APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
MR. JUSTICE McKENNA delivered the opinion of the court.
Bill in equity by the United States to annual patents issued May 10, 1895, and January 6, 1896, to the Northern Pacific Railroad Company, and March 5, 1901, and January 4, 1904, to its successor, the Northern Pacific Railway Company, for certain described lands. The foundation of the bill is that the patents were issued by mistake as public lands granted to the railroad company under the act of Congress dated July 2, 1864 (13 Stat. 365, c. 217), the lands actually being, it is alleged by the Government, part of the Yakima Indian Reservation under a treaty with the Yakimas of June 9, 1855 (12 Stat. 951), ratified March 8, 1859, and proclaimed by the President April 18, 1859.
There is no question made of the title of the railroad and railway companies or of their respective vendees other than as the lands fall within or without the reservation. If they were within the boundaries of the reservation they were lands of the Indians; otherwise, public lands of the United States and passed to the companies, respectively, under the act of Congress and the patents issued in pursuance thereof.
The question then is, What were the boundaries of the reservation, or -- to use the present tense as the more convenient -- what are the boundaries of the reservation?
By article 1 of the treaty the Indians ceded, relinquished and conveyed to the United States a tract of land which was explicitly described, reserving by article 2, from the tract the land included within the following boundaries:
"Commencing on the Yakima River, at the mouth of the Attah-nam River; thence westerly along said Attahnam River to the forks; thence along the southern tributary to the Cascade Mountains; thence southerly along the main ridge of said mountains, passing south and east of Mount Adams, to the spur whence flows the waters of the Klickitat and Pisco rivers; thence down said spur to the divide between the waters of said rivers; thence along said divide to the divide separating the waters of the Satass River from those flowing into the Columbia River; thence along said divide to the main Yakama, eight miles below the mouth of the Satass River; and thence up the Yakama River to the place of beginning."
All of this tract, it is provided, "shall be set apart, and, so far as necessary, surveyed and marked out, for the exclusive use and benefit" of the Indians, as an Indian reservation.
It will be observed that the calls in the description of the tract reserved are very confident and seem to assure certainty by prominent and unmistakable natural monuments. Controversies, however, almost immediately arose, the Indians contending for one location of the calls and enterprising settlers contending for another. The Interior Department ordered a survey, which was made and which is known in this record as the Schwartz survey. Upon this the title of appellants depends. The discontent of the Indians continued and another survey was ordered by the Interior Department to be made by E. C. Barnard. This survey is the foundation of the bill and of the contention of the Government. It was made and reported to the Interior Department with a map delineating the exterior boundaries of the reservation. This report was transmitted to the Speaker of the House of Representatives with a draft of a bill granting authority for the detail by the Secretary of the Interior of an Indian inspector to negotiate an agreement with the Indians for the adjustment
of their claim for the lands embraced in the tract claimed by them, containing 293,837 acres, as shown by the Barnard report, that is, for lands without the Schwartz but within the Barnard survey.
In pursuance of the recommendation of the Secretary of the Interior, Congress, on December 21, 1904, enacted the statute quoted in the ...