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fairs, Dept. of Interior. The Court of Appeals said in People ex re!. Cusick v. Daly, supra:

"Under our dual form of government, in which there are two distinct sovereignties, federal and state, each is supreme within its appropriate sphere. !lay exercise their respective powers in the same territory, each being Indebendent of the other, and each having its separate executive, legislative, and policial departments. This division of government, while simple in theory, freGently presents practical complexities which it is difficult to harmonize. One Cour most troublesome problems has arisen over the status of the Indians fiour political economy. They were the original occupants of our soil, and ve have treated them as semi-independent nations, subject in some degree to with state and federal laws. Although greatly diminished in numbers, and stricted to reservations which are Insignificant remnants of their former Gunting grounds, they have maintained their tribal relations and customs, according to which they are to some extent permitted to govern their own ALTIES. Yet they are not citizens, either of the United States or of this state. e problem is further complicated by the fact that the history of some of the tribes within our own state differs widely from that of other tribes in other sections of the country." 212 N. Y. 191, 105 N. E. 1050, Aun. Cas, 19151), 1017.

The Supreme Court, in Fellows v. Blacksmith, 19 low. 366, 15 '.. Ed. 681, referred to the New York Indians as wards of the nation, and that court held that they could not be removed from their ands in New York state by the state courts, but that the power reded solely in the federal government. In an early case (Samuel \. Worcester v. State of Georgia, 6 Pet. 515, 8 L. Ed. 483) it was held that the state of Georgia, one of the original 13 colonies, could not enforce an act for the punishment of persons on the Cherokee eservation, where the provisions of the statute in question were in conflict with the treaty between the Cherokee Nation and the federal government. There the court clearly recognized that the Indian ribes, irrespective of their locality, were under the protection of the federal government. The Supreme Court held in the Case of The New York Indians, 5 Wall. 761, 18 L. Ed. 708, that the treaties entered into between the Indians and the government prevented the Vate from taxing such lands, and this because of the guaranty of ibal rights of the Indians by the various treaties of the United States. In United States v. Sandoval, 231 U. S. 28, 34 Sup. Ct. 1, ́s 1. Ed. 107, the court said:

"Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long continued legislative and executive u age and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of evereishng a fostering care and protection over all dependent Indian comm nities within its borders, whether within its original territory or territory ubsequently acquired, and whether within or without the limits of a state." 1 U'. S. 45, 46, 31 Sup. Ct. 5, 5S L. Ed. 107.

And in United States v. Kagama, 118 U. S. 375, 6 Sup. Ct. 1109, 30 1. Id. 228, the court said:

The power of the general government over these remunts of a race once powerful, now weak and diminished in numbers, is necessary to their protec tion, as well as to the safety of those among whom they dwell. It must exist in that government, beenuse it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United

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States, because it has never been denied, and because it alone can enforce its laws on all the tribes." 118 U. S. 3S-1, 6 Sup. Ct. 1114, 30 L. Ed. 228.

It will thus be observed that not only has the United States government the sole power to act as the guardian of the Indians of the state whose tribal relation still exists, but it has the sole power to legislate as to the distribution of their lands. Such Indian tribes or bands occupying lands in reservations have always been treated as alien nations. The Indians individually were aliens; neither as nations nor as individuals did they own any allegiance to the European governments. Cherokee Nation v. State of Georgia, 5 Pet. 1, 8 1. Ed. 25. The right of self-government has never been taken from them. It has never been questioned, and no attempt made at subjecting them as a people, and it has always been considered and recognized by the states as a right of the federal government to make provisions for the disposition of their lands, and until such was made by the federal government the right of occupancy remained in the Indians. Worcester v. State of Georgia, 6 Pet. 515, 8 L. Ed. 483. While the state has a right to make treaties with the Indians, it cannot interfere with the right and obligation of the federal government. The federal government cannot deprive the state of those governmental powers which are part of its inherent right. De Geofroy v. Riggs, 133 U. S. 258, 10 Sup. Ct. 295, 33 L. Ed. 642.

[3] At all times the rights which belong to self-government have been recognized as vested in these Indians. Their right of occupancy has never been questioned, but the fee in the soil is in the state. This is a right of ultimate domain, with the right of present possession in the Indians. Congress has never legislated so as to permit title to pass from the Indians to the lots of land here in question. A transfer of the allotment to aliens is not simply a violation of the proprietary rights of the Indians; it violates the government rights of the United States.

"If these Indians may be divested of their lands, they will be thrown back upon the nation a pauperized, discontented, and possibly belligerent people." The authority to enforce restrictions of this character is the necessary complement of the power to impose them." Heckman v. United States, 221 U. S. at page 438, 32 Sup. Ct. at page 432, 56 L. Ed. $20.

Our attention is not called to any act of Congress which permitted the Oneida Indians the right to hold the lands of that reservation in severalty or to mortgage or incumber them, nor that the state has conferred any such power, except as above referred to, which places restrictions and points out the method and manner of so doing. There. is no authority which will enable one member of the tribe to sell and convey his interest in the reservation to an outsider, and to confer upon such purchaser the right to partition and sell in partition the lands held by several of the tribe in common. No law sanctions the sale of such lands so owned and held in a partition action brought by any person. Section 2116, chapter 3, of the Revised Statutes of the United States, relates to sales by Indians of their lands. It provides: "That no purchase, grant, lease or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any

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validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution." Comp. St. § 4100.

A tribe could not sell, nor could the individual menibers, for they have not an undivided interest in tribal lands, nor alienable interest in any particular tract. Franklin v. Lynch, 233 U. S. 269, 34 Sup. Ct. ~05, 58 L. Ed. 954; Gritts v. Fisher, 224 U. S. 640, 32 Sup. Ct. 580, 26 L. Ed. 928. The record here shows clearly that the Oneida Indians hold as tenants in common. Even under the state enactment, they were subject to the restrictions as to mode and manner of making conveyances, and these conditions have not been complied with in the attempted conveyance here in question. There are many acts indicating the exercise and enforcement of the jurisdiction of the federal government over the Indians in the state of New York, as is illustrated in the matters of trafficking in intoxicating liquors. The capacity of the 'nited States to sue for the purpose of setting aside conveyances of land allotted to Indians under its care, where restrictions upon alienation have been transgressed, have been passed upon and reaffirmed. Marchie Tiger v. Western Improvement Co., 221 U. S. 286, 31 Sup. C. 578, 55 L. Ed. 738; Bowling v. U. S., 233 U. S. 528, 34 Sup. t. 659, 58 L. Ed. 1080; Heckman v. U. S., 224 U. S. 413, 32 Sup. Ch. 424, 56 L. Ed. 820. The Indian tribes are communities dependent upon the United States; dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the tates, and receive from them no protection. Choctaw Nation v. U. S., 119 U. S. 1, 7 Sup. Ct. 75, 30 L. Ed. 306.

Affirming, as we do, the conclusion reached by the District Court, that the United States and the remaining Indians of the tribe of the Oneidas still maintain and occupy toward each other the relation of guardian and ward, and that the United States may maintain this action, we conclude that the partition action and judgment and the sale made thereunder are void, so far as they eject the Indians from the possession of the property. We do not think that the state of New York could extinguish the right of occupancy which belongs to the Indians. The state has never conferred the absolute and unrestricted right on these Indians to convey these lands, and we further prove the finding below that the attempted conveyance of the land did not comply with the act of 18-19. The finding below that the ttempted conveyance of these lands and the judgment of sale and partition is null and void is approved, as is the decree restoring the ojected Indians to possession.

Decree affirmed.

WARD, Circuit Judge (dissenting). The right of the United States to maintain this suit in ejectment depends, as it seems to me, upon the question whether the particular Oneida Indians whom the United States undertakes to represent are or are not tribal Indians. If they are not, the United States has no concern with them. United States v. Nice, 241 U. S. 591, 36 Sup. Ct. 696, 60 L. Ed. 1192. It is true that May 23, 18-12, when the treaty between the state of New York and the Oneida Indians was made, they were tribal, and it is said

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that for this reason the treaty is invalid; the United States not being a party to it. But this can hardly be maintained, in view of the great number of Indian treaties which the state has made without any approval of or co-operation with the United States, and upon which the title to immense areas of valuable lands depends. See the consideration of this subject by Judge Andrews in Seneca Nation v. Christie, 126 N. Y. 122, 27 N. E. 275. A special committee appointed by the Assembly of 1888 to investigate the Indian problem of the state annexed to their report 14 treaties with the Oneida Indians alone between 1788 and May 23, 1842, in which the United States had no part; the Indians conceding their title to the state of New York and the later treaties fixing the rights inter sese of those Oneidas who wished to emigrate to the West and those who wished to remam on the reservation.

Title to all tribal lands was in the British crown, subject to the Indians' right of occupancy, which title upon the Revolution vested in the colonies, and subsequently in the original states, under the Articles of Confederation and upon the establishment of the present government. The right of pre-emption went with this title to the states. The United States never had either the title to the lands or the right of pre-emption. Harcourt v. Gaillard, 12 Wheat. 523, 6 L. Ed. 716.

By the treaty of May 23, 1842, the Oneida reservation was divided into 19 lots; the Indians known as the Emigrating Party ceding their title to the state in lots 1, 3, 4, 5, 7, 10, and 15, and their title in lots 2, 6, 8, 9, 11, 12, 13, 14, 16, 17, 18, and 19 to the Home Party. Schedule B attached to the treaty enumerates the individuals compris ing the Home Party by name and states that they hold their lands in severalty as tenants in common and owners. The lands now in question were part of lot 17, and 23 individuals, comprising 4 families, are named as tenants in common and owners of that lot; in other words, their Indian title of occupancy was changed into a title in fee simple.

This treaty was subsequently confirmed by an act of the Legislature. Chapter 185, Laws 1843. Section 1 provided:

"1. The Oneida Indians, owning lands in the counties of Onelda and Madlson, are hereby authorized to hold their lands in severalty, in conformity to the surveys, partitions and schedules annexed to and accompanying the treaties made with the said Indians, by the people of this state, in the year one thousand eight hundred and forty-two, and now on file in the office of the secretary of state.

Sections 2, 3, 4, and 5 provided safeguards for the Indians in respect to alienation. Section 6 provided:

"G. The deeds and conveyances made as aforesaid shall convey all the right, title and interest of the said Indians or Indian, whose lands shall have been conveyed as aforesaid, of, in and to the same, and shall vest in the purchaser or purchasers, his or their heirs or assigns forever, an absolute estate of inheritance in fee simple."

The earliest deeds of conveyance by Oneida Indians of these lands in the chain of title to the defendants were executed in accordance with

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the provisions of this act.. But, because the later deeds after 1865 were not so executed, the court holds them to be void, and to convey, no title to the defendants. This overlooks the fact that chapter 486, Jaws 1847, relieves the Oneida Indians from the restriction of chapter 185, Laws 1843, abolishes the office of attorney for them, imposes the performance of his duties for two years on the superintendent of Indians, whose office was to cease in two years from the passage of the act, viz. December 15, 1849, and thereafter "the said Indians shall have power to sell and convey their real estate the same as if they were natural-born citizens of the United States." From that date I think that their tribal relation ceased to exist as matter of law. No wonder that the legislative committee of 1888 reported as, to the Oneidas:

"They have no tribal relations and are without chiefs and other officers; they as a tribe receive no money from any source, but rocelve sinall annulty from the general governinent, amounting to about 11 yards of cotton cloth to each person per year."

"

Judge Wallace held to the same effect in United States v. Elm, 25 Fed. Cas. 1006, No. 15,048.

It is said that chapter 420, Laws 1849, still imposed restrictions on the right of the Oneida Indians to convey, which restrictions were not thereafter observed in the deeds in the chain of title to the defendants, and therefore they were void and conveyed no title. This contention overlooks the fact that the act of 1849 applied only to tribal Indians, and did not repeal or qualify in any way chapter 486, Laws 1847, passed for the special benefit of these Oneida Indians.

The laws of New York relating to Indians have been consolidated three times, viz.: Chapter 92, Laws 1813; chapter 679, Laws 1892 (which repealed chapter 185, Laws 1843, and chapter 486,. Laws 47, relating to the Oneida Indians); and chapter 31, Laws 1909, being chapter 26 of the Consolidated Laws. In neither of these two later consolidations are the Oneida Indians mentioned at all, whereas he Onondagas, Senecas, Tuscaroras, the Saint Regis, and the Shinnecock Tribes were and still are regulated by them. It is perfectly clear · that the Legislature no longer considers the Oneidas as a tribe or their land in question part of an Indian reservation. The above considerations make inquiry into the powers of Congress unnecessary, because those powers are concerned only with tribal Indians. The judgment should be reversed.