David Josiah Brewer

“ Can the court say that the United States may not assume such responsibility; may not waive all objections on account of the mere matter of trusteeship, and stand in court as the responsible owner, against whom all litigation may be directed? If it stands as such owner, then within the proposition heretofore referred to a suit which is against its agents, not affecting them individually, but affecting only its title to the real estate, is in substance and effect a suit against the United States. ”

“ It is, of course, to be presumed that Congress will act in good faith; that it will not attempt to impair the scope of the school grant; that it intends that the state shall receive the particular sections or their equivalent in aid of its public school system. But considerations may arise which will justify an appropriation of a body of lands within the state to other purposes, and if those lands have never become public lands the power of Congress to deal with them is not restricted by the school grant, and the state must seek relief in the clause which gives it equivalent sections. ”

“ It is also true that much of the legislation in respect to Indians and many of the treaties with them have contemplated simply the cession of their lands and their removal to tracts further west. In such cases, where there has been simply a cession by the Indian tribe of its reservation and a removal to some new territory, it is not strange that the school grants have been generally held operative in the ceded reservations. The interests of public schools have always been considered paramount to those of railroad companies in grants made to aid in their construction. ”

“ That the sale of the ceded lands for the purpose of creating a fund for the benefit of the Indians was a use of them for a public purpose cannot be doubted. But the contention of counsel for the state is 'that the public uses which were intended to operate as an appropriation prior to the services were uses to which the land itself might be put or employed for governmental uses.' It is unnecessary to rest upon a determination of this question. ”

“ Allotments are made in severalty, and something attempted more than provision for the material wants of the Indians. In construing provisions designed for their education and civilization as fully, if not more than in construing provisions for their material wants, is it a duty to secure to the Indians all that by any fair construction of treaty or statute can be held to have been understood by them or intended by Congress. ”

“ If, for instance, Congress in its judgment believes that within the limits of an Indian reservation or unceded Indian country-that is, within a tract which is not strictly public lands-certain lands should be set apart for a public park, or as a reservation for military purposes, or for any other public uses, it has the power notwithstanding the provisions of the schoolgrant section. ”

“ The possession, when abandoned by the Indians, attaches itself to the fee without further grant.'
Hence, applying the doctrine in respect to earlier special and later general statutes, the government having received from the Indians their right of occupancy, without any stipulation or agreement or trust in respect thereto, it was held that the act providing for the sale of the two townships could not have been intended to authorize a sale of specific sections therein which had been already conveyed or promised to the state. But this case stands on entirely different grounds. ”

“ No provision is made for compensating the Indians for lands which would be lost if the right of the state was sustained, whereas, on the other hand, the right of the state to compensation for the particular school sections within the tract had already been secured. ”

“ We omit, as unnecessary to the disposition of this case, any consideration of the applicability of the first two clauses, because we think the case comes within the scope of the 3d clause, and we need not now go farther. ”

“ The jus ad rem by the performance of that executive act becomes a jus in re, judicial in its nature, and under the cognizance and protection of the judicial authorities, as well as the others. Gaines v. ”