Title passed by the grant on the performance of its conditions
and to the grantees to whom the patents were to be issued, and here
section 3 provided that patents should issue not to the state, but
to the railroad company direct.
And if the lands in the Indian Territory could be held in any
view to have been granted in praesenti,
such grant was
certainly not to the State of Kansas.
Page 204 U. S. 341
The road, in aid of which the grant was made to the state,
extended no farther than the southern boundary thereof, and the
patents were to be issued to the company. True, as declared in
section 1, the road was to be constructed "with a view to an
extension of the same through a portion of the Indian Territory to
Fort Smith, Arkansas," and that extension was authorized by section
8, but the lands referred to in section 9 were not lands in the
State of Kansas, nor was that state mentioned in the section. It
seems clear that those lands were not intended to be granted to
that state for the construction of a road beyond its
Moreover, the bill sets forth many communications and protests
by the railroad company to the Dawes Commission, the townsite
commission, the Indian agent, and the Secretary of the Interior, in
all of which the tracts in controversy were claimed by the railroad
company as its own without reference to any interest of the State
of Kansas therein.
In these circumstances, we think it apparent that the name of
the state is being used simply for the prosecution in this Court of
the claim of the railroad company, and our original jurisdiction
cannot be maintained.
Again, the United States is the real party in interest as
defendant, and has not consented to be sued, which it cannot be
without its consent. Minnesota v. Hitchcock, 185 U.
, 185 U. S. 387
Oregon v. Hitchcock, 202 U. S. 60
United States v. Lee, 106 U. S. 196
106 U. S.
"If whether a suit is one against a state is to be determined
not by the fact of the party named as defendant on the record, but
by the result of the judgment or decree which may be entered, the
same rule must apply to the United States. The question whether the
United States is a party to a controversy is not determined by the
merely nominal party on the record, but by the question of the
effect of the judgment or decree which can be entered."
In the present case, the parties defendant other than the United
States and its officers are Creek Indian allottees and
Page 204 U. S. 342
persons claiming under them, and, if their allotments should be
taken from them, which is part of the relief sought by the bill,
the United States would be subject to a demand from them for the
value thereof or for other lands, while the bill prays in the
"in the event that from any equitable considerations the court
should entertain the view that the allottees and those claiming
under them should not be disturbed, then that an account be taken
of the value of the lands in controversy at the time of the
respective allotments, and the defendants, the United States of
America, be ordered, adjudged, and decreed to pay to your oratrix,
as trustee, the sum of such values."
It does not follow that, because a state may be sued by the
United States without its consent, therefore the United States may
be sued by a state without its consent. Public policy forbids that
In United States v. Texas, 143 U.
, 143 U. S. 646
it was held that the exercise by this Court of original
"in a suit brought by one state against another to determine the
boundary line between them, or in a suit brought by the United
States against a state to determine the boundary between a
Territory of the United States and that state, so far from
infringing, in either case, upon the sovereignty, is with the
consent of the state sued. Such consent was given by Texas when
admitted into the Union upon an equal footing in all respects with
the other states."
That case was quoted from with approval in Minnesota v.
where MR. JUSTICE BREWER, delivering the
opinion, pointed out that the judicial power of the United States
extends to cases in which the United States is a party plaintiff,
as well as to cases in which it is a party defendant, for,
"while the United States, as a government, may not be sued
without its consent, yet, with its consent, it may be sued, and the
judicial power of the United States extends to such a
We are not dealing here with the merits of the controversy
raised by the bill, but solely with the question of the
Page 204 U. S. 343
jurisdiction of this Court. And, as the United States has not
consented to be sued, it results that, on this ground also, the
bill must be dismissed.
And it is so ordered.
MR. JUSTICE MOODY took no part in the disposition of this