David Josiah Brewer

“ The United States is proposing to sell them. This suit seeks to restrain the United States from such sale,-to devest the government of its title, and vest it in the state. The United States is, therefore, the real party affected by the judgment, and against which, in fact, it will operate, and the officers have no pecuniary interest in the matter. If whether a suit is one against a state is to be determined, not be the fact of the party named as defendant on the record, but by the result of the judgment of decree which may be entered, the same rule must apply to the United States. ”

“ There is no act of Congress waiving immunity of the United States, or consenting that it be sued in respect to swamp lands, either within or without an Indian reservation, and there is no act of Congress assuming full responsibility in behalf of its wards, the Indians, for the result of any suit affecting their rights in these lands. ”

“ While the nominal defendants are citizens of a state other than Oregon, yet they have no interest whatever in the controversy, and, if a decree be rendered against them in favor of the state, it will not affect their interests, but bind and determine the rights of the United States, the real, substantial defendant. It is further said that if there is any other interest adverse to the plaintiff it belongs to the Klamath Indians, who are not made parties, and that the rule in euqity is not to determine a suit without the presence of the parties really to be affected by the decree. ”