George Sutherland

“ That the United States has taken and holds possession of the entire quarry tract of 648 acres is not in dispute; and since the Indians are the owners of it in fee, they are entitled to just compensation as for a taking under the power of eminent domain. ”

“ Granted the impossibility of the first alternative, the government, nevertheless, took the risk, and must, in accordance with its definite undertaking to that effect, suffer the stipulated consequence, in virtue of the principle that, where promises are in the alternative, the fact that one of them is at the time, or subsequently becomes, impossible of performance does not, at least without more, relieve the promisor from performing the other. ”

“ In 1891 (26 Stat. 764, c. 240) , provision was made for establishing Indian industrial and training schools in Minnesota, Michigan, and Wisconsin, that in Minnesota to be located on the quarry tract. Under this act a school was established on the tract and opened early in 1893; possession being taken, it is conceded, of the entire tract. In the meantime, negotiations with the Indians had resulted in an agreement for the cession of an additional 150,000 acres of land, which agreement was ratified by Congress in 1894. ”

“ We are of opinion that none exists. The judgment of the Court of Claims, that such an obstruction is to be found in the conclusion that the provision for referring the controversy to this court was legally impossible of execution, cannot be sustained. ”