The appellants were plaintiffs in the court below, and we shall so designate them.
The plaintiffs, one a minor (No. 112) and the other an adult (113), residing on the White Earth Indian Reservation, brought these actions to determine their rights, respectively, to allotments of land under the provisions of a treaty with the Chippewa Indians proclaimed April 18, 1867 [16 Stat. at L. 719], and certain acts of Congress relating to such Indians.
The government claims that two minor children of Samuel Mooers, also Chippewa Indians, residing on the reservation with their father, have been justly allotted the lands on account of a superior right under the treaty and acts of Congress. The cases were tried together and a decree was entered in each case in accordance with the prayer of the plaintiffs, respectively. The decrees were reversed by the circuit court of appeals and the bills directed to be dismissed. 96 C. C. A. 229, 171 Fed. 337.
The treaty of March 19, 1867, and certain acts of Congress, are elements in the controversy. The treaty provided that as soon as the location of the reservation should have been approximately ascertained, it should be surveyed in conformity with the system of government surveys, and that any Indian of bands parties to the treaty, either male or female, who should have 10 acres of land under cultivation, should be entitled to a certificate showing him to be entitled to 40 acres and a like number of acres for every additional 10 acres cultivated until the full amount of 160 acres should be certified. 16 Stat. at L. 721. This was denominated the 'cultivation clause,' and many allotments of 160 acres were made under it.
On February 8, 1887, Congress passed an act 'to provide for the allotment of lands in severalty to Indians on the various reservations.' [24 Stat. at L. 388, chap. 119.] The 1st section of the act provided that where any tribe or band of Indians had been or should be located upon any reservation created for their use by treaty, act of Congress, or executive order, the President was authorized, if the reservation or any part thereof was advantageous for agricultural and grazing purposes, to cause the reservation to be surveyed or resurveyed, and to allot the lands in severalty as follows: To each head of a family, 1/4 of a section; to each single person over eighteen years of age, 1/8 of a section; a like fraction to an orphan child under eighteen years; to each single person under eighteen then living, or who might be born prior to the date of the President's order directing allotment, 1/16 of a section. In case of deficiency, the allotments were to be made pro rate. It was provided further that where the treaty or act of Congress setting apart the reservation provided for allotments in excess of those designated, the allotments should be made in the quantities specified in such treaty or act.
This act was amended February 28, 1891. [26 Stat. at L. 794, chap. 383.] The allotment to which each Indian was to be entitled was made 1/8 of a section of land. In case of an insufficiency, a pro rata allotment as near as might be, according to legal subdivision, was provided. On January 14, 1889, an act was passed entitled, 'An Act for the Relief and Civilization of the Chippewa Indians in the State of Minnesota.' [25 Stat. at L. 642, chap. 24.] It is known as the Nelson act, and provided for the appointment by the President of three commissioners to negotiate with the different bands of Chippewas for the cession of all their lands except so much of the White Earth and Red Lake Reservations as the commissioner should deem necessary for allotments to be made to the Indians. It also provided for the removal to the White Earth Reservation of all but Red Lake Indians, and for allotments to such Indians on White Earth Reservation under the direction of such commissioners.