Constitution of the United States, and such | the propriety or justice of their action interest-indirectly at least-came under towards the Indians with respect to their the control of the judicial branch of the gov- lands is a question of governmental policy, ernment. We are unable to yield our as- and is not a matter open to discussion in sent to this view. a controversy between third parties, neither of whom derives title from the Indians."

The contention in effect ignores the status of the contracting Indians and the relation of dependency they bore and continue to bear towards the government of the United States. To uphold the claim would be to adjudge that the indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act, if the assent of the Indians could not be obtained. Now, it is true that in decisions of this court, the Indian right of occupancy of tribal lands, whether declared in a treaty or otherwise created, has been stated to be sacred, or, as sometimes expressed, as sacred as the fee of the United States in the same lands. Johnson v. M'Intosh (1823) [565]8 Wheat. 543, 574, 5 L. ed. 681, 688; *Cherokee Nation v. Georgia (1831) 5 Pet. 1, 48, 8 L. ed. 25, 42; Worcester v. Georgia (1832) 6 Pet. 515, 581, 8 L. ed. 483, 508; United States v. Cook (1873) 19 Wall. 591, 592, 22 L. ed. 210, 211; Leavenworth, L. & G. R. Co. v. United States (1875) 92 U. S. 733, 755, 23 L. ed. 634, 643; Beecher v. Wether-ed. 227. by (1877) 95 U. S. 525, 24 L. ed. 441. But The power exists to abrogate the proviin none of these cases was there involved a sions of an Indian treaty, though presumacontroversy between Indians and the gov-bly such power will be exercised only when ernment respecting the power of Congress circumstances arise which will not only to administer the property of the Indians. The questions considered in the cases referred to, which either directly or indirectly had relation to the nature of the property rights of the Indians, concerned the character and extent of such rights as respected states or individuals. In one of the cited cases it was clearly pointed out that Congress possessed a paramount power over the property of the Indians, by reason of its exercise of guardianship over their interests, and that such authority might be implied, even though opposed to the strict let ter of a treaty with the Indians. Thus, in Beecher v. Wetherby, 95 U. S. 525, 24 L. ed. 441, discussing the claim that there had been a prior reservation of land by treaty to the use of a certain tribe of Indians, the court said (p. 525, L. ed. p. 441):

Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial de partment of the government. Until the year 1871 the policy was pursued of dealing with the Indian tribes by means of[566) treaties, and, of course, a moral obligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf. But, as with treaties made with foreign nations (Chinese Exclusion Case, 130 U. S. 581, 600, 32 L. ed. 1068, 1073, 9 Sup. Ct. Rep. 623), the legislative power might pass laws in conflict with treaties made with the Indians. Thomas v. Gay, 169 U. S. 264, 270, 42 L. ed. 740, 743, 18 Sup. Ct. Rep. 340; Ward v. Race Horse, 163 U. S. 504, 511, 41 L. ed. 244, 246, 16 Sup. Ct. Rep. 1076; Spalding v. Chandler, 160 U. S. 394, 405, 40 L. ed. 469, 473, 16 Sup. Ct. Rep. 360; Missouri, K. & T. R. Co. v. Roberts, 152 U. S. 114, 117, 38 L. ed. 377, 379, 14 Sup. Ct. Rep. 496; Cherokee Tobacco, 11 Wall. 616, sub nom. 207 Half Pound Papers of Smoking Tobacco v. United States, 20 L.

justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians. In United States v. Kagama (1885) 118 U. S. 375, 30 L. ed. 228, 6 Sup. Ct. Rep. 1109, speaking of the Indians, the court said (p. 382, L. ed. p. 230, Sup. Ct. Rep. p. 1113):

"After an experience of a hundred years of the treaty-making system of government "But the right which the Indians held Congress has determined upon a new departwas only that of occupancy. The fee was in ure,-to govern them by acts of Congress. the United States, subject to that right, and This is seen in the act of March 3, 1871, could be transferred by them whenever they embodied in § 2079 of the Revised Statutes: chose. The grantee, it is true, would take 'No Indian nation or tribe, within the terrionly the naked fee, and could not disturb tory of the United States, shall be acknowlthe occupancy of the Indians; that occu-edged or recognized as an independent napancy could only be interfered with or de- tion, tribe, or power with whom the United termined by the United States. It is to be States may contract by treaty; but no oblipresumed that in this matter the United gation of any treaty lawfully made and ratStates would be governed by such considera-ified with any such Indian nation or tribe tions of justice as would control a Chris- prior to March 3d, 1871, shall be hereby intian people in their treatment of an igno- validated or impaired.' rant and dependent race. Be that as it may,

In upholding the validity of an act of

with the disposition of tribal property, and purported to give an adequate consideration for the surplus lands not allotted among the Indians or reserved for their benefit. Indeed, the controversy which this case presents is concluded by the decision in Cherokee Nation v. Hitchcock, 187 U. S. 294, ante. 183, 23 Sup. Ct. Rep. 115, decided at this term, where it was held that full administrative power was possessed by Congress over Indian tribal property. In effect, the action of Congress now complained of was but an exercise of such power, a mere change in the form of investment of Indian tribal property, the property of those who, as we have held, were in substantial effect the wards of the government. We must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the leg.

Congress which conferred jurisdiction upon the courts of the United States for certain crimes committed on an Indian reservation within a state, the court said (p. 383, L. ed. p. 231, Sup. Ct. Rep. p. 1114): [567] *“It seems to us that this is within the competency of Congress. These Indian tribes are thre wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has al-islative branch of the government exercised ways been recognized by the executive and by Congress, and by this court, whenever the question has arisen.

"The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes."

That Indians who had not been fully emancipated from the control and protection of the United States are subject, at least so far as the tribal lands were concerned, to be controlled by direct legislation of Congress, is also declared in Choctaw Nation v. United States, 119 U. S. 1, 27, 30 L. ed. 306, 314, 7 Sup. Ct. Rep. 75, and Stephens v. Choctaw Nation, 174 U. S. 445, 483, 43 L. ed. 1041, 1054, 19 Sup. Ct. Rep. 722.

its best judgment in the premises. In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress, and not to the courts. The legislation in question was constitutional, and the demurrer to the bill was therefore rightly sustained.

The motion to dismiss does not challenge jurisdiction over the subject-matter. Without expressly referring to the propositions of fact upon which it proceeds, suffice it to say that we think it need not be further adverted to, since, for the reasons previously given and the nature of the controversy, we think the decree below should be affirmed. And it is so ordered.

Mr. Justice Harlan concurs in the result.

*TELLURIDE POWER TRANSMISSION[569] COMPANY et al., Plffs. in Err.,

In view of the legislative power possessed by Congress over treaties with the Indians and Indian tribal property, we may not specially consider the contentions pressed upon our notice, that the signing by RIO GRANDE the Indians of the agreement of October 6, 1892, was obtained by fraudulent misrepresentations, and concealment, that the requisite three fourths of adult male Indians had not signed, as required by the twelfth article of the treaty of 1867, and that the treaty as signed had been amended by Congress without submitting such amendments [568] to the action of the Indians, since all these

matters, in any event, were solely within the domain of the legislative authority, and its action is conclusive upon the courts.

The act of June 6, 1900, which is complained of in the bill, was enacted at a time when the tribal relations between the confederated tribes of Kiowas, Comanches, and Apaches still existed, and that statute and the statutes supplementary thereto dealt

v.

WESTERN
COMPANY.

RAILWAY

(See S. C. Reporter's ed. 569-585.)

Error to state court-Federal question-
when raised in time-findings of fact-
questions of local law.

1. The repugnancy to the Federal Constitution of a state statute under which the trial court assumed to try without a jury the questions of fact upon which the rights in controversy depended is not reviewable in the Supreme Court of the United States on writ of error NOTE. On writs of error from United States Supreme Court to state courts-see notes to Tamblin v. Western Land Co. 37 L. ed. U. S

267; Kipley v. Illinois ex rel. Akin, 42 L. ed.

U. S. 998; and Re Buchanan, 39 L. ed. U. S.
884.

to a state court, where the question first ap-|
pears in the petition for such writ of error,
and the state supreme court did not pass
upon the action of the trial court in view of

its unconstitutionality.

The following were the allegations of the bill as to the other defendants:

"And on information and belief the plaintiff alleges that the defendants the Telluride 2. Findings of fact or questions of local law Power Transmission Company, L. L. Nunn, upon which depends a party's right, under and L. Holbrook assert and claim some inU. S. Rev. Stat. § 2339 (U. S. Comp. Stat.terest in or to said -land appropriated by 1901, p. 1437), to the protection of vested water rights, are not reviewable in the Supreme Court of the United States on writ of error to a state court.

[No. 72.]

Argued November 10, 1902. Decided Janu-
ary 5, 1903.

I judgment ERROR to the Supreme Court of the which affirmed a judgment of condemnation rendered by the District Court of the Fourth Judicial District of that State in a suit to condemn land in the exercise of the right of eminent domain. Dismissed.

See same case below, 23 Utah, 22, 63 Pac.

995.

the plaintiff, or in the possessory right to the same or to some easement therein.

"That the defendants are the only persons and parties in possession of said land or any part thereof, or claiming any right or title therein or thereto, so far as is known to the plaintiff.

sell, alleging he

"And the plaintiff alleges that it cannot contract for the purchase of said tract of land required for its railroad as aforesaid. That the defendant W. W. Ferguson refuses sell to the other defendants or some of [571] them; that the other defendants refuse to sell the same or any easement therein or possessory right thereto on the pretense that they want said land and propose to flow the same for power purposes. And on information and belief the plaintiff alleges that the claimed interest of the defendant Holbrook, Statement by Mr. Justice McKenna: if any, is held by him as trustee for the deThis is a suit to condemn land in the ex-fendants, the Telluride Power Transmission ercise of the right of eminent domain, under Company and L. L. Nunn." the laws of Utah, and was brought in the The prayer was for the ascertainment of district court of the fourth judicial district the extent of occupation by defendants and of that state. The complainant in the suit, their damages and the condemnation of a defendant in error here, was a corporation right of way of 100 feet wide on each side of Utah. The plaintiff in error was a Colo- of the center line of plaintiff's survey, on rado corporation. Ferguson and Holbrook and over the land occupied by defendants, or were citizens of Utah; Nunn was a citizen any of them, and for general relief. of Colorado. The bill alleged the corporate The Telluride Power Transmission Comcharacter of the complainant, and the neces-pany and the defendant Nunn petitioned for sity of the land for the use of the railroad. the removal of the cause to the circuit court The route of the road was set out, and that of the United States for the district of Utah it would pass over a tract of unsurveyed on the ground of separable controversy. [570]lands *of the United States which could not The petition alleged that they were citizens be accurately described, but which, when and residents of Colorado, and the plaintiff surveyed, would proximately be parts of the was a resident and citizen of Utah; that S.W. of section 27, W. of S.W. 1 of 26, Holbrook had no interest in the controverN.E.of the S.W. section 26, and N.W.sy, and that Ferguson had contracted to sell of the S.E. of section 26, T. 5, S. R. 3, east Salt Lake meridian, and lying in Provo cañon, and along and near Provo river. That prior to plaintiff's survey Ferguson had or claimed some possessory right by occupation of said land or some part thereof, but on account of the land being unsurveyed the number of acres claimed by Ferguson could not be given, but the lands he claimed to occupy, it was alleged on information and belief, commenced at a fence between them and lands below and southeasterly, occupied In that court the defendants answered,by A. L. Murphy, and extends northeasterly Ferguson separately, the other defendants up the cañon and river, a distance of uniting. The answers need not be quoted. about 4,800 feet, to a point which by estima- It is enough to say that they put in issue tion would be the northeast corner of the the allegations of the bill as to the organinorthwest quarter of the southeast quarter zation and existence of the plaintiff corpoof section 26, when the land should be sur-ration, its authority to build a railroad up veyed. It was alleged that the line of the railroad was on and over said lands, and that plaintiff had appropriated for railroad purposes a strip of land 200 feet wide, containing 22 acres, more or less; that such strip was necessary for the construction and operation of the road. A map of the line of road was attached to the bill.

to them the lands involved. The petition was denied. Subsequently said corporation and Nunn filed a certified transcript of the proceedings in the circuit court of the United States for the district of Utah, but on motion of plaintiff's attorney the cause was remanded to the district court of the state. The order remanding was made on the 29th of March, 1897, and a copy thereof filed in the district court, April 29, 1898, the day the trial commenced.

Provo cañon, the survey of its line in March, 1896, and its location. It was alleged "that certain persons claiming to be the agents of said alleged plaintiff had, during the summer and fall of 1896, run uncertain and irregular lines up said Provo cañon, cut brush and made slight and unimportant excava tions, which, from their character, gave no

evidence of any purpose or design upon the [572] *part of any person to survey or construct any line of railroad;" and that such line "passed over and into certain tracts of unsurveyed land." Ferguson's location upon certain unsurveyed lands was alleged, with the view of obtaining title thereto as soon as the lands could be entered, and that he had erected improvements thereon and had contracted to sell the same to the power company and Nunn for the purpose of enabling them to "use the same for a reservoir upon which to store water for electrical power, manufacture and agricultural purposes."

purpose of carrying into effect the enterprise and business entered upon by them; that since the year 1894 as aforesaid, the said defendants have been in the actual possession and occupation of the land in said cañon between said points, and which is intended by them as a reservoir, and also other portions of the public domain lying west of said reservoir and in said cañon, except that the claim of defendant Ferguson, lying within said reservoir, has been occupied by said Ferguson as a residence, but defendants allege having paid said Ferguson a large sum of money, and have obtained a contract from him by which he covenants and agrees to It was alleged that the power company convey all his interest in the premises so ocwas a Colorado corporation and its stock-cupied by him to the said defendants." holders citizens of the Taited States, and The good faith of the defendants was althat it was organized, among other things, leged, and that their possession was open "for the purpose of acquiring by purchase, and notorious, and that they with like faith or otherwise, water rights, ways, and power, prosecuted their enterprise, and expended and to work, develop, and utilize water therein $50,000, and by reason of their dam rights, power, ways, mills, etc., for such they would be able to obtain more than 8,business and enterprises as appertain to the 000-horse power, which would be sufficient same." to supply said Utah county and the towns and cities therein with power for heating, lighting, and manufacturing purposes, and would also be able to supply water for irrigation purposes.

The acts of the plaintiff were averred as follows:

was such as to indicate no purpose to construct a railroad or to perform intelligently and with a fixed or settled purpose any work or enterprise.

The adaptability of Provo cañon for supplying and storing water was alleged, and the utility of furnishing light and electrical power and heat to neighboring industries. That said defendants have been engaged for years in acquiring water rights, and in the year 1894 entered Provo cañon, and had ex- "Defendants further aver that said plaintensive surveys made, and prosecuted the tiff some time in the summer of 1896 wrongsame with diligence; that the greater part fully, and for the purpose of annoying the of the lands in the cañon were unoccupied said defendants and interfering with their and unsurveyed, and of little or no value ex-project and enterprise, came into Provo cept for the purposes designed by the defend- cañon and ran irregular, indefinite, and deants; "that defendants began the construc-vious lines through a portion of said cañon, tion of a flume and made the necessary ex- pretending that it was the purpose to estab-[574] cavations therefor in order to obtain power lish a railroad therein, and defendants allege with which to aid in the construction of a that said lines so run were so irregular and large dam by which to reservoir and hold uncertain, so shifting and changing, as to back the waters of said river for power and indicate no such purpose; that in two or irrigation purposes; that said defendants three points in said cañon various persons made the necessary surveys for canals for claiming to represent plaintiff made slight the purposes aforesaid and surveyed a res-excavations, but the character of the same ervoir, and showed upon the surveys the contour of the line thereof, and prosecuted with due diligence the work necessary for the consummation of the enterprise entered upon; that in the winter and early spring of 1896 the said defendants vigorously prosecuted said work and expended large sums of money in the execution of said design and purpose; that long prior to 1896 in good faith they entered upon said public unsur[573]veyed lands of the United States with the design and specific purpose of constructing in said cañon at a point at or near what will be, when surveyed, as nearly as defendants can determine, the southwest quarter of the southeast quarter of section 27, township 5 south, range 3 east, a dam by which to reservoir and store said surplus waters of Provo river; that they surveyed said reservoir, extending the lines of survey up said river from said point to a point at or near the northeast corner of the northeast quarter of the southwest quarter of section 7, township 5 south, range 4 east, in Wasatch county, Utah; and said defendants have further located and surveyed the necessary canals connected with said reservoir for the

a

"Defendants allege upon information and belief that said plaintiff has no purpose or design to construct any railroad, but that what has been done has been with view to annoy defendants and to prevent said defendants from constructing their res ervoir and canals and obtaining electrical power for the purpose aforesaid, and for the purpose of preventing any legitimate railroad undertaking from being consummated, if the operation of a line through said cañon was essential.

"Defendants allege that the construction of a railroad along the bottom of said cañon would be destructive of their enterprise and reservoir and power, and would prevent them from carrying out the work in which they have been engaged long prior to the spasmodic, uncertain, and mala fides entry of said plaintiff into said cañon, and in which they are still engaged."

It was alleged that plaintiff knew of the intention and character of defendants' work,

"That the plaintiff filed a copy of its arti-preme court of the state, and the judgment cles of incorporation and due proof of its of condemnation was there affirmed. organization with the Secretary of the Inte- Utah, 22, 63 Pac. 995. The chief justice of rior, and the same were duly approved by the state allowed this writ of error. the Secretary on the 27th day of May, 1890, under the act of Congress of March 3, 1875, granting the right of way to railroad companies.

On appeal to the supreme court of the state there were eighty-three assignments of error, two of which were based on rulings in regard to the jury and forty-five of which were based upon instructions to the jury or refusals to instruct the jury. The rest of the assignments except three were based on the findings, and refusals to find, as requested by defendants. The last three assignments were as follows:

"81. The court erred in denying defendants' petition to remove said cause to the Federal court.

"82. The court erred in assuming to re-
tain jurisdiction over said cause and pro-
ceeding to try the same after the filing of
the petition on the part of the defendants to
the United States for the district of Utah.
remove said cause to the circuit court of [577]

ciding that it had jurisdiction to hear, try,
"83. The court erred in holding and de-
and determine said cause."

"That neither on or before or since the 8th day of July, 1896, has the defendants, the Telluride Power Transmission Company and L. L. Nunn, or either of them, had any possession of the lands sought to be conIn the petition for writ of error it was aldemned, or by appropriation or otherwise leged that errors were committed by the suany right to raise the waters of Provo river preme court of Utah, in that "the final so as to flow the same or any part thereof, judgment and decision of the supreme court or any right to the said lands or possession of the state of Utah the said court erred in thereof as part of a reservoir site, and to holding and deciding and determining that raise the waters of said river so as to flow these defendants, both citizens of the state the same would be an unreasonable use of of Colorado, one a corporation existing unsaid waters and the public lands and ease-der the laws of the said state of Colorado ments in the cañon adjacent to said river. and the other a natural person, did not have