SHANNON, C. J.
In his complaint, the plaintiff alleges mere possession, without any legal interest, and without showing any right .of possession, but relies solely upon an alleged relation of landlord and tenant. He sets up a written contract, dated the 24th day of August, 1876, at Dead wood, by which he leased to the assignors of the defendants a part of a lot of ground in said city, for a term of eight months. The lease is made a part of the bill of exceptions, and shows a rent of twenty-five dollars per month, payable in advance, and an agreement that, at the expiration of the lease, the plaintiff should pay the actual value of improvements made upon the lot.
[94]*94Further allegations in the complaint are, of the expiration of the term on the 25th day of April, 1877, of a holding over, and of a notice to quit and a refusal. The relief demanded is for the possession, and for damages for the unlawful withholding and costs.
The answer of the defendants, without disputing the execution of the written contract, denies any ownership in the plaintiff, and that he was ever, at anytime, lawfully possessed of the premises: It contains the further averment, that the lawful and exclusive possession of the premises, at the date of the contract, and when the plaintiff pretended to be possessed thereof, to-wit, on the 24th day of August, 1876, was, as against plaintiff, in the Sioux Indians, ' and not in the plaintiff. And moreover, that the premises, on the 24th day of August, 1876, were lands to which the Indian title had not been extinguished, and were within an Indian reservation, and so remained until the 28th day of February, 1877, when they became a portion of the public lands of the United States, and were open to lawful settlement and occupation, etc.
It appears by the bill of exceptions that after the closing of the testimony, the defendants, by their counsel, asked the Court to instruct the jury, among other things, as follows: “ The jury are instructed, that prior to February 28th, 1877, no title could be acquired to thé ground in controversy by plaintiff, nor could he make any lawful lease of the same; the jury, are, therefore, instructed to ñnd a verdict for defendants.”
The District Court refused to give such instruction, and this is alleged as error.
This court in the case of McCall v. The United States, (at December term, 1876,) considered that’ Deadwood was a place in the Sioux Indian reservation, set apart under the treaty proclaimed February 24th, 1869; and that the said reservation was in the Indian country; and that Deadwood was then a'place within the sole and exclusive jurisdiction of the United States.
In that case it was objected that the defendant should have been indicted and tried in the Territorial court; but the court said that v it is well settled that a trial for homicide committed in an Indian reserve, must be had on the federal side of a Territorial court, and is governed by United States statutes and the rules of the common law.” (1 Dak. Rep., 334.)
[95]*95It is evident from tlie language of the Court, that it was so considered at the time, although in the absence of any such elaborate discussion as has been displayed in the present case.
We shall, however, proceed to examine the question again. It is now conceded, from authentic survey, that Deadwood was, in August, 1876, within the limits prescribed by Article 2, of the aforesaid treaty with the Sioux Indians, to-wit, the treaty of 1868, proclaimed by the President on the 24th of February, 1869.
The tract of country described in Article 2, was set apart for the absolute and undisturbed use and occupation of those Indians ; and the United States solemnly agreed that no persons, except those therein designated and authorized so-to do, and except such officers, agents, and employes of the government, as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, “ shall ever be permitted to pass over, settle upon, or reside in the Territory ” described in said article, etc.
By this treaty, therefore, that district of country became an Indian reservation, to all intents and purposes. The treaty has never been wholly abrogated. The executive departments of the government have continuously acted upon it. There was some contention in Congress concerning the selection of the lands reserved, and •regarding the approval of Congress thereto; but on the 15th of August, 1876, an Act was approved, entitled “An act making appropriations for the current and contingent expenses of the Indian Department,” etc., in which, in reference to the Sioux Indians, the above tract is termed “ the permanent reservation, established by the treaty of eighteen hundred and sixty-eight, for said Indians.”
The agreement, approved February 28th, 1877, expressly admits that a reservation was defined by Article 2, of said treaty, and modifies the same, abrogates Article' 16, of the treaty, relinquishes and cedes the Black Hills country; and contains certain changes and concessions; but by Article VIII, of the agreement, the provisions of the treaty of 1868, except as modified, shall continue in full force, and, with the provisions of the agreement, shall apply to any country which may hereafter be occupied by the said Indians as a home.
Whilst section 2079, of the Revised Statutes, declares that there[96]*96after no Indian nation or tribe shall be recognized as an independent nation, yet it also declares that “ no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe, prior to March 3d, 1871, shall be invalidated or impaired.” If the treaty of 1868 was not lawfully mad^and ratified, why, it may be asked, did not Congress promptly so declare the fact? From year to year, appropriations of various kinds, and of vast amounts, have been made to carry out its provisions.
Acts of practical ratification have more force than mere words of discontent and protest accompanying them. Until abrogated, this treaty was at least binding upon the consciences of the judicial and. executive departments of the government, as well as upon those of the people. The constitution and the laws of the United States made in pursuance thereof, and all treaties made under the authority of the United States, are declared to be the supreme law of the land. • As long as treaty obligations exist, they must be faithfully kept and upheld. (See Worcester v. The State of Georgia, 6 Peters, 560, 581.)
Thus aside from the dissatisfaction noticed, the three departments of the government have so far concurrently acted in support of the treaty, and' this court will hold that it was lawfully made and ratified, and was binding in all its parts, until we shall be corrected by a higher tribunal.
The contract in this case was made at Deadwood, and was to be performed there. But at its date, that place was, and had been, set apart for the absolute and undisturbed use and occupation of the Indians. As it was unlawful for the contracting parties to settle upon the lot in controversy in August, 1876, so it was unlawful for them to assume the relation of landlord and tenant in regard to it. The object .of the contract was unlawful when the contract was made. The object was to induce the lessee to take possession of, and to occupy the town lot, and to erect a building for a store, and to get rent for the ground. This written contract having such .unlawful object was, and is, entirely void.
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SHANNON, C. J.
In his complaint, the plaintiff alleges mere possession, without any legal interest, and without showing any right .of possession, but relies solely upon an alleged relation of landlord and tenant. He sets up a written contract, dated the 24th day of August, 1876, at Dead wood, by which he leased to the assignors of the defendants a part of a lot of ground in said city, for a term of eight months. The lease is made a part of the bill of exceptions, and shows a rent of twenty-five dollars per month, payable in advance, and an agreement that, at the expiration of the lease, the plaintiff should pay the actual value of improvements made upon the lot.
[94]*94Further allegations in the complaint are, of the expiration of the term on the 25th day of April, 1877, of a holding over, and of a notice to quit and a refusal. The relief demanded is for the possession, and for damages for the unlawful withholding and costs.
The answer of the defendants, without disputing the execution of the written contract, denies any ownership in the plaintiff, and that he was ever, at anytime, lawfully possessed of the premises: It contains the further averment, that the lawful and exclusive possession of the premises, at the date of the contract, and when the plaintiff pretended to be possessed thereof, to-wit, on the 24th day of August, 1876, was, as against plaintiff, in the Sioux Indians, ' and not in the plaintiff. And moreover, that the premises, on the 24th day of August, 1876, were lands to which the Indian title had not been extinguished, and were within an Indian reservation, and so remained until the 28th day of February, 1877, when they became a portion of the public lands of the United States, and were open to lawful settlement and occupation, etc.
It appears by the bill of exceptions that after the closing of the testimony, the defendants, by their counsel, asked the Court to instruct the jury, among other things, as follows: “ The jury are instructed, that prior to February 28th, 1877, no title could be acquired to thé ground in controversy by plaintiff, nor could he make any lawful lease of the same; the jury, are, therefore, instructed to ñnd a verdict for defendants.”
The District Court refused to give such instruction, and this is alleged as error.
This court in the case of McCall v. The United States, (at December term, 1876,) considered that’ Deadwood was a place in the Sioux Indian reservation, set apart under the treaty proclaimed February 24th, 1869; and that the said reservation was in the Indian country; and that Deadwood was then a'place within the sole and exclusive jurisdiction of the United States.
In that case it was objected that the defendant should have been indicted and tried in the Territorial court; but the court said that v it is well settled that a trial for homicide committed in an Indian reserve, must be had on the federal side of a Territorial court, and is governed by United States statutes and the rules of the common law.” (1 Dak. Rep., 334.)
[95]*95It is evident from tlie language of the Court, that it was so considered at the time, although in the absence of any such elaborate discussion as has been displayed in the present case.
We shall, however, proceed to examine the question again. It is now conceded, from authentic survey, that Deadwood was, in August, 1876, within the limits prescribed by Article 2, of the aforesaid treaty with the Sioux Indians, to-wit, the treaty of 1868, proclaimed by the President on the 24th of February, 1869.
The tract of country described in Article 2, was set apart for the absolute and undisturbed use and occupation of those Indians ; and the United States solemnly agreed that no persons, except those therein designated and authorized so-to do, and except such officers, agents, and employes of the government, as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, “ shall ever be permitted to pass over, settle upon, or reside in the Territory ” described in said article, etc.
By this treaty, therefore, that district of country became an Indian reservation, to all intents and purposes. The treaty has never been wholly abrogated. The executive departments of the government have continuously acted upon it. There was some contention in Congress concerning the selection of the lands reserved, and •regarding the approval of Congress thereto; but on the 15th of August, 1876, an Act was approved, entitled “An act making appropriations for the current and contingent expenses of the Indian Department,” etc., in which, in reference to the Sioux Indians, the above tract is termed “ the permanent reservation, established by the treaty of eighteen hundred and sixty-eight, for said Indians.”
The agreement, approved February 28th, 1877, expressly admits that a reservation was defined by Article 2, of said treaty, and modifies the same, abrogates Article' 16, of the treaty, relinquishes and cedes the Black Hills country; and contains certain changes and concessions; but by Article VIII, of the agreement, the provisions of the treaty of 1868, except as modified, shall continue in full force, and, with the provisions of the agreement, shall apply to any country which may hereafter be occupied by the said Indians as a home.
Whilst section 2079, of the Revised Statutes, declares that there[96]*96after no Indian nation or tribe shall be recognized as an independent nation, yet it also declares that “ no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe, prior to March 3d, 1871, shall be invalidated or impaired.” If the treaty of 1868 was not lawfully mad^and ratified, why, it may be asked, did not Congress promptly so declare the fact? From year to year, appropriations of various kinds, and of vast amounts, have been made to carry out its provisions.
Acts of practical ratification have more force than mere words of discontent and protest accompanying them. Until abrogated, this treaty was at least binding upon the consciences of the judicial and. executive departments of the government, as well as upon those of the people. The constitution and the laws of the United States made in pursuance thereof, and all treaties made under the authority of the United States, are declared to be the supreme law of the land. • As long as treaty obligations exist, they must be faithfully kept and upheld. (See Worcester v. The State of Georgia, 6 Peters, 560, 581.)
Thus aside from the dissatisfaction noticed, the three departments of the government have so far concurrently acted in support of the treaty, and' this court will hold that it was lawfully made and ratified, and was binding in all its parts, until we shall be corrected by a higher tribunal.
The contract in this case was made at Deadwood, and was to be performed there. But at its date, that place was, and had been, set apart for the absolute and undisturbed use and occupation of the Indians. As it was unlawful for the contracting parties to settle upon the lot in controversy in August, 1876, so it was unlawful for them to assume the relation of landlord and tenant in regard to it. The object .of the contract was unlawful when the contract was made. The object was to induce the lessee to take possession of, and to occupy the town lot, and to erect a building for a store, and to get rent for the ground. This written contract having such .unlawful object was, and is, entirely void.
When the United States solemnly agreed that such persons as made this writing should not be permitted to settle upon this lot as long as the treaty stipulations should exist, it amounted to a [97]*97prohibition. The treaty was the supreme law to warn and. deter them from such unlawful contract.
The object of the contract was, moreover, in violation of section 2118, of the Revised Statutes, which declares that “ every person who makes a settlement on any lands belonging, secured, or granted by treaty with the United States to any Indian tribe, or surveys or attempts to survey such lands, or to designate any of the boundaries by marking trees, or otherwise, is liable to a penalty of one thousand dollars. The President may, moreover, take such measures, and employ such military force as he may judge necessary, to remove any such person from the lands.”
The contract was not only void, but the parties were, therefore, liable to a prosecution for the penalties. But aside from the latter consideration, such a contract cannot be sustained either at law or in equity. For as was said by Chief Justice Taney, in Kennett v. Chambers, (14 How., 50,) “as the sovereignty resides'in the people, every citizen is a portion of it, and is himself personally bound by the laws which the representatives of the sovereignty may pass, or the treaties into which they may enter, within the scope of their delegated authority. And when that authority has plighted its faith to another nation, that there shall be peace and friendship between the citizens of the two countries, every citizen of the United States is equally and personally pledged. The compact is made by the department of the government upon which he himself has agreed to confer the power. It is his own personal compact as a portion of the sovereignty in whose behalf it is made. And he can do no act, nor enter into any agreement to promote or encourage revolt or hostilities against the territories of a country with which our government is pledged by treaty to be at peace, without a breach of his duty as a citizen, and the breach of the faith pledged to a foreign nation. And if he does so, he cannot claim the aid of a court of justice to enforce it.”
This admirable exposition of the law arose in a case affecting a treaty with Mexico; and the same principle must govern in our courts in regard to a treaty with an Indian nation. The latter is as much the supreme law as the former. If our government solemnly pledges its faith by treaty, with Indian tribes, it must ever [98]*98be held as sacred and binding as if it were plighted to civilized nations. To maintain treaties, especially with the weak, is the glory of a nation, because it redounds to its honor and prosperity. To break them is to violate all law, and all faith, and all honor. Carthage has come down to us, through the long line of the centuries, as a people characterized by “ Punic faith.”
A contract is unlawful which is contrary to an express provision of law, or contrary to the policy of express law, though not expressly prohibited, or otherwise contrary to good morals. (See Armstrong v. Toles, 11 Wheat., 272; Kennett v. Chambers, supra.) And the law will not aid either of two parties who are equally in the wrong.
This case very much resembles that of Dupas v. Wassell, (1 Dillon’s C. C. R., 218,). in which it was held that the lease was void by reason of being in violation of the Act of Congress reserving the Hot Springs lands, and because the lease was against public policy, and the lessee was not estopped to deny his landlord’s title.
From all the above considerations the following conclusions must be drawn:
1. That the place in which the land in dispute lies, being also the place of the contract and of its performance, was Indian country, to which the Indian title was not relinquished until by force of the agreement, approved February 28th, 1877.
2. That the locus in quo also became an Indian reservation by virtue of the aforesaid treaty, ratified by the Senate on the 16th of February, 1869, and proclaimed eight days afterwards by the President; and that it continued to be so reserved until the cessation of the title under the aforesaid agreement, approved in 1877.
3. That the relation of landlord and tenant, as to ■ this lot of ground, could not, and did not, legally exist on the said 24th of August, 1876, or afterward, whilst the treaty was in force, or the land remained as Indian country.
4. That the said contract of lease, being at its date unlawful in its objects, and in violation of the treaty and of the Statute, and contrary to public policy, was, and is, entirely void.
[99]*995. And that, as the- plaintiffs present action altogether rests npon this alleged contract, the action must fail.
6. That consequently .the District Court erred in refusing to charge the jury in accordance with the defendants’ request, that the plaintiff could not make any lawful lease of the ground in controversy.
No question touching at all upon the provisions of section 2319, of the Revised Statutes of the United States, has been presented in this case, and, therefore, nothing in this opinion is to be construed as relating to such mineral lands.
The District Court having erred in refusing to charge the jury as stated, it follows that the judgment" must be reversed, and the cause is remanded to the court below, with directions to dismiss, the action, and it is so
ORDERED.
„A11 the Justices concurring.