was invalid, but, on the contrary, it was the right of the treaty-making power to contreated as a valid and binding law by that tract for the issue of patents for lands ceded court.

by the Indians in these treaties, and for In a treaty concluded with the Cherokee lands not lying within the ceded territory; tribe of Indians on the 29th of December, contending, as they do, that in consideration 1835, at New Echota, in the state of Georgia, of the fact that the Indians are making a as a part of the second article it was provid- concession to the government of lands, the ed: "And whereas, it is apprehended by the government might in that case, by its treatyCherokees that in the above cession there is not making power, provide for the issuance of contained a suflicient quantity of land for the patents to them out of the reserved lands, accommodation of the whole nation on their but that, so far as the public domain is conremoval west of the Mississippi, the United cerned, it can only be disposed of by congress. States, in consideration of the sum of five hun- If this position were conceded, it would dred thousand dollars therefor, hereby cove probably serve the purpose of the counsel for nant and agree to convey to the said Indians the respondent in this case, notwithstanding and their descendants, by patent, in fee sim- the fact that treaties have been made by the ple, the following additional tract of land, president and senate which did assume to do situated between the west line of the state of just that which the counsel here deny the Missouri and the Osage reservation," etc. power to do. But is the position a sound It will be seen by examining this treaty that one? We think not. A proper understandthe government of the United States was ing of this question necessarily involves an seeking to remove these Indians from out examination into the relative rights of the the states of North Carolina, Georgia, Ten- United States as the successor of Great nessee, and Alabama, where they had become Britain and other powers from whom she a disturbing element to the population of holds her territory, and the Indians who octhose states, and to carry them west of the cupied North America anterior to its discovMississippi river; and that this treaty ex-ery and caption by the European powers. In pressly stipulates that for this additional the case of Holden v. Joy, 17 Wall. 243. it 800.000 acres of land, lying west of the Mississippi, a patent in fee-simple is to be given to said Indians, to them, their heirs and assigns, forever.

is said. "Beyond doubt the Cherokees were the owners and occupants of the territory where they resided before the first approach of civilized men to the western continent, Any number of treaties of like character deriving their title, as they claim, from the between the United States and the Indians Great Spirit, to whom the whole earth becan be found; and whether, in the first in- longs; and they were unquestionably the sole stance, such treaties were negotiated in pur- and exclusive masters of the territory, and suance of an act of congress first passed for claimed the right to govern themselves by that purpose, or whether they were ratified their own laws,' usages, and customs. Guidby congress subsequent to their negotia- ed by nautical skill, enterprising navigators tion, in each and every case we find the were conducted to the new world.' They treaty-making power of the United States as- found it,' says MARSHALL, C. J., 'in possessuming to contract for the disposition of the sion of a people who had made small progpublic lands of the United States to the In-ress in agriculture or manufactures, and dians, and that patents shall be issued to whose general employment was war, huntthem therefor, and in almost every instance, ing, and fishing. Expeditions were fitted whether such treaties were negotiated in pur- out by all the great maritime powers of the suance of an act of congress or whether they old world, and they visited many parts of were subsequently ratified by an act of con- the newly-discovered continent, and each gress, the congress did, by making appropria-made claim to such part of the country as tions of money and otherwise, constantly they visited. Disputes arose, and conflicts and up to now do continue to recognize the validity of such treaties, by making appropriations to carry out the stipulations therein contained; and it would seem singular indeed that, if this power does not exist, as contended for by counsel for the respondent, and is held by the authorities cited by them, the matter should have for so many years (in fact, almost during the whole existence of the government) gone entirely unchallenged by the congress of the United States.

But it is said by the respondent that wherever the treaty-making power has undertaken to dispose of the public lands of the United States to the Indians by patent, it has only assumed to direct and contract for the issue of patents for lands contained in the ceded territory. In other words, counsel for respondent seem to take a distinction between

were in prospect, which made it necessary to establish some principle which all would acknowledge, and which would 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 established 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 affect the rights of those already in possession, either as aboriginal occupants or as

occupants by virtue of a more ancient dis- | one and the same thing. If it is to be rested covery. It gave the exclusive right to pur- upon any question of title, it will easily be chase, but it did not found that right on a seen that, subject to the prior right of occudenial of the right of the possesser to sell. pancy by the Indians, there is and can be no Colonies were planted by Great Britain, and difference in the power of the United States the United States, by virtue of the Revolu- in the one mode or the other of disposing of tion and the treaty of peace, succeeded, to the that title by patent. The case of Wilson v. extent therein provided, to all the claims of Wall, 6 Wall. 83, may also be read with inthat government, both political and territo- terest in connection with the authorities rial. Throughout, the Indians as tribes or above cited as illustrating the same point. nations have been considered as distinct, in- In the light of these authorities and suggesdependent communities, retaining their tions, we are of the opinion that the case of original, natural rights as the undisputed Parker v. Duff, in 47 Cal. 554, and of Pugspossessors of the soil from time immemorial, ley v. Brown, in 35 Fed. Rep. 688, are not subject to the conditions imposed by the dis- correctly decided, and must decline to follow coverers of the continent, which excluded them. On the contrary, we hold that it is them from intercourse with any other gov- within the parview of the treaty-making ernment than that of the first discoverer of power of the United States to confer upon the particular section claimed. They could the land department both authority and the sell to the government of the discoverer, but duty to execute conveyances, and make disthey could not sell to any other governments posal of the public lands of the United States or their subjects, as the government of the without the consent of congress, either first discoverer acquired, by virtue of their dis-had or by ratification, and that if the case is covery, the exclusive pre-emption right to to rest here, the grant which is made the purchase, and the right to exclude the sub- foundation of the plaintiff's title is a valid jects of all other governments, and even and subsisting grant.

their own, from acquiring title to the lands." It may be well enough now to recur to the This brief history, so recited, at once demon-language of the seventh clause of the treaty strates that, so far as the actual title to the itself, when it will be seen that while the land was concerned, there was and could be lands set apart to all the Indians of the Chipno difference between that occupied by the pewa tribe except the mixed bloods are careIndians and that not so occupied; that the fully bounded and taken out of the ceded government of the United States succeeded lands, yet, when it comes to the seventh to the title to all the lands, which title was clause, which concerns the mixed bloods, absolutely vested in the government in fee- there is not only no reference to any ceded simple, subject at all times (which concession lands, but the language expressed is that was in the interest of humanity and Chris- "the lands to be selected by them under the tianity) to the prior right of occupancy of the direction of the president, and which shall aboriginal tribes of North America; and in be secured to them by patent in the usual the case of Johnson's Lessee v. M'Intosh, 8 form;" evidently contemplating that, so far Wheat. 592, this language is used by Chief as these mixed bloods are concerned, they, beJustice MARSHALL in speaking of the case ing superior in intelligence and thrift to the of Fletcher v. Peck, 6 Cranch, 87: "This full bloods of their tribe, were able to shift opinion conforms precisely to the principle for themselves; and it was not contemplated which has been supposed to be recognized by that they should be confined in their resiall European governments, from the first set-dence to the ceded lands. Much argument tlement of America. The absolute, ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right is no more incompatible with a seisin in fee than a lease for years, and might as effectually bar an ejectment." It will thus be seen from the language quoted from Chief Justice MARSHALL that, so far as the title is concerned, it was vested absolutely in the United States; and the court holds in so many words that a title to lands derived solely from a grant made by an Indian tribe north-west of the Ohio, in 1773, and 1775, to private individuals, cannot be recognized in the courts of the United States.

These authorities are cited as showing that, so far as the right of the government of the United States, either under the exercise of the treaty-making power or under the exercise of the constitutional grant to congress to dispose of the public domain, exists, it is

has been made upon the action of the interior department at Washington with reference to this very subject now under discussion. It seems that different opinions at different times have existed among the persons occupying the position of secretary of the interior and of the land-office concerning the power of the government to issue scrip and grants under the seventh clause of the treaty to the mixed bloods, and according as opinions may have varied we find in the departments at Washington having control of this matter a difference of action at different times with reference to it. So much confusion, indeed, had arisen that in 1871 congress took charge of the matter, and passed the following resolution: "Resolved, that the secretary of the interior be requested to communicate to this house the following information in relation to the issuance of scrip to the half-breeds or mixed bloods belonging to the Chippewas of Lake Superior under the seventh clause of the second article of the treaty of September

amounts to and was intended by congress to be a legislative affirmation of their validity, if any such were indeed needed.

30, 1854, with the Chippewa Indians of Lake | and when we come further to reflect that Superior and the Mississippi valley, viz.: congress had before it the fact that over 350 First, the number of pieces of scrip of 80 grants had been theretofore issued upon like acres each, and the names of the parties to scrip for lands situated both inside and outwhom issued; second, the number and names side of the ceded territory, it is impossible to of applicants to whom no scrip has been is-escape the conclusion that congress meant to sued, whose applications are now on file; ratify and affirm the grants already issued, if third, the population of the Chippewas of any such ratification and confirmation were Lake Superior, and where located at the date needed to make them valid. It is a rule of of said treaty; fourth, a copy of said scrip, law well known that a refusal of the legislathe manner of locating the same, whether by tive power to disaffirm or annul the acts of the parties to whom it was issued or by oth- the officers of the government, when brought, ers, whether located upon lands ceded by said before them, is a legislative confirmation of tribe, and all decisions of the department of such acts. Viewed in the light of these sugthe interior in relation to the issuance and gestions, it is impossible to conclude otherlocation of said scrip; fifth, a copy of all re- wise than that if congress had not regarded ports to the Indian office or department of these grants that had already been issued the interior of persons authorized to investi- upon this mixed blood Chippewa scrip as gate any matters relating to the applications valid, it would have taken occasion, with the for scrip of said half-breeds or mixed bloods, subject before it, when it was legislating conwhere said half-breeds or mixed bloods re-cerning it, to have disaffirmed and annulled sided at the date of their said application, such grants. Not having done so, we repeat and whether parties other than those entitled that the conclusion is inevitable that this to the benefits of said treaty have received said scrip; and, sixth, the number of acres of land for which said scrip has been issued.” This resolution having been transmitted to the department of the interior, a full investigation of the matter was had, and a report inade to congress, in which we find, on pages 244 to 259, inclusive, the different scrip that had been issued, and upon which grants or patents had been issued by the department at Washington. These amount to about 350. The different parcels of land granted were located in Minnesota, Wisconsin, California, Colorado, Utali, and probably other places, and among them, at page 257, we find the identical grant now in question, which was issued to Josette Clotier, on scrip 300, C, lots Nos. 3 and 4, section 7, township 26 S., of range 6 W., Salt Lake City, dated October 10, 1870. With these grants, conveying large amounts of lands set forth specifically in this report made to congress in answer to the res-uable sulphur deposits within the premises olution above quoted, on the 8th of June, 1872, it passed an act requiring the secretary of the interior to "permit the purchase, with cash or military bounty land-warrants, of such lands as may have been located with claims arising under the seventh clause of the second article of the treaty of September 30, 1854, at such price per acre as he deems equitable and proper, but not at a less price than $1.25 per acre; and the owners and holders of such claims in good faith are also permitted to complete their entries and to perfect their titles under such claims, upon compliance with the terms above mentioned; but it must be shown to the satisfaction of the secretary of the interior that such claims are held by innocent parties in good faith, and that the locations made under such claims have been made in good faith, and by innocent holders of the same. Now, when we come to reflect that this act of congress has reference alone to the scrip that had been issued to the half-breeds under the seventh clause of the treaty by the land department,

There is another branch of this case to which it is necessary that attention should be paid. The fifth finding of fact is to the effect that, except for the patent aforesaid, the premises demanded by the plaintiff were, on the 2d day of August, 1876, vacant, unappropriated mineral lands of the United States, containing valuable sulphur deposits and sulphur bearing rock. The seventh finding then proceeds to say that "on the day aforesaid (meaning that mentioned in the last finding) Ferdinand Dickert, being then a citizen of the United States, located the Cleveland mining claim in his own name, but for the use and benefit of the said plaintiff, and that the location was distinctly marked on the ground, so that its boundaries could be readily traced, and it embraced val

described in the complaint, except that a small fraction of said claim lies outside of said premises." The finding then proceeds to set out by metes and bounds the several claims and locations so as aforesaid made by Ferdinand Dickert. In the eleventh finding it is stated that "during the years 1876, 1877, 1878, 1879, 1880, and 1881, Ferdinand Dickert did the one hundred dollars' worth of assessment work on said claim as stockholder and agent of the plaintiff, and for and on its behalf; that he demanded and received payment from the plaintiff for such assessment work for the years above mentioned; that early in the year 1882 said Dickert resigned his position as agent of the plaintiff in charge of said property, and refused to act further for the plaintiff, or on its behalf, or for its benefit, and assumed and took adverse possession of said Cleveland mining claim and sulphur mine, and continuously there after until the 18th day of December, 1885, held possession thereof adversely to the plaintiff." The twelfth finding is to the effect that "in

the years 1882, 1883, and 1884 said Ferdinand | Graselli, Henry E. Sherwin, Ferdinand DickDickert did the assessment work upon the ert, E. P. Williams, Daniel Myers, and Alansaid Cleveland mining claim for and in his son T. Osborne. To this company, so orown behalf, or on behalf of himself and My-ganized, Dickert and his associates conveyed ers, claiming adversely to said plaintiff, and the entire premises described in the patent to at his, or his and Myers', own expense; that Josette Clotier, on the 17th day of November, the said plaintiff has never paid for any of 1873. It will thus be seen that the plaintiff said assessment work, nor offered to pay for in this case, by sundry mesne conveyances, any of the assessment work done during the became the owner of the demanded premises, last-mentioned years or since that time; that as described in the patent; and in 1876, some on the 18th day of December, 1885, the said | doubt having arisen in the minds of those in Ferdinand Dickert made a quitclaim deed of management of the affairs of the company as said mining claim to the defendant company, to whether the patent would cover and conand thereupon said defendant, under said vey mineral lands, it was agreed and underdeed, entered into possession thereof, and stood that Ferdinand Dickert, for and on from that time until the commencement of behalf of the plaintiff company, should go this action continuously held possession upon the lands and locate the several mining thereof adversely to plaintiff, and does now claims, as set out in the seventh finding of so hold said possession." The fifteenth find- fact heretofore recited. It will further be ing is to the effect that "the said plaintiff did,|observed that Dickert was not only one of in the year 1882, entirely abandon the said the original incorporators, but that he was a Cleveland mining claim, and any right, director in the plaintiff company, and likeclaim, or title thereto or any part thereof, wise its agent. The record discloses the fact and disclaimed any title gained by virtue of that Dickert was a resident of the territory of said location." The sixteenth finding is to Utah, and as such had charge of the affairs the effect "that the said plaintiff, by omit- of the company in the territory, while the ting and neglecting to do any work or cause headquarters of the home company was at any work to be done in its behalf, or to pay Cleveland, Ohio. The record further disfor any work between the years 1880 and closes the fact that at divers times the home 1888, entirely abandoned any and all claim to company was a little slow in forwarding to said sulphur mining location; that the work Dickert the money with which to pay for the was not done for or on behalf of plaintiff dur- assessment work that was necessary to be ing any of said years, and no attempt or ap-done each and every year in order to keep the plication to do work in its behalf was made claims which he had located for the company in said years." The twentieth finding is to alive, as required by the act of congress. It the effect that "on the 20th day of August, seems that there was much correspondence 1888, the said premises described in the com-between the parties, and at several times plaint were vacant, unappropriated public lands of the United States; that on that day Lorenzo Dickert located for the defendant three mining claims thereon, having discovered, at the point of discovery of each of said mining claims, mineral in place." As conclusions of law, the findings are as follows: (2) That whatever title was acquired by Ferdinand Dickert by the location of the Cleveland mining claim at once inured to the benefit of said plaintiff, and became its property, in consequence of the warranties contained in deeds of conveyance by himself and his grantees to the plaintiff. (3) That the plaintiff lost all right, title, and claim to the Cleveland mining claim, and the premises included therein, by abandoning the same in 1882, and by failing to do the annual assessment work thereon, as required by the act of congress, from the year 1881 to June 9, 1888, the time this suit was commenced."

Dickert himself visited Cleveland, Ohio, and had personal interviews with the different members of the board of directors, as well as at times with the board of directors in regular session. At other times we find him writing to them upon the subject. At page 97 of the transcript is found a letter directed to Truman Dunham, Esq., Cleveland, Ohio, dated January 21, 1882. That letter discloses the fact that there was some complaint by Dickert against the company for failing to furnish the money, as before stated, to pay for the assessment work that had been done, and that was necessary to be done in the future. At page 99 we find the following in the letter: "Morally and legally I am only responsible for my report on the value of the property, but I didn't want any misunderstanding about this, and will pay the company the money back I received, and interest for the time, and I take the property. In order to a proper understanding of these The situation is very important, and I wish findings, it is necessary to recite a few of the that it is considered that way. I have been facts contained in the record. The lands de- many times at my expenses to Cleveland in scribed in the patent to Josette Clotier were the interests of the sulphur claims. It is not conveyed by her attorney in fact, Milton F. more than fair, and the only way to settle it Clements, to Ferdinand Dickert, and by Dick-between us, that somebody of the company ert, in undivided interests, to David M. Marsh comes this time to Salt Lake, with power of and others by separate deeds; and in 1873 attorney from the other gentlemen interested, this plaintiff company was incorporated under the laws of Ohio, the incorporators being David M. Marsh, Truman Dunham, Eugene v.21p.no.16-64

but it must be inside of thirty days from date. After that time I consider the company dissolved. In that event the company will own

their interest in the Mariposa and Prince Albert and in the Cleveland sulphur mining claim." It will thus be seen that at the date of this letter-the 21st day of January, 1882 -Dickert was acknowledging the right of the company to this property; but it seems that another idea possessed him, and that, because the company did not meet as promptly as he thought proper his demands for money, he concluded to at once strip himself of the character of director and agent for the company, and, so far as in his power lay, to "dissolve the company," to use his own language, and in pursuance of this purpose he at once, as the findings heretofore recited show, entered upon and took adverse possession of the property of the company, and held the same until 1885, when he conveyed to the defendant company by quitclaim deed; and, as the findings show, the defendant company held adverse possession up to the time of the trial of this case in the court below. It is now insisted by the defendant that the facts in the record do not show that Dickert had such adverse possession of the property as prevented the plaintiff from entering thereupon and doing the assessment work required by law, and that therefore the finding of the court that the plaintiff company abandoned its claim in the early part of 1882 and thereafter is correct.

concerned, that was a matter that he could easily settle by a suit in equity, or even by suit at law. If he had expended money for and on behalf of the company which it refused to refund, he could have compelled payment by lawful conduct.

Further, upon the subject of adverse possession, the twelfth finding is to the effect that on the 18th day of December, 1885, Dickert conveyed to the defendant the very premises in dispute by quitclaim deed. It is utterly impossible to understand how those two findings, the eleventh and twelfth, can be true, and the fifteenth and sixteenth be true. If Dickert, (and later on his grantee, the defendant,) in the early part of 1882, assumed and took adverse possession of the property, and held it up to the time of bringing this suit, then certainly there was no chance or opportunity for the plaintiff to do the assessment work necessary to keep the claim alive. We feel quite sure that there could be no abandonment of the premises by the plaintiff, in view of the fact that they were in the exclusive and adverse possession of another. Under the law the plaintiff had the entire year of 1882 in which to do the assessment work, and yet the fact remains that in the early part of the year-exactly how early the finding does not say-this adverse possession was assumed by Dickert, and the plaintiff In the first place, we consider a complete entirely ousted of its premises; and from that answer to this position to be that the court time on there is no finding nor fact stated in has found as matter of fact that "early in the the record, in any shape, which goes to show year 1882 said Dickert resigned his position that the plaintiff was ever at any time let as agent of the plaintiff in charge of said into the possession of its property, so it could property, and refused to act further for the do the assessment work; but, on the contrary, plaintiff, or on its behalf, or for its benefit, the unchallenged findings of the court are to and assumed and took adverse possession of the effect that adverse possession was held said Cleveland mining claim and sulphur by others to the entire ousting of the plainmine, and continuously thereafter, until the tiff. In this view of the case, the fifteenth, 18th day of December, 1885, held possession sixteenth, and twentieth findings are not sup thereof adversely to the plaintiff. By this ported by the facts; and, being excepted to by finding the defendant is bound. It is a find- the plaintiff, we hold that such findings by ing of the court upon facts of the case. It the court below were erroneous, and in that comes to us entirely unexcepted to or unchal- view of the case the third finding of law is lenged in any way, and it is not now open for error. re-examination by this court. If it were nec- Further, it will be observed that the secessary, however, to re-examine the facts, it ond finding of law is to the effect that whatwould be found that there was no proof in ever title Ferdinand Dickert may have acthe record at all to support that part of the quired in any way would pass by virtue of finding which asserts that "early in the year his warranty deed to the plaintiff company; 1882 Dickert resigned his position as agent of and in this view, when he undertook to conthe plaintiff in charge of said property." vey by quitclaim deed to the defendant comThere is no evidence in the record, so far as pany, he had nothing to convey. The conwe can discover, whatever, to show that this duct of Dickert and his associates in this matcompany understood, or that Dickert had no- ter subsequent to the assumption of adverse tified the company in any way, that he had possession of the plaintiff's property in the stripped himself. of the character of director early part of 1882 is anything else but such as and agent, and had taken adverse possession to recommend itself to a court of justice. of the property contrary to his duties in the Dickert, in his testimony, is vague, indefinite, premises. In the first place, it is exceedingly and unsatisfactory, and frequently declines doubtful, all other questions aside, as matter to explain matters satisfactorily, when the of law, whether it were in the power of Dick-information called for was necessarily with ert, occupying the fiduciary relation to this him, and with no one else. The truth is, he company that he did, to assume the adverse seems to have come to the conclusion that relations that he undertook to do, in the manner in which the finding says he did. So far as any dues from this company to him were

the property was very valuable, and that the "find, so to speak, was a good one; and, the home company being a long ways off, be