# Choctaw v. United States

> United States Court of Claims · January 9, 1899 · 34 Ct. Cl. 17

URL: https://www.frixlaw.com/law-library/cases/8584361

## Case

- **Full name:** THE CHOCTAW AND CHICKASAW NATIONS v. THE UNITED STATES AND THE WICHITA AND AFFILIATED BANDS OF INDIANS
- **Court:** United States Court of Claims
- **Decided:** January 9, 1899
- **Citations:** 34 Ct. Cl. 17; 1899 U.S. Ct. Cl. LEXIS 118; 1800 WL 2139
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Howry
- **Judges:** Howry, Peelle
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8584361

## How later opinions describe it (automated extraction)

- stating that Treaty of May 15, 1846 "was made in Texas, with Texas tribes, because of the sovereignty which the United States had acquired over [the Indians] by the annexation"

## Opinion text

Howry, J.,
delivered the opinion of the court:
The rights, legal and equitable, of the parties to this suit relate to a body of 743,257.19 acres of land lying between the ninety-eighth and the one hundredth meridians of west longitude, in what is known as the leased district of the Indian Territory. This leased district contains 7,713,239 acres, and is a part of the country ceded to the United States by France in 1803 within the Louisiana purchase.
It is also a part of the country ceded by the United States to the Choctaw Nation October 18,1820 (7 Stat., 211). The entire cession is described as follows:
“Beginning on the Arkansas Eiver where the lower boundary line of the Oherokees strikes the same; thence up the Arkansas to the Canadian Fork, and up the same to its source; thence due south to the Eed Eiver; thence down the Eed Eiver to the mouth of Little Eiver, which empties itself into the Eed Eiver on the north side; thence in a direct line to the beginning.”
The land in the leased district, if open to settlement as a part of the public domain, has a fixed value of $1.25 per acre, thus aggregating between nine and ten millions of dollars. The petitioners, however, say forty millions of dollars is a reasonable estimate of the value, and there is a statement in the record that a syndicate proposed to take the body of land at the Government price with the expectation of making thirty-five millions of dollars out of it, if given a good and sufficient *39 title. This refers to all of the leased district, valued by a Senate committee at ten millions when the title was obtained, in 1866, and more than forty millions of dollars in 1892. (Sen. Rep. 652,1st sess. 52d Gong.) Under an act graduating the price of public lands (in force in 1866) the price for each acre of the leased district might have been fixed as low as 12tj cents, if the United States had possessed the absolute title and had seen fit to dispose of it. Inasmuch as lands adjoining those in controversy were valued by the claimants and the United States at $1 per acre, it is fair to assume that the lands herein mentioned were worth at least that sum. (Art. 37, 14 Stats., 769.) These references to values are given because of their importance in considering the character of the title to the lands in suit and the nature of the transaction which forms the large feature of this case.
Three parties allege title to the land. These tripartite claims present some remarkable features, not alone for the amount and value of the property, but because of the peculiar circumstances out of which the controversy has arisen and the history attending its progress; the number and variety of the questions at issue and the differences of opinion between the executive and legislative departments of the Government, from which unusual interest has come to be attached to the determination of the case now that the judiciary have undertaken to deal with it.
The petitioners are the Choctaw and Chickasaw nations of Indians, who are domestic, dependent nations, recognized as distinct political communities, with acknowledged territorial limits, under various treaties with the United States. Under the guaranties of these treaties they occupy defined districts in the Indian Territory. The Choctaws number, according to the Report of the Commissioner of Indian Affairs for 1896, as many as 17,819 persons, and the Chickasaws number 6,000 souls. These figures include colored persons of African descent living with each tribe. By the census of 1890 there were 4,500 colored persons among the Choctaws and 3,700 persons of the same color residing among the Chickasaws. These colored persons form a j>art of the inhabitants of those nations. (Census Bulletin of 1890, vol. 25.)
The defendants are the United States and the Wichita and affiliated bands of red men. The Wicliitas in 1891 numbered *40 175 persons, but by later reports they do not exceed 153 souls. Tbe affiliated bands are the Wacos, Towaconies, Caddos, Ionis, Keechies, and Delawares, with apparently a few Comanches. These affiliates in 1891 numbered about 885 persons, and are the remnants of tribes which either originally belonged in Louisiana or Texas or wandered there a number of years ago. Since 1845 their history is substantially the same as that of the Wichitas, whose wanderings they have shared and with whom they have made various more or less temporary settlements, and along with whom they were placed on the present Wichita Eeservation in 1868, (Eep. Comr. Ind. Affs., Vol. I, 352; 1892, p. 386; 1893, p. 702; 1894, p. 576.)
The case arises out of an agreement entered into between the United States and the defendant Indians, June 4,.1891, at Anadarko, in the Indian Territory, under which the Wichita and affiliated bands ceded and relinquished to the United States all their claim, title, and interest in and to a certain tract of country within the leased district mentioned, and the United States stipulated to allot out of said tract lands in sev-eralty to the said Indians.
The. agreement also provided for opening the residue of the lands to white settlement.
The premises are described in the first article of the agreement as follows:
“ Commencing at the point in the middle of the main channel of the Washita Eiver where the ninety-eighth meridian of west longitude crosses- the same, thence up the middle of the main channel of said river to the line of 98° 40' west longitude, thence on said line of 98° 40' due north to the middle of the channel of the main Canadian Eiver, thence down the middle of said main Canadian Eiver to where it crosses the ninety-eighth meridian, thence due south to the place of beginning.’
When the agreement was promulgated, the Choctaw and Chickasaw nations claimed that notwithstanding an alleged cession of the land by them to the United States the land was held in trust by the United States for them. The Wichitas and affiliated bands denied this claim and asserted an exclusive interest in themselves. The executive department of the Government also denied the claims of .the Choctaws and Chickasaws. The provisions of the agreement were subsequently *41 embodied in tbe following language in an act approved March 2, 1895, to wit:
u (a) Said agreement of June 4,1891, is, by said act of March 2, 1895, ‘accepted, ratified, and confirmed,7 as provided in said act.
“ (b) There should be allotted to each and every member of the Wichita and affiliated bands of Indians in the Indian Territory, native and adopted, ICO acres of land, one-half thereof to be allotted in grazing lands; the allotments to be selected within ninety days from the ratification by Congress of said agreement of June 4,1891; the titles to the land taken under such allotments to be held in trust for twenty-five years, in the manner and to the extent provided for in the act of Congress approved February 8,1887. (24 Stats., 388.)
“ (c) Whenever the lands acquired under said agreement of June 4,1891, shall, by operation of law or proclamation of the President, be open to settlement, they shall be disposed of under the general provisions of the homestead and town site laws of the United States, provided that, in addition to the land-office fees prescribed by the statute, the entryman shall pay $1.25 an acre for the land entered at the time of submitting final proof; and that all such entries, where the entryman has resided upon and improved the land by him entered, in good faith, for a period of fourteen months, may be commuted to cash upon the payment of $1.25 per acre. Sections, 16 and 36 and 13 and 33 in each township shall not be subject to entry, but reserved — sections 16 and 36 for the use of common schools, and sections 13 and 33 for university, agricultural college, normal school, and public buildings of the Territory and future State of Oklahoma.
u (d) As fast as the lands open for settlement under the act are sold, the money received from such sales shall be deposited in the Treasury, subject to the judgment of the court in the suit provided for in said act, less a reservation of not exceeding $15,000 for a designated purpose.” '
The petition alleges that the plaimants are Indian tribes recognized and dealt with as such according to the policies which the Government has pursued in regard to the rights of such tribes, and that, at and prior to October 18,1820, the Choctaw Nation of Indians was the possessor of certain lands east of the Mississippi Eiver in the States of Mississippi and Alabama, which, by the first article of a treaty of that date between .the United States and the said nation, they ceded to the United States; .and in consideration of said cession, and in part satisfaction therefor, the United States ceded to the Choctaw Nation the tract of country described in the second article *42 of said treaty, including, among other lands, those described in the petition. JBy the fourth article of said treaty the United States stipulated that the boundaries of said cession to the Choctaws should remain without alteration until the period at which said nation should become so civilized and enlightened as to be made citizens of the United States, and that Congress should lay out a limited portion or parcel of such land for the benefit of each family or individual in the nation (7 Stats., 211).
That the treaty of 1866 was agreed to by the petitioners and their representatives on the faith of the assurances that said lands were being acquired by the United States for the special and specific purpose of settling Indians thereon, and upon no other trust or purpose; and that the cession in article 3 was subject to the said trust and. condition, and subject to the reservation and equity in favor of claimants that if said lands embraced by said cession should cease to be occupied by Indian tribes and become divested of said trust and part of the absolute public domain of the United States, open to occupation and entry under the land laws thereof, then the equity of the claimants should attach; that claimants have during the years since then failed to make any effectual objections to said treaty because of their then and continuing belief that said equity was in substance secured to the claimants by the provisions of said treaty as made; that the repudiation of said equity and trust in favor of claimants would operate as a fraud against them.
Claimants further show that the affiliated bands are fractions of certain ancient tribes; that the Wichita and affiliated bands have no right to or interest in the proceeds of the disposition and sale of said lands; that as between the United States and claimants, by reason of treaty obligations, it is beyond the competency of the United States, as against the grants and provisions of said treaties, to grant unto the Wichita and affiliated bands any title or interest in the lands in controversy or in the proceeds thereof, except the right of occupancy contemplated by the fifth proposition submitted to the Indians for their consideration in the negotiations which resulted in the treaty of .1866.
The prayer of the bill is that the court will pass its decree in favor of the claimants, decreeing that they are in law and *43 equity entitled to tbe proceeds of the sale of all lands here in controversy (as to which proceeds it is provided in the said act that the same shall be deposited in the Treasury subject to the judgment of the court in this suit), and also are entitled to the just and full value of all lands which shall be allotted and reserved under the provisions of tbe said act and of the agreement which by said act is accepted, ratified, and confirmed, as therein provided, as such value shall be ascertained under an accounting made under the order and direction of this court.
The answer of the defendant Indians denies that the United States legally ceded the lands described in tbe petition to the Choctaw Nation, for the reason, as the defendants aver, that the United States possessed no title to the same, the aboriginal title of the Wichita defendants not having been extinguished at the time of the cession. They deny that the Quapaw tribe, from whom the United States derived title, possessed or that the United States received from that tribe any title to the lands west of the extreme eastern portion of what is now the Indian Territory, the said Quapaw Indians never having occupied said lands, being settlers of comparatively recent date upon the portion of the said cession contained in the present State of Arkansas, whither they had come from their former habitat east of the Mississippi.
That the United States had no authority of law to convey by patent or otherwise the lands which attempted to convey to the Choctaw Nation the title stipulated for in the second article of the treaty of September 27, 1830, because the Indian title had not been extinguished when the United States attempted to make the said conveyance.
The defendant Indians deny that the purchase of the lands involved in this suit was made subject to the trust and for the purpose of setting apart the lands embraced in said cession for the friendly tribes then in Kansas and elsewhere, except in so far as by the language used in said treaty it was announced as the policy of the Government and understood by the petitioners to cancel any shadow of title on their part in and to said lands that the same might be employed fully and wholly by these defendants and other friendly tribes of Indians to whom the Government had theretofore, or subsequently might, rightfully grant it, after extinguishing the Indian title as required by law.
*44 Specific grounds for the claims of the defendant Indians to the land are set forth in the answer, as follows: That the pristine habitats of the defendant Indians (except the Delawares) were in Louisiana, Arkansas, Texas, Indian Territory, and Oklahoma. The similarity of the language spoken by them has led ethnologists to class them together as the Oaddoan lingual family. The Siouan family, with the Quapaws as its southern representative, lived northeast, the boundary between the two families following the watershed between the Eed and Arkansas Eiver systems. The Caddo tribe occupied the eastern portion of Texas and western Arkansas and Louisiana. By a treaty with the United States made in 1835 (7 Stat. L„, 470), which, by reference, is made a part of the answer, the Caddo tribe ceded to the United States what are now Miller County, Ark., and, essentially, Caddo Parish, La., and agreed to leave the United States forever. They retired into Texas, not then a portion of the United States, and were residing there when that Eepublic was annexed to the Union. Their right to be there was recognized by the United States in the treaty of 1840, made with the Oaddos and other Indians (9 Stat. L., 844), which treaty, by reference, is made a part of the answer, whereby the signatory tribes were declared to be under the protection of the United States.
About one-half of the Caddos remained in northern Texas until 1859, when they were brought into the Indian Territory under an agreement made in that year at Fort Arbuckle. The other half of the tribe, on the breakihg out of the Mexican war, went to live on Caddo Creek, in the Choctaw Nation, where they remained until moved, with the others, to their present location, in 1859.
It is further alleged that the Wichita tribe have ever lived along the Eed Eiver, their habitat for more than 150 years having been west and south of the Washita Eiver, and hence west to the one-hundredth degree of west longitude.
That on August 24,1835, the United States entered into a treaty with the Comanches and Wichitas in which the right claimed by them was fully recognized by all the signatories, which treaty, by reference, is made a part of the answer (7 Stat. L., 474). •
The Wichita and affiliated bands of Indians pray:
(1) That the petition of the claimants herein may be dismissed.
*45 (2) That this court will decree that these defendants, in law and in equity, are entitled to all the proceeds of the sale of all the lands at issue, and pass a decree that from time to time, as the said sales are made and the proceeds thereof deposited in the Treasury, as provided by the act of March 2,1895, the same may be paid to these defendants.
(3) And for such other and further relief as shall seem proper.
The answer of the United States admits the allegations contained in the first nine sections of the petition except as to the last paragraph of the ninth section, which allegation is denied. The allegations contained in the last ten sections of the petition are denied except as to the first two paragraphs of the nineteenth section.
The allegations contained in the answer of the defendant Indians are denied- in so far as they assert that the defendant Indians, or any of them, had any right of occupancy within the district between Canadian and lied rivers and the ninety-eighth and one hundredth meridians of west longitude prior to 1859, and in so far as they assert that the said Indians were promised or given in 1859 more than 155,240 acres within the said district, and in so far as they assert that the agreement of October 19,1872, was executed without authority and under duress.
The Attorney-General prays as follows:
That the petition of the claimants be dismissed.
2. That the court will decree that the Wichita and affiliated bands of Indians are entitled to so much land in the present Wichita Eeservation as may be allotted to them under Article IY of the agreement of June 4,1891.
3. That no decree be made ip. favor of the Wichita and affiliated bands of Indians for the proceeds of the sales of unal-lotted or surplus lands in the said Wichita Eeservation, unless it shall be also decreed that the said Wichita and affiliated bands of Indians shall execute to the United States a release and quitclaim of all right, title, interest, and claim of any nature whatsoever in, to, or for any lands outside of the limits of the said Wichita Eeservation.
4. That the court will decree that unless such release and quitclaim be executed as aforesaid the proceeds of the sales of unallotted or surplus lands in the said Wichita Eeservation shall be and remain the exclusive property of the United States.
*46 Departing from the usual practice of the court, we have made no findings of ultimate fact. The case is one of equity jurisdiction, and the rules relating to findings of fact in the nature of a special verdict have no application where on appeal the facts and the law may be reviewed as in equity cases appealed from courts of the United States other than the Court of Claims.
In a claim where the jurisdiction was conferred on this court to determine the amount, if any, justly due from the United States to the Western Cherokees, findings of ultimate fact were held to be not in the province of this court because of the intention of the jurisdictional act to have adjusted the rights, legal and equitable, of both parties.
Commenting upon this case on appeal, Mr. Chief Justice Fuller, for the Supreme Court, said that the case would be considered and determined there upon an examination of the entire evidence, because the language of the act of Congress was manifestly used with the intention that equity powers should be exercised in the disposition of the case by this court. (United States v. Old Settlers, 148 U. S. K., 464.)
The present suit comes under the rule stated by the foregoing authority as well as by that laid down in Harvey v. The United States (105 U. S. K., 671).
An analysis of the evidence shows that the claims of the respective parties are rested—
(1) As to the Choctaw and Chickasaw Nations: Upon contracts and rights growing out of treaty agreements with the United States.
(2) As to the Wichita Indians: (a) Upon rights of ancient possession commencing before the Louisiana purchase and extending to the use of the land as aboriginal occupants down to and past the time of the treaty between the United States and the Quapawtribe in!818; (b) upon the recognition alleged to be contained in the treaty of 1835 between the said Wichitas and the United States confirmatory of their first possession; (c) upon their removal from Texas in 1859 to the leased lands; and (d) upon acquired rights to the lands under an alleged agreement in 1872 with the Commissioner of Indian Affairs on behalf of the United States, but which agreement was never formally ratified. This claim applies not only to the lands in suit, but to all the leased district.
*47 (3) As to the affiliated bands: Upon the interest acquired in the Wichita title of occupancy and whatever other rights they had acquired July l, 1859, under an agreement at Fort Arbuckle, in the Chickasaw country.
(4) As to the United States: Upon the ninth article of the treaty of 1855 and the third article of the treaty of April 28, 1866, entered into between the. claimant nations and the United States, under which it is claimed the United States reacquired whatever rights the Choctaw Nation had obtained under preceding treaty stipulations from the United States.
Following is a diagram of the land in dispute, and of the land incidentally involved in the controversy, including also the land originally granted by treaty to the Choctaws, then granted to Spain by the United States and relinquished as to any claim on it by the Choctaws in 1855.
Inasmuch as, by the contentious of some of the parties, a large part of this case is made to rest ,upon rights resulting from aboriginal occupation of the country in dispute, it is well to consider briefly the nature of Indian tenures aud determine whether the occupancy claims of those now asserting the same have anything in them to supersede the titles acquired by those who contend that all aboriginal claims have been extinguished.
Under the agreement which originated the suit the defendant Indians reserved the right to prefer against the Government any and every claim they might believe they had, save and except any claim to the tract of country described in the first article of that agreement. (Art. IV, Agreement of 1891.) The act of 1895, ratifying the agreement of 1891 and conferring the jurisdiction, also provided for the claims of all the parties to be fully considered and determined, and under this the defendant Indians assert that the Quapaws, from whom the United States obtained an Indian title of occupation, possessed no such title, but allege that the Wichitas did, in which the affiliate tribes came ultimately to share.. Thus this claim of the defendant Indians underlies everything else in the case if, being sustained, it is made to operate on the land itself and not merely treated as a claim for compensation for land appropriated by the Government and ceded to others. The matter, then, of the prior occupation of the tract of country at issue and the claims founded thereon by alleged recognition of this occupation will first be considered.
*48
*49 Eights following discovery of lands in this country were first treated by European nations above the jmssessory claims of the aborigines. Yattel declared that the unsettled habitations of Indians were such they could not be legal possessors of the soil. The discoverers, however, came to concede the rights of occupants, and the Indians in possession were permitted to retain their original natural rights as the undisputed possessors of the soil, subject to such conditions as were imposed by those making the discoveries. Discovery gave title to the country and power to grant the soil subject to the Indian right of occupancy. But the Indians were not permitted to grant title to the lands occupied by them, their right being merely that of occupancy and not of ownership.
Early in our history the character of Indian holding was defined substantially as outlined. The United States uunequivocally acceded” to the broad rule by which its civilized inhabitants held the country, and it was not doubted that either the General Government or the several States acquired a clear title to all the lands within the boundary lines described in the treaty of peace between England and the United States, subject only to the Indian right of occupancy, and the exclusive power to extinguish the right was thus vested in that Government which might constitutionally exercise it. (tJohnson v. McIntosh, 8 Wheat., 543 .)
The general principles announced were followed by cases which declared that Indian possession or occupation must be respected until they chose to make a cession of their lands to the Government, or made an authorized sale to individuals or abandoned the possession. Their occupation was considered with reference to their habits and modes of life, and consequently their hunting grounds were declared to be as much in their actual possession as the cleared fields of the whites. When their rights became extinct as the lands were abandoned or sold the grants could be made by the Government unencumbered of the right of occupancy. (Mitchell v. United States, 9 Pet., 711 -746; Clark v. Smith, 13 Pet., 195 .)
The Choctaw claimants allege that these decisions apply to the aboriginal rights of occupancy existing in Indians generally, without reference to those rights existing in one tribe independently of the right of any other tribe to the same tract of country; and aside from this, they say the claim of the *50 defendant Indians to the land in dispute can in no way conflict with that of the Choctaws and Chickasaws to the proceeds of the sales provided for in the act of March 2, 1895, so long as tribal organization should exist in the particular tribe in possession or until they should sell.
The consequences of an abandonment of the occupancy would appear to have been the subject of consideration when the court in Gherolcee Nation v. Georgia ( 5 Pet., 1, 17 ) said, in referring to the Indian occupation: “They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases.” And again in United States v. Gools ( 19 Wall., 591, 593 ): “The possession, when abandoned by the Indians, attaches itself to the fee without further grant.”
After these announcements another case referring to the power of the Covernment over the Indian title was considered by the Supreme Court and the rule declared in United States v. CJoolc was quoted with approval. Said Mr. Justice Field, “It is to be presumed the United States would be governed by such considerations of justice as would control a Christian people in thejb? treatment of an ignorant and dependent race; * * * the propriety or justice j>f their action toward the Indians with respect to their lands is a question of governmental policy but the power of the United States to transfer the fee was never denied. (Beecher v. Wetherby, 95 U. S. Ii., 517-526.)
More or less cloudiness respecting all titles based on Indian occupation no doubt existed in our early dealings with the tribes, and the uncertainty of occupancy claims must have been greatly augmented as the tribe asserting a possessory right was small in number or roving in habit. But the principles adopted by all departments of the Government in the premises relate to the aboriginal rights of the separate tribes as they were asserted and ascertained. Differences of language, custom, and tradition generally separated the different bands and the occupation of particular country marked these differences of speech and habit and largely governed those who dealt with the tribes in fixing the bounds of their respective habitations.
Boundaries may have been in numerous instances poorly defined, but some general boundary lines must have existed to the places of abode or hunting grounds claimed to justify any specific claim of title by virtue of occupation.
*51 The history of the Indian race shows that some of the tribes had recognized places of abode with defined hunting grounds, while other tribes had none and made no pretenses to ownership of territory at all. Some of the warlike bands depredated extensively and were not infrequently the scourge of the whites, but of the other tribes as well, while others wandered from place to place with no apparent desire for permanent homes and with no special aim to gratify but their nomadic instincts.
In all cases there must have been actual use or occupancy and not mere constructive or desultory possession; some mastery of a tribe over the soil to the exclusion of others, or the joint possession of two or more tribes such as gave to each something of a fixed habitation or use of the land as hunting ground to establish a title by occupancy.
Occupation in its usual sense is where a person exercises physical control over land. (2 Eapalje and Lawrence, Law Diet., 893.'
The absolute nature of the political and territorial rights of' Indians was stated by a learned commentator to have been denied by our colonial ancestors only so far as Indian nations had formed themselves into regular organized governments, within reasonable and definite limits, necessary for the hunter state. (3 Kent’s Com., 387.)
This states the case restrictively in view of our actual dealings with tribes claiming as occupants of territory, but there must have been in all cases tribal organization at least and, subjection of land to the will and control to form the basis of any valid claim of occupation by virtue of more ancient discovery and use on the part of Indians claiming as occupants.
The first question then is whether any of the Indian defendants actually occupied the land in suit, in the sense of an Indian occupation, at the time of the Quapaw cession to the United States in 1818. Except as any occupation at other times may throw light upon their claim of possession as of the time of that cession, it does not become material to inquire whether any of the defendant tribes were in possession or not, but in this view the entire matter of possession will be examined.
The Wichitas claim an unextinguished title to the whole reservation in suit, besides the right of permanent settlement thereon under the agreement which placed them there in 1859. *52 These double claims are not consistent, and so much in conflict, apparently, they can not both stand. Eights by virtue of prior occupation, if established with all the consequences claimed for them, would supersede the agreement which conferred privileges upon the other bands along with the Wichitas independent of occupancy claims of one of the tribes going upon the land under the agreement. ET a ving acq uiesced, when placed upon the laud, to the admission of the affiliates to what is now asserted to be exclusive territory, the Wichitas can not have a decree by which the United States must by any possibility make other provision for the affiliated bands,' except upon the clearest evidence of original right, and unless the circumstances originating the later right are not such as to operate upon the Wichitas as an estoppel.
If the Wichitas are entitled to the premises by virtue of prior occupation the agreement which permanently settled them there must of course be held ineffective and insufficient to meet the full equities of their case.
Resting their claim of prior occupation upon traditions and the writings of travelers and historians, it can not be denied that some things have been shown well calculated to throw a cloud not only upon the extent of the^Quapaw occupation at the time of that cession to the United States, but also to leave room for doubt as to who really did occupy the disputed territory. It remains to be seen whether the doubts attending the claim now asserted have been removed.
The nature and necessity of the case, and the evident intent of the jurisdictional act to have the court consider all the testimony necessary to aid in the determination of the case, has left us no alternative but to’ carefully examine everything offered ; and where doubts have arisen respecting the relevancy or competency of evidence we have not hesitated to give the parties the benefit of the doubt in the spirit suggested by the broad and liberal terms of the statute.
Title by occupation is asserted to the Great Prairie west of the Gross Timbers to the western limits of the United States. This covers an immense scope of country in Texas and all the territory between the Eed Eiver on the south and the Canadian and its North Fork, or the Cimarron and the Arkansas on the north, as well as the country at 95° on the east to the one hundredth meridian on the west. Not only the reservation, but *53 the entire leased district is repudiated as a geographical entity by the Wichitas, but that district is used by them as a convenient form of designating, not their pristine home, but only a portion of it. As they deny the validity of its original setting apart, they say its boundaries should not be used as specially designating their early home.
The Cross Timbers are a growth of smail timber, two long narrow strips between the ninety-sixth and ninety-ninth meridians, extending parallel to each other from the Indian Territory southward to central Texas. (33 Amer. Jour, of Science, 3d ser., 291.) High on the dividing ridge between Eed Eiver and the false Washita there is a range of hills, the southwestern portion of which extends to about the one hundredth degree of longitude. These are generally called the Wichita Mountains. South of the Canadian, a branch of the Cross Timbers projects off westward for 100 miles, then inclines northwest beyond the North Fork, and ultimately ceases in the great sandy plains. (Gregg’s Commerce of the Prairies, 1842.) This woodland is from 5 to 30'miles wide, and from the Arkansas Eiver runs in a southwesterly direction to the Brazos, some 400 miles. (Marcy’s Eep., 1852.)
The country to which title is really asserted by the Wichitas is the whole of the Great Prairie, which includes the ‘‘ Staked Plains,” the general level of whose surface is broken only by the Wichita Mountains. These plains are bound on the west by the mountains of New Mexico and Colorado, while to the north and south there are no natural boundaries nearer than the Arkansas and the Pecos. On the east the claim would cut into the country of the Creeks and Cherokees, as well as the claimants’ country.
It is not within our province to determine claims beyond the immediate reservation in suit, but as this claim goes to the whole prairie, and the evidence to sustain an occupation is the same for all and nearly inseparable, we will examine the issues as presented.
The extent of the country claimed is not the only remarkable feature of the Wichita contention. They say they were a pastoral and peaceful people. We know they wandered from place to place with great frequency, and that even in the eighteenth century they were few in number. History does not attribute to them any strength and vigor as a tribe, or any *54 characteristics denoting aggressiveness or prowess. It is difficult to see bow such a body of people should possess either the inclination or the ability to assert or maintain dominion over so much country in the presence of so many more warlike tribes who, in great numbers, inhabited the same region and roamed over it to supply their wants by force where other means should fail.
That the archaeology of the Western prairie is associated with the history of the Wichita Indians is testimony of value in support of a claim to occupation by those asserting it, but this testimony with respect to the country in issue is impaired by the use of the same name in designating streams in other sections of the country. The name Wichita, or Washita, applies to certain streams in Louisiana, Arkansas, Texas, and the Indian Territory alike. The Washita River of Arkansas and Louisiana was believed to rise near the source of the Arkansas. (Senex’s map, 17105 Le Page du Pratz, vol. 3, p. 152,1758.) It is inferable that the name Fausse Ouachita (False Washita), given on the early maps to the Washita River of the Indian Territory, grew out of the error disclosed by Senex’s map. The value of the testimony is again impaired by the want of proof showing when the Wichita name was impressed upon the country and by whom. Wichita, in the State of Kansas, took its name from the temporary settlement of the tribe there during the war between the States. It does not appear whether white men named the Wichita Mountains or whether the Wichitas undertook to do so.
The word “ Wichita” is said to be Osage for “moving about,” “migrating.” (Amer. Antiquarian, xiii, p. 251.) As a tribe the Wichitas were not savage and warlike like the Comanches and Kiowas, whose tendencies were generally asserted as occasion offered; nor yet gentle and passive as the Shawnees and Delawares, who had permanent homes as long as they could maintain them. The Wichita women cultivated the ground as opportunity and settlement at any one place long enough permitted; but the men, in their later'history, had horses and hunted on the plains and roamed over the country much of the time. The tribe built round, grass-covered huts when stationary, tilling the soil, but changed their location every few years, and official reports leave but little room to doubt that for years before they were taken to the present reserva *55 tion they were marauders and horse thieves. Wandering from place to place for subsistence they can not be said, from the time they first came into notice until prevented from moving about, to be other than a nomadic people, and by their roving tendencies and the conditions as they existed before they were placed on the present reservation, must their claim to any part of the Great Prairie be measured.
The Wichita tribe are called in their own language Kitikitish; by the Spaniards, Taovayase; by the French, Ouachita and Pañis PiqrLés (tattooed Pawnees), and when used on maps and in reports, narratives, and histories the names Wichita, Witchita, Towiache, Tahawayase, Toweash, Toyasli, Towish, Taoviase, Taouayache, Ouichita, Ouachita,'Ouasita, Ousita, Wachita, Washetaw, and Pañis Piqués designate the same tribe or band.
In the classification of the Caddoan groups the tribe has a place, while to the Siouan lingual family ethnologists have assigned the Quapaw and Osage tribes. (Seventh Annual Eep. Bu. Eth.) This is contradictory of their Osage derivative, but we will not stop to discuss this, as the Wichita synonym may have come from their enemies. The connection of the Wichitas with the Caddoan family is thought by their counsel to be a matter of considerable importance, but why it is so does not clearly appear. Even if the two bands were of common origin, we fail to see the bearing of this upon the Wichita claim to country 200 miles above any known place of occupation of the Oaddos nearest the leased district. The Oaddos themselves never had any title to any part of the leased district or pretended that they ever had. It is admitted that they resided in the Brazos Pi ver country in Texas, whence they migrated from southwestern Arkansas, northwestern Louisiana, and northeastern Texas in the early part of the present century. There is nothing substantial to show that they ever saw the immediate country in dispute or that the Wichitas ever saw it until 1859. The fact that ethnologists have classed the Wichitas with the Oaddos can not strengthen the claim of the former to the disputed territory merely because the country inhabited by the Caddoan family was separated from that occupied by the Siouan family. The evidence does not establish to our satisfaction that the boundary line of the Caddoan groups of Indians ran close to the Canadian *56 west of the ninety-eighth meridian or included in the Caddo country all but a small portion of the leased district. That it is mere speculation to attempt to accurately fix this boundary line close to the Canadian west of the ninety-eighth meridian is found in the admission of the Wichitas that it is “ an entirely possible line.”
In 1682 the Wichitas do not seem to have been known to white men. History is silent and tradition gives no account of them before 1688. They are mentioned by Tonty, the Italian explorer, as being in that year along with the Natchitoches. This would put them in what is now known as the site of the town of Natchitoches, in the State of Louisiana. The early maps and authorities generally show the Natchitoches to have lived in Louisiana in the vicinity stated, and the village of the Wichitas is placed in that neighborhood by many maps of the eighteenth century.
Tonty does not state where the Ouasitas actually dwelt, his narrative not fixing a precise location because of the incidental references to them. But he does speak of the chiefs of the Ouasitas and Capichis meeting him, along with those of the Natchitoches, and he explicitly says that the three tribes constituted one people. (Discouvertes en Amérique, Paris, 1697, p. 319; Bélation de la Louisiane, Amsterdam, 1720, p. 196.)
Historians tell us that in 1700 or thereabouts the northern part of Louisiana contained a tribe of Indians called by the French “ Ouichita,” who gave their name to the river. In an account of a journey of St. Denys and Bienville in 169.9 it appears that, after having proceeded to the village of the Wachita, where was found but five huts, it seemed to those travelers that the Indians of that name had mostly removed to the Natchitoches. (Martin’s Hist, of Louisiana, 102.) It is admitted that the connection of the “Ouichita” with the Wichita is “ undoubted,” but insisted that about this time there was a severance of the tribe.
The time of this severance is conceded to be problematical, but thought by those who represent that part now recognized as the survivors to be too ancient to become a matter of tradi-to tion. At all events, itis said thatin 1700 the Wichitas moved the village of the Taensas, on the Mississippi, where the parish of that name now is, and afterwards went west among the Oaddos, who occupied the country in the bend of the Bed *57 Eiver, in Louisiana, Arkansas, and Texas; that the number of these Wichitas was small, having no tribal connection with the Indians of the same name living on the plains; that in 1719 there was a large village of Wichita and kindred Indians on one of the branches of the Arkansas Eiver in the eastern portion of the Indian Territory, and that in 1737 these same Indians, after having lived some years on the Canadian, moved to the southward.
Bienville’s Journal of a voyage from the Taensas (4 Margry, 432 et seq.) shows that at a certain place that explorer found Wichitas who had abandoned their village to go and live with the Taensas. The argument is that Bienville found but few Wichitas then leaving their Louisiana home forever. Le Page du Pratz, who wrote about 1758, states that the Ouachitas went westward, and Dunbar, who visited the Washita Eiver in 1804, reported that the tribe of that name, formerly dwelling on its banks, was said to have gone “into the great plains to the westward.” (Am. State • Papers, Ind. Affs., vol. 1, p. 732; Jeffery’s History of the French Dominions in North and South America, London, 1761, vol. 1, p. 165.) The removal mentioned by Du Pratz could not have been the same referred to by Bienville, there being nothing in his journal to sustain this argument. Bienville does not state how many Wichitas he met on their way to the Taensas country, nor that no other parties were on their way or had arrived. For aught that he says, there is no reason to suppose that Bienville met all of .the tribe who were then in Louisiana, and still less reason for limiting their number. There may have been hundreds of them for anything that appears in' his narrative. It is reasonably certain that the migration referred to by him was not the same as that mentioned by Du Pratz.
The relation of La Harpe and the discovery by him of certain Indian nations situated in the West is also relied upon as historical evidence in support of this contention of early location of the Wichitas. (6 Margry, 249 et seq.) La Harpe says that he advanced to the mouth of the Ouachita Eiver, 14 leagues from the Mississippi, and in his further explorations found on the Canadian, in 1719, certain Wichitas, who, according to the contention of counsel, must have separated from the Louisiana Wichitas some time before.
*58 Counsel for the Wichitas say that there is no reference to a western migration of the Wichitas from Louisiana but of the handful who merged in the Natchitoches in 1700, and that in 1719 La Harpe met those of the same blood on the Cimarron.
It is reasonably certain that Bienville and Du Pratz do not refer to the same migration, and neither of them make any definite statement as to the numbers of the Wichitas. Neither of them suggest a merger in another tribe. According to La Harpe, the Touacaras (Towakonies) were the leading tribe on the Canadian (or, as counsel for the Wichitas suggest, the Cimarron), as he invariably refers to the village as that of the Touacaras, and states that the chief of that tribe was the most respected of all, enjoying certain special privileges which in a savage community would assuredly not have been granted except to a chief whose followers were numerous enough to compel respect and obedience. At the same time La Harpe states that the Toajas were the most numerous nation. He further says that the chief of the Touacaras and six other chiefs of nations met him, and he mentions seven distinct tribal names, counting the names Toayas, Quirasquiris, and Ousita as referring to one tribe. Thus it appears he met seven tribes in all, to wit: Tawakoni, Southern Comanche, Kiowa, Apache, Caddo, Waco, Adái, and Wichita. Leaving out the Wichitas, every one of the other tribes belonged at that time in Texas except the Caddos, who belonged in Louisiana, near the Texas border. The evidence does not show that any of the tribes remained long in or near the locality where La Harpe met them, or that they were in the course of the migration to Texas from some other point. It is probable that their stay, which was only during the summer season, lasted but a few seasons, after which they returned to the region where they properly belonged. If the Wichitas did not return to Louisiana and move westward along the Bed River, but went south-westwardly from the Canadian to the Wichita Mountains and other parts of the leased district, there is no explanation as to what became of the other tribes or why they did not continue their association with the Wichitas in such a movement to the leased district.
It is again contended by the Wichitas that they were the same as the Paniouassas mentioned in an anonymous memoir in Margry, and that they lived on the Upper Arkansas. This *59 anonymous report is taken from the early French records, and it speaks of the nations who lived or who were established on the course of the Red River from the month to points within the knowledge of men, and includes one tribe called “ Toua-oana” or Paniouassas, and these last are placed near the river of the Otouys. The latter name is thought by counsel for the Wichitas to be synonymous with the Otoes, who were, according to the maps of that time, on the Upper Arkansas. Inasmuch as there was a tribe named Sotouys on the Lower Arkansas, near its mouth (written by De l’lsle “Sitouis,” by La Harpe “ Zautoouys,” and by Ross and D’Anville “ Sotouis”), it is more probable than otherwise that the location of the tribe described as Touacanna, or Paniouassas, was not near the Otoes.
We have examined the contentions relating to the origin of the Wichitas, their early traditions, associations, and movements, not alone for the interesting discussion which goes back to the twilight of Indian history west of the Mississippi, but for the earnest argument for the Wichitas in support of their claim and the information which we have supposed might lead to the establishment of something certain for them. But for anything that appears on the maps or in the statements-of the early explorers, we have nothing sufficiently definite or certain to lead to the conclusion that the Wichitas had such an early aboriginal claim as they state. Close examination of the early French and Spanish records, the statements of travelers, and the accounts of historians suggest the most reasonable conclusion to be that the French found the Wichitas originally in Louisiana; that for a short time the tribe or a portion of it passed the summer season on the Canadian in company with portions of other southern tribes, but that ultimately they were driven westward to the Red River by the Ohickasaws, after which time they were found among the Indians whom the Spaniards met and dealt with in Texag. Their descendants are now, asserting the title.
There is less of conjecture in this conclusion than in any other, and it is really not inconsistent with the opinions which the Wichitas themselves have on this branch of their case. They admit an early habitation in Louisiana, and do not satisfactorily prove such a severance of the tribe and departure of a. part of the band from the country south of Red River into *60 tbe country of which the leased district forms a part as to enable us to say with any degree of accuracy or precision that there was an actual permanent division or that any of them ever laid claim' or had a right to claim that country which forms the subject-matter of this suit. The learned counsel for these respondents, recognizing this, say they are “ content for the purposes of this cause to base possessory title on the history of the Wichitas from the middle of the eighteenth century.” ( Bee., 491 .) If they are content to do so, then the court is also content to reject such statements as explorers have offered concerning the location of the Wichitas outside of what is now Louisiana and Texas, since they are at best, as they appear to us, conjectural for the most part and too indefinite to found upon them the substantial rights claimed upon their authority.
The following is a summary of evidence upon which, for the purposes of this case, the Wichita claim of 'occupancy to tbe “ Great Prairie west of the Cross Timbers to the western limits of the United States” (which includes the leased district) is mainly rested, to wit:
In 1759 the account of Parilla’s defeat shows their residence at “ San Teodoro.” (Pec., 485 and 601.)
This name of San Teodoro was given, in 1778, to one of two Wichita villages visited by Mesieres, one each side of Bed Biver, west of the Cross Timbers. ( Bee., 485 -480 and 492.)
In 1788 Fragoso, in a journey down Bed Biver, visited and remained six days at the Wichita villages j ust west of the Gross Timbers. ( Bee., 480 and 603.)
In 1805 Sibley reported two villages of the Wichita,s on the south bank of Bed Biver, 340 miles in a direct line west from Natchitoches, 30 miles by land west of the False Washita. (Bee.,-480.)
In 1805 Dublanc, governor of Natchitoches, reports (in Bobin, 1807) that the Wichitas occupied two villages, one each side of Bed Biver, 80 leagues above the Gad dos, who were in northwestern Louisiana. ( Bee., 1042 and 1339.)
The statement accompanying the letter of J. C Carr (which, without the statement, is printed in the Becord. at page 1039), dated at Natchitoches, in 1819, and purporting to include the Indians of Texas, does not include the Wichitas.
*61 The Melish map of 1818 gives a Wichita village south of Eed Eiver, below the mouth of the Blue Eiver. Long’s map of 1823 shows a Wicliica village north of Eed Eiver, at the mouth of the Blue, the uote stating that it was abandoned in 1810. Melish got his information from Darby. (Eec., 600.) Darby, in his work on Louisiana, at pages 28-29 gives the Wichita villages east of the Blue, but on page 51 says that the Wichita flows into the Eed 70 miles above the Blue and a short distance below the Wichita towns.
The statement of Uts tuts kins, then a child, states that the villages on Eed Eiver were deserted for one at the mouth of Cache Creek, and that thore they had smallpox, which we know was in 1816. (Eec., 1340, and Senate Ex. Doc.)
Morse’s report (Census, 1890, Indians, p. 11) states that the Wichitas lived on Eed Eiver, 1,200 miles, above its mouth, in 1822.
In 1830 A. P. Chotean reported that there was a Wichita village 250 miles from Fort Gibson. (Eec., 1086 and 1342.)
In 1.832 Albert Pike was informed that the Wichitas had always lived in the country around the Wichita Mountains. (Senate Ex. Doc. 13, supra, p. 29.)
In 1834 Colonel Dodge visited the Wichita village on the North Fork of Eed Eiver, near the mouths of Elm Fork and Elm Creek and Mount Webster. He was informed that the tribe formerly lived farther south and that their oldest men were born there. (Eec., 1087 and 1343.)
The report of the Texas Boundary Commission (pp. 64 and 67) gives a statement of a Waco chief, Shot Arm, who was an old man in 1858, that he was born at a village on the North Fork of Eed Eiver, at Mount Webster. (Eec., 487.)
Gatlin’s map of Indian localities in 1833 shows a Waco village on one side of Eed Eiver and a Wichita village on the other. (Census, 1890, volume on Indians, p. 45.)
Wichita Indians informed James Mooney that they moved from North Fork to Fort Sill in the summer, of 1834. (Eec., United States v. Texas, 676.)
Niastor, a Wichita Indian, claims to have been born at Fort Sill in 1837. (Eec., 610.)
General Bee visited the Wichita village on Cache Creek, near Fort Sill, in 1843. (Eec., 503.)
*62 Captain. Marcy, in 1849, reported that the Wichitas lived between the Eed and Washita rivers. (Eec., 1331.)
In 1852 Captain Marcy was at the remains of the Wichita village at Fort Sill, which had been deserted two years before because, as Albert Pike tells us, of inundations and attacks of hostile Indians. (Eec., 503, 1097, and 1341.)
In 1852 Captain Marcy found the Wichitas living at Eush Springs, west of the Cross Timbers, and at the head of Eush Creek. Both of the above locations are shown on the map accompanying Marcy’s report. (Eec., 269 and 604.)
In 1852 Marcy reported that the Wichitas.were entitled to the country around the Wichita Mountains by the right of occupancy and possession. (Eec., 604.)
In 1853 Horace Capron reported that the Wichitas were entitled to the country north to the Ca7jadiau and around the Wichita Mountains, it being originally their country, they never having relinquished the same. (Eec., 1098 and 1343.)
In 1858 the Wichitas deserted the village at Eush Springs and took refuge at Fort Arbuckle. (Eec., 504.)
In 1859 Eector reported that the Wichitas had lived in the country north to the Canadian Eiver from a time beyond anyone’s memory. (Eec., 607.)
Beginning with the account of an expedition in 1759, it appears that Barilla’s defeat was at a place which shows the residence of the Wichitas to have been at San Teodoro, one of the Towaiache villages on the main Eed Eiver, west of the Qross Timbers. The statement respecting this expedition and its results is taken from Hubert H. Bancroft’s work (vol. 5), and is quoted in the record of the case of United, States v. Texas (162 U. S. E., 733), from which it substantially appears that plans for a campaign were made by a conference of officers at Bexar in January, 1759. An army of 500 soldiers and volunteers, with a large force of Apache auxiliaries, started in August under the command of Parilla. After marching some 150 leagues they surprised a ranchería, killing 55 of the foe and making many captives. They then advanced against the towns of the Taovaiases and, in the region of what was later called San Teodoro, found 6,000 Indians, of different tribes, in a strongly fortified position, many of them armed with muskets, and displaying a French flag. The savages did not wait to be attacked, but made a sortie in force, and the Spaniards *63 fled, in a panic. This affair occurred south of the Eed Eiver, thus showing that Taovaiases were located not north but south of the Eed Eiver in 1759. If the Wichitas were located where they were when I)e Mesieres found them in 1778, their location in 1759 was east of the ninety-eighth meridian. Hence, even if the Wichitas had been north of the Eed Eiver, and not south of it, they would not have been in the leased district.
A Spanish officer named De Mesieres made a report in 1778, which also appears in the record in United States v. Texas (890-891), in which he substantially stated that from the Brazos Eiver, where the Tuacanas dwelt, to the stream that waters the Taovaiase village there was seen on the right a forest justly called by the natives the “Big Forest” (Cross Timbers), and that the Taoviase Nation was divided into two villages, one situated north of the Eio Bermejo (Eed Eiver), or Eiver of Nachitoches, and the other opposite; the former village was composed of 37 houses and the latter of 123 houses. There is nothing in the entire statement to show that the Taovaiases occupied any land north of the river beyond the place of the few houses mentioned, and nothing tending to show that they occupied or claimed any part of the leased district. More than three-fourths of the tribe was on the south bank of the river. The double village was east of the ninety-eighth meridian, and that meridian constitutes the eastern boundary of the leased district. The Cross Timbers reach the Eed Eiver at 97° 15' west longitude, as shown by the maps of Austin, 1830; Hunt and Eandel, 1839; Kennedy, 1841, and Tanner, 1846. South of the Eed Eiver their western border is east of 97° 30'.
It does not appear that De Mesieres traveled north of the Eed Eiver at all, and on the whole statement, with other evidence, we conclude that the proofs relating the Parilla expedition and De Mesieres’s visit locate the Wichitas east' of the ninety-eighth meridian, and not in the Wichita Mountains. The ninety-eighth meridian, being the boundary of the leased district on the east, the Wichitas could not have been in the leased district.
The narrative of another expedition about that time (1778) shows that Fragoso started eastward from Santa Fé June 24, 1778. According to his account, he left the Wichita village July 26 and traveled that day 7 leagues in eleven hours. On *64 the next day he traveled twelve hours, but does not state the distance made. On the 28th, after traveling 4 leagues, he reached the Cross Timbers. The average hourly distance made during the twenty-two days prior to his arrival at the Wichita village, for which the distances are stated, was four-fifths of a mile. This would make the distance from the Wichita village to the Cross Timbers about 21 leagues, or 63 miles. . From the Wichita village to the Cross Timbers by the course of Fragoso’s journey the village would appear to be east of the ninety-eighth meridian. The course of the Cross Timbers south of the river is southeast. The more directly south Fragoso went from the Wichita village to the Cross Timbers the nearer was that village to the meridian of the Cross Timbers. The contention that Fragoso did not travel along the Fed Fiver all the distance from the Wicbita village to the Cross Timbers, but traveled southward a part of the time, finds its answer in the statement that the more southerly his course during- this journey of two and one-half days the nearer was the Wichita village to the meridian of 97° 15' and the farther was that village east of the meridian of 98°, which formed the eastern boundary of th.e leased district. And it does not appear that Fragoso traveled along the river the whole 63 miles of his journey, as the river in that region often flows in a southerly and sometimes in a southwesterly direction.
In his report to the Secretary of War (Amer. State Papers, vol. 1, Ind. Affairs, 721 et seq.) Dr. John Sibley said in 1805 that the Fanis or Towiaches lived on the south bank of the Fed Fiver, by the course of the river upward of 800 miles above Natchitoches and by land about 340 miles; that they had two towns near together, the lower town, where the chief lived, bein g called Witcheta and the other Towa a bach. From the mouth of this river, known as the False Washita, through the prairie to the main branch (Canadian) of the Arkensa was a three days’ journey, some 60 or 70 miles in a straight line. From this mouth of the river to the Pañis or Towiache towns the distance was about 30 miles by land and double that distance by water, where the river is nearly a mile wide. The mouth of the False Washita is about 4 miles west of the meridian of 96° 30', according to maps of the Land Office of 1891 and 1897 and by the Indian Office map of 1896. According to Sibley, then, the Wichitas, Towiaches, and Tawakonies *65 were south of the Eed River in. Texas in 1805, some fifty-odd miles east of the eighty-ninth meridian.
According to the statement made by Robin, 1807 (vol. 3, p. 3), concerning the report of Covernor Dublanc, the distance from the Natchitoches (then located near the present site of the town of that name in Louisiana) to the villages of the Taouay-aches and Ouitcitas was 185 leagues by water. The distance from Natchitoches by land to the sharp bend of the Red River in the State of Arkansas is in a straight line 132 miles. The distance in a right line from that bend to the ninety-seventh meridian is 181 miles. If the distance by this crooked river from the Natchitoches to the sharp bend of the Red River and from that bend to the ninety-seventh meridian was three-fourths greater than the distance by the right lines connecting those three points, the whole distance by water from the Natchitoches to the ninety-seventh meridian was about 548 miles; that is to say, only a few miles less than Robin’s estimated distance from the Natchitoches to the villages of the Taouyaches and Ouitcitas. There is apparent harmony, therefore, between Dr. Sibley and M. Robin in the location of these villages east of the ninety-eighth meridian.
An attempt was made in 1806 by Captain Sparks and others to visit the “Pawnee Piquas,” but they were prevented by the Spaniards, who must have had jurisdiction over the band, as Sibley had reported. (Long’s Expedition, vol. 2, pp. 302-314.)
Writing from data collected in 1804-1810, and advising the establishment of a garrison and factory on the Red River, at the present northern boundary of Louisiana, Stoddard said that the Indians, who were then obliged to trade at Natchi-toches, would be equally well, and perhaps better, supplied at the proposed factory, and that in addition to this the Pawnees (who were a different people from those of the same name on the River Platte) and Ietans and some other Indians high up on Red River and to the southwest of it might also obtain supplies from the whites, and thereby be prevailed on to break their connection with the Spaniards. Stoddard described these Pawnees as pursuing no other game than the buffalo, stating, however, that they attended to agriculture and raised more than double the quantity of corn and vegetables necessary for their own consumption, and furnished their neighbors with the surplus in exchange for peltries, so that their trade, *66 then engrossed by the Spaniards, was deemed of considerable value. (Sketches of Louisiana, 455.) According to this statement the Wichitas would seem to have lived in the villages referred to by Sibley.
In his Views of Louisiana, published in 1817 (p. 88), Brack-enridge states that the “Tawakenoes or Pañis” live “south of the Bed Biver, above the Caddoques.” Inasmuch as the Tawa-kenoes are also referred to in their proper place by that writer, we conclude that this is a misprint for “Towiaches or Pañis.”
The maps of Melish of 1816,1818, and 1820 show a “Panee” village on the south side of the Bed Biver, about 96° 15' west longitude. The Wichitas say, however, that the Melish maps are inaccurate. Since the interpretation given those maps by the Supréme Court in United States v. Texas (162 U. S. B., 1) their inaccuracy as to the location of the meridians, astronomically considered, is established. No doubt the longitude of some of the localities is incorrect, and the Panee village is placed farther east by the Melish map than it should have been, according to Sibley’s report; but the fact is probably established that the village was on the south side of Bed Biver, but somewhat farther west.
Humboldt’s map, published in 1811 from data obtained in 1803, shows “Indiens Taouaiazes” about latitude 36° 30' north, longitude 103° west. This indicates a Mexican belief that the Tawehash (Wichitas) were one of the nomad tribes of the Great Prairie.
Pilce’s map of the internal provinces of New Spain, based on information received by him in 1807, shows “IndiensTawayes” south of the Bed Biver. This probably is an engraver’s error for “Tawayes” — that is, Tawehash.
The Wichitas, as Pañis or as Paniassa, are located in Louisiana by De 1’Isle’s map of 1703, by Moll’s map of 1715, by Bernard’s map of 1720, and by De 1’Isle’s map of 1722; by De l’Isle’s map of 1741 on the south bank of the Arkansas Biver, in the Choctaw Nation; on Popple’s map of 1741 in Louisiana; but by his maps of 1735 and 1737 they are located “north of the Arkansas Biver.” Mitchell’s map of 1766 and Le Bouge’s map of 1778 place them north of the Arkansas.
Beferring to the Morse report, which states that the Wich-itas lived on Bed Biver, 1,200 miles above its mouth, in 1822 (Census, 1890, Indians, p. 11), Clark’s census of Indian tribes, *67 dated November 4,1816, contains a statement that the Oadeau and Paneas Pique (Caddo and Wichita) tribes reside “on Bed Biver, near the south boundary line of the Missouri Territory.” Major Long’s report, February 20,1821, states that the Osages had recently driven the Pawne.vs of Bed Biver from their place of residence and compelled them to seek an abode upon the head waters of the “Brassis” or Colorado. (II Long’s Exp., sec. 21,' p. 366.) The Pawneys of Bed Biver to whom he refers can only mean the Wichitas, because they are frequently referred to in Long’s expedition under the name of Pawnee Piquas, whom Long confidently expected to find on the river which he thought to be the Bed, but which proved to be the Canadian. Long’s statement apparently explains the removal from the villages referred to by Sibley in 1805.
When the Chouteau treaty of 1830 was before the Senate inquiry was made of Chouteau, who was a well-known trader and who had traveled in the region of the Arkansas and Bed rivers, as to the proximity of wild Indians to the Choctaw country. He replied that the nearest band of wild or savage Indians was the Paw-nis Pick, whose village was about 250 miles from Fort G-ibson. He stated that they raised corn and vegetables in small quantities, and that other rambling tribes were to be found. These were the Padocas, Aitans, Huitsitas, Hichas, and Consadas. Their range extended south. The Comanches, Arapahoes, Cayouwas, and other bauds were reported as rambling from the head waters of the Great Platte, Arkansas, and Bed rivers in the direction to San Antonio and parallel to that chain of the Bocky Mountains running south. This statement shows not merely that a distinction was made at that day between the roving Huitsitas (Wichitas) and the more sedentary Pawnee Picks (Pañis Piques), but that the latter did not live within the country granted to the Choctaws in 1820 and regranted in 1830. A distance of about 250 miles from Fort Gibson indicates that the village was somewhere on the Bed Biver, near the mouth of the Big Wichita, or perhaps on the Big Wichita, where Austin’s map of Texas (published the year Chouteau’s statement was made) shows a Towiash village. Wherever the village referred to by Chouteau was, it could not have been within the bounds of the country granted to the Choctaws, for Chouteau not only knew what those bounds were, they having been established ten years *68 before, but be actually knew tbe country from personal examination, and it can not be doubted that if the Pawnee Picks, as he called them, or any other Indians had had a settlement within that country, he would both have known the fact and would have reported it.
In the record are certain Indian statements which largely rest upon the traditions of the Wichitas. The most important of these and carrying the greatest weight in establishing an occupancy of the country are the statements of two aged members of the tribe named Ut-tuts-kins and Es-quetcli-ckee (Old Man), and of Niastor, chief of the Towaconies. (Sen. Ex. Doc. 13, 48th Cong., 1st sess., 32 et seq.) These are supplemented by the opinions and information of Horace Capron set forth in his report as special Indian agent for Texas, which in itself is a strong statement of the Wichita case.
Respecting these traditions, there is such an apparent want of any certain knowledge in the persons from whom the information is professed to have been derived, and such absolute want of competent knowledge on the part of the declarants of those material things to which they profess to speak, the statements do not address themselves to the court as possessing any great value, even if admissible as traditionary evidence under the principle relating to ancient boundaries. Neither the circumstances under which the testimony seems to have been derived nor the number and situation of the witnesses entitle the traditions to that credit usually attached to such evidence, weak though it may be at best.
Things transmitted from one generation to another in the lapse of time must necessarily come to be surrounded with much of error and untruth. Such is the case with matters of oral communication not covered by the written memorials of intelligent people. What, then, must be said of the traditions of a race of rude red people, whose reason was weak and imagination strong; who worshiped the sun and danced in the light of the moon to music made from the shin of snakes; of the children of Nature, whose superstitions led them to revel in stories of witchcraft and evil spirits, and whose powerful imaginations, fed by these superstitions, originated the weird tales respecting their origin and lineage?
With limited ideas of their ancestry, knowing but little of places whence their fathers came, an experienced traveler has *69 testified that they could only speak upon the subject in general terms, and that in some instances, where their term of residence in a place was of short duration, they would either lose or conceal their knowledge of a country whence their ancestors came and assert that the Master of Life had created and planted their fathers on the site where they, their posterity, then lived. (II Long’s Expedition, 371.)
The pages of fiction contain nothing more fanciful than the story of Pushmataha, founder of a dynasty and the white man’s friend, who, according to the story of his race, sprang, full armed, from the splinters of a pine tree as it was shivered by the lightning’s flash. And yet this mythology of a race whose descendants are now before us as claimants finds its counterpart in the Wichita tale that their ancestors sprang from the rock of the Wichita Mountains. As proof, the one story is of no greater value than the other, and the Wichita theory of their origin is of no more importance than the early story of the Choctaws, who, according to Gayarre, ascribed their origin to Kamsohatka.
But it is said that Albert Pike, when on the Red River in 1832, heard of a tribe called Pawnee Piets, living in villages in the vicinity of some mountains north of Red River, cultivating the soil near by, and who had, as his informants expressed it, “lived there always.” That the Indians have lived in the neighborhood of Red River for a long time, though at different points, is substantially true, and the expression must be taken as meaning probably no more than that. If the expression meant the site of the particular village it was not true, and the statement can not be relied upon even as evidence that the Wichitas had lived there a long time.
Ski-sa-ro-ka, “an intelligent Toyash,”told Dodge “that their nation lived formerly south,” a statement which is opposed to the theory of a migration from the north. (Am. State Papers, Mil. Affs., vol. 5, 381.)
Albert Pike was the commissioner of the Confederate States who made treaties with the reserve Oomanches and other small tribes. Among these were the Wichitas, first known to him as the Ta wai hash, and so called in the treaty. This was in August, 1861, at which time the Wichitas, or Ta wai hash, preferred a claim to him for compensation “ for the country south of the Wichita Mountains on Cache and Clear creeks,” *70 and the treaty agreed that their claim for compensation should be considered and examined, and that which might be found just and right should be paid to them. Pike expressed the opinion in his letter to the Secretary of the Interior that when the United States sold their country to the Choctaws and Ohickasaws an indisputable claim, by long-continued occupancy and possession and partial cultivation, to the country west of Cache Creek, between the mountains and Red River, to an indefinite distance west, existed in the Wiehitas, for which they ought in common justice and honesty to be paid.
But General Pike possessed, no personal knowledge that the Wiehitas had occupied tbe leased district from time immemorial, and there are no circumstances which lend to his opinion the force of testimony. His letter was merely the expression of an opinion resulting from a promise to repeat in writing what, preceding the date of his letter (July 12, 1882), he had said to the ¡Secretary of the Interior in regard to the Wichita tribe. The statements made by him were not under oath, and while their integrity is not questioned as far as his knowledge went, the most that can be said for them is that the Wiehitas preferred a claim to him for a small part of the leased district now known as the southern end of the Kiowa and Comanche Reservation. The claim then made does not include the present Wichita Reservation.
Gatlin’s North American Indians shows the Pawnee Piets and Wicos on the Red River about latitude 35° 10’ N., longitude 103° lo' W. This would be in the ‘‘'panhandle ” of Texas. (Rec., XT. 8. v. Texan, .supra 171.)
General -Bee found a Wichita village on Cache Creek about 30 miles from its mouth. (Rec., XT. 8. v. Texan, pp. 1219, 1221, 1225.) It does not appear how many of the tribe lived on Cache Creek nor how long they had lived there. The proofs are numerous that the residence of the Wiehitas was in Texas between 1830 and 1850.
The following maps show a Towiash village on the Big Wichita west of the ninety-ninth meridian, to wit: Lee’s map of Texas, 1836, reproduced in United States v. Texas, 184; Austin’s map of Texas, 1837, reproduced in United States v. Texas, 292; Hunt & Randel’s map of Texas, 1839, reproduced in United States v. Texas, 108 and 1016; Arrowsmith’s map in Kennedy’s Texas, 1841; I)e Cordova’s map of Texas, 1849. This shows a “Tanawash” village west of the one-hundredtli *71 meridian and a village on the south side of Fed Hi ver just above the mouth of the Big Wichita. Young’s map, published by Mitchell in 1838 (U. 8. v. Texas, 292), shows a Towiash village north of the Bed Biver, west of the one-hundredth meridian, omitting the Big Wichita altogether; but this map was admitted by Kennedy to be inaccurate, who reproduced it in his book merely to show the location of land grants. (Kennedy’s Texas, vol. 1, p. 336.)
Besides the maps there are other proofs of the residence of the Wichitas in Texas. In alliance with the Wacos were the Pawnee Piets, or Toweashes, residing on the Bed Biver, sometimes on the side of the United States and sometimes in Texas. (Kennedy’s Texas, 1841, p. 349.)
Beferring to the Towaccanies and Toweash, who were said to resemble each other and are often found associated in the same village, it is stated that they live high up on the Colorado, above San Saba. (Moore’s Description of Texas, 1844, p. 32.)
The Whacoes, Tawacanies, Toweash, Aynies, San Pedros, Nabauchoes, Nacadochuts, and Hitchies are small tribes, fragments of tribes long resident in Texas and properly belong to it. Originally, Hitchies excepted, they are of the Caddo stock, being offsets from that family. (Statement of David G-. Burnet, August, 1847; 1 Schoolcraft’s Information Bespecting Indian Tribes, 239.) A Wichita chief called Ta wak o nee Jim testified in United States v. Texas ( Bee., 634 ) that he was born in 1843 in Texas, and came to Fort Sill when about 10 years old, and that the Wichitas used to live at the To wako nee Hills in Texas.
Two years before the annexation of Texas the republic of • that name established a bureau of Indian affairs. All the country west of a line drawn from Bod Biver to the Bio Grande through the five posts established was Indian country, from which settlers were to be excluded except by special permission. (Act Jan. 14, 1843, Tex. Laws, 19.) On the annexation of Texas, in 1845, jurisdiction over the Indians therein passed to the United States, and the Commissioner of Indian Affairs made a report declaring it to be necessary to organize a branch of that department within the boundaries of the territory acquired. He says:
“Owing to the unsettled condition of the Camanches, Witchetaws,andothertribeswholeadawanderinglife, * * * sometimes being in Texas and sometimes in the United States, *72 it has been impossible to extend over them the eye of this department. They have neither belonged hitherto to the one Government nor the other.” (Sen. Doc. No. 1, 29th Cong., 1st sess., p. 454.)
In 1846 the habits of the Indians within the Texas border were reported as so uncivilized and so predatory and wandering that correctness as to their number could not be. relied upon. This report shows that the Toweash, Waco, Towagany, and Wachita Indians were on the Red River above the Cross Timbers, with their villages on both sides and near each other. (Pitchlynn’s report, Jan. 19, 1846, to the Commissioner of Indian Affairs.) In March, 1846, commissioners met chiefs of the Comanche, Mescalero (Lipan), Tawakoni, Waco, Keeehi, Kickapoo, Wichita, and “Toweash”. tribes at Comanche Peak, and held a talk with them in regard to a cessation of hostilities and horse stealing. This resulted in the treaty of May 15, 1846 (9 Stat., 844). This treaty was made in Texas, with Texas tribes, because of the sovereignty which the United States had acquired over them by the annexation. (We fail to see anything in the suggestion of the counsel for the Wichitas that the United States failed to carry out this treaty.) In 1847 a special Indian agent for Texas went to the village of the Wacos, Witchetas, Tab wah ca roos, and Keechies and compelled the return of stolen horses. This village was situated on the Wichita River, and the six tribes met there were reported as making corn to a considerable extent. (Sen. Ex. Doc. No. 1, 30th Cong., 1st sess., 894-896.) If this statement be true, the main Wichita village was on the Wichita River •(i. e., the Big Wichita, where the village is shown on De Cordova’s map), while another village was near the Brazos. If the Wichitas lived on Cache Creek near Mount Scott at that time, it could only have been but a few families. In 1849 the Chickasaw agent reported the Wichitas and other Texas Indians as living in the western part of the Chickasaw country. (Ex. Doc., 31st Cong., 1st sess.) Catlett’s report of that year (ibid., 968) stated, however, that they lived upon the Brazos head of the Trinity and upon the Big Wichita. Agent Neighbors, to all intents and purposes, confirms this report, and consequently before they could have been living in the Chickasaw country.
In 1851 the Wichitas * * * together with about eighty warriors from the Caddoes, W acoes, and Keechies, together *73 with a small proportion of women and children, were reported to have “within the last two years left Texas, and are now inhabiting the Wichita Mountains beyond Bed Biver.” (Sen. Ex. Doc. No. 1, 31st Cong., 1st sess., 523.) This is the first evidence of a residence north of Bed Biver aside from the fraction of a village shown on that side many years before.
In 1851 the Indian agent reported the Wichita population as not over 500 souls. Two years later he reported the population to be 314. (Sen. Ex.JDoc. No. 00, 34th Cong., 1st sess., p. 37.) On July 19, 1852, Marcy passed the deserted Wichita village on Cache Creek, and three days later he came upon the new Waco and Wichita villages on Bush Creek, built after the removal from Texas reported by the agent in 1851. Marcy was probably ignorant of the fact that the Wichitas, or most of them, had been living in Texas. His report must be taken for what it is worth. He was of opinion that their claim to the country around the Wichita Mountains was guaranteed to them by the right of occupancy and possession. (Sen. Ex. Doc. No. 54, 32d Cong., 2d sess., pp. 69, 72, 77.) We attach no value to his opinion.
No treaty of limits has ever been made with the Wichitas. If they were the substantial people iu the early days they now claim to have been the omission to treat with them is remarkable. If the United States did not favor the peaceful and friendly tribe having some permanent abode, it was not because there was any desire to establish friendly relations with wandering savages at the expense of those willing to aid the pioneer whites in civilizing the country.
During the times the French, Spanish, Mexican, and Texas governments had dominion over .the tribe the Wichitas were not recognized as aboriginal possessors of the soil. Ignored for two centuries by the political departments of five governments, how can the judiciary now establish limits of territorial occupation for them without something more specific than what we have to tell where their limits began and where they ended in that vast region known as the Great Prairie west of the Gross Timbers? —
We find as a fact that even if the Wichitas occupied any portion of the prairie they did not do so alone. Their claim, then, can not be considered an exclusive claim. Prior to 1833 twenty-seven other tribes resided between the Bed Biver and the Canadian. And some six years before the removal of the *74 Wiebitas to their present reservation the Northern Oomanches and Kiowas were reported as numbering 18,950, while the Southern Comanches were placed at 1,000 in number. (Eeport Actg. Supt. Howard, 1852.) Whatever their number in the eighteenth century, these last three bands roamed over the prairies and were certainly as much prairie Indians as any others. They were more numerous than the Wichitas, and, making greater use of the prairie, were more entitled to be called prairie Indians.
Which of these tribes was first on the prairie does not clearly appear, but as the entire region was used indiscriminately by the various bands, and all were there in common from time to time, one insignificant band can not now be deemed to have held the only original occupation of the country.
The failure of the Wichitas is greater still to show an established occupancy ahead of others to the reservation in suit, in the sense of Indian occupation, until a date comparatively recent. It is quite probable that from time to time they passed over it while roaming over other parts of the country north of Eed Eiver, but it is doubtful if their claim to the reservation would ever have been given life but for the act of the Government in quartering them upon it after the Choctaw lease of 1855.
From all that appears in their earlier history we find that the Wichitas were inhabitants of the country now constituting the present State of Louisiana, whence they were driven by the Ohickasaws into the Caddo Nation, which about the middle of the eighteenth century was in northwestern Louisiana and northeastern Texas. For years before the annexation of Texas they were as much the subjects of foreign control and jurisdiction as one of the domestic tribes within the jurisdiction of the United States.
The court would be lost in the realms of conjecture in attempting to- reconcile the different theories of the origin of the Wichitas. One of their traditions places the main tribe on the Neosho Eiver, in Kansas, about 1781, from whence two bands left the main tribe, one taking up a residence in Texas and the other locating near the present town of Wichita in Kansas. Modern reports class them as Wacoes and Towa-conies, and virtually one people. The three tribes speak the same language, and those Wichitas prosecuting the present *75 claim presumably came out of Tesas. The Wacoes and Towh-conies lived there beyond the prairies and pretend to nothing in the way of an interest in the land except under recent agreement.
We deem it unnecessary to pursue the inquiries into this branch of the case further. The main issues have been presented. The labyrinth of detail, if fully stated, would but serve to encumber the record. Our conclusion concerning the matter of occupation is that the Wichitas have not established such an occupancy of the land in suit at the time of its acquirement by the United States as would support the customary Indian title, or possession of such character that the United States can now recognize or is under obligation to protect for purposes of compensation.
We are strengthened in this conclusion not alone by the fact of the purchase of the land from others claiming to be inhabitants of the country, but by the reports of the agents of the United States and the action of the executive and legislative departments of the Government thereunder; the subsequent sale of the country to the Choctaws in 1820 under the supposition that the rights of the aboriginal occupants had been extinguished; the confirmation of the sale to the Choctaws in 1830 as to the reservation in suit; the subsequent admission of the Chickasaws to certain rights; the lease of the land in 1855; the agreement which in 1859 put the Wichitas and their affiliates on the land, and, finally, the failure of the Wichita defendants to assert any claim of prior occupation at the time of the agreement which admitted them to possession. Every presumption is against them as rightful inheritors of the country which the proofs have not overthrown. We therefore dismiss this part of their claim, remitting to further consideration the agreement which established them on the reservation and the extent of their rights measured by that agreement alone.
The Quapaw occupation need only be considered with reference to the extent of country occupied by them with relation to the territory ceded to the Choctaws.
It is entirely possible that the territory actually occupied by the Quapaws did not extend as far west as the cession would indicate, but we know that they were a tribe friendly to the whites who lived west of the Mississippi Eiver, and that they asserted dominion over an extensive scope of country in Arkan *76 sas and beyond. Except when tbe Osages, with whom they were often at war, did not successfully dispute their sovereignty, they attempted to exercise dominion over all they claimed. The Osage feud and the varying chances of war probably diminished their right to some of the country as an exclusive claim, but that is a question foreign to this cause. According to Clark and Chouteau, the Osages and other governments considered all the property included in the Quapaw cession as belonging to that tribe. (Amer. State Pap., vol. 11, Ind. Affrs., 177.)
The cession discloses some doubt on its face as to the extent of their possessions, but is sufficiently certain to include the leased district. Certain Quapaw “claims” are mentioned in the cession, but they relate to “land east of the Mississippi and north of the Arkansas River,” and these claims were transferred with country more certainly thought to be owned by the Quapaws. The country west of the Mississippi and south of the Arkansas included in the cession is referred to not as territory merely claimed by the Quapaws, but as territory which both parties accepted as Quapaw country without referring to it merely as country “claimed.” As to this, the Government believed that the Quapaws were in unquestionable ownership, not only because that tribe was found in possession, asserting dominion, and using it as a part of their territory, but because others were not found on the land asserting claims or in position to assert any. These coincidences made up rights of occupancy by the tribes, unilke the paper muniments of title prevailing among civilized people.
The contention that the Quapaws never laid claim “of their own accord” to anything but a small tract of land, the boundaries of which bear much resemblance to the reservation retained by them, and that through the machinations of the whites they were led to claim more than they would have done of their own volition is not proven. There is reason to believe that the treaty with the Osages, subsequent to the Quapaw treaty, embracing a part of the same land, grew more out of the desire of the United States to keep the peace among the Indians than by any belief that the Osages had any real title to the country acquired in the cession from them, which had previously been included in the Quapaw cession. But this fact does not help the Wichitas. For, as between two tribes, like the *77 Osages and tbe Quapaws, wbo were willing to stay in a country and bunt over a large portion of contiguous territory and figbt for tbe right to do so, it is not probable that a wandering band, like the Wichitas, indigenous to no place and unwilling to contend with their more warlike neighbors, had any such equal claims.
There is less reason to suppose that the United States in first treating with the Quapaws sought to extinguish their supposed or exaggerated claims to the country than to believe that by the subsequent treaty with the Osages the object was to extinguish their real claims to previously acquired possessions. Without something more tangible on the subject than that before us we must conclude that the Osage treaty, covering a part of the leased district, evidences the interest which that tribe was willing to quitclaim to the United states and the Government was willing to buy, rather than the transfer of any substantial right to the land acquired from the Quapaws.
What rights did the Wichitas acquire in these lands by virtue of the treaty of August 24, 1835! And did the United States and the Choctaw Nation acknowledge the Wichita title by occupancy to the Great Prairie which they are now estopped to deny! (7 Stat. U, 474.)
Texas at the time of that treaty had not been admitted to the Union, and the territory covered by its terms lay anywhere between the United States and the settlements and hunting grounds of the Indians named in the treaty and the Bepublic of Mexico within the meaning of its third article ; and covered all of the country north of Bed Biver within the meaning of its fourth article, which are only material to notice in this connection.
It can not be determined from the proof precisely where this treaty was made, but it could not have been far from Bed Biver. Its effect as a grant and an acknowledgment of a Wichita title by occupancy are material to consider.
The treaty of 1835 was the result of an expedition sent out by the United States to our western border under the command of Colonel Dodge. On July 22,1834, Colonel Dodge made an address to the Toyash chiefs and warriors, in which he stated that his party were- the first American officers who had ever come to see the Pawnees, and that they had met as friends, not as enemies, to make peace; that the great Ameri *78 can chiefs wished also to make peace between them and the Osages, who had been at war with the 1'awnees, and to secure peace also between them and the Oherokees, Senecas, Delawares, Choctaws, and all other red men. It was shown to the Wichitas that the American officers had met a party of Comanches, with whom it was also desired they should be at peace. (Doc. 2, 23d Cong., 2d sess.) -On the next day a similar address was made to the Comanches, but supplemented by a statement as follows:
“You say that the Indians over Red River are your enemies. They kill you when you meet. These are Mexican Indians and do not make treaties with our greatfather, the President. But he will protect yon when you make peace with the Osages and other tribes that have been at war against you.” (Doc. 2, 23d Cong., 2d sess., p. 83.)
Major-General Macomb, in giving an account of the expedition, says that Colonel Dodge held a council with the Comanches and Pawnees (or Toyaslas), the Kiowas, and the deputation of Indians which accompanied him, amounting in all to about 2,000 persons, explaining the object of the expedition, and that he was instrumental in bringing about a friendly intercourse between several hostile tribes. (Ibid., p. 44.)
The official report of the Secretary of War shows “that some of the western tribes of Indians roaming through the extensive prairies west of Arkansas and Missouri, particularly the Comanclies and Kiowas, have for some years interrupted the peace of that quarter by predatory attacks upon our citizens, and upon the indigenous and emigrant Indians whom we are under obligations to protect. * * * The dragoons were ordered to establish permanent tranquillity; and if this should fail, to repel any hostile demonstrations which might be made. The object of the expedition was obtained without a single act of hostility.” (Ibid., pp. 33,34.)
The President informed Congress in his message of the movement “into the territory of the wandering and predatory tribes inhabiting the western frontier and living adjacent to the Mexican boundary, known principally by their attacks upon our own citizens and upon other Indians entitled to the protection of the United States,” and that the object of peace had been effected. (Ibid., 17.)
The treaty accomplished then what was contemplated to be done. The preamble states that it was entered into “for the *79 purpose of establishing- perpetual peace and friendship between the United States and the Comanche and Wichita nations and their associated bands or tribes, and between those nations or tribes and the Cherokees, Muscogee, Choctaw, Osage, Seneca, and Quapaw nations or tribes of Indians.” Whatever rights then recognized or given were incidental to the main object of peace, and the treaty was not one of limits or of cession.
The first and second articles provide for perpetual peace and forgiveness for past injuries.
Article 3 provides:
“ There shall be a free and friendly intercourse between all the contracting parties hereto, and it is distinctly understood .and agreed by the Comanche and Wichita nations, and their associated bands or tribes of Indians, that the citizens of the United States are freely permitted to pass and repass through their settlements or hunting grounds without molestation or injury on their way to any of the provinces of the Republic of Mexico,” etc.
Article 4 provides:
“ It is understood and agreed by all the nations or tribes of Indians, parties to this treaty, that each and all of the said nations or tribes have free permission to hunt and trap in the great prairie west of the Cross Timbers to the western limits of the United States.”
Article 5 provides:
“ The Comanche and Wichita nations, and their associated tribes or bands of Indians, severally agree and bind themselves to pay full value for any injury their people may do to the goods or other property of such traders as the President of the United States may place near to their settlements or hunting ground for the purpose of trading with them.”
Article 6 provides:
“ The Comanche and Wichita nations, and their associated bands or tribes of Indians, agree that in the event of any of the red people belonging to the nations or tribes residing south of the Missouri River and west of the State of Missouri, not parties to this treaty, should visit their own towns or be found in their hunting grounds they will treat them with kindness and friendship and do no injury to them in any way whatever.”
The treaty was not signed by any of the associated bands, and for this reason it is contended that they were not parties to the agreement. This is true as far as any obligations to or from the associated bands extended, but not true in the sense that the signatories did not recognize them to be in possession *80 of such settlements and bunting ground on tbe way to tbe Republic of Mexico from tbe United States, as were possessed by tbe others. In any event, whatever rights were conceded to be in tbe Wicbitas tbe same rights were also recognized to be partly in tbe Comancbes, so that if the few hundred Wicb-itas in existence at that time bad settlements and bunting grounds in tbe pathway of travel from tbe United States to Mexico, then numbers of Oomanehes bad settlements and bunting grounds along tbe same route.
Tbe contention that the Comancbes were improperly joined because of the probability that they were in Texas can not be accepted in the face of the treaty which recognized the Comancbes to be in tbe United States as well as in Mexico; and as Colonel Dodge found a large body of them not far from tbe border, as be did tbe Wicbitas and tbe associated bands, and both Comancbes and Wichitas treated for a common purpose, tbe Comancbes can not be held to have been improperly joined. That all of tbe associated bands and Wicbitas, as well as,Comanches, roamed in one country about as much as in the other, and had been living in Mexico as well as in the United States, appears in tbe history of that time. They were all regarded as land pirates of tbe great West who depredated upon tbe Mexicans of the interior States and murdered our own people on the road from St. Louis to Santa Fe (Eaiues’s report to Lewis Cass, Secretary of War, Mar. 11, 1836), and were on Eed Eiver, sometimes in the United States and sometimes in Texas, in alliance with the Wacos and tbe Cad dos as far as the Pawnee Piets were concerned. (Eep. Tex. Oommr. Ind. Affs., Nov. 3,1838; Sen. Eep. 171, 30th Cong., 1st sess., 47; Kennedy’s Texas, vol. 1, 349.) Fragments of tribes', separately considered and quite insignificant, include the Toweasb, “ long resident in Texas ” and properly belonging to it. (Statement of tbe President of tbe Texas Eepublic, Aug. 20,1847; 1 Schoolcraft, 239.)
Whatever presumptions arise from tbe recitals respecting tbe settlements of tbe border tribes, tbe references relating to such settlements apply to tbe year of tbe treaty. This was seventeen years after the extinguishment of the Quapaw title and ten years after the Osage quitclaim. And it does not appear when tbe border tribes established their settlements or to what extent or where. The evidence leaves no room to *81 doubt that whatever settlements the Oomanches, Wichitas, and associated bands possessed they were either on the border or close to it, but when they got on the American side is not shown. Even if on the American side there is no proof showing any of the settlements on the immediate lands in controversy. There is a gap in the history of the Wichitas from the time Sibley mentions them, in 1805, to the time Dodge visited them, in 1834. This the Wichitas admit (Rec., 1340), and the account they attempt to give of themselves in the meantime does not satisfactorily account for what they themselves admit.
Again, it is unreasonable to suppose that several thousand Choctaws would, for the sake of peace with a few hundred Wichitas, knowingly surrender large bodies of land which the larger tribe was very well able to defend, and as neither the Choctaws nor the United- States supposed the treaty referred to claims of any kind on the land, and the cession of territory was not the purpose of the treaty, neither the Choctaws nor the United States are estopped to deny the Wichita claim of prior occupation.
As the Choctaws and Creeks extended their occupation and improvements to the country acquired by them under grants from the G-overnment the Oomanches became dissatisfied. This led to a construction of the treaty of 1835 by the Indian Office. In 1837 instructions were given to the special Indian agent which, after calling his attention to the dissatisfaction of the Oomanches, directed him to explain to that tribe the matter so that they might understand the United States had purchased the lauds from the tribes possessing the occupant title and had guaranteed the exclusive right in the emigrant Indians. (Instructions to Agent Chouteau.)
The emigrant Indians included the Choctaws, and under the instructions Chouteau and another commissioner for the United States entered into a treaty on May 26, .1837, with the Kiowas, ICatakas, and Towacoros. (7 Stat. L., 533.) This treaty was in effect a construction of the previous treaty of 1835. It was, at least, inconsistent with any cession in 1835 to the Wichitas or others, and at variance with the idea that the Government supposed in 1835 it was making any admission as to the title to these lands.
But if the treaty of 1835 be considered an admission of Wichita occupation it, must also be construed with that of 1837 *82 as an admission of Osage, Quapaw, Seneca, Comanche, Mus-cogee, and Cherokee occupation. Neither treaty appears to us as an admission of title in favor of any tribe at the expense of the emigrant tribes who already owned the land under contracts, and who only agreed to share the privilege of hunting-on the land with the nomads of the treaty to secure the peace and quiet designed by the Government in the first instance.
The joint claim of the defendant Indians to the lands leased is based upon an alleged agreement made with the United States at Fort Arbuckle on July 1, 1859. This supposed agreement is not made the foundation of the Wichita claim, but as confirming their more ancient title and admitting the affiliated bands to an interest in it.
Under apprehensions of an attack from the Comanche tribe, the Wichitas in a body had abandoned their village at Bush Creek and retreated to Fort Arbuckle, in the Chickasaw country, in 1858. Under threats of extermination, a number of other tribes had fled from Texas to the same vicinity.
By the treaty between the United States and the petitioners in 1855 certain territory was leased for settling thereon a large number of Indians, described as follows:
* * * “ The Wichita and such other tribes or bands of Indians as the Government may desire to locate therein, excluding, however, all the Indians of New Mexico, and also those whose usual ranges at present are north of the Arkansas Eiver, but including those bands whose permanent ranges are south of the Canadian, or between it and the Arkansas.” (11 Stat. L., 613.)
That the defendant Indians were not to have exclusive occupation of the leased district, but only sufficient land for their actual occupancy, was contemplated, and that the Government intended to settle other tribes there is shown by the official history of the time. (Ind. Commr.’s Eeports, 1855, p. 473; 1856, pp. 566, 726; 1857, pp. 296,549; 1858, pp. 354,355-360, 526.)
Fifty thousand dollars was appropriated for the expense of collecting and establishing the Southern Oomanches, Wichitas, and certain other bands of Indians on reservations to be located south of the Arkansas and west of the ninety-eighth degree of longitude. (Act of March 3,1857,11 Stat. L., 183.)
The tribes whose permanent ranges were immediately south *83 of tlie Arkansas were tbe Gomanches^Kiowas, and Apaches, with whom the United States had made a treaty on July 27, 1853, wherein they are described as “inhabiting the said (Indian) territory south of the Arkansas River.” (10 Stat.L., 1013.) The authority to settle upon the leased district all Indians who properly belonged south of the Arkansas and east of New Mexico is clear, but when the district was first leased- it was not intended to place upon it the greater number of affiliated bands, viz, the Anadahkos, Caddoes, Tawakonies, Wacoes, Tonkawas, and Penetetkka Comanches, as they had but recently been placed on reservations in Texas, where they were doing fairly well, and the Texan hostility to them did not break out till the latter part of 1858. (Reports for 1855, H. Ex. Doc. No. 1, 34th Cong., 1st sess., pp. 330,497-505.) These reservation Indians, however, were as much within the purport of the provision for the use of the leased district as other Texas Indians. While the Choctaws and Chickasaws retained a right to settle in the leased district, it does not appear that any of them actually did so.
Besides the language employed in the treaty of 1855 respecting the purposes for which the leased district was obtained, we find that the western end of the Choctaw country was to be opened to the permanent settlement of the Southern Comanches, Wichitas, and such other Indians, within prescribed limits, as the United States might determine to locate therein. (Ind. Oommr.’s Rept., Nov., 1855, p. 329.) The Southern Comanches were nomadic savages, living in the central and southern part of western Texas, and numbered several thousand. The Penetethka Oomanches were not of the same band. They numbered something under 300 in 1855, in Texas, where they had just been placed on a reservation. (Ibid., 498.)
On March 30,1859, the Acting Commissioner of Indian Affairs instructed the superintendent within whose charge the leased district lay as follows:
“Fix upon a suitable location for the Wichitas, and make such examination of the country as will enable you to determine the proper places for locating and colonizing the Texas and other Indians which it is intended to place within that district. In carrying out this policy, the different bands, so far as they can not be united, are to be located upon distinct reservations, with circumscribed limits, containing only so much *84 land as may be necessary for tbeir actual occupancy and use. * * *
“ So soon as it may be practicable and safe for tlie Wichitas to remove to tlieir new location, you will require them to go there, giving them to understand that it is to be their permanent home. * * * The same understanding must be impressed upon the other Indians.”
On September 20,1859, the agent reported as follows:
“In pursuance of instructions from your office * * * I selected, in the month of June last, reserves on the Fausse Wachita River, near the old Kechai village, and about 40 miles northeast of the eastern extremity of the Wichita Mountains, in the river valley, on the south' side for the Comanches and other Indians from Texas, and on the north side, between the river and Sugar Tree Creek, for the Delawares and Cad-does, heretofore affiliated with the Wichitas or Ta-wai-hash; and for the latter and the bands of Kechais affiliated with them, I selected a reserve on the Canadian, some 25 miles west of those on the Fausse Wachita. (Sec. of Interior’s Rep., 1859, pp. 382-3, 533, 033.)
He further reported that, for reasons stated, he had included pasture lands in these reservations, making them much larger than was needed for cultivation. Their aggregate area was 154,240 acres.
Superintendent Rector, of the Southern superintendency, primarily represented the United States in the council at Fort Arbuckle. Major Neighbors and Albert Pike were officially associated with him in behalf of the Government. It is conceded that contemporary correspondence concerning the agreement alleged to have been made there is silent on the subject of what promises were made to the Wichitas and others (Rec., G30), but it is claimed that the evidence given since then by those present proves the contentions of the answer respecting the confirmation of the more ancient title of the Wichitas.
We deem it unnecessary to review the occurrences between the agents of the United States and the defendant Indians which led to their removal. We find as a fact that the tribes assembled at Fort Arbuckle were told that the Government would give to them for their occupancy reservations then established, containing 154,240 acres, for farming and grazing purposes, and that they would be allowed to hunt, when permitted to leave the reservations for that purpose, on any land within the leased district not specifically assigned to other Indians.
*85 The Indians who had fled from Texas got larger reservations by consenting to remove than the 12 square leagues they had while in Texas. These numbered three-fourths of the tribes present. The Wichitas and the remnants of other tribes, who constituted one-fourth of those present, then possessed the right to hunt and trap on the G-reat Prairie, but had been deprived of even that privilege to any appreciable extent by hostiles. This right was surrendered when they consented to go on the new reservation, but nothing more. The Texas Indians surrendered nothing which they were then either able to enjoy or claiming the privilege of enjoying.
The agents of the United States made no treaty with these people in 1859. Evidently the Government considered treaties to be unnecessary. The want of them does not relieve the Government of its duty to mate good its duly authorized promises; but no agreement, in point of fact, was made to give to the defendant Indians the leased land, and if by any construction there was, those representing the United States were without authority to make such agreement. Nothing stated then could bind the United States with respect to -the title to the reservation; still less could anything which occurred at Fort Arbuckle take from the Choctaws and Ghickasaws rights reserved by them under the treaty of 1855 in the leased land.
A Government astronomer employed to locate the ninety-eighth and one-hundredth meridians made a map of the leased district, writing across it the words “Leased country for Cad-does, Wichitas, Keecliies.” An army officer transmitted this map to the War Department with a letter alluding to the district as the “ Wichita country.” This is the origin of the name áxiplied to the reservation in suit.
The defendant Indians fled to Kansas during the war, but returned apparently to the same reservations in 1807. (Ind. Oommr.’s Kept., 1807, p. 23.) In the meantime, however, the Government had made a treaty with the Comanche and Kiowa Indians, October 18, 1865. (14 Stats., 717.) It was provided that a district bounded by the New Mexico line, a line from the southeast corner of New Mexico to the mouth of the North Fork, the Ked River to the ninety-eighth meridian, that meridian to the Cimarron, that stream to the Kansas line, to the New Mexico line, “ or such portion of the same as may hereafter from time to time be designated by the President for that pur *86 pose,” should be “ set apart for the absolute aud undisturbed use and occupation of the tribes who are parties to this treaty and of such other friendly tribes as have heretofore resided within said limits, or as they may from time to time agree to admit among them.” This district included the entire leased district; and ultimately the present Kiowa and Comanche Reservation was established within that district by th.e treaty of October 21,1867. (16 Stats., 581.) The Cheyenne and Arapahoe Reservation, disposed of by the Act of March 3,1891 (26 Stats., 1022), was similarly carved out of the leased district by Executive order of August 10,1869.
The title to Greer County was then in dispute between Texas and the United States. With the setting apart of the reservations above named the country covered in the present Wichita Reservation was left undisposed of and open.
An agreement between the Wichitas and the United States is offered in evidence as the only action of the Government looking to an extinguishment of the occupancy of the Wichitas of territory outside their present reservation to which that tribe was a party. This agreement appears to have been made October 19,1872. (Sen. Ex. Doc. 13,48th Cong., 1st sess.; Rec., 435.) The only importance claimed for it by the defendant Indians is that it first laid out the restricted bounds of the reservation in suit in which it was intended the Indian defendants should live.
The agreement purports to grant to the defendant Indians, for a home, the tract of country known as the Wichita Reservation in consideration of the cession by the Indians of all right, title, interest, or claim of any nature in and to any lands in Texas, Louisiana, Indian Territory, or elsewhere within thé limits of the United States. It was made on the part of the Indians by members of the tribe, professedly without authority; and on the part of the United States by the Commissioner of Indian Affairs, also without authority, and was never recognized by Congress until the act of March 2,1895, under which the rights of all the parties to this suit were to be ascertained. The agreement is therefore subject to the rights of the parties as ascertained by the courts.
The efforts to revive the agreement for any purpose is met at the outset by the absence of the claimants as parties to it and the fact that their rights can not be affected by it. Nor *87 can tbe defendant Indians claim title to tbe reservation assigned and at tbe same time be beard to repudiate tbe agreement for wbat it tabes from them. This they are attempting to do in asserting larger claims. If any trust of any character in the lands existed, it would be inconsistent in the United States to say that tbe agreement assigned homes to Indians which now can be taken from them by opening tbe lands to white settlement. The most that can be said for the agreement is that if valid for any purpose it became so for the assignment of homes to tbe tribes by tbe Indian Office, for which the tribes paid nothing, either in money or in land as the equivalent of money.
The questions in this case involving greater difficulty are: (1) The character of the estate conveyed by the Choctaw Nation to the United States by the treaty of 1806j (2) in what respect tbe rights of tbe petitioners have been violated, if at all, and to what extent, and (3) upon what basis, if any rights of the claimants have been violated, shall the interests of all the parties be adjusted?
Certain subordinate matters are necessary to be examined to properly interpret the treaty claimed to be violated.
Tbe Choctaws are an ancient race of red people whose early homes were east of the Mississippi River. The United States made their first treaty with them in 1786, by which certain aboriginal rights of the tribe as occupants of the soil were specially recognized. Thus, before the adoption of the Constitution, following the example of the discoverers of the continent, the United States began to recognize customary Indian rights in the Choctaws to lands occupied by them.
Before the Revolution the right to regulate trade with the Indians within tbe colonies was understood to belong to the prerogative of the Crown (Story on Const., sec. 1099), and Federal supervision and control of the tribes was conferred by the Constitution, which gave power to Congress “to regulate commerce with foreign nations and among the several States and with the Indian tribes.” (Const., sec. 8, art. 3.) The first Indian-intercourse act was passed July 22,1790, and was followed by the permanent act of 1802, which established Federal supervision over contracts for the extinguishment of Indian title to lands within the several States.
Difficulties were encountered in tbe enforcement of the intercourse laws, which resulted in tbe policy of removing tbe *88 tribes from tlie white settlements and segregating Indians upon reservations. Exchanges of l^nds were accordingly made by treaty with the tribes, not merely because of duty to a dependent people, but also because any other course was inconsistent with the public peace. The character of the titles obtained bythe Indians under these treaties have never been questioned. The lands conveyed to the Indians were qualified as to the fee in more or less degree, while those given in exchange to the United States by the Indians generally conveyed whatever rights of occupancy the Indians had.
When the Louisiana territory was acquired Congress manifested its policy of removing Indians by authorizing the President to exchange for lands occupied by the tribes east of the Mississippi Eiver the country owned by the United States lying west of the river, where the tribes would be free from the encroachments of the whites and under the general superintendency and protection of the Government. (Act March 26, 1804; 2 Stat. L., 283.)
In 1817 Mississippi was admitted to be a State in the Union, and some of the lands occupied bythe Choctaws were wanted, and as the result a treaty was concluded between the United States and the Choctaw Nation October 18,1820, in which the removal of the tribe was provided for in part upon the assurance that the objects of the United States were grand and humane in the promotion of their civilization and their perpetuation as a nation.
In consideration of the cession to the United States by the first article of the treaty of the land therein mentioned lying in Mississippi by the Choctaws, the second article of the treaty, “ and in part satisfaction for the same,” ceded to the Choctaw Nation a tract of country west of the Mississippi Eiver situate between the Arkansas and Eed rivers and bounded as follows:
“ Beginningon the Arkansas Eiver where the lower boundary line of the Cherokees strikes the same; thence up the Arkansas to the Canadian fork, and up the same to its source; thence due south to the Eed Eiver; thence down Eed Eiver, three miles below the mouth of Little Eiver, which empties itself into Eed Eiver on the north side; thence a direct line to the beginning.” (7 Stat. L., 211.)
By treaty of January 20,1825 (7 Stat. L., 234), the eastern boundary line of tlie Choctaw Nation, as defined by the first treaty, which took some of those people west of the Missis *89 sippi, was modified by tbe retrocession to tbe United States of a fraction of tbe land first acquired in 1820 by tbe Cboctaws from tbe United States. But no land was retroceded in tbis readjustment of boundary lines by tbe Cboctaws from tbeir possessions on tbe west. So, if by tbe treaty of 1820 tbe Cboctaws acquired title to any territory beyond the one-bundredtb meridian, that title remained unimpaired so far as any agreement was concerned.
Tbe defendants say that prior to tbe cession to tbe Choctaw ¡Üation tbe land west of tbe one-bundredtb meridian bad been ceded to Spain. Tbis contention will be examined later, but for tbe presentís noted to array tbe facts in consecutive order.
Tbe treaty of 1820 did not satisfy -the demand for Indian land, and the enactment of certain laws subjecting tbe Indian occupants to local government caused tbe United States to take steps looking to tbe establishment of the Cboctaws on tbereservation westof theMississippi, which resulted in another agreement, under which' assurances were given that upon tbe removal of tbe tribe they were to be free from tbe presence of white men.
By the treaty concluded September 27,1830, called the treaty of Dancing Babbit Creek, it was provided in tbe third article (7 Stat. L., 333) that tbe Choctaw Nation should and did thereby cede to tbe United States the entire country they then owned and possessed east of the Mississippi Biver, and that they would remove as early as practicable; and that tbe Choctaw Nation should and did surrender to tbe United States all the rem

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8584361. Public record. Not legal advice.