Woods, J.,
(after making the foregoing statement.) The plea fails to show that the state court acquired jurisdiction of the person of the complainant’s mother, and thereby a right to revive the action against the complainant. There is therefore no conflict of jurisdiction between courts; and, in the other respect suggested, there is no lack of jurisdiction in this court, because, plainly, the case presents a federal question; namely, the question embodied in the third proposition of the plea now to be considered.
In view of the facts recited, resting, as they do, in public treaties and acts of congress, of which the court takes knowledge, and notwithstanding the not very explicit denials of the plea, it seems clear that the complainant’s ancestors, from whom she derived title and possession of the lands in dispute, were all Indians of the Miami tribe, and never lost their character as such; but, on the contrary, remained, in some degree, under the control and guardianship of the national government. They have lived upon the land secured to them by the treaties, as it was contemplated and stipulated they should, without loss of the right to share in the common benefits bestowed upon or belonging to the tribe. The natural consequence, as the country became settled, was that they should live among, and-should avail themselves to some extent of the laws and customs of, the whites, as alleged in the plea; but it by no means follows that they have lost the rights incident to their tribal relation and character. The decision in the Case of the Kansas Indians, 5 Wall. 737, [495]*495as it seems to me, puts this at rest; and, if the lands in suit were subject lawfully to the assessments for which they were sold, it must be, as the defendant contends, because these particular lands, besides having been patented to Richardville in fee-simple, were excepted from the restriction, imposed by the treaty upon other private grants, against conveyance without the approval of the president. Save in this particular, I see no ground for distinguishing this case from that of the Kansas Indians, unless, indeed, it be for reasons more favorable to the complainant here.
It is claimed, however, that the distinction suggested is made and established by the decision in the case of Pennock v. Commissioners, etc., 103 U. S. 44. That case, however, does not, I think, go so far, nor proceed upon ground so narrow. On the contrary, it turns upon the interpretation and construction of different articles of the treaty then considered; if, indeed, it may be said there was room for interpretation. By express terms, the lands allotted or assigned under the first five articles of that treaty, in 80-acre lots, to individual members of the tribe, were to be free from taxation, levy, sale, or forfeiture until otherwise provided by congress; but by the tenth article, relating exclusively to “mixed and half-breeds,” or women of the whole blood, who bad intermarried with white men, tracts of 320 acres were assigned to each person taking under that article; and it is held that “these parties, by accepting the grant of the tenth article, were excluded from the benefits, and freed from the restrictions, of the other articles, except as they were repeated in it. In the tenth article there is no repetition of the exemptions from taxation, levy, etc., and therefore, quite inevitably, it was held that land taken under that article by a woman of the whole blood, who had remained with her white husband upon the land, though still keeping up relations with her tribe, which had removed from the state, was subject to taxation by the state. The restriction upon conveyance, found in the eighteenth article of the treaty, was held not to apply to lands assigned under the tenth article; and this fact, with others, was noted in the opinion as distinguishing the case from that of the Kansas Indians, but there is nothing to warrant an inference that the court intended to imply — if certainly did not decide — that land owned in fee-simple by an Indian, which otherwise would be exempt from taxation, will be deemed subject to assessment merely because it is free from restriction upon the power of alienation. On the contrary, the opinion seems rather to indicate, in its conclusion, that the right of .exemption from taxation rests on the fact of a continued tribal organization in the state, which the United States has recognized by treating with the persons concerned as distinct political communities; and, this being so, it is established by the decision in respect to the Kansas Indians that the individual members of a tribe may enjoy the same immunity, in respect to lands held in severalty, as the tribe, in respect to those held in common, though the individual [496]*496holdings be not contiguous to the tribal lands or residence, and though the owners dwell among the whites, conforming largely to their customs and laws, to the corresponding neglect of the habits and usages of their own people.
There seems to me to be no reason, speaking generally, why the unrestricted right to alienate should make Indian lands taxable which otherwise would not be; and, looking at the facts of the particular case before the court, I think it would be quite unreasonable, if not, indeed, absurd, to give to that fact controlling significance. Rich-ardville was the principal chief of his tribe, entitled to distinction as such, and in every treaty made during his life this fact receives substantial and conspicuous recognition. In the treaty of 1818 an especial acknowledgment of his rank was given by excepting the lands which were to be patented to him from the limitation declared in respect to the lands which were reserved for or to be conveyed to other individual Indians. That this was meant, in part, as a personal concession and honor to Richardvilie as principal chief — quite inconsistent with the idea that thereby the lands became at once subject to taxation and the like civilized servitudes — was so evident and well understood that, if any suggestion to the contrary was ever made, it was not acted upon during Richardville’s life, nor for more than a decade after his death. Conceded, therefore, as I think it must be, that, while in possession of the principal chief of the tribe, the land was exempt from assessment, it must be held to have remained so in the possessiomof his devisees and descendants, members of the tribe, so long as they continued to hold, and were recognized by the United States as holding, that relation; and this, as we have seen, was done until after the sale for taxes under which the defendant asserts his claim. Indeed, without proof or averment to the contrary, it may be presumed that upon the “corrected list” referred to in the treaty of 1854 appear the names of complainant’s ancestors who survived that date; and her own name, if not of the original number, it may be supposed, was added afterwards. But whether this was so or not, and whether or not she is an Indian, or, as the defendant asserts, is bound by the status of her father, rather than that of her mother, and is therefore a citizen by birth, it is immaterial to inquire; because, if the tax levies were unlawful as against the mother, the daughter and heir, though herself a citizen, and entitled in her own right to no immunity from taxation, may have the sale annulled.
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Woods, J.,
(after making the foregoing statement.) The plea fails to show that the state court acquired jurisdiction of the person of the complainant’s mother, and thereby a right to revive the action against the complainant. There is therefore no conflict of jurisdiction between courts; and, in the other respect suggested, there is no lack of jurisdiction in this court, because, plainly, the case presents a federal question; namely, the question embodied in the third proposition of the plea now to be considered.
In view of the facts recited, resting, as they do, in public treaties and acts of congress, of which the court takes knowledge, and notwithstanding the not very explicit denials of the plea, it seems clear that the complainant’s ancestors, from whom she derived title and possession of the lands in dispute, were all Indians of the Miami tribe, and never lost their character as such; but, on the contrary, remained, in some degree, under the control and guardianship of the national government. They have lived upon the land secured to them by the treaties, as it was contemplated and stipulated they should, without loss of the right to share in the common benefits bestowed upon or belonging to the tribe. The natural consequence, as the country became settled, was that they should live among, and-should avail themselves to some extent of the laws and customs of, the whites, as alleged in the plea; but it by no means follows that they have lost the rights incident to their tribal relation and character. The decision in the Case of the Kansas Indians, 5 Wall. 737, [495]*495as it seems to me, puts this at rest; and, if the lands in suit were subject lawfully to the assessments for which they were sold, it must be, as the defendant contends, because these particular lands, besides having been patented to Richardville in fee-simple, were excepted from the restriction, imposed by the treaty upon other private grants, against conveyance without the approval of the president. Save in this particular, I see no ground for distinguishing this case from that of the Kansas Indians, unless, indeed, it be for reasons more favorable to the complainant here.
It is claimed, however, that the distinction suggested is made and established by the decision in the case of Pennock v. Commissioners, etc., 103 U. S. 44. That case, however, does not, I think, go so far, nor proceed upon ground so narrow. On the contrary, it turns upon the interpretation and construction of different articles of the treaty then considered; if, indeed, it may be said there was room for interpretation. By express terms, the lands allotted or assigned under the first five articles of that treaty, in 80-acre lots, to individual members of the tribe, were to be free from taxation, levy, sale, or forfeiture until otherwise provided by congress; but by the tenth article, relating exclusively to “mixed and half-breeds,” or women of the whole blood, who bad intermarried with white men, tracts of 320 acres were assigned to each person taking under that article; and it is held that “these parties, by accepting the grant of the tenth article, were excluded from the benefits, and freed from the restrictions, of the other articles, except as they were repeated in it. In the tenth article there is no repetition of the exemptions from taxation, levy, etc., and therefore, quite inevitably, it was held that land taken under that article by a woman of the whole blood, who had remained with her white husband upon the land, though still keeping up relations with her tribe, which had removed from the state, was subject to taxation by the state. The restriction upon conveyance, found in the eighteenth article of the treaty, was held not to apply to lands assigned under the tenth article; and this fact, with others, was noted in the opinion as distinguishing the case from that of the Kansas Indians, but there is nothing to warrant an inference that the court intended to imply — if certainly did not decide — that land owned in fee-simple by an Indian, which otherwise would be exempt from taxation, will be deemed subject to assessment merely because it is free from restriction upon the power of alienation. On the contrary, the opinion seems rather to indicate, in its conclusion, that the right of .exemption from taxation rests on the fact of a continued tribal organization in the state, which the United States has recognized by treating with the persons concerned as distinct political communities; and, this being so, it is established by the decision in respect to the Kansas Indians that the individual members of a tribe may enjoy the same immunity, in respect to lands held in severalty, as the tribe, in respect to those held in common, though the individual [496]*496holdings be not contiguous to the tribal lands or residence, and though the owners dwell among the whites, conforming largely to their customs and laws, to the corresponding neglect of the habits and usages of their own people.
There seems to me to be no reason, speaking generally, why the unrestricted right to alienate should make Indian lands taxable which otherwise would not be; and, looking at the facts of the particular case before the court, I think it would be quite unreasonable, if not, indeed, absurd, to give to that fact controlling significance. Rich-ardville was the principal chief of his tribe, entitled to distinction as such, and in every treaty made during his life this fact receives substantial and conspicuous recognition. In the treaty of 1818 an especial acknowledgment of his rank was given by excepting the lands which were to be patented to him from the limitation declared in respect to the lands which were reserved for or to be conveyed to other individual Indians. That this was meant, in part, as a personal concession and honor to Richardvilie as principal chief — quite inconsistent with the idea that thereby the lands became at once subject to taxation and the like civilized servitudes — was so evident and well understood that, if any suggestion to the contrary was ever made, it was not acted upon during Richardville’s life, nor for more than a decade after his death. Conceded, therefore, as I think it must be, that, while in possession of the principal chief of the tribe, the land was exempt from assessment, it must be held to have remained so in the possessiomof his devisees and descendants, members of the tribe, so long as they continued to hold, and were recognized by the United States as holding, that relation; and this, as we have seen, was done until after the sale for taxes under which the defendant asserts his claim. Indeed, without proof or averment to the contrary, it may be presumed that upon the “corrected list” referred to in the treaty of 1854 appear the names of complainant’s ancestors who survived that date; and her own name, if not of the original number, it may be supposed, was added afterwards. But whether this was so or not, and whether or not she is an Indian, or, as the defendant asserts, is bound by the status of her father, rather than that of her mother, and is therefore a citizen by birth, it is immaterial to inquire; because, if the tax levies were unlawful as against the mother, the daughter and heir, though herself a citizen, and entitled in her own right to no immunity from taxation, may have the sale annulled.
It is to be observed that the cases decided by the' supreme court had reference to lands in the state of Kansas, and were therefore in no sense affected by, and throw no direct light upon, "the proper application, to a like question, of the ordinance of 1787 in territory where it has force. But the decisions do afford some aid in this direction, because in respect to one of the tribes of the Kansas Indians there was a treaty stipulation that their lands should not be liable to “levy, sale, execution, or forfeiture;” and this was held “to [497]*497prevent a levy and sale by officers of the state for taxes, as well as a levy and sale under judicial proceedings;” reversing, in this respect, the decision of the supreme court of Kansas, and following, or rather applying, the rule declared by Chief Justice Marshall in Worcester v. Georgia, 6 Pet. 581, where he says:
“The language used in treaties with the Indians should never be construed to their prejudice. If words he 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. ”
By the same rule of construction, the words of the ordinance, “The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent,” — clearly exclude any reasonable pretense of right in the state to sell or forfeit the lands of Indians for non-payment of taxes. That the ordinance has this force was distinctly recognized by the supreme court of Indiana in the case of Me-shing-go-me-sia v. State, 36 Ind. 310, wherein it was held that the lands patented to Me-shing-go-me-sia in trust for the band of Me-to-sin-ia, in conformity with the treaties of 1838 and 1840, supra, were not taxable.
Reference has been made by the defendant;, in this connection, to the declaration found in Langford v. Monteith, 102 U. S. 147, to the effect that, without some clause or language to the contrary in a treaty with Indians with respect to a reservation within the exterior limits of a territory, (Idaho,) “the lands held by them are a part of the territory, and subject to its jurisdiction, so that process may run there, however the Indians themselves may be exempt from that jurisdiction.” The italicized clause, it must be observed, qualifies the entire proposition; and so, doubtless, it has always been competent for Indiana to send its officers, with process, criminal or civil, into the reservations and lands of the Miamis within its borders, whether held by the tribe or by individuals, and, possibly, to exercise police powers over the Indians themselves to some extent. This much, it would seem, is within the scope of the last clause of the third article of the ordinance of 1787, already quoted, (see Goodell v. Jackson, 20 Johns. 715; Utah & N. Ry. Co. v. Fisher, 116 U. S. 28; S. C. 6 Sup. Ct. Rep. 246;) but quite different, and by no moans necessarily implied, would be the right to levy taxes, or to impose other pecuniary burdens, which might work a forfeiture or affect substantially the Indian right of exclusive and free enjoyment.
Besides the decisions referred to, the defendant has cited, in support of his positions, the following: Pka-o-wah-ash-kum v. Sorin, 8 Fed. Rep. 740; Lowry v. Weaver, 4 McLean, 82; Swope v. Purdy, 1 Dill. 349; Hilgers v. Quinney, 51 Wis. 62; S. C. 8 N. W. Rep. 17; Quinney v. Stockbridge, 33 Wis. 505; Commissioners, etc., v. Pennock, 18 Kan. 579, and earlier cases of that state; Frederickson v. Fowler, 5 Blackf. 409; State v. Commissioners, etc., 63 Ind. 497. But, in so far as they are consistent with the decisions of the federal supreme [498]*498court, these cases are broadly distinguishable from the one under consideration.
For instance, the decision in Hilgers v. Quinney is placed explicitly on the- ground that the Indian who claimed exemption from taxation had become, and had been recognized as, a citizen of the state by both the state and federal governments, — so recognized by the state in the very statute which required the levying of the disputed taxes.
In Goodell v. Jackson, supra, at page 723, Chancellor Kent says:
“The government of the United States had, in the earliest and purest days of the republic, watched with great anxiety over the property of the Indians intrusted to their care. It must have been immaterial from what source the property proceeded, and whether it was owned by tribes or families or individuals. If it was Indian property in land, it had a right to protection from us as against our own people.” "
And much clearer and stronger is the proposition when applied to this case, where the land was not obtained by purchase, had never belonged to the whites, but had been set off to the chief by his tribe as his own; and, though afterwards ceded to the national government, it was done by a treaty which bound the United States to make reconveyance; so that, if this temporary lodgment of the naked legal title in the United States originated in any other design and consideration than mere formality and convenience, it would seem rationally to have been for the purpose of pledging the good faith and authority of the government to the protection of the grantee and his ■descendants in the ownership so granted and confirmed. If it had been intended that the Miamis permitted to remain in Indiana should, by remaining, become citizens and subject to the jurisdiction of the state, that intention would have been expressed in some of the treaties, as in similar eases it was done in treaties with other tribes.
In the case of Elk v. Wilkins, 112 U. S. 100, S. C. 5 Sup. Ct. Rep. 41, the supreme court said: [499]*499the Stockbridge Indians in 1848 and 1856, (9 St. 955; 11 St. 667; 7 Op. Attys. Gen. U. S. 746.)”
[498]*498“ The alien and dependent condition of the members of the Indian tribes could not be put off at their own will, without the action or assent of the United States. They -were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens,'or authorizing individuals of particular tribes to. become citizens on application to a court of the United States for naturalization, and satisfactory proof of fitness for civilized life; for examples of which see treaties in 1817 and 1835 with the Cherokees, and 'in 1820, 1825, 1830, with the Choctaws, (7 St. 159, 213, 236, 335, 483, 488; Wilson v. Wall, 6 Wall. 83; Opinion of Atty. Gen. Taney, 2 Op. Attys. Gen. U. S. 462;) in 1855 with the Wyandotts, (10 St. 1159; Karrahoo v. Adams, 1 Dill. 344, 346; Gray v. Coffman, 3 Dill. 393; Hicks v. Butrick, 3 Dill. 413;) in 1861, and in March, 1866, with the Pottawatomies, (12 St. 1192; 14 St. 763;) in 1862 with the Ottawas (12 St. 1237) and the Kiekapoos, (13 St. 624;) and acts of' congress of March 3, 1839, (chapter 83, § 7,) concerning the Brotherton Indians; and of March 3,1843, (chapter 101, § 7,) August 6,1846, (chapter 85,) and March 3, 1860, (chapter 127, § 4,) concerning the Stock-bridge Indians, (5 St. 351, 647; 9 St. 55; 13 St. 562.) See, also, treaties with
[499]*499It seems clear from this quotation that if the male descendants of Richardville have been voting, they have done it without right; and, in any view, their acts and their status probably can have little or no bearing upon the rights of complainant and of those from whom she obtained title.
In Given v. Wright, 117 U. S. 648, S. C. 6 Sup. Ct. Rep. 907, it is held that a long acquiescence in the imposition of taxes may raise a presumption of a surrender of the privilege of exemption.
Perhaps, by answer, the defendant may be able to show that, at some time before the assessment of some or all of the taxes in question, the Indian right of immunity from taxation ceased. The plea, if not open to the charge of duplicity and multifariousness, I am convinced falls short of showing any defense to the bill, and is therefore overruled.
Justice Harlan has expressed his concurrence in the following letter:
“Winchester, Va., August 14, 1886.
“Dear Judge: I have carefully examined your opinion in the Indian Case, and also the brief of counsel for the defendant. Upon the facts stated, including the provisions of the several treaties to which you refer, your conclusion seems to be sound. While these Indians, according to the plea, have exercised some rights that belong to State citizenship, the papers sent to me do not show that Lhe United States had, prior to the tax sales in question, surrendered control over them as Indians, and as, in fact, a part of the tribe to Which they originally belonged. It does not seem to have been the object of any of the treaties to separate them, for every purpose, from their tribe, and abandon them to the absolute control of the state in which they were permitted to remain. On the contrary, the relations between them and the United States, at the time of the tax sales, seem to have been such that the government could have compelled them to join their tribe wherever it then was. It was competent for the United States to retain control equally over those who went to the west, and those who, for special reasons, were permitted to remain in Indiana.
“It seems to me that you correctly interpret the decisions of our court, and that there is no escape from the conclusion reached by you. These lands ought now to be subjected to taxation, but the way should be opened by legislation upon the part of congress.
“The answer, as you suggest, may show a state of facts that will justify or sustain the claim of taxability; but, upon the present showing, the plea should not be allowed. * * *
“Yours, truly, John M. Harlan.
“To Hon. W. A. Woods.”