By section 29 of the agreement between the United States and the Choctaw and Chickasaw Tribes of Indians of date April 23, 1897, and ratified and confirmed by the act of June 28, 1898 (known as the Atoka Agreement, 30 Stat. at L. 505, c. 517), it is provided:

"That all the lands within the Indian Territory belonging to the Choctaw and Chickasaw Indians shall be allotted to the members of said tribes so as to give each member of these tribes so far as possible a fair and equal share thereof, considering the character and fertility of the soil and the location and value of the lands. * * *

"That the Commission to the Five Civilized Tribes shall make a correct roll of Chickasaw freedmen entitled to any rights or benefits under the treaty made in eighteen hundred and sixty-six between the United States and the Choctaw and Chickasaw Tribes and their descendants born to them since the date of said treaty, and forty acres of land, including their present residences and improvements, shall be allotted to each, to be selected, held, and used by them until their rights under said treaty shall be determined, in such manner as shall hereafter be provided by act of Congress.

"That the lands allotted to the Choctaw and Chickasaw freedmen are to be deducted from the portion to be allotted under this agreement to the members of the Choctaw and Chickasaw Tribes so as to reduce the allotment to the Choctaws and Chickasaws by the value of the

same.

"That the said Choctaw and Chickasaw freedmen who may be entitled to allotments of forty acres each shall be entitled each to land equal in value to forty acres of the average land of the two nations. *

"All the lands allotted shall be nontaxable while the title remains in the original allottee, but not to exceed twenty-one years from date of patent, and each allottee shall select from his allotment a homestead of one hundred and sixty acres, for which he shall have a separate patent, and which shall be inalienable for twenty-one years from date of patent. This provision shall also apply to the Choctaw and Chickasaw freedmen to the extent of his allotment. Selections for homesteads for minors to be made as provided herein in case of allotment, and the remainder of the lands allotted to said members shall be alienable for a price to be actually paid, and to include no former indebted ness or obligation-one-fourth of said remainder in one year, one-fourth in three years, and the balance of said alienable lands in five years from the date of the patent."

By the terms of the agreement between the United States and the Choctaw and Chicka

saw Nations, made on the 21st of March, 1902, and ratified and confirmed by the act of July 1, 1902, c. 1362, 32 Stat. 641, known as the "Supplemental Agreement," it is further provided:

"There shall be allotted to each member of the Choctaw and Chickasaw Tribes, as soon as practicable after the approval by the Secretary of the Interior of his enrollment as herein provided, land equal in value to three hundred and twenty acres of the average allottable land of the Choctaw and Chickasaw Nations, and to each Choctaw and Chickasaw freedman, as soon as practicable after the approval by the Secretary of the Interior of his enrollment, land equal

to conform, as nearly as may be, to the areas and boundaries established by the government survey, which land may be selected by each allottee so as to include his improvements. "13. The allotment of each Choctaw and Chickasaw freedman shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment. *

"15. Lands allotted to members and freedmen shall not be affected or incumbered by any deed, debt, or obligation of any character contracted prior to the time at which said land may be alienated under this act, nor shall said lands be sold except as herein provided."

The same agreement provides as follows:

Court of Claims to determine the existing con"36. Authority is hereby conferred upon the troversy respecting the relations of the Chickthe rights of such freedmen in the lands of the asaw freedmen to the Chickasaw Nation and Choctaw and Chickasaw Nations under the third article of the treaty of eighteen hundred and sixty-six, between the United States and the Choctaw and Chickasaw Nations, and under any and all laws subsequently enacted by the Chickasaw Legislature or by Congress.

"37. To that end the Attorney General of the United States is hereby directed, on behalf of the United States, to file in said Court of Claims, within sixty days after this agreement becomes effective, a bill of interpleader against the Choctaw and Chickasaw Nations and the Chickasaw freedmen, setting forth the existing controversy between the Chickasaw Nation and the Chickasaw freedmen and praying that the defendants thereto be required to interplead and settle their respective rights in such suit.

"39. The Choctaw and Chickasaw Nations, respectively, may in the manner prescribed in sections twenty-one hundred and three to twenty-one hundred and six, both inclusive, of the Revised Statutes, employ counsel to represent them in such suit and protect their interests therein; and the Secretary of the Interior shall employ competent counsel to represent the Chickasaw freedmen in said suit and to protect their interests therein; and the compensation of counsel so employed for the Chickasaw freedmen, including all costs of printing their briefs and other incidental expenses on their part, not exceeding six thousand dollars, shall be paid out of the Treasury of the United States. •

"40. In the meantime the Commission to the Five Civilized Tribes shall make a roll of the Chickasaw freedmen and their descendants, as provided in the Atoka Agreement, and shall make allotments to them as provided in this agreement, which said allotments shall be held by the said Chickasaw freedmen, not as temporary allotments, but as final allotments, and in the event that it shall be finally determined in said suit that the Chickasaw freedmen are not, independently of this agreement, entitled to lands, the Court of Claims shall render a decree allotments in the Choctaw and Chickasaw in favor of the Choctaw and Chickasaw Nations according to their respective interests, and against the United States, for the value of the lands so allotted to the Chickasaw freedmen as ascertained by the appraisal thereof made by the Commission to the Five Civilized Tribes for the purpose of allotment, which decree shall take the place of the said lands and shall be in full satisfaction of all claims by the Choctaw and Chickasaw Nations against the United States or the said freedmen on account of the taking of the said lands for allotment to said freedmen: Provided, that nothing contained in this paragraph shall be construed to affect or change the existing status or rights of the two

In the case of United States v. Choctaw Nation et al., 38 Ct. Cl. 558 (the action provided for under the terms of the act of July 1, 1902, supra), the Court of Claims, after quoting the provisions of the treaties and acts of Congress above set forth, used this language:

"There is apparent reason to say that by the agreement and act of June 28, 1898 (30 Stat. L. 506), the previous act of Congress, by which the act of adoption was approved, was ratified by the Chickasaw Nation, wherein it is provided that the commission shall make a correct roll of the freedmen entitled to any rights under the treaty in question, and that 40 acres of land, including their present residences and improvements, shall be allotted to each of them, and such lands so allotted to the freedmen to be deducted, so as to reduce the allotment to the Indians by the value of the same. This allotment to the freedmen is, however, qualified by the further provision that the lands so allotted shall be held and used by the freedmen until their rights under the treaty shall be determined, in such manner as shall thereafter be provided by Congress. This provision could not refer to anything but the then existing and now present controversy, and was a direct recognition by Congress of the denial of the rights of the freedmen to the lands then proposed to be allotted to them, and an express saving of the rights of the Chickasaw defendant to insist upon its present contention in that respect; and by the act of March, 1902, Congress did provide for the determination of the rights of the freedmen under the treaty, as portended in the act of June 28, 1898. It follows therefore that the rights of the parties under article 3 of the treaty of July 10, 1866, remain unaffect ed by subsequent legislation, either of the Chick asaw Nation or Congress, and the relations of the Chickasaw freedmen to the Chickasaw Nation, and the rights of such freedmen in the lands of the Choctaw and Chickasaw Nations under the third article of the treaty in question are to be determined and declared according to its terms."

Again it is held in said opinion: "The Chickasaws have not, as has already been stated, adopted the freedmen into their nation. The negroes have remained in the nation. It does not appear they, or any of them, were willing to remove from the nation, and the United States, not having obligated itself to do so, was under no duty to remove them without their consent. We must presume the freedmen voluntarily remained, and still so remain in the nations. Their status is therefore plainly defined by the treaty itself. Their relation to the Chickasaw Nation is, as the treaty expresses, the same as citizens of the United States in the nation, and that being true, they have no right or interest, under the terms of the treaty, independently of the agreement of March 21, 1902, in any of the property held in common by the members of the nation. Neither are those of the freedmen who remain within the nation entitled to any part of the funds in the control of the United States."

In the decree of the Court of Claims in said case it is held:

"It is therefore ordered, adjudged, decreed, and declared by the court that, under and by virtue of the third article of the said treaty of July 10, 1866, independently of the agreement made March 2, 1902, and ratified and confirmed July 1, 1902, the relations of the said Chickasaw freedmen to the Chickasaw Nation are that

men, under the said article of the said treaty, said of 1902, have no rights in the lands of the independently of the agreement and act aforeChickasaw Nation, nor are they, or any of them, under said article, entitled to allotments in the lands of the said Chickasaw Nation."

On appeal to the Supreme Court of the United States, in said case (United States v. Choctaw Nation et al., 193 U. S. 115, 24 Sup. Ct. 411, 48 L. Ed. 640), that court, after quoting at length from the agreements and statutes herein referred to and the decree of the Court of Claims, uses the following language:

"It is urged that the negroes became free by the emancipation proclamation and the thirteenth amendment to the Constitution of the United States, and acquired thereby all the rights of freedmen. That may be granted, but what is its consequence? Certainly not to inVest the freedmen with any rights in the property, or to participate in the affairs of their former owners. For such rights we must look to the treaty and subsequent legislation and, to a certain extent, to the act which gave jurisdiction of this suit to the Court of Claims.

*

*

"The treaty is clear. The Indian nations were to receive the $300,000 if they conferred upon the freedmen the rights expressed in the treaty. Failing to confer those rights, that sum was to be held in trust for all such freedmen, and only such freedmen, as should remove from the territory. The treaty was not complied with either by the Indians or the United States. No rights were conferred upon the freedmen; no freedmen were removed, and the statutes were enacted and the agreements were made that we have described. But those statutes and the agreements gave no rights to the freedmen. The only explicit provision for the freedmen was the allotment of 40 acres of land to each of them. They claim to be beneficiaries of the $300,000, but the disposition of that under the treaty was to be in the United States, and only to be used for freedmen who should remove from the territory. None have removed.

There

is an intimation in the brief of their counsel that in their memorials to Congress they expressed a willingness to remove, but Congress did not choose, and has not chosen, to remove them; indeed, had provided for the exact opposite-provided for the allotment of homes to them out of the lands of the Indians, and for payment to the Indians therefor if it should be determined, in this suit, that the freedmen were not, independently of that agreement, 'entitled to allotments in the Choctaw and Chickasaw lands.'

"As we hold the freedmen were not so entitled, the decree of the Court of Claims is af

firmed."

Stat. at L. 312, c. 199), it is provided:
By Act of Congress of May 27, 1908 (35

"That from and after sixty days from the date of this act the status of the lands allotted heretofore or hereafter to allottees of the Five Civilized Tribes shall, as regards restrictions on alienation or incumbrance, be as follows: All lands, including homesteads, of said allottees enrolled as intermarried whites, as freedmen, and as mixed-blood Indians having less than half Indian blood including minors shall be free from all restrictions."

By section 4 of said act it is further provided:

"That all land from which restrictions have been or shall be removed shall be subject to taxation and all other civil burdens as though it

Plaintiffs contend that the lands allotted to them are exempt from taxation by virtue of the provisions of the Atoka Agreement that: "All the lands allotted shall be nontaxable while the title remains in the original allottee, but not to exceed twenty-one years from date of patent, and each allottee shall select from his allotment a homestead of one hundred and sixty acres, for which he shall have a separate patent, and which shall be inalienable for twenty-one years from date of patent. This provision shall also apply to the Choctaw and Chick asaw freedman to the extent of his allotment."

It is asserted that the plaintiffs are upon an equality with, and possess the same rights

and immunities with regard to their lands as do Indians; that the grant to them of nontaxable lands is the same as that to the

Choctaw and Chickasaw Indian allottees, founded upon the same treaty stipulations, and, if consideration is necessary, upon the same consideration. It is claimed that the holding of the United States Supreme Court in the case of Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941, is decisive of the question favorable to this contention. In that case the court, after a résumé of the treaty provisions, says:

"The question in this case, therefore, is not whether the plaintiffs were parties to the Atoka Agreement, but whether they had not acquired rights under the Curtis Act which are now protected by the Constitution of the United States. "The individual Indian had no title or enforceable right in the tribal property. But as one of those entitled to occupy the land he did have an equitable interest, which Congress recognized, and which it desired to have satisfied and extinguished. The Curtis Act was framed with a view of having every such claim satisfactorily settled. And although it provided for a division of the land in severalty, it offered a patent of nontaxable land only to those who would relinquish their claim in the other property of the tribe formerly held for their common use. For the Atoka Agreement, after declaring that 'all land allotted should be nontaxable,' stipulated further that each enrolled member of the tribes should receive a patent framed in conformity with the agreement, and that each Choctaw and Chickasaw who accept ed such patent should be held thereby to assent to the terms of this agreement, and to relinquish all of his right in the property formerly held in common.

"There was here, then, an offer of nontaxable land. Acceptance by the party to whom the offer was made, with consequent relinquishment of all claim to other lands, furnished a part of the consideration, if, indeed, any was needed, in such a case, to support either the grant or the exemption. Wisconsin & M. R. Co. v. Powers, 191 U. S. 386, 24 Sup. Ct. 107, 48 L. Ed. 231: Home of the Friendless v. Rouse, 8 Wall. 437, 19 L. Ed. 497; Tomlinson v. Jessup, 15 Wall. 458, 21 L. Ed. 205. Upon delivery of the patent the agreement was executed, and the Indian was thereby vested with all the right conveyed by the patent, and. like a grantee in a deed poll, or a person accepting the benefit of a conveyance, bound by its terms, although it was not actually signed by him. Keller v. Ashford. 133 U S. 621, 10 Sup. Ct. 494, 33 L. Ed. 672; Hendrick v. Lindsay, 93 U. S. 143, 23 L. Ed. 855.

"As the plaintiffs were offered the allotments on the conditions proposed, as they accepted the

to entitle them to enforce whatever rights were conferred, we are brought to a consideration of the question as to what those rights were."

From the language used in the Trapp Case, it will be seen that plaintiffs' claim that the grant to the freedmen of nontaxable land was by the terms of the Atoka Agreement made to them the same as to the Indian allottees is untenable. The freedmen did not have an equitable interest in the tribal property. They had no lawful claim to any of the lands or property of the tribe which it offer of a patent of nontaxable land being was necessary to satisfy or extinguish. The made "only to those who would relinquish their claim in the other property of the tribe formerly held for their common use" was not

extended to these freedmen, and could not have included them. They were not embraced within the class of persons who could accept such offer by relinquishing any right in the property of the tribe formerly held in common. They had no such right. As was held by the Court of Claims:

.

"Their (the Chickasaw freedmen) relation to the Chickasaw Nation is, as the treaty expresses, the same as citizens of the United States in the nation, and, that being true, they have no right or interest, under the terms of the treaty, independently of the agreement of March 21, 1902, in any of the property held in common by the members of the nation." And "that the rights of the parties (the Chickasaw freedmen) under article 3 of the treaty of July 10, 1866, remain unaffected by subsequent legislation, either of the Chickasaw Nation or Congress."

The freedmen were not parties to any treaty between the United States and the Indian tribes; and no provision contained in any agreement between the United States and the Choctaw and Chickasaw Tribes was ever carried into effect by which any rights were conferred upon, or property vested in, such freedmen, save alone by the provisions for allotment of lands to them contained in the supplemental agreement of 1902.

Had the supplemental treaty of 1902 provided for judicial determination of the rights of such freedmen, as it did, and failed to provide for allotments of land to them, the decision of the Court of Claims, supra, would have left them without land, and certainly without their present claim of tax exemption.

The liberal rule of construction recognized by the courts, whereby the language used in treaties and laws dealing with the affairs of Indians is never construed to their prejudice, but, if doubtful, in their favor, finds no place in the law where only the rights of persons other than Indians are to be considered.

According to the terms of the Atoka Agree ment, all lands allotted to members of the tribes shall be nontaxable for a specified period while the title remains in the original allottee; and "this provision shall also apply to the Choctaw and Chickasaw freedman to the extent of his allotment." What was the extent of his allotment under the terms of