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the terms of the contract or that it was not duly certified under § 2104, and so it does not appear that the payment was not in accordance with the decree as construed on the prior appeal.

What really was sought by the supplemental petition was a modification of the decree in a particular wherein it had been affirmed by this court. But the Court of Claims was without power to grant any such relief, for it, like any other court whose judgment or decree has been reviewed by this court, was bound to give effect to the rule stated in In re Sanford Fork and Tool Co., 160 U. S. 247, 255:

"When a case has been once decided by this court on appeal, and remanded to the Circuit Court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The Circuit Court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. That court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded."

Decree affirmed.



No. 51. Argued November 9, 1911.-Decided June 10, 1912.

Under § 2 of the act of July 1, 1862, 12 Stat. 489, c. 120, and other provisions of that act, the predecessor in title of the Union Pacific Railroad Company acquired a right of way four hundred feet in

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width across the lands in Kansas, within the Delaware Diminished Indian Reservation, those lands having been assigned in severalty to individual Delawares under the treaty of May 30, 1860, 12 Stat. 1129, providing for such right of way.

Quare. Whether the individual Delaware Indians, to whom the lands were assigned under the treaty of 1860, obtained a better or different right in them than the tribe had in the lands in common.

Quære. Whether under § 2 of the act of July, 1862, the United States, in extinguishing the Indian title to lands through which the railroads were given rights of way, is to bear the burden by compensating the Indians, or only by assisting in the negotiations. While the phrase "public lands" is a term ordinarily used to designate lands subject to sale under general laws, it is sometimes used in a larger sense, and as used in § 2 of the act of July, 1862, it includes lands within Indian reservations. Congress so intended and such has been the construction placed on the words by the Interior Department. Where an Executive Department has constantly given the same construction to a statute affecting title to real estate, rights acquired thereunder will not be lightly disturbed after a lapse of many years. Purchasers of land, over which a railroad has been constructed and operated, cannot claim that they purchased without notice of the claim of the railroad to own the right of way.

Where a railroad company enters upon the land of another and constructs a railroad thereover, under a statute entitling it to do so on condition that compensation be made to the owner, and the latter permits the construction and operation of the railroad without compliance with that condition, a subsequent vendee of the owner takes the land subject to the burden of the right of way, and the right to exact payment therefor from the railroad company belongs to the owner at the time of entry and construction. 168 Fed. Rep. 648, affirmed.

THE facts, which involve the right of the Union Pacific Railroad Company to certain portions of its right of way within the Delaware Diminished Reservation, are stated in the opinion.

Mr. Edward D. Osborn, with whom Mr. A. M. Harvey and Mr. Frank Doster were on the brief, for appellants:. Congress had no power to grant a right of way through

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the lands in question. See treaty proclaimed March 24, 1831, 7 Stat. 357; treaty of 1854, 10 Stat. 1048; treaty of 1860, 12 Stat. 1129.

The design of the treaty of 1854, as accomplished by the treaty of 1860, was to vest the individual Delawares with a property right in the lands allotted to them in severalty. The quality of descendibility to successors was imparted to the land. There was, as in all land treaties with Indians, an understood, even if unexpressed, intent to educate the Indians into the habits of civilized life by individual ownership instead of communal occupancy. A full equitable title to the allotted lands became vested in the individual Delawares. Jones v. Meehan, 175 U. S. 1; Francis v. Francis, 203 U. S. 233.

Where a grant is made to one "and his heirs" a restriction on alienation either partial or entire does not debase the grant to a mere right of occupancy, but a vested interest passes thereby under the cover and protection of the constitutional guaranties of property right. Libby v. Clark, 118 U. S. 250; United States v. Paine Lumber Co., 206 U. S. 467; S. C., 154 Fed. Rep. 263; United States v. Cook, 19 Wall. 591; Shiver v. United States, 159 U. S. 491.

As an Indian allottee's interest in the land is a vested property right, Congress is lacking the power to make a grant through it of a railroad right-of-way without making provision for compensation therefor. Jones v. Meehan, 175 U. S. 1; Cherokee Nation v. Southern Kansas R. R. Co., 135 U. S. 641.

The act does not purport or intend to grant a right-ofway through the lands in question, but only "through the public lands." At the time of its enactment the lands involved were not public lands nor were they merely lands conceded and guaranteed to the Indians as a perpetual home by express treaty; they had but a few months before been allotted in severalty to the individual members of the tribe. The question is not, "Could Congress grant

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the right-of-way over these lands?", but "Did Congress do so?"

Congressional grants of land are not to be regarded as including lands which have been reserved or appropriated by the United States for any purpose whatever, even though they be not expressly excepted by the language of the grant. L. L. & G. R. Co. v. United States, 92 U. S. 733; M., K. & T. Ry. Co. v. United States, 92 U. S. 760; Beecher v. Wetherly, 95 U. S. 717; Spokane Falls & N. Ry. Co. v. Ziegler, 61 Fed. Rep. 392; United States v. Sioux City Ry. Co., 46 Fed. Rep. 502; Scott v. Carew, 196 U. S. 100.

Grants of lands or rights out of the "public lands" are to be construed as excluding lands otherwise reserved or appropriated, unless a contrary intent is clearly and positively expressed. Wilcox v. Jackson, 13 Pet. 498; Bardon v. Nor. Pac. R. Co., 145 U. S. 535; Northern Lumber Co. v.. O'Brien, 71 C. C. A. 598; 139 Fed. Rep. 614, affirmed, 204 U. S. 190.

To give the act of July 1, 1862, the effect contended for by the appellee is to abrogate the treaty of 1860 with the Delaware Nation. A treaty of the United States, whether made with a foreign nation or with an Indian tribe, has the force of law equally with an act of Congress. Congress may abrogate such treaties, as it may repeal statutes, but in neither case is repeal or abrogation by implication favored. Unless the intent of Congress to abrogate the treaty is clear and undoubted from the language of the act, unless it admits of no other reasonable construction, it will not be construed as abrogating the treaty. Chew Heong v. United States, 112 U. S. 536; United States v. Gue Sim, 176 U. S. 459; Ward v. Race Horse, 163 U. S. 459; Cope v. Cope, 137 U. S. 682; Turner v. American Missionary Union, 5 McLean, 349.

The courts of the United States have uniformly held that grants of public lands to railways do not apply to Indian reservations, even though such reservations be not

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expressly excepted from the grant. L. L. & G. R. Co. v. United States, 92 U. S. 733; Bardon v. Nor. Pac. R. Co., 145 U. S. 535; Northern Lumber Co. v. O'Brien, 204 U. S. 190; Minnesota v. Hitchcock, 185 U. S. 373; A. & P. R. Co. v. Mingus, 165 U. S. 413; King v. McAndrews, 111 Fed. Rep. 860; United States v. Oregon Military Road Co., 103 Fed. Rep. 549, 554; Nor. Pac. R. Co. v. Maclay, 61 Fed. Rep. 554. M., K. & T. Ry. Co. v. Roberts, 152 U. S. 114, is not in conflict with this doctrine.

This rule of construction applies to right-of-way grants. Washington & I. R. Co. v. Osborn, 160 U. S. 103; Union Pac. R. Co. v. Harris, 215 U. S. 386.

Appellee's authorities do not support its contention that a different rule of construction is applicable to rightof-way grants. See Railroad Co. v. Jones, 177 U. S. 125; Bybee v. Oregon Ry. Co., 26 Fed. Rep. 586.

The extinguishment clause is not an adequate expression of the intent of Congress to deprive the Indians of a part of the land that had been set apart and granted for their separate perpetual use, and to give it to the railroad company. Atl. & Pac. R. Co. v. Mingus, 165 U. S. 413.

The generally accepted construction put upon such extinguishment clauses is that its effect is to extend the grant to wild, unceded Indian lands occupied by the Indians under their original right of occupancy, but not to lands expressly reserved for their occupation or use by treaty. Buttz v. Nor. Pac. R. Co., 119 U. S. 55; Caldwell v. Robinson, 59 Fed. Rep. 653; L. L. & G. R. Co. v. United States, 92 U. S. 733; Nor. Pac. R. Co. v. Hinchman, 53 Fed. Rep. 523.

This is the settled ruling of the Department of the Interior as to the similar extinguishment clause in the Northern Pacific grant. Dillone v. Nor. Pac. R. R. Co., 16 Land Dec. 229; Nor. Pac. R. Co. v. Warren, 28 Id. 494; Warren v. Nor. Pac. R. Co., 22 Id. 568; Nor. Pac. R. Co. v. Eberhard, 19 Id. 532; Nor. Pac. R. Co. v. Haynes,

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