The following are no longer open questions in this court:
(1) That the grant of lands to the territory of Iowa for the improvement of the Des Moines river, made by the act of August 8, 1846, c. 103, (9 St. 77,) did not extend above the Raccoon Fork. Dubuque & P. R. Co. v. Litchfield, 23 How. 66.
(2) That, notwithstanding this, the odd-numbered sections within five miles of the river, on each side above the Raccoon Fork, and below the east branch, to which the Indian title had been extinguished, were so far reserved, 'by competent authority,' for the purpose of aiding in the improvement of the Des Moines, that they did not pass under the act of May 15, 1856, c. 28, (11 St. 9,) granting lands to the state of Iowa to aid in the construction of certain railroads; and—
(3) That the act of July 12, 1862, c. 161, (12 St. 543,) 'transferred the title from the United States and vested it in the state of Iowa, for the use of its grantees under the river grant.' Wolcott v. Des Moines Co. 5 Wall. 681; Will- iams v. Baker, 17 Wall. 144; Homestead Co. v. Valley R. Co. Id. 153; Wolsey v. Chapman, 101 U.S. 767.
The lands involved in this suit are odd-numbered sections, located in Iowa, within five miles of the Des Moines, above the east fork, and it is insisted that they did not pass under the act of 1862, because (1) when the reservation for the river improvement was made the Indian title had not been extinguished, and they were not then part of the public lands of the United States; and (2) the reservation, as in fact made, was along the east branch and not the main river, where these lands are.
These objections present the only questions we have now to consider.
1. As to the Indian title. It is conceded that when the act of 1846 was passed all Indian titles had been extinguished, except such as belonged to certain bands of the Sioux. By a treaty between the United States and the Sacs and Foxes, the Medawah-Kanton, Wahpacoota, Wahpeton, and Sissetong bands or tribes of the Sioux, and the Ottowas, Iowas, Ottoes, and Missourias, concluded on the fifteenth of July, 1830, and proclaimed on the twenty-fourth of February, 1831, (7 St. 328,) certain lands were ceded and relinquished to the United States, 'to be assigned and allotted, under the direction of the president of the United States, to the tribes now living thereon, or to such other tribes as the president may locate thereon for hunting and other purposes.' The north line of this cession is described in the treaty as follows: 'Beginning at the upper fork of the Des Moines river and passing the source of the Little Sioux and Floyds rivers to the fork of the first creek, which falls into the Big Sioux or Calamet on the east side.' The lands north of this line were occupied by the Sioux, and those south were held by the United States for the purposes set forth in the treaty. Whether the lands in controversy in this suit are situated north or south of this boundary line depends on whether the east branch or the Lizard made the upper fork of the Des Moines, as understood by the parties when the treaty was concluded. If the Lizard, then all are north of the line; if the east branch, all, or nearly all, are south.
On the twenty-eighth of July and the fifth of August, 1851, treaties were negotiated with the Sioux, by which they surrendered all their title to lands in Iowa. The ratification of these treaties, in the form they were originally made, was not advised by the senate, but on the twenty-third of June, 1852, certain amendments were proposed, on the acceptance of which the president was authorized to conclude the treaties 'as amended.' The amendments were agreed to by the Indians on the fourth and eighth of September, 1852, and the ratification of the treaties was duly proclaimed on the twenty-fourth of February, 1853.