and from the opinion in that case the follow-| 3. ing extract is taken (page 111 [40: 94]): "The distinction, as to the authority of this court, between writs of error to a court of the United States and writs of error to the highest court of a state, is well illustrated by two of the earliest cases relating to municipal bonds, in both of which the opinion was delivered by Mr. Justice Swayne, and in each of which the question presented was whether the Constitution of the state of Iowa permitted the legislature to authorize municipal corporations to issue bonds in aid of the construction of a railroad. The supreme court of the state, by decisions made before the bonds in ques 4. The court of claims is not at liberty to redetermine who were parties to the treaty of Buffalo Creek, and entitled to the benefits of its provisions, after that has been determined by this court on a former appeal. An appeal will not be entertained by this court from a decree entered in an inferior court, in exact accordance with the mandate of this court upon a previous appeal. [No. 697.] Motion for additional findings submitted N APPEAL from a judgment of the tion were issued, had held that it did; but, Court of Claims in favor of the claim by decisions made after they had been issued, held that it did not. A judgment of the district court of the United States for the district of Iowa, following the later decisions of the state court, was reviewed on the merits and reversed by this court, for misconstruction of the Constitution of Iowa. Gelpcke v. Dubuque, 1 Wall. 175, 206 [17:520, 526]. But a writ of error to review one of those 4] decisions of the supreme court of Iowa was dismissed for want of jurisdiction, because, admitting the Constitution of the state to be a law of the state within the meaning of the provision of the Constitution of the United States forbidding a state to pass any law impairing the obligation of contracts, the only question was of its construction by the state court. Mississippi & M. Railroad Co. v. McClure, 10 Wall. 511, 515 [19: 997, 998]. An example of the jurisdiction exercised by this court when reviewing a decision of a Federal court with regard to the same contract clause is found in the same volume. Folsom v. Ninety Six, 159 U. S. 611, 625 [40: 278, 283]. This case is governed by the principles laid down in Central Land Company v. Laidley, supra, and the writ of error must, therefore, be dismissed. UNITED STATES, Appt., บ. NEW YORK INDIANS. (See S. C. Reporter's ed. 464–473.) Findings of court of claims-when case will not be remanded-power of said courtwhen an appeal will not be entertained. 1. The findings of the court of claims in an action at law determine all matters of fact, like the verdict of a jury; and where there is any evidence of a fact which said court finds, and no exception is taken, its finding is final. ants, the New York Indians, for the recovery Statement by Mr. Justice Brown: This case arose from a motion by the Indians to dismiss the appeal of the United States for want of jurisdiction, or, in the alternative, to affirm the judgment of the court of claims, upon the ground that the question involved is so frivolous as not to need further argument; and also from a counter motion by the United States for an order upon the court of claims to make a further finding of facts. *By an act of Congress, passed January[465) 28, 1893 (27 Stat. at L. 426), the court of claims was authorized to hear and determine, and to enter up judgment upon the claims of the Indians "who were parties to the treaty of Buffalo Creek, New York," of January 15, 1838, to enforce an alleged liability of the United States for the value of certain lands in Kansas, set apart for these Indians and subsequently sold by the United States, as well as for certain amounts of money agreed to be paid upon their removal. In its findings of fact the court of claims decided that the Indians described in the jurisdictional act, above referred to as "the New York Indians, being those Indians who were parties to the treaty of Buffalo Creek, New York, on the 15th of January, 1838, were the following: Senecas, Onondagas, Onondagas residing on the Seneca reservation, Onondagas at Onondaga, Cayugas, Cayugas residing on the Seneca reservation, Cayuga Indians residing in the state of New York, Tuscaroras, Tuscaroras residing in the state of New York, Oneidas residing in New York, at Green Bay (Wisconsin), and in the Seneca reservation, Oneidas, St. Regis, St. Regis in New York, the American party of the St. Regis resided in the state of New York, Stockbridges, Munsees, Brothertowns." 2. This court will not remand a case to the court of claims with directions to return whether certain distinct propositions in requests for findings of fact, presented to that Upon the whole case, however, the court court at the trial of the case, were established and proved by the evidence, if the object of of claims found as a conclusion of law trom its being so remanded is to ask this court to the facts that the Indians had abandoned determine questions of fact upon the evidence. their claim, and accordingly dismissed their 173 U. S. U. S.. BOOK 43. 49 769 petition. On appeal to this court, under the | 1. That the title acquired by the Indians under the treaty was a grant in præsenti of a legal title to a defined tract, described by metes and bounds, containing 1,824,000 acres in the now state of Kansas; 2. That there was no uncertainty as to the land granted or as to the identity of the grantees; 3. That the tribes for whom the Kansas lands were intended as a future home were the Senecas, Onondagas, Cayugas, Tuscaroras, Oneidas, St. Regis, Stockbridges, Mun[466]sees, and Brothertowns, residing in the state of New York, as found in the first finding of fact by the court of claims; 4. That the grant to the Indians was of the entire tract as specified in article two of the treaty, and not an allotment to them of 320 acres for each emigrant; 5. That the government had received the full consideration stipulated by the treaty, so far as such consideration was a valuable one for the Kansas lands, and had neglected to render any account of the same; 6. That the Indians had neither forfeited nor abandoned their interest in the Kansas lands, and that they were entitled to a judg ment. Thereupon the case was remanded to the court of claims with instructions "to enter a new judgment for the net amount actually received by the government for the Kansas lands, without interest, less any increase in value attributable to the fact that certain of these lands were donated for public purposes, as well as the net amount which the court below may find could have been obtained for the lands otherwise disposed of, if they had all been sold as public lands, less the amount of land upon the basis of which settlement was made with the Tonawandas, and less 10,240 acres allotted to the thirty-two New York Indians as set forth in finding 12, together with such deductions as may seem to the court below to be just, and for such other proceedings as may be necessary and in conformity with this opinion." the court that the court of claims be ordered to further find and certify to this court: "First. What constituted the Onondagas at Onondaga, Onedias at Green Bay, Stockbridges, Munsees, and Brothertowns, parties to the treaty of Buffalo Creek, as proclaimed April 4, 1840; "Second. Whether or not the Oneidas at Green Bay, Stockbridges, Munsees, and Brothertowns resided in the state of New[468] York when the treaty of Buffalo Creek was proclaimed, or when they became parties thereto." Messrs. L. A. Pradt, Assistant Attorney General, and Charles C. Binney for appellant, on motion to dismiss or affirm. Mr. John K. Richards, Solicitor General, for appellant, on motion for an order to the court of claims to make additional findings of fact. Messrs. Guion Miller and Jonas H. McGowan for appellees on both the above motions. *Mr. Justice Brown delivered the opinion[468] of the court: As a disposition of either one of these motions will practically dispose of the other, both may properly be considered together. The preamble to the treaty of Buffalo Creek of January 28, 1838 (7 Stat. at L 550), recites that "the following articles of a treaty are entered into between the United States of America and the several tribes of the New York Indians, the names of whose chiefs, headmen, and warriors are hereto subscribed, and those who may hereafter assent to this treaty in writing, within such time as the President shall appoint." The second article of the treaty also recites that "it is understood and agreed that the above described country" (the land ceded) "is intended as a future home for the following tribes, to wit: The Senecas, Onondagas, Cayugas, Tuscaroras, Oneidas, St. Regis, Stockbridges, Munsees, and Brothertowns residing in the state of New York, and the same is to be divided equally among them ac cording to their respective numbers, as mentioned in the schedule hereunto annexed." The treaty purports to be signed by the headIn obedience to this mandate the court of men of the Senecas, Tuscaroras, Oneidas reclaims on November 14, 1898, made certain siding in the state of New York as well as further findings of fact, set forth in the mar- at Green Bay, St. Regis, Onondagas residing [467]gin,† and as a conclusion of law decreed that on the Seneca reservation, the principal Onthe claimants recover from the United States ondaga warriors, Cayugas and the princithe sum of $1,967,056; whereupon the Unit-pal Cayuga warriors; but the schedule, imed States took this appeal, and now move *Findings. Assuming that the claimants were entitled to 1,824,000 acres of land under the treaty of January 15, 1838, the court finds that of these lands the defendant sold 84,453.29 acres, for which they received the sum of $1.25 per acre. They otherwise disposed of the balance of said lands in granting the same for public purposes, and for the lands disposed of for public purposes they could have obtained the sum of $1.25 per acre. The land at $1.25 per acre amounts to the sum of $2,280,000. The court finding that mediately following the signatures, con- But we are now asked to direct the court of claims to find: tains also the names of the Stockbridges, | tion than they can behind an act of ConMunsees, and Brothertowns. The commis- gress." sioner on behalf of the United States certifies that this schedule was made before the [469]execution of the treaty, Following this there are certain certificates by the commissioner to the effect that the treaty was assented to by the Senecas, Tuscaroras, St. Regis,Oneidas, Cayugas, and Onondagas. On January 22, 1839, the President sent the treaty to the Senate with the following message: To the Senate of the United States: I transmit a treaty negotiated with the New York Indians which was submitted to your body in June last and amended. The amendments have, in pursuance of the requirement of the Senate, been submitted to each of the tribes assembled in council, for their free and voluntary assent or dissent thereto. In respect to all the tribes, except the Senecas, the result of this application has been entirely satisfactory. It will be seen by the accompanying papers that of this tribe, the most important of those concerned, the assent of forty-two out of eighty-one chiefs has been obtained. I deem it advisable under the circumstances, to submit the treaty in its modified form to the Senate for its advice in regard of the sufficiency of the assent of the Senecas to the amendment proposed. (Signed) M. Van Buren. Washington, 21st January, 1839. The assent of the Senecas having been procured, the treaty was afterwards ratified. First. What constituted the Onondagas at Onondaga, Oneidas at Green Bay, Stockbridges, Munsees, and Brothertowns parties to the treaty of Buffalo Creek, as proclaimed April 4, 1840? Second. Whether or not the Oneidas at Green Bay, Stockbridges, Munsees, and Brothertowns resided in the state of New York when the treaty of Buffalo Creek was proclaimed, or when they became parties thereto? But if these be material facts, they were equally so when the findings were made at the first hearing, and the attention of the court should have been then called to the matter, and a more particular finding requested. The motion contemplates an order upon the court to send up the testimony upon which it had found the ultimate fact that these three tribes were parties to the treaty, and inferentially for us to pass upon the sufficiency of that testimony to establish such ultimate fact. If the finding of these probative facts were deemed material within the case of United States v. Pugh, 99 U. S. 265 [25: 322], application should have been made when the case was first sent here for a finding of such facts. In the Pugh Case the court of claims found certain circumstantial facts, and the question this court was called upon to decide was whether those facts were sufficient to support the judgment. But The question was thus presented to the this court did not hold that, where the court court of claims whether the Stockbridges, of claims was satisfied that the evidence beMunsees, and Brothertowns-who did not fore it fully established a fact, it was bound actually sign the treaty-gave their assent, to insert all the evidence upon that point, if and the court of claims found as a fact that the losing party thought the court made a they were actually parties to it. There was mistake. This court has repeatedly held certainly some evidence in support of this that the findings of the court of claims in an finding which also accorded with the opinion action at law determine all matters of fact, of this court in Fellows v. Blacksmith, 19 like the verdict of a jury, and that where How. 366 [15: 684], in which an objection there is any evidence of a fact which they was taken on the argument to the validity find, and no exception is taken, their finding of the treaty, on the ground that the Tona- is final (Stone v. United States, 164 U. S. wanda band of the Seneca Indians was not 380 [41: 477]; Desmare v. United States, represented by the chief and headmen of the 93 U. S. 605 [23: 959]; *Talbert v. United[471] band in the negotiations and execution of States, 155 U. S. 45 [39: 64]); and in Mcit. "But," said the court, "the answer to Clure v. United States, 116 U. S. 145 [29: this is, that the treaty, after executed and 572], this court distinctly held that it would [470]*ratified by the proper authorities of the gov- not remand a case to the court of claims with ernment, becomes the supreme law of the land, directions to return whether certain distinct and the courts can no more go behind it for propositions, in requests for findings of fact the purpose of annulling its effect and opera-presented to that court at the trial of the Creek of 1838, as amended and proclaimed, were the following: Senecas less the proportionate cost and expense of sur- The court further finds that, after deducting said lands, the amount paid by the defendants The court further finds : The New York In- 2,309 194 130 2,633 300 273 350 600 620 217 132 360 5.485 case, were established and proved by the evidence, if it appeared that the object of the request to have it so remanded was to ask this court to determine questions of fact upon the evidence. In The Santa Maria, 10 Wheat. 431, 444 [6: 359, 362], it was said by Mr. Justice Story: "We think, therefore, that upon principle every existing claim which the party has omitted to make at the hearing upon the merits, and before the final decree, is to be considered as waived by him, and is not to be entertained in any future proceedings; and when a decree has been made, which is in its own terms absolute, it is to be carried into effect according to those terms, and excludes all inquiry between the litigating parties as to liens or claims which might have been attached to it by the court, if they had been previously brought to its notice." See also Hickman v. Fort Scott, 141 U. S. 415 [35: 775]. But it is difficult to see how the proposed findings, if made, could be deemed material. This court held that the treaty of Buffalo Creel: was a grant in præsenti of a certain tract of lands in Kansas, described by metes and bounds. The second article of the treaty indicates that the grant was made upon the basis of 320 acres for each inhabitant, the recital "being 320 acres for each soul of said Indians as their numbers are at present computed." But the grant was not of 320 acres for each soul, but of a tract of land en bloc. Under the decision of the court a present title thereto passed to the Indians. This being the case, the United States are in no position to show that the government erred in its computation of souls, or that certain tribes who are named in the treaty did not assent to it. If the land passed under the treaty, then it is only a question between the Indians themselves who were signatories thereto or assented to its terms. The only object of the proposed order, though it is but faintly outlined in the briefs, must be to show that if the Stockbridges, Munsees, and [472]Brothertowns *never assented to the treaty, the grant should be reduced in the proportion of 320 acres to each member of these tribes. But this is an indirect attack upon the decree. The case was remanded to the court of claims, not to determine who were actually parties to the treaty, or to recompute the number of souls, or in any other way to reduce the extent of the grant, but to render a judgment for the amount received by the government for the Kansas lands, less an amount of lands upon the basis of which settlement had been made with the Tonawan das, and less the 10,240 acres allowed to thirty-two New York Indians, "together with such other deductions as may seem to the court below to be just." But there is nothing to indicate that the court of claims was at liberty to redetermine who were parties to the treaty, and entitled to the benefit of its provisions. That question had already been settled beyond recall. The motion for additional findings must therefore be denied. The denial of this motion practically disposes of the appeal, as the action of the court below in its supplemental findings was in strict conformity with the mandate of this' court. It found the amount of land sold by the United States, the cost and cxpense of surveying and platting said lands, the num ber of acres allowed to the Tonawanda band, the number allotted to the thirty-two Indians, and, after deducting the expense of surveying and platting, the amount paid by the United States in settlement of the Tonawanda band and thirty-two Indians, there remained of the value of the land at $1.25 per acre the sum of $1,967,056. The court further found who the New York Indians were, who were parties to the treaty, and as a conclusion of law judgment was entered for the above amount. This court has repeatedly held that a second writ of error does not bring up the whole record for re-examination, but only the proceedings subsequent to the mandate, and if those proceedings are merely such as the mandate command, and are necessary to its execution, the writ of error will be dismissed, as any other rule would enable the losing party to delay the issuing of the mandate indefinitely. The Santa Maria, 10 Wheat. 431 [6: 359]; Roberts v. Cooper, 20 How. 467 [15: 969]; Tyler v. Magwire, 17 Wall. 253 [21: 576]; The *Lady Pike, 96 U. S. 461 [24: 672]; Wayne[473] County Supervisors v. Kennico:t, 94 U. S. 498 [24: 260]; Stewart v. Salamun, 97 U. S. 361 [24: 1004]. In Stewart v. Salamon, supra, Mr. Chief Justice Waite observed: "An appeal will not be entertained by this court from a decree entered in a circuit or other inferior court, in exact accordance with our mandate upon a previous appeal. Such a decree, when entered, is in effect our decree, and the appeal would be from ourselves to ourselves. If such an appeal is taken, however, we will upon the application of the appellee, examine the decree entered, and if it conforms to the mandate, dismiss the case with costs. If it does not, the case will be remanded with proper directions for the correction of the error. The same rule applies to writs of error." Humphrey v. Baker, 103 U. S. 736 [26: 456]; Clark v. Keith, 106 U. S. 464 [27: 302]; Mackall v. Richards, 116 U. S. 45 [29: 558]. The appeal will therefore be dismissed. Under the swamp land act the legal title passes only on delivery of the patent. This case was originally brought against Cornelius N. Bliss, Secretary of the Interior, for whom his successor, Ethan A. Hitchcock, was subsequently substituted. 2. So long as the legal title remains in the Department, and not to the courts. tion by the Secretary of the Interior, do not tary of the Interior and his subordinate offi- Argued February 23, 24, 1899. in the General Land Office of the United "That, as plaintiff is informed and be- A After alleging the invalidity of these proceedings, the bill goes on to aver that the proceeding thus initiated by Secretary Vilas throws a cloud upon appellant's title, "and is likely to cause many persons to attempt to settle upon the said lands and to enter the same in the Land Department of the United States as public lands of the United States subject to such entry, and that plaintiff will be unable to remove such persons from said Statement by Mr. Justice Brewer: lands or to quiet his title thereto as against [474] *On May 10, 1898, the appellant, as plain- them without a multiplicity of suits, and tiff, filed in the supreme court of the District that therefore this plaintiff is entitled in this of Columbia his bill, setting forth, besides the defendant, as such Secretary of the Incourt to an order enjoining and restraining certain jurisdictional matters, the swamp terior, and his subordinate officers of the land act of September 28, 1850; the exten: Land Department of the United States, from sion of that act to all the states by the act of in any way carrying said last-mentioned orunder by the state of Oregon (evidenced by ders and rulings into effect, and from perwhat is called "List No. 5"), and an approving the same open to entry, and from in any mitting any entries upon said land or holdal on September 16, 1882, of that selection by the Secretary of the Interior; a purchase in 1880 from the state by H. C. Owen, of certain of those selected lands, and subsequent conveyances thereof to plaintiff. Then, after showing the appointment of Hon. William Vilas, as Secretary of the Interior, the bill proceeds: March 12, 1860; a selection of lands there "That, as plaintiff is informed and be lieves, on the 27th day of December, A. D. 1888, the said Secretary of the Interior, then the said William F. Vilas, made and entered an order annulling, canceling, and revoking the said 'list number 5,' and the approval thereof, and annulling and revoking the said judgment and determination so made by his said predecessor in said office, the said Henry M. Teller, whereby his said predecessor had adjudged and determined that the lands aforesaid were swamp and overflowed lands within the meaning of the acts aforesaid, and made and entered an order purporting to adjudge and determine that certain of the lands described in said list number 5' including the lands hereinbefore described were not swamp and overflowed lands within the meaning of the acts aforesaid. "That thereafter, as plaintiff is informed and believes, divers proceedings were taken before the said Secretary of the Interior and way interfering with or embarrassing the plaintiff in his title and ownership of the lands aforesaid." Upon these facts plaintiff prayed a decree canceling the order of December 27, 1888, restraining the officers of the Land Department from carrying it into effect, and forbidding the defendant and his subordinates from United States or subject to entry under the holding the lands to be public lands of the general land laws. To this bill a demurrer dismissed. Plaintiff appealed to the court was filed which was sustained, and the bill of appeals of the District, and upon an affirmance of the decree by that court brought the[476] decision here for review. Messrs. W. B. Treadwell and Charles A. Mr. Willis Van Devanter, Assistant Mr. Justice Brewer delivered the opin-[476] ion of the court: Under the swamp land act the legal title passes only on delivery of the patent. So the statute in terms declares. The second section provides that the Secretary of the Interior, "at the request of said governor [the |
