputed possessors of the soil, from time immemorial, subject to the conditions imposed by the discoverers of the continent, which excluded them from intercourse with any other government than that of the first discoverer of the particular section claimed. They could sell to the government of the discoverer, but they could nofisell to any other governments or their subjects, as the government of the discoverer acquired, by virtue of their discovery, the exclusive pre-emption right to purchase, and the right to exclude the subjects of all other governments, and even their own, from acquiring title to the lands.
Enough has already been remarked to show that the lands conveyed to the United States by the treaty were held by the Cherokees under their original title, acquired by'immemorial possession, commencing ages before the New World was known to civilized man. Unmistakably their title was absolute, subject only to the pre-emption right of purchase acquired by the United States as the successors of Great Britain, and the right also on their part as such successor’s of the discoverer to prohibit the sale of the land to any other governments or their subjects, and to exclude all other governments from any interference in their afiairs.
Evidently,
therefore, the Cherokees were competent to make the sale to the'United States, and to purchase the lands agreed to be conveyed to them by the second article of the treaty. Both parties concede that the title of the United States to the tract known as the Cherokee neutral lauds was perfect and complete, and that the tract includes the land in controversy. Title to that tract was acquired by the United States as a part of the Louisiana purchase from the’ French Republic. By the treaty between the United States and the French Republic of April 30th, 1803, the chief executive officer of that republic ceded the said territory to the United States, with all its rights and appurtenances, forever.
When the President took possession of the Territory the absolute fee-simple title and right of sovereignty and jurisdiction became vested in the United States as the successor of the original discoverer, subject only to the Indian title and right of occupancy as universally acknowledged by all the departments of our government throughout our histoi’y. All agree that this land then, and for many years thereafter, was occupied by the Osage Indians. On the 2d of-June, 1825, the Osage tribes, by the treaty of that date, ceded to the United States all their right, title, interest, and claims to the lands lying . . . west of the State of Missouri, with such reservations, and for such considerations, as are therein specified, which, it is conceded, extinguished forever the title of the Osage Indians to the neutral lands.
Prior to the treaty of the 8th of July, 1817, the Cherokees resided east of the river Mississippi. Pursuant to that treaty they were divided into two parties, one electing to remain east of the Mississippi and the other electing to emigrate and settle west of it, and it appears that the latter made choice of the country on the Arkansas and White Rivers, and that they settled there upon the lauds of the United States described in the treaty.
Possessed as the United States were of the fee-simple title to the neutral lands, discharged of the right of occupancy
by the Osage Indians, it was clearly competent for. the proper authorities of the United States to.convey the same to the Cherokee nation. Subsequent acts of the United States show that the stipulations, covenants, and agreements of the treaty in question were regarded by all the departments of the government as’creating binding obligations, as fully appears from the fact that they all concurred in carrying the provisions into full effect.
Appropriations were made for surveys, and surveys were ordered, and plats-were made, and on the 1st of December, 1838, a patent for the land promised was issued by the President in full execution of the second and third articles of the treaty. Among other things it-is recited in the'patent that it is issued in execution of the agreements and stipulations contained in the said several treaties, and that the United States.do give and grant unto, the .Cherokee nation the two described tracts of land as surveyed, containing the whole quantity therein mentioned: to have and to hold the same, together with all the rights, privileges, and appurtenances thereto belonging, to the said Cherokee nation forever, subject to certain conditions therein specified, of which the last one is that the lands- hereby granted shall revert to the United States if the said Cherokee nation becomes extinct or abandons the premises.
Objection is made by the appellant that the treaty -was inoperative to convey the neutral lands to the Cherokee nation, which may well be admitted, as none of its provisions purport
proprio vigore,
to make any such conveyance. Nothing of the kind is pretended, but the .stipulation of the second article of the treaty is that the United States covenant and agree to convey to the said Indians and their descendants, by patent in fee simple, the described additional tract, meaning the tract known as the neutral lands; and the third article of the treaty stipulates that the lands ceded by the treaty, as well as those ceded by a prior treaty,- shall all be included in one patent, to be executed to the Cherokee na
tion of Indians by the President, according to the provisions of the before-mentioned act of Congress.
Suppose that is so, still it is insisted that the President and Senate, in concluding such a treaty, could not lawfully covenant that a patent should issue to convey lands which belonged to the United States without the consent of Congress, which cannot be admitted.
On the contrary, there are many authorities where it is held that a treaty may convey to a grantee a good title to such lands-without an act of Congress conferring it, and that Congress has no constitutional power to settle or interfere with rights under treaties, except in cases purely political.
Much reason exists in view of those authorities and others which might be referred to, for holding • that the objection of the appellant is not w7ell founded, but it is not necessary to decide the question in this case, as the treaty in question has been fully carried into effect, and its provisions have been repeatedly recognized by Congress as valid.
Congress, on the 2d of duly, 1836, appropriated $4,500,000 for the amount stipulated to be paid for the lands ceded by the Cherokees in the first article of the-treaty, deducting the cost of the land to be conveyed to them west of the'Mississippi under the second article of the same treaty, which is the precise amount stipulated to be paid for the concession, deducting the consideration which the Indians agreed to allow for the neutral lauds. Appropriations were also made by that act to fulfil and execute the'stipulations, covevants, and agreements contained in the
fourth, eleventh, seventeenth, and eighteenth articles of the treaty, and for the removal of the Oherokees, and for surveying the lands set apart by treaty stipulations for the Cherokee Indians west of the Mississippi River.
†‡Commissioners were appointed to adjudicate the claims of individual Oherokees, as provided in the thirteenth article of the treaty, and their compensation was fixed by Congress, and appropriations were made by Congress for that purpose. Such a board was duly constituted, consisting of two commissioners, and it was made the duty of the Attorney-General, in case of their disagreement, to decide the point in difference.
Prior treaties'between the United States and the Cherokee nation proving to be insufficient to protect and promote their respective interests, the contracting parties, on the 15th of July, 1866, made a new treaty of that date, by the first article of which they declare that the pretended treaty made with the so-called Confederate States by the Cherokee nation, on the 7th of October, 1861, is void, which is all that need be said upon the subject, as both parties, repudiate the instrument and concur that it is of no effect.
Many new regulations are there adopted and many new stipulations made, but they are all, or nearly all, foreign to the present investigation, except the provision contained in the seventeenth article. By that article the Cherokee nation ceded, in trust, to the United States the tract of land which was sold to the Oherokees by the United States under the provisions of the second article of the prior treaty, and also that strip of the land ceded to the nation by the fourth article of said treaty, which is included in the State where the land is situated, and the Oherokees consent that said lands may be included within the limits and under the jurisdiction of the said State, to be surveyed as the public lands
of the Uuitecl States are surveyed, under the direction of the Commissioner of the General Land Office, and that the lands shall be appraised as therein provided.
Annexed to that stipulation is a proviso that persons owning improvements and residing on the same, if of the value of $50, and it appears that they were made for agricultural purposes, may, after due proof, be entitled to buy the same at the appraised- value, under the conditions therein specified. Sates of the kind may be made 'under such regulations as the Secretary of the Interior shall prescribe, but another proviso is "annexed to the stipulation that nothing in that article shall prevent the Secretary of the Interior from selling for cash the whole of said neutral lands in a body to any responsible party for a sum not less-than $800,000.
When the treaty was submitted to the Senate the last proviso was stricken out and another was adopted in its place, as follows: That nothing in the article shall prevent the Secretary of the Interior from selling the whole of said lauds, not occupied by actual settlers at the date of the ratification of the treaty (not exceeding one hundred and sixty acres to each person entitled to pre-emption under the preemption laws of the United States), in a body, to any responsible party, for cash, for a sum not less than one dollar per acre. Exception is there made of improvements made by actual settlers, but the amendment in one respect is more comprehensive than the original treaty, as it extends the authority of the Secretary of the Interior to lands other than 'those known as the neutral lands, to which the origiual treaty was confined.
Two objections are made to the title of the appellee as affected- by that treaty, in addition to those urged to show that the. prior treaty between the same parties was inoperative and invalid'. It is contended by the appellant that the Cherokee possessory right to the neutral lands was extinguished _by the seventeenth article of the treaty, which undoubtedly is correct, but the conclusion which he attempts to deduce from that fact cannot be sustained, that the Cherokee nation abandoned the lauds within the meaning of the
last condition inserted in the patent by which they acquired the same from the United States.
Strong doub.ts are entertained whether that condition in the patent is valid, as it was not authorized by the treaty under which it was issued. By the treaty the United States covenanted and agreed to convey the lands iu fee-simple title, and it may well be held that if that condition reduces the estate conveyed to less than a fee, it is void; but it is not necessary to decide that point, as it is clear that if it is valid it is a condition subsequent, which no oné but the grantor in this case can set up under any circumstances.
Even if the rule wa^ otherwise, still the point could not avail the appellant, as the parties manifestly waived it iu this case, nor is it true that the sale in trust by the Cherokee nation to their former grantor constitutes such an abandonment of the premises as that contemplated by. the condition inserted in the patent.
Unsupported in that proposition, the appellant iu the next place contends that the provisions of the seventeenth article of the treaty are a mere agreement, that the article did not operate to convey the lauds to .the United States; but the court is entirely of a different opinion, as the proposition is contradicted by the practice of the government from its origin to the present time.
Most of the objections urged against the prior treaty are also urged to show that this treaty is inoperative and invalid, to which the same answer is made as is given by the court in response to the antecedent objections.
Under that article of the treaty a contract wras made- and executed, dated August 30th, 1866, by the Secretary of the Interior, on behalf of the United States, and by the American Emigrant Company, for the sale of the so-called Cherokee neutral lauds, containing eight hundred thousand acres, more or less, with the limitations and restrictions set forth
in that article of the treaty as amended, on the terms and conditions therein mentioned, but the successor of the Secretary of the Interior came to the conclusion that the sale, as made by that contract, was illegal and not in conformity with the treaty and the amendments thereto, and on the 9th of October of the succeeding year he entered into a new contract on behalf of the United States with the appellee for the sale of the aforesaid lauds, ou the terms and conditions1 in said contract set forth. Embarrassment to all concerned arose from these conflicting contracts, and for the purpose of removing the same all the parties came to the conclusion that it was desirable that the Emigrant Company should assign their contract, and all their right, title//claim, and interest in and to the said neutral lands, to the appellee} and that he should assume and conform to áll the obligations of the said company under their said contract. All of the parties having united in that arrangement} the United States and the Cherokee nation, on the 27th
ot
April, 1868, adopted a supplemental ai'ticle to the last-named treaty, and the same ■was duly ratified by the Senate and proclaimed by the President.
Acting through commissioners the contracting parties agreed that an amendment of the first contract should be made, and that said contract as modified should “ be and the same is hereby, with the consent of all parties, reaffirmed and made valid;”., that the second contract shall be relinquished and cancelled by the appellee, and that said first contract, as modified, and the assignment of the same, and the relinquishment of :the second contract, “are hereby ratified and confirmed whenever said assignment of the first contract and the relinquishment of the second shall be entered of record in the Department of the Interior, and when ” the appellee “shall have accepted said assignment and shall have entered into a contract with the Secretary of the Interior to assume and perform ail the obligations of the Emigrant Company under said first-named contract, as therein modified.” Important modifications were made in the first
contract, but it is not important that they should be reproduced at this time.
After the Indian title was extinguished by the treaty ceding the neutral lands to the United States, and before the supplemental treaty was concluded, many settlers, it is claimed, including the appellant, went on these lands for the purpose of settlement. They took, and have continued, possession for the purpose of complying with and procuring titles under the pre-emption laws passed by Congress, but the local land offices were not open to them, and of course they were denied the opportunity to make proof and payment': Instead of that’, patents of the lands, not belonging to actual settlers, were issued to the appellee, and it is admitted by the appellant that the patent of October 31st, 1868, covers the land in controversy, and that he, the appellant, is not entitled to relief if that patent gives to thp appellee á valid title.
Precisely the same objections were made to the treaty ceding back the neutral lands to the United States, and to the supplemental treaty, as were taken to the prior treaty under which the United States covenanted to convey the neutral lands to the Cherokee nation, and they must be overruled for the reasons given for overruling the objections to the prior treaty.
Acts of Congress were subsequently passed recognizing the treaty céding back the lands to the United States, and the supplemental treaty as valid, and making appropriations to carry the same into effect.
Some other objections of a purely technical character are made by the appellant to the 'title of the appellee, but these are satisfactorily answered in the printed argument filed in the case by the latter party, and are accordingly overruled.
Viewed in any light, the' court is of the opinion that the
title to .the land in controversy is in the appellee, and that-there is no error in the record.
Decree aeeirmed in each case.
NOTE.
Warner
v.
Joy.
No. 327.
The decree in this case (like the preceding one, an appeal from the District of Kansas) was also affirmed; Mr. Justice Clifford (who delivered the judgment of the court) observing, that it was clear that such a decree must be given, on an application of the principles adopted and the reasons given in the case just decided; as the pleadings were'substantially the same aá in it, and there was a stipulation of the parties that the court might take and determine the demurrer'filed upon the agreements made in that case and without further argument. •
So, too, judgment was here affirmed on a wjdf of error (No. 328) to the same district, in a suit of ejectment by Joy against Warner for these same lands, where judgment had been given in favor of Joy; Mr. Justice Clifford, who delivered the judg1 ment of the court, saying that the questions presented for decision were “in all respects the same as those presented and decided in
Holden
v.
Joy;”
and that “the court, without hesitation, decides that the title of the plaintiff is complete, and that he is entitled to judgment for the recovery of the possession of the premises in controversy.”