the original entry was in conformity with the act of Congress.

Hawley v. Diller, 178 U. S. 476, 44 L. ed. 1157, 20 Sup. Ct. Rep. 986; Orchard v. Alexander, 157 U. S. 372, 39 L. ed. 737, 15 Sup. Ct. Rep. 635; Michigan Land & Lumber Co. v. Rust, 168 U. S. 589, 42 L. ed. 591, 18 Sup. Ct. Rep. 208; Knight v. United Land Asso. 142 U. S. 161, 35 L. ed. 974, 12 Sup. Ct. Rep. 258.

A certificate of location of Sioux halfbreed scrip conveys at best an equitable title. A patent is necessary to convey the legal title.

Carter v. Ruddy, 166 U. S. 493, 41 L. ed. 1090, 17 Sup. Ct. Rep. 640.

Unless it is clear that the interpretation or construction given to the act by the officers of the Land Department for so long a period is erroneous it cannot be overturned. United States v. Johnston, 124 U. S. 236, 31 L. ed. 389, 8 Sup. Ct. Rep. 446; United States v. Philbrick, 120 U. S. 52, 30 L. ed. 559, 7 Sup. Ct. Rep. 413; Hahn v. United States, 107 U. S. 406, 27 L. ed. 528, 2 Sup. Ct. Rep. 494; Hawley v. Diller, 178 U. S. 476, 44 L. ed. 1157, 20 Sup. Sup. Ct. Rep. 986.

If the act was ambiguous the settled construction given to it from the time of its passage to the present date is conclusive.

Edwards v. Darby, 12 Wheat. 206, 6 L. ed. 603; Brown v. United States, 113 U. S. 568, 28 L. ed. 1079, 5 Sup. Ct. Rep. 648; United States v. Burlington & M. River R. Co. 98 U. S. 341, 25 L. ed. 1983; National Bank v. Whitney, 103 U. S. 99, 26 L. ed. 443; United States v. Moore, 95 U. S. 763, 24 L. ed. 589; United States v. Alabama G. S. R. Co. 142 U. S. 621, 35 L. ed. 1136, 12 Sup. Ct. Rep. 306; McPherson v. Blacker, 146 U. S. 27, 36 L. ed. 874, 13 Sup. Ct. Rep.

United States v. Quincy, 6 Pet. 446, 8 L. ed. 459; Catholic Bishop v. Gibbon, 158 U. S. 155, 39 L. ed. 931, 15 Sup. Ct. Rep. 779. The words employed in the act, both as to the clause against against the assignment of the scrip, and as to the location of the scrip upon any other "unsurveyed lands

upon which they have respectively made improvements," are so clear that there is no necessity for construction, the aid of which is invoked only when ambiguity appears.

Lake County v. Rollins, 130 U. S. 670, 32 L. ed. 1063, 9 Sup. Ct. Rep. 651.

If the act needs interpretation that interpretation will be from the words used and the subject-matter to which it relates, in order to discover the reason, as well as the meaning, of particular provisions.

McKee v. United States, 164 U. S. 293, 41 L. ed. 39, 17 Sup. Ct. Rep. 92; 23 Am. & Eng. Ene. Law, p. 322.

If the act is ambiguous and needs the aid of construction there is not the slightest difficulty in ascertaining the policy which Congress intended to embody in the act by

reference to the report accompanying the bill and the explanation offered of its purposes by the chairman of the committee who presented the bill to the House sitting as a committee of the whole.

Church of Holy Trinity v. United States, 143 U. S. 457, 36 L. ed. 226, 12 Sup. Ct. Rep. 511; United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 41 L. ed. 1007, 17 Sup. Ct. Rep. 540; Elk v. Wilkins, 112 U. S. 118, 28 L. ed. 651, 5 Sup. Ct. Rep. 47; Hamilton v. Rathbone, 175 U. S. 414, 44 L. ed. 219, 20 Sup. Ct. Rep. 155.

The Sioux half-breeds occupied the Lake Pepin reserve, holding the same as other Indian titles were held, that is to say, in common, the right being one of occupancy merely, which could be conveyed by the Indians to no one but the United States, and which might be disposed of by the United States even without their consent.

Jones v. Mechan, 175 U. S. 1, 44 L. ed. 49, 20 Sup. Ct. Rep. 1; United States v. Four Bottles Sour-Mash Whisky, 90 Fed. 720; Johnson v. M'Intosh, 8 Wheat. 543, 5 L. ed. 681; United States v. Cook, 19 Wall. 591, 22 L. ed. 210; Spalding v. Chandler, 160 U. S. 394, 40 L. ed. 469, 16 Sup. Ct. Rep. 360; Missouri, K. & T. R. Co. v. Roberts, 152 U. S. 114, 38 L. ed. 377, 14 Sup. Ct. Rep. 496.

The relation which the Indians occupied to the government of the United States resembles that of guardian and ward. They are in a state of pupilage.

Cherokee Nation v. Georgia, 5 Pet. 1, 8 L. ed. 25; Jones v. Meehan, 175 U. S. 1, 44 L. ed. 49, 20 Sup. Ct. Rep. 1.

The general policy of the government with reference to the Indians, whether of full or mixed blood, has been from the first to render the Indian self-supporting, to induce him to take land in severalty and to cultivate that land; to make improvements thereon and to protect him in those improvements; to educate him in the arts of civilization, and to make at least a herdsman or agriculturist of him as the first step in the civilizing process rendered inevitable by the pressure of the white population upon what was formerly wholly Indian territory; and upon the success or failure of this policy depends the preservation or extinction of the Indian race.

Treaties with Red Lake and Pembina Bands of Chippewa Indians, 13 Stat. at L. 667-691, arts. 5, 8; with Pillager Chippewas, February, 1855, 10 Stat. at L. 1165; with Winnebagoes, February 27, 1855, 10 Stat. at L. 1172, art. 43; with Ottoes and Missourias, March 15, 1854, 10 Stat. at L 1038; with Omahas, March 16, 1854, 10 Stat. at L. 1043; with Shawnees, May 10, 1854, 10 Stat. at L. 1053; with Dwamish Indians, January 22, 1855, 12 Stat. at L. 927; with Makahs, 12 Stat. at L. 939; with Walla Wallas, June 9, 1855, 12 Stat. at L. 945; with Yakamas, 12 Stat. at L. 951; with the Sacs and Foxes, May 18, 1854, 10 Stat. at L. 1075; with Kaskaskias, May 30, 1854, 10 Stat. at L. 1083; with Wyandotts, January 31, 1855, 10 Stat. at L. 1159; with Poncas, March 12, 1858, 12 Stat. at L. 997, art. 3. At the time of the passage of the act of Congress in 1854 there was no right whatever to settle upon unsurveyed lands by either pre-emptor or homesteader in Minnesota, nor anywhere except in California; and even there the act allowing settlement upon such lands was temporary and expressly limited in duration for a short period of one or two years.

Buxton v. Traver, 130 U. S. 232, 32 L. ed. 920, 9 Sup. Ct. Rep. 509; Atherton v. Fowler, 96 U. S. 513, 24 L. ed. 732; Johnson v. Towsley, 13 Wall. 72, 20 L. ed. 485; Webster v. Luther, 163 U. S. 331, 41 L. ed. 179, 16 Sup. Ct. Rep. 963.

One of the first matters in the mind of Congress, and one which was being continually called to its attention, was the known improvidence of the Indian, and especially with reference to scrip or land warrants, of which when issued the Indian was always

defrauded.

Messages and Documents, 1853-4, pt. 1, p. 61; Messages and Documents, 1856-7, pt. 1, p. 828.

There is no right apart from the scrip which can be the subject of transfer.

Crews v. Burcham, 1 Black, 352, 17 L. ed. 91; Doe ex dem. Mann v. Wilson, 23 How. 457, 16 L. ed. 584; Jones v. Mechan, 175 U. S. 1, 44 L. ed. 49, 20 Sup. Ct. Rep. 1.

The rule that restrictions upon alienation are strictly construed has no application in this case, for this rule is merely one of construction, the object of which is to ascertain the legislative intent.

To entitle Eaton and his associates to relief against the patent of the government they must show a better right to the land than the patentee, such as in law should have been respected by the officers of the Land Department, and, being respected, would have given them the patent. It must affirmatively appear that they were entitled to it, and that, in consequence of the erroneous ruling of those officers on the facts existing, it was denied to them.

Sparks v. Pierce, 115 U. S. 408, 29 L. ed. 428, 6 Sup. Ct. Rep. 102; Bohall v. Dilla, 114 U. S. 47, 29 L. ed. 61, 5 Sup. Ct. Rep. 782; Lee v. Johnson, 116 U. S. 48, 29 L. ed. 570, 6 Sup. Ct. Rep. 249.

The officers of the Land Department upon the affirmative showing made by Eaton's

own case as disclosed by the evidence upon

which he claims that the officers of the Land

and, with Mr. William D. Bailey, filed a brief for defendants in error Clark, Fagan, and Merritt:

The main object of the act of July 17, 1854, appears to have been to get rid of the Indian or half-breed title to the reservation on the west side of Lake Pepin, and to bring the same into market.

Monette v. Cratt, 7 Minn, 234, Gil. 184.

It was not the purpose of Congress to impress the provisions of the act of July 17, 1854, with the requirements of the homestead or pre-emption laws, or that the application and construction of such statute should be governed by the controlling principles of these laws.

Hope v. Stone, 10 Minn. 141, Gil. 114; Gilbert v. Thompson, 14 Minn. 544, Gil. 414.

This court, in the exercise of its judicial power, will determine, without being hampered by any new construction by the Secretary of the Interior, whether the statute bears any such interpretation.

Webster v. Luther, 163 U. S. 331, 41 L. ed. 179, 16 Sup. Ct. Rep. 963.

If the legislature has expressed its intention in the law itself with certainty, it is not admissible to depart from that intention on any extraneous consideration of the theory of construction.

Sutherland, Stat. Constr. § 236; Denn v. Reid, 10 Pet. 524, 9 L. ed. 519; McCluskey v. Cromwell, 11 N. Y. 601; People ex rel. Bockes v. Wemple, 115 N. Y. 308, 22 Ν. Ε. 272; Sturges v. Crowninshield, 4 Wheat. 202, 4 L. ed. 550; United States v. Hartwell, 6 Wall. 385, 18 L, ed. 830; Importers' & T. Bank v. Colgate, 120 N. Y. 381, 8 L. R. A. 712, 24 N. Ε. 799.

It is admitted, even by the department, that the half-breeds could convey the land as soon as the scrip was located, without waiting for a patent to issue.

Allen v. Merrill, 8 Land Dec. 217. Restrictions upon alienation are not favored by the law, and are not implied. It requires a clear provision restraining or prohibiting hibiting alienation of the land in order to give such an effect to the law.

Camp v. Smith, 2 Minn. 155, Gil. 142; Dole v. Wilson, 20 Minn. 356, Gil. 308; Townsend v. Fenton, 30 Minn. 530, 16 N. W. 421; Myers v. Croft, 13 Wall. 291, 20 L. ed. 562; Maxwell v. Moore, 22 How. 185, 16 L.

ed. 251; Thredgill v. Pintard, 12 How. 25,

port, 18 Wall. 307, 21 L. ed. 759; Webster

Lee v. Johnson, 116 U. S. 48, 29 L. ed. 570, 6 Sup. Ct. Rep. 249; Knight v. United States Land Asso. 142 U. S. 161, 35 L. ed. 974, 12 Sup. Ct. Rep. 258.

A court upon such a showing will deny the defendants any equitable relief.

Beck v. Flournoy Live-Stock & Real Estate Co. 12 C. C. A. 497, 27 U. S. App. 618, 65 Fed. 30.

Mr. Jed L. Washburn argued the cause,

Sup. Ct. Rep. 963.

The fact that the government saw fit to make the scrip, as such, nonassignable, does not operate to prevent the beneficiary before location from making an agreement or giving power to convey the land when the scrip shall have been located and the land entered.

Gilbert v. Thompson, 14 Minn. 544, Gil. 414; Knight v. Leary, 54 Wis. 459, 11 Ν. W. 600.

No' different rule of construction should

Felix v. Patrick, 36 Fed. 457. The fact that the name of the donee was not filled in in the power of attorney until it was delivered was of no consequence, if such was the fact.

McDonald v. Hartman, 19 Land Dec. 563; Hartman v. Warren, 19 Land Dec. 65; Allen v. Withrow, 110 U. S. 119, 28 L. ed. 90, 3 Sup. Ct. Rep. 517.

Any attempt to transfer the scrip would involve no moral turpitude, nor a breach of any legal duty, as in case of the transfer of a pre-emptive right; but it simply could not be done, and would be ineffectual.

Gilbert v. Thompson, 14 Minn. 544, Gil. 414; Coursolle v. Weyerhauser, 69 Minn. 328, 72 N. W. 697; Midway Co. v. Eaton, 79 Minn. 450, 82 N. W. 1118.

The improvements may be made by an

unpublished.

1863,

The method adopted in the location of this scrip has had judicial recognition.

Marks v. Dickson, 20 How. 501, 15 L. ed. 1002; Gilbert v. Thompson, 14 Minn. 544, Gil. 414; Hope v. Stone, 10 Minn. 141, Gil. 114; Fackler v. Ford, 24 How. 323, 16 L. ed. 690.

If the method pursued by Mr. Eaton was in accordance with the then and hitherto existing practice, no departure from that practice thereafter should deprive defendants of their rights.

United States v. Arredondo, 6 Pet. 691, 8 L. ed. 547; Re Masterson, 7 Land Dec. 577; Germania Iron Co. v. James, 32 С. С. A. 348, 61 U. S. App. 1, 10, 89 Fed. 818, 46 C. C. A. 476, 107 Fed. 602.

Mr. Luther C. Harris argued the cause, and. with Mr. C. A. Toune, filed a brief for defendants in error Eaton and Lonstorf:

The purpose of the act must be ascertained from the language of the act itself, and not from some committeeman's opinion. United States v. Wong Kim Ark, 169 U. S. 699, 42 L. ed. 908, 18 Sup. Ct. Rep. 456; Aldridge v. Williams, 3 How. 24, 11 L. ed.

475.

The right to determine what are, and what are not. legitimate objects and purposes of

legislation. belongs exclusively to the legis

lature, and the courts cannot, under the guise of interpretation, declare that the object of a statute should be one thing, when the language, according to the ordinary meaning of the words, shows that its purpose is something else.

Black, Interpretation of Laws, p. 35; Sutherland, Stat. Const. § 234; Alexander v. Worthington, 5 Md. 485; Cone v. Nimocks, 78 Minn. 249, 80 N. W. 1056.

There is a plain and well-recognized distinction between a prohibition against the

bition against the transfer of the land itself. Camp v. Smith, 2 Minn. 155, Gil. 131; Myers v. Croft, 13 Wall. 291, 20 L. ed. 562, Dole v. Wilson, 20 Minn, 356, Gil. 308.

As a rule of construction the courts will never assume that the legislature has intended to prohibit the alienation of land, unless the prohibition runs directly against the land itself, or unless the language used would not bear any other interpretation.

Ibid.

Wherever grants have been made to Indians they have been held by the courts to be free from restrictions, unless the intent to restrict is clearly expressed.

Hartman v. Warren, 19 Land Dec. 65, 22 C. C. A. 30, 40 U. S. App. 245, 70 Fed. 157; Dole v. Wilson, 20 Minn. 356, Gil. 308; Doe ex dem. Mann v. Wilson, 23 How. 457, 16 L. ed. 584; Creus v. Burcham, 1 Black, 352, 17 L. ed. 91; Jones v. Meehan, 175 U. S. 1, 44 L. ed. 49, 20 Sup. Ct. Rep. 1.

If the purpose of the law was to prevent conveyances of the land, then for a period of thirty-five years from the passage of the act in 1854 to the rendering of Secretary Vilas's decision in 1889 it utterly failed to accomplish this purpose, for during this entire period this scrip was used in identically the same manner as it was in the case of Eaton and Stram.

Gilbert v. Thompson, 14 Minn. 544, Gil. 414; Thompson v. Myrick, 20 Minn. 205, Gil. 184; Coursolle v. Weyerhauser, 69 Minn. 328, 72 N. W. 697; Allen v. Merrill, 8 Land Dec. 207; Re Bourke, 12 Land Dec. 106; Felix v. Patrick, 36 Fed. 460.

It is not in violation of the law for a scripee and a third person to enter into an agreement whereby the third person is to make use of the scrip to obtain the title to land for his own use, and in which land the scripee is to have no interest whatever.

Thompson v. Myrick, 20 Minn. 205, Gil. 184, Affirmed 99 U. S. 291, 25 L. ed. 324; Hope v. Stone, 10 Minn. 141, Gil. 114.

Where the officers of the executive branch of the government have, in the performance of their duties, construed a law, and such construction has been acted upon for a considerable length of time, the courts will not overturn it, even though in the opinion of the court the construction is wrong.

Brown v. United States, 113 U. S. 568, 28 L. ed. 1079, 5 Sup. Ct. Rep. 648.

Where rights have grown up under a longcontinued and generally adopted practice those rights should not be overturned by a

stringent application of the rules of law. Black, Interpretation of Laws, p. 216.

*Mr. Justice McKenna delivered the [607 opinion of the court:

The decision of the controversies in this case depends upon the validity or invalidity of the scrip locations, either originally when the land was unsurveyed, or subsequently when the location was adjusted to the land as surveyed.

The act of Congress of July 17, 1854 (10 Stat. at L. 304, chap. 83), authorized the

lands, which scrip might be located (1) upon any land within the Sioux half-breed reservation; or (2) "upon any other unoccupied lands subject to pre-emption or private sale;" or (3) "upon any other unsurveyed

were contemporaneous with the enactment of the statute they afford a somewhat confident presumption of its meaning. One of the reasons is that the officers of the Land Department may have recommended the

which they [the half-breeds] have respectively made improvements. It is provided in said act "that no transfer or conveyance of any said certificates or scrip shall be valid."

[608] *On the latter provision of the act the plaintiff in error bases the contention that the scrip is not assignable, and that the power of location is strictly personal to the Indian, and must be made whether on surveyed or unsurveyed, land either by him or for his benefit, and that the improvements on unsurveyed land must be made under his personal supervision and direction; that he must come in personal contact with the land. And it is hence asserted that the powers of attorney given to Eaton and Merritt were virtual assignments of the scrip, and frauds upon the act of Congress; that the improvements were made, not by Orillie Stram, the half-breed, or for her benefit, but by Eaton, and for his benefit; and that the subsequent adjustment of the locations of the land after its survey was made for him, not for her; for his benefit, not for hers. On the other hand, the defendants in error contend that the prohibition against the assignment of the scrip is strictly of the scrip as such, not of the rights or powers conferred by it. That the provision of the statute is not a prohibition upon the alienation of the land, but is intended to protect the government against controversies about the transfer of the scrip, and to require and secure all of the steps and proceedings to be in the name of the Indian, and the title to be issued in his name. It is claimed, there fore. that the requirements of the statute have been observed; that the locations were made in the name of the Indian, and for her benefit. And it is also claimed that if there was any defect in the location upon the land ciency of the improv when unsurveyed, by reason of the insuffiimprovements by whom erected, that defect was supplied by the

location of the scrip after the land was sur

veyed, and the acceptance of the location of the scrip by the local land office, there being then no adverse rights to the land. And further that the power of Eaton to make the location for the Indian was ratified by her (if it needed ratification), and all rights which inured to her were conveyed by her warranty deed to Eaton.

These contentions exhibit the controversy between the parties, and present the only questions upon which we think it is necessary to pass, and the questions are certainly close ones. The Interior Department has [609] not always given the same answer to them, and the latest decision of that Department is opposed in the case at bar by the courts of Minnesota.

It is natural to respect the rulings of the 183 U. S. U. S., Book 46.

words or, at any rate, were familiar with the circumstances which induced the legislation. We have not, however, in the case at bar, an exactly contemporaneous construction of the act of 1854 by the Land Department. The first circular of instructions was not issued until March 21, 1857. It is, however, not without value, and it tends to the support of the contentions of the defendants in error. The circular stated that the scrip "must be located in the name of the party in whose favor the scrip is issued, and the location may be made by him or her in person, or by his or her guardian." And further: "You will observe that this scrip is not assignable, transfers of the same being held void; consequently, each certificate, as hereinbefore stated, ted, can only be located in the name of the half-breed; and such certificate or scrip are not to be treated as money, but located acre for acre."

In the circular issued February 22, 1864, those instructions were repeated, and the following added: "When not located by the reservee in proper person, the application to locate must be accompanied by the affidavit of the agent that the reservee is living, and that the location is made for the sole use and benefit of said reservec." Prior to the issuance of the circular of February 22, 1864, to wit, in 1863, a contest came on appeal to the Land Department, between a location made by Sioux scrip which was issued to one Sophia Felix, and a claim under a pre-emption settlement. The Commissioner of the Land Department decided against the scrip location on two grounds, one of which was: "That 'the location of the scrip, although made in her name, was not made by her in person, nor by her guardian or duly authorized agent, for her use and benefit, but by *an unauthorized person, [610) and for the use and benefit of a person having no legal interest therein."

The decision was reversed by the Secre

tary of the Interior, who stated, through

Otto, Assistant Secretary:

"As to your second objection, I remark that this kind of scrip is by the law declared to be not assignable. In this case Sophia Felix has signed the application to locate her own scrip. The signature must be treated by us as genuine, when there is no proof to the contrary; and when she has made no complaint against this use of her scrip. The fact that the scrip was carried to the land office and the business transacted by another person, does not affect the validity of her entry of the land.

"As the certificate of location issued in her name, and the patent will issue to her, neither the register's report nor the affidavits of third parties can be admitted to es353

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