[18] The opinion of the court was delivered by
Brewer, J.:
This is an action in the nature of ejectment, brought by the defendant in error against the plaintiffs in error, to recover possession of a tract of land which she claims by virtue of an allotment to her under the Pottawatomie treaty of 1861. (12 Stat. at Large, p. 1191.) The plaintiffs claim under the patentee, Anthony F. Navarre, who, as head of the family of which defendant in error was a member, received the patent for the land in controversy as provided by section 6 of the treaty of 1867. (15 Stat. at Large, p. 536.) The case was tried by the court without a jury, and the findings of law and fact are embodied in the record. The certificate of allotment for the land in question, issued to the defendant in error, and the patent to Anthony F. Navarre as head of the family, are both recited in full in the findings of fact. The conclusions of law were as follows:
“1. That the said treaty of November 15, 1861, and the action had thereunder, including the issuance of the said certificate by the commissioner of Indian affairs, operated as, and constituted a grant of the land in controversy to said Susan Let-ranch (now Susan Maynes, plaintiff); to which conclusion of law the said defendants then and there excepted.
“2. That the said treaty of February, 1867, did not authorize the issuance of the patent to said Anthony F. Navarre; to which conclusion of law the said defendants then and there excepted.
“3. That said patent, so issued .on the 16th day of May, 1870, to said Anthony F. Navarre, is null and void; to which conclusion of law the said defendants then and there excepted.
“4. That the said plaintiff at the time of the commencement of this action, was and now is the owner of said land and premises in her petition described, and entitled to the immediate and exclusive possession thereof; to which conclusion of law the defendants then and there excepted.”
The defendants, being in possession and holding under a patent from the United States, were entitled to judgment unless a better title in the plaintiff was shown; and that better title of necessity implied, not simply an irregularity in the [19] issue of the patent, for that would be a matter between the government and the patentee, but a want of title in the government, or at least of a right to convey at the time it issued the patent. In other words, it implied the invalidity of the patent because of a prior vesting of either the legal or equitable title in the plaintiff. To determine this question, it becomes necessary to examine the treaties between the government and the Pottawatomie Indians of 1846, 1861, and 1867. By them must be determined the extent of the interest vested in the allottee and the power by treaty betweén the Indians and the government, to thereafter locate the legal title to the tract covered by the allotment. We quote the various sections which are claimed by counsel to affect this question, premising the quotations by saying that certain rules of construction seem to have become settled concerning Indian treaties and titles, and that the language of the various sections must be construed in the light of these established rules. The treaty of 1846 (9 U. S. Stat., p. 853) provided for concentrating the various bands of the Pottawatomie Indians into one nation, to be known as the Pottawatomie nation, their cession of all lands owned or claimed by them, in consideration of $850,000, to be used or invested, as further specified in the treaty. Section 4 then reads: “'The United States agree to grant to the said united tribes of Indians, possession and title to a tract or parcel of land containing . . . and to guarantee the full and complete possession of the same to the Pottawatomie nation, parties to this treaty, as their land and home forever; for which they are to pay the United States the sum of $87,000, to be deducted from the gross sum promised to them in the third article of this treaty.” No other provisions of this treaty seem to throw any light on the question. The treaty of 1861, proclaimed April 19, 1862, (12 U. S. Stat., p. 1191,) is the next in order, and contains these sections:
“Article 1. The Pottawatomie tribe of Indians, believing that it will contribute to the civilization of their people to dispose of a portion of their present reservation in Kansas, [20] consisting of five hundred and seventy-six thousand acres, which was acquired by them for the sum of $87,000, by the 4th article of the treaty between the United States and the said Pottawatomies, proclaimed by the President of the United States on the 23d day of July, 1846, and to allot lands in severalty to those of said tribe who have adopted the customs of the whites and desire to have separate tracts assigned to them, and to assign a portion of said reserve to those of the tribe who prefer to hold their lands in common; it is therefore agreed by the parties hereto that the commissioner, of Indian affairs shall cause the whole of said reservation to be surveyed in the same manner as the public lands are surveyed, the expense whereof shall be paid out of the sales of lands hereinafter provided for, and the quantity of land hereinafter provided to be set apart to those of the tribe who desire to take th'eir lands in severalty, and the quantity hereinafter provided to be set apart for the rest of the tribe in common; and the remainder of the land, after especial reservations hereinafter provided for shall have been made, to be sold for the benefit of said tribe.
“Art. 2. It shall be the duty of the agent of the United States for said tribe to take an accurate census of all members of the tribe, and to classify them in separate lists, showing the names, ages and numbers of those desiring land in severalty, and of those desiring lands in common, designating chiefs and head-men respectively,' each adult choosing for himself or herself, and each head of a family for the minor children of such family, and the agent for orphans and persons of an unsound mind. And thereupon there shall be assigned, under the direction of the commissioner of Indian affairs, to each chief at the signing of the treaty, one section; to each head-man, one half-section; to each other head of a family, one quarter-section; and to each other person, eighty acres of land; to include in every case, as far as practicable, to each family,-their improvements and a reasonable portion of timber, to be selected according to the legal subdivision of survey. When such assignment shall have been completed, certificates shall be issued by the commissioner of Indian affairs for the tracts assigned in severalty, specifying the names of the individuals to whom they have been assigned respectively, and that said tracts are set apart for the perpetual and exclusive usé and benefit of such assignees and their heirs. Until otherwise provided by law, such tracts shall be ex[21] empt from levy, taxation, or sale, and shall be alienable in fee, or leased, or otherwise disposed of only to the United States, or to persons then being members of the Pottawatomie tribe, and of Indian blood, with the permission of the president, and under such regulations as the secretary of the interior shall provide, except as may be hereinafter provided. And on receipt of such certificates, the person to whom they are issued shall be deemed to have relinquished all right to any portion of the lands assigned to others in severalty, or to a portion of the tribe in common, and to the proceeds of sale of the same whensoever made.
“Art. 3. At any time hereafter, when the president of the United States shall have become satisfied that any adults, being males and heads of families, who may be allottees under the provisions of the foregoing article, are sufficiently intelligent and 'prudent to .control their affairs and interests, he may, at the request of such persons, cause their lands severally held by them, to be conveyed to them by patent in fee simple with power of alienation; and may, at the same time, cause to be paid to them in cash or in the bonds of the United States, their proportion of the cash value of the credits of the tribe, principal and interest then held in trust by the United States, and also, as the same may be received, their proportion of the proceeds of the sale of lands under the provisions of this treaty; and on such patents being issued and such payments ordered to be made by the president, such competent persons shall cease to be members of said tribe, and shall become citizens of the United States; and thereafter the lands so patented to them shall be'subject to levy, taxation and sale, in like manner with the property of other citizens: Provided, That before making any such application to the president they shall appear in open court in the district court of the United States for the district of Kansas, and make the same proof and take the same oath of allegiance as is provided by law for the naturalization of aliens, and shall also make proof to the satisfaction of said court that they are sufficiently intelligent and prudent to control their affairs and interests, that they have adopted the habits of civilized life, and have been able to support, for at least five years, themselves and families.
“Art. 4. To those members of said tribe who desire to hold their lands in common there shall be set apart an undivided quantity sufficient to allow one section to each chief, one half-section to each head-man, and one hundred and sixty acres to [22] each other head of a family, and eighty acres of land to each other person; and said land-shall be held by that.portion of the tribe for whom -it is set apart, by the same tenure as the whole reserve has been held by all of said tribe under the treaty of 1846. And upon such land being assigned in common, the persons to whom it is assigned shall be held to have relinquished all'title to the lands assigned in severalty, and in the proceeds of sales thereof whenever made.’. ■
The treaty of 1867, proclaimed August 7, 1868, (15 U. S. Stat., p. 531,) provides for securing a home for the Pottawatomies in the Indian country, and the removal thither' of such as desire to be removed. The 1st, 2d and 3d sections relate to the selection, payment, etc., of the new reservation. The 4th, 6th and 8th sections, so far as they bear upon the question, are as follows: • , '
“Sec. 4. A register shall be made under the direction of the agent and the .business committee of the tribe within two years, after the ratification of this treaty, which shall show the names of all members of the tribe'who declare their desire to remove to the new reservation, and of all who desire to remain and become citizens of the United'States; and after the filing of such register in the office of the commissioner of Indian affairs, all existing restrictions shall be removed from the sale and alienation of lands by adults who shall have declared their intention to remove to the new reservation; but provided that no person shall be allowed to receive to his own use the avails of the sale of his land, unless he shall have received the certificate of the agent and business committee that he is fully competent to manage h(is own affairs; nor shall any person also be allowed to'sell and receive the proceeds of the sale of the lands belonging to his family, unless the certificate of the agent and business'committee shall declare him competent to take the charge of their property; but such persons may negotiate for the sales of their property, and that of their families; and any contracts for sales so made, if certified by the agent and business'cotnmittee to be at reasonable rates, shall be confirmed by the secretary of the interior, and patents shall issue to the purchaser upon full payment, and all payments for such land shall be made to the agent,” etc.
“Sec. 6. The provisions of article 3 of the treaty of April 19th, 1862, relative to Pottawatomies who desire to become [23] ■citizens, shall continue in force, with the additional provision that before patents shall issue and full payments be made to such persons, a certificate shall be necessary from the agent and business committee that the applicant is competent to manage his own affairs; and when computation is made to ascertain the amount of the funds to the tribe to which such applicants are entitled, the amounts invested in the new reser-' vation provided for in the treaty shall not be taken into account. When any member of the tribe shall become a citizen, under the provisions of said treaty of 1862, the families of said parties shall also'be considered as citizens, and the head of the family shall be entitled to patents and the proportional share of funds belonging to his family; and women who are also heads of families, and single women of adult age, may become citizens in the same manner as males.”
“Sec. 8 [as amended]. Where allottees under the treaty of 1861 shall have died, or shall hereafter decease, such allottees shall be regarded, for the purpose of a careful and just settlement of their estates, as citizens of the United-States and of the state of Kansas; and it shall be competent for the proper courts to take charge of the settlement of their estates, under all the forms and in accordance with the laws of the state, as in the case of other citizens deceased. And in cases where there are children of allottees left orphans, guardians for such orphans may be appointed by the probate court of the county in which such orphans may reside; and such guardians shall give bonds, to be approved by the said court, for the proper care of the person and estate of such-orphans, as provided by law.”
The starting-point is, of course, the treaty of 1846. By that the first cession of this land was made to the Pottawatomies, and it is claimed that by it something more than the ordinary Indian title was granted to the nation. Stress is laid-upon the words “possession and title,” and the use of the latter, it is said, implies something more than the mere right of occupancy, for that would pass under the former word. It may be that those words in the language of a grant to a cor-; poration or citizen would imply the grant of the title of the grantor. A contract between individuals to convey title might mean full title. But these words in the treaty must be construed in the light of the recognized relations between the [24] government and the Indians, and the established policy of the former toward the latter. Title does not necessarily mean title in fee simple; it may mean any kind of title, even the mere title by occupancy. The Indian title has been constantly recognized as simply this inferior title. The government has uniformly asserted its holding of the fee, and has recognized the Indian right as only one of possession. The supreme court reports are full of this doctrine.
In Doe v. Wilson, 23 How. 463, the court uses this language: “The United States held the ultimate title, charged with the right of undisturbed occupancy and perpetual possession in the Indian nation, with the exclusive power in the government of acquiring that right.” See also Johnson v. McIntosh, 8 Wheat. 603.
As recently as 1877, the supreme court, in the case of Beecher v. Wetherby, (95 U. S., 525,) has reasserted the doctrine that the Indian right to land is a mere possessory one, and yet the land in question was described as “owned and occupied by the Menominee Indians,” and it was “set apart”' for their future homes. So in the case of the United States v. Cook, (19 Wall., 591,) the chief justice, delivering the opinion of the court, said:
“The right of the Indians in the land from which the logs were taken, was that of occupancy alone. They had no-power of alienation, except to the United States. The fee was in the United States, subject only to this right of occupancy. This is the title by which other Indians hold their lands. The right of the Indians to their occupancy is as sacred as that of the United States to their fee; but it is only a' right of occupancy.”
Take the Osage reservation, which was set apart for that, tribe by most solemn words of perpetual ownership. The supreme court said, in Leavenworth, Lawrence & Galveston R. R. Co. v. United States, (92 U. S., 733,) “That in the free exercise of their choice they might hold it forever,” but they could only hold it. The fee was in the United States, subject to the right of the Indians.
Now, that the government had power to depart from this [25] traditionary policy and vest the fee as well as the right of occupancy in the Indians, is unquestioned, but if a departure had been intended, words more apt and clear would undoubtedly have been used. There is nothing in the balance of the treaty to distinguish it from ordinary Indian treaties. The tribal existence was fully recognized. No provision was in it for changing the relations of the tribe to the government, or for naturalizing the individual Indian. There is no restriction on the power of alienation, and no reservation to the government of the sole or prior right of purchase. So that if the fee passed, the tribe could the next day have conveyed full title to an individual, or to any other purchaser, even a foreign nation. More than that, the further language of the section indicates the extent of the intended grant. It is “to guarantee the full and complete possession ... as their land and home forever.” But if the fee was granted, the courts would always protect the title. Possession was guaranteed to the Indians, and not to them and their grantee. In short, there is nothing in or about the treaty to indicate that any other right or title was granted than that “ by which other Indians hold their land,” and that is the right or title of occupancy.
With this understanding, then, of the import of this treaty, we pass on to consider the subsequent treaties. Chronologically, the treaty of 1861 next demands attention. This treaty is a departure. It was a movement toward the disintegration of the tribe and the absorption of the individual Indians into the body of American citizens. No universal or abrupt change was contemplated, and such limitations and checks were placed as it was thought would sufficiently protect these wards of the nation from the schemes of the designing. In carrying out this obvious purpose, three steps were prescribed: the division of property, the conveyance of title, and the naturalization of the person. When these were accomplished, the individual passed out from tribal control, and became an American citizen with separate and absolute property. Yet by the terms of the treaty (article 3), all this [26] was possible only for the adult male heads of families. All others, ex necessitate,, remained- within the tribe, bound by its laws and concluded by its treaties, notwithstanding a certain holding of lands in severalty was possible for any and all. The treaty provided for a survey of all the lands and a census of the entire tribe, and then that certain quantities of land be assigned in severalty to those who desired thus to hold, and in-common to the remainder. Now what was intended by this division — that the title be thus divided up, or the mere matter of occupancy? Of course either was within the power of the contracting parties. . They might provide for a division among the several Indians which should vest an absolute title in each, beyond the power of the tribe or the government to disturb without the personal consent of the individual-; or they might provide for an individualizing of the right of occupancy, giving to each person a sole right of occupancy-in a particular tract, a right guaranteed against invasion by any individual, but still within the power of the tribe as a tribe to convey by treaty. ■ In other words, while that remained the- tribal home each -individual desiring it -should have separate control of certain lands, yet subject to the ultimate power of the tribe to change their home and to make absolute conveyance of the whole body of lands. The power of the tribe, as a tribe, remained undisturbed over both the allotted lands and those held in common. That this was the intent and effect-of the treaty, we are constrained to hold, .and this notwithstanding many expressions which, if- used in ordinary contracts between individuals, would have marked significance to the contrary.
The allottee remained a member of the tribe. We.are not advised by anything in the record as to the extent of the power of the tribe .over -the individual, but whatever that power was, it remained in full vigor over-the allottee.. ■ There was no separation of the allottee.from’.the nation, and no express restriction upon the power of the tribal authorities to: act for him -as fully as for any other members of the tribe. And that which thereafter the tribal authorities assumed to [27] do for him, may well be assumed, in the absence of proof of limitations upon their power, to be within the scope of that power as recognized by the laws and customs of the nation. It must be remembered that, in a large sense, an Indian tribe is to be considered as a foreign nation, and its laws and customs matter of proof, and not to be judicially taken notice of. The powers of the supreme authority differ in different nations, and an act of such supreme authority of a foreign nation should not be presumed to be .beyond its powers simply because such an act would be beyond the powers of the supreme authority of our own nation. The full force of this argument will hecome more apparent when we consider the subsequent treaty of 1867. At present it is enough to notice that the allottee remained a member of the tribe, and if the intention had been to enlarge his title from the ordinary Indian title, one of occupancy, to that of a fee-simple, the intention would, it seems, have been expressed in unmistakable terms. If, on the other hand, a difference was to be made in the mere manner in which the various Indians occupied the tribal home, it was enough that that difference was made clear, and language used to indicate that should not be carried to some further meaning.
If it be said that the allotted tracts were set apart for the perpetual and exclusive use and benefit of the several allot-tees, and that each allottee relinquished all interest in other allotments as well as in the lands held in common, we reply that these words are no stronger than those which have frequently been used to vest title in an Indian tribe, no stronger than those used in the treaty of 1846 with this same tribe, which we have heretofore noticed. So far as the exclusive benefit is concerned, it was the proffer of an inducement to the allottee to improve his land, in the hope that this incentive would tend toward habits of industry, and consequently civilization. To perfect the guarantee of exclusive benefit, exclusive possession while tribal occupancy remained and receipt of full proceeds of the sale of the separate tract when it was sold, were sufficient. To them no title need be added, [28] or at least none greater than the ordinary. Indian title of exclusive occupancy.
Again, the treaty provided in the 3d article for the conveyance of title. This was made only to those who left the tribe and became citizens. Upon their naturalization, a title in fee simple, with power of alienation, was conveyed; and at the same time their proportion of the personal property of the tribe was transferred. At this time appears the complete separation and individualization. Prior thereto their interest in the lands and personalty was tribal; thenceforward personal. The fact that this provision here appears, tends to support the claim that before this nothing was intended, save a separate occupancy, with the benefit of all improvements personally made. We might notice other matters in the treaty tending in the same direction, but the foregoing are sufficient. This same question has recently been before Judge Foster of the United States Court, and his opinion, concurred in by Judge Dillon, very clearly and forcibly expresses the same conclusion. We quote his language:
“It has been uniformly held by the supreme court that the Indian title was but a right of occupancy, the fee remaining in the United States. (United States v. Cook, 19 Wall. 592; Johnson v. McIntosh, 8 Wheat. 574; Worcester v. Georgia, 6 Pet. 580; Cherokee Nation v. Georgia, 5 Pet. 48; Fletcher v. Peck, 6 Cranch, 142; 1 Kent’s Com. 259.) And unless there is a clear and explicit provision in the treaty, showing that thé government intended to make a grant in fee simple, the court will not presume a new departure has been made, or that a different policy from that pursued in the past was intended. Now there is but little in this treaty to justify the court in finding a grant made, or intended to be made, to the allottees. It was undoubtedly the desire of the government to induce the Indians to adopt the modes and habits of civilized life whenever it could be accomplished, and as a step in that direction the plan of allotment in severalty to those of the tribe who had adopted the customs of the whites, and were willing to abandon all claims to the common lands and funds, was adopted. It was optional with the adult Indian to have his land in common with the tribe, or to have it allotted to him in severalty; the [29] head of the family choosing for the minor children, and the agent for orphans and those of unsound mind.
“ It further provides that certificates shall issue' to the allottees for the tracts assigned in severalty, specifying the individuals to whom they had been assigned respectively, and that said tracts are set apart for the perpetual and exclusive use and benefit of said assignees and their heirs. The allotted lands were exempt from taxation and sale, and were not alienable by the allottee. That the contracting parties to this treaty did not regard the fee as becoming vested in the allottee by virtue of article 2, and the certificate issued in pursuance thereof, is demonstrated by the next article, for it is therein provided how the adult allottee may obtain that title. It provides in substance that when he should make it appear to the United States district court that he had adopted the habits of civilized life, and that he was sufficiently intelligent and prudent to control his own affairs, and take the oath of allegiance, etc., he could then apply to the president of the United States for a patent, and the president on being satisfied that he was competent to control his own affairs might cause the lands'to be conveyed to him by patent in fee simple with power of alienation; and when the patent was made and the fund distributed the patentee became a citizen of the United States and ceased to be a member of the tribe, and the lands were subject to taxation, sale, etc. That the contracting parties anticipated that these allotments would ultimately ripen into perfect titles through the proceedings specified in article 3, is altogether probable. But that event might or might not happen.”
Passing now to the treaty of 1867, we find that it is between the same contracting parties as that of 1861. Where contracts are entered into between parties, the construction put by the parties themselves in the latter contract upon the provisions of the earlier, is strong evidence of their real scope and effect. Without doubt, as we have seen, there is obscurity in the treaty of 1861. Now within six years the same parties enter into a further treaty concerning the same subject-matter. In so far as in this they put any interpretation upon the provisions of that, it is entitled to great weight. Indeed, except so far as adverse and vested rights are concerned, it might fairly be said to be controlling.
[30] And first it may be noticed that the treaty is with the ti’ibe as a tribe, and concerning the allotted lands as well as those held in common. Notwithstanding the treaty of 1861 had specified that the several allottees should be “deemed to have relinquished all right to any portion of the lands assigned to others in severalty or to a portion of the tribe in common,” yet the dealings in 1867 are not separately with each allottee for his tract and with those holding in common for their body of land, but with the tribe as a whole and for all the lands. The very manner of thus dealing shows that the parties thereto did not understand that the treaty of 1861 placed the allotted lands any more than the allottees themselves outside the limits of tribal control. If the legal title, or even a full equitable title, was vested by the allotment in the allottee, then, by our laws at least, no divesting of that title save by the personal assent of the allottee was possible; and any contract therefor would have to be made with each allottee personally. Now without noticing all the various provisions indicating an assumed tribal control, it is enough to refer to article 7, which authorizes in certain cases, and after the lapse of five years, a peremptory sale and removal to the new reservation. It is true, there is a provision for securing to each allottee the benefits of the sale of his allotment. But this is simply carrying out the intent foreshadowed in the treaty of 1861, and heretofore noticed in this opinion, of encouraging each Indian to the improvement of his separate tract by the assurance that the full benefit of his labor and those improvements should inure to himself. Again, article 6 specifically provides that the “ head of the family shall be entitled to patents and the proportional share of funds belonging to his family.” This is an express provision, and the clearest assertion of the understanding of the parties of the scope and import of their contract in 1861. It is also an assertion of tribal power which, as already suggested, must be assumed to be within such power'as recognized by established laws and customs of the tribe. Counsel would have us interpret these words as meaning simply [31] that the head of the family should be entitled to the custody of the patents issued to the allottee members of his family. But this does violence to the language. The mere custody of the evidence of title would scarcely be dignified with a separate provision in the treaty, and if that were in fact intended, words more apt would assuredly have been used. Clearly the money and the lands which, under the division, would be or had been assigned to the minor members of his family, were to go directly to him. As head of the family he represented it, and to him the treaty intended should it pass whatever was the family share of the tribal property.
In further support of these views, it may be noticed that the action of the ministerial officers of the government has been in the line of this construction of the treaty, and that so far as appears without objection from the tribe. Again, in 1869, an attempt was made by congress to withhold from the head of the family the.minors’ share of the tribal funds. (16 Stat. at Large, p. 29.) But this act was repealed in 1870, (16 Stat. at Large, p. 370,) as in conflict with the prior treaties. In other words, when the attention of congress was called to the matter, it recognized the fact that by treaty the head of the family was entitled to such funds. If entitled to the funds, why not also to the lands?
Our conclusion then is, that the treaty of 1867 authorized a patent in fee simple to the head of the family of lands prior thereto allotted to the members of his family, and that such provision was not invalidated by any prior treaties or in derogation of any vested rights.
The judgment of the district court will therefore be reversed, and the case remanded with instructions to render judgment on the findings in favor of plaintiffs in error, defendants below.
It is understood that the same question controls the case of Taylor v. Wilbers; and the judgment in that case will be affirmed.
All the Justices concurring.