
83 U.S. 436 (____)
16 Wall. 436
WALKER
v.
HENSHAW.
Supreme Court of United States.

*441 Messrs. W.T. Otto and J.P. Usher, for the plaintiffs in error; Messrs. Thacher and Banks, contra.
Mr. Justice DAVIS delivered the opinion of the court.
If the land in controversy was subject to the location of the Wyandotte float before it was proclaimed open to pre-emption and settlement, the title of the plaintiffs cannot be divested by any supposed equity growing out of the pre-emption of the defendants. If, on the contrary, neither the plaintiffs' grantor nor the defendants could take any steps towards acquiring title to the land until the 9th day of July, 1858, when it was first opened to pre-emption settlement, the defendants having since that date complied with all the requirements of the pre-emption law, and obtained the usual certificates of purchase, and the grantor of the plaintiffs having taken no action on the subject after the 8th day of May, 1857, are equitably entitled to the land, and the legal title enures to their benefit.
Whether the one or the other of these categories be true, depends on the construction to be given several Indian treaties, which we will proceed to notice.
By the fourteenth article of the treaty with the Wyandotte nation of Indians, ratified on the 5th day of October, 1842,[*] the United States agreed to grant to each of several named *442 persons (among the number Irwin Long), Wyandottes by blood or adoption, a section of land out of any lands west of the Missouri River, set apart for Indian use, not already claimed or occupied by any person or tribe. The privilege of selecting the lands was conceded to the grantees, but the power of alienation was denied them, except with the permission of the President.
Another treaty was made with this same tribe of Indians on the first day of March, 1855,[*] which conferred on the reservees, under the treaty of 1842, the right to select and locate their lands on any government lands west of the States of Missouri and Iowa, subject to pre-emption and settlement, and the restriction upon alienation imposed in the first treaty was withdrawn, except as to certain incompetent persons. The reserve of Long, through whom the plaintiffs claim title, was located upon the land in dispute, in May, 1857, and the question is, was the location authorized by either of these treaties? It is contended that the lands were not, at the time of the attempted location, subject to be taken under the Long float, because they were then claimed or occupied by the Shawnee Indians, and this presents the most important subject of inquiry.
It had been, for a long time prior to the Wyandotte treaty of 1842, the well-defined policy of Congress to remove the Indians from organized States, and in execution of this policy, territory supposed at the time to be too remote for white settlement, was set apart exclusively for the use of Indian tribes. It was this policy that dictated the removal of the Shawnees from Missouri and Ohio, in 1825 and 1831, to a tract of country in Kansas of large area, ceded to them by the United States, and embracing the lands in controversy. They held this large tract of land under the protection of treaties and acts of Congress, from 1825 to 1854, when the rapid decrease in their numbers, and the encroachments of the white population, induced the government to conclude another treaty with them, essentially lessening *443 their territorial limits. During this time they were, by express stipulation, assured of protection, not only against interruption or disturbance from any other tribe of Indians, but from everybody else. In recognition of this guarantee, the reservees, under the Wyandotte treaty of 1842, although in pursuance of the policy of the government, confined in their selections to lands west of the Missouri River set apart for Indian use, could not appropriate the lands already claimed or occupied by any person or tribe.
It is apparent, therefore, that Long had no right to locate his float on the land in dispute, from 1842 to 1854, because during all this time it was claimed or occupied by the Shawnees. Did the treaty of 1854 with them so alter the condition of things as to render valid the location of this float in 1857? By this treaty the Shawnee nation ceded to the United States all the large domain granted to them by the treaty of 1825, with the exception of two hundred thousand acres reserved as homes for the Shawnee people, to be selected within certain defined limits, which included the lands in dispute. It was contemplated that even this reservation might be more than the wants of this people required, on account of the paucity of their numbers and the limited quantity of land assigned to each individual member of the tribe. Accordingly, provision was made that the surplus which remained unassigned after the expiration of five years, unless sooner ascertained, should be sold by the government and the proceeds appropriated to the use of the Indians. During this time the privilege was conceded to the Shawnees of selecting their lands wherever they chose, within the limits of the reservation. Indeed, until this privilege was exhausted, the land, in any proper sense, belonged to them.
In surrendering the larger part of their immense possessions to relieve the government from the predicament in which it was placed by the advancing tide of white population, they did not part with any right in the lesser part reserved by them as long as the claim of any single member of the tribe, according to the terms of the treaty, was unsatisfied. If one person could acquire a right to any portion *444 of the lands thus reserved so could another, and in this way the privilege of free and unrestricted selection would be frittered away. It needed no special provision to secure this freedom of choice, for without it the treaty could not be executed. By virtue of the treaty itself these lands were appropriated to a specific purpose, and whatever interfered with the accomplishment of this purpose was necessarily forbidden.
It is easy to see that the purpose for which the Shawnees retained in their own hands the entire reservation could not be effected, if an entry for location and settlement by any one else were permitted, for the part thus taken was subject at any moment of time to be chosen for the use and occupation of the Shawnees. In effect the retrocession by these Indians of the lands granted to them in 1825 was on the condition that they should be allowed to select, within a limited time, out of two hundred thousand acres set apart for this purpose, a quantity of land equal to two hundred acres for each individual member of the tribe. The performance of this condition required, until this time expired, absolute non-interference by any outside party. On any other theory of interpretation these Indians, on account of their helpless state, could not have obtained the lands they desired. If these views be correct the exclusion, in section five, of white persons and citizens from making locations or settlements was not required by the necessities of the case. They were excluded without it. The clause was doubtless inserted out of superabundant caution and to satisfy the misgivings of the Indians, who, from experience, had good reason to dread the encroachments of this class of people, notwithstanding treaty stipulations. This experience had given them no ground to apprehend interference from the Indians on account of the direct control exercised by the government over the affairs of all the Indian tribes.
If, however, the government had been able, without difficulty, to protect them against their own race, it had not, with every effort, been always able to hold in restraint the ceaseless activity of the white race. It was therefore natural *445 that on this occasion the Shawnees should want, although wholly unnecessary, a positive stipulation against the inlawful intrusion upon their rights by our own citizens. Indeed, this very case affords an illustration of the quarter from which trouble has always arisen, for Stover, a white man located the reserve, and it is a reasonable presumption, in the absence of any proof on the subject, that he was interested in the location. It is enough to say, without pursuing this branch of the case further, that we agree with the learned Supreme Court of Kansas, that the latter clause of the fifth article of the treaty "conferred no right or made no prohibition which the law would not raise on the treaty" without it.
If so, the location of Long's float, under the treaty of 1842, was an illegal act, because inconsistent with the existing rights of the Shawnees. These rights were in full force at the time of the attempted location, and remained in this condition until the proclamation of the President of the 9th of July, 1858, setting apart the surplus of lands which remained after the Shawnees had obtained their full complement and opening the lands thus segregated for pre-emption and settlement.
In no respect has the United States failed to discharge the obligation incurred by the treaty of 1842 with the Wyandotte reservees. The Indian country to which they were invited to go had been defined by Congress,[*] and they were told to locate their reserves anywhere within it, provided they did not encroach on the rights of others. This limitation was not only reasonable in itself, but essential to preserve the faith of the government in its several treaties with the different Indian tribes. Why thirteen years were suffered to pass without these reserves being located does not appear, but it is obvious in 1855 they had materially lessened in value, as before that time the limits of the Indian country, by legislation and treaty, had been very much restricted. This restriction imposed on the government the duty of *446 making other provisions for these floating grants, and this duty was performed by the Wyandotte treaty of 1855. This treaty, among other things, allowed the reservees to locate their floats on any government lands west of Missouri and Iowa subject to pre-emption and settlement, and removed the restraint upon the power of alienation, imposed in the former treaty. This action of the government placed Long and the defendants, as to the lands in question, on precisely the same grounds. Neither party could acquire any right to them until they were thrown open to pre-emption and settlement, and both, as soon as this was done, were at liberty to take them up; Long, by means of his float, the defendants by reason of their qualifications as pre-emptors; and whoever moved in the matter first would have the better right. It required, however, positive affirmative action after the lands were declared to be public lands before any title to them, legal or equitable, could be obtained, and all proceedings attempting to forestall the proclamation of the President were null and void, because in contravention of the treaty with the Shawnees. The defendants, not relying on their prior settlement in February, 1857, to protect them, took the proper steps after this proclamation to perfect their pre-emption, and have performed all the conditions to which they were subject by the law. They have therefore a complete equitable title to the land, and as the patent issued to Long was based on an unlawful entry it ought to be transferred to the defendants.
There is, in our opinion, no error in the judgment of the Supreme Court of Kansas, and it is accordingly
AFFIRMED.
NOTES
[*]  11 Stat. at Large, 583.
[*]  10 Stat at Large, 1162.
[*]  See 4 Stat. at Large, 729, and acts extending the same.
