There is no question as to the complete legislative power of the
United States over the land of the Wyandotte Indians while it
remained in their occupation, and parcels excepted from the general
distribution under the Treaty of 1855 continued under such
legislative control for the benefit of the tribe.
While the United States maintains and protects Indian use of
land and its occupation against others, it is bound itself only by
honor, and not by law, and it will not be presumed to have
abandoned at any time its attitude of protection towards its wards.
Nor is its good faith broken by any change in disposition of
property believed by Congress to be for the welfare of the
Even if a suit to enjoin disposition of property reserved by the
Treaty of 1855 with the Wyandottes for cemetery use is not a suit
against the United States, a descendant of an Indian buried in such
cemetery cannot maintain such an action to enjoin the disposition
of the reserved property in accordance with an act of Congress.
In view of the circumstances of this case, it is proper to
dismiss the bill without costs under the provisions of the Act of
March 3, 1875, c. 137, § 5.
Page 216 U. S. 85
The facts are stated in the opinion.
Page 216 U. S. 88
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill in equity to enjoin the Secretary of the Interior
and commissioners appointed by him from selling or disturbing an
Indian cemetery. The bill was demurred to on the grounds, among
others, that the matter in dispute was not alleged to exceed the
value of $2,000, and that the suit was a suit against the United
States. The bill was dismissed for want of jurisdiction, and an
appeal was taken to this Court.
The substance of the bill is as follows: the plaintiff is a
citizen of the State of Kansas and of the United States, and a
descendant of Wyandotte Indians dealt with in the Treaty of January
31, 1855, 10 Stat. 1159. By Article 1 of that treaty, the Tribe of
the Wyandottes was to be dissolved on the ratification of the
treaty, and the members made citizens of the United States, with
exemption for a limited time of such as should apply for it. By
Article 2, the Wyandotte Nation ceded their land to the United
States for subdivision in severalty to the members,
"except as follows, viz.:
the portion now enclosed and
used as a public burying ground shall be permanently reserved and
appropriated for that purpose,"
etc. The plaintiff's parents and sister are buried in this
ground, and she alleges that she "has seisin, and a legal estate
Page 216 U. S. 89
rights in and to" the same, and that, although the land is worth
$75,000, there is no standard by which to estimate the value of her
rights. (It is set forth further that, by a Treaty of February 23,
1867, with the Senecas and others, Art. 13, 15 Stat. 513, 516, a
portion of the Wyandottes were allowed to begin anew a tribal
existence, but the bearing of this treaty upon the case does not
appear.) The defendants are intending and threatening to remove the
remains of persons buried as above to another designated place and
to sell the burying ground, the proceeds, after certain deductions,
to be paid to parties to the Treaty of 1855 or their
representatives in accordance with the Act of Congress of June 21,
1906, c. 3504, 34 Stat. 325, 348. This act is alleged to violate
the constitutional rights of the plaintiff, and to be void.
The record shows that the court left it open to the plaintiff to
amend so as to avoid any technical objection that could be avoided
by amendment, and, as she conducted her own case, we go as far as
we can in leaving such considerations on one side. For every
reason, we have examined the facts with anxiety to give full weight
to any argument by which the plaintiff's pious wishes might be
carried out. But if it is obvious that the bill could not be
amended so as to state a case within the jurisdiction of the court,
the judgment must be affirmed or the appeal dismissed, as the
defect of jurisdiction turns out to be peculiar to courts of the
United States as such, or one common to all courts.
The allegation of the plaintiff's interest plainly does not mean
that she has taken possession of the whole burying ground, and has
acquired a seisin of the whole by wrong. As it does not mean that,
it must mean simply a statement of the rights that the plaintiff
conceives to have been conferred by the Treaty of 1855 upon those
whom she represents. The argument that vested rights were conferred
upon individuals by that treaty, stated as strongly as we can state
it, would be that, as the tribe was to be dissolved by the treaty,
it cannot have been the beneficiary of the agreement for the
Page 216 U. S. 90
appropriation of the land in question as a public burying
ground, that the language used imported a serious undertaking, and
that, to give it force as such, the United States must be taken to
have declared a trust. If a trust was declared, the benefit by it
must have been limited to the members of the disintegrated tribe
and their representatives, whether as individuals or as a limited
public, and thus it might be possible to work out a right of
property in the plaintiff as a first step towards maintaining her
But we do not pursue the attempt to state the argument on that
side, because we are of opinion that it is plainly impossible for
the plaintiff to prevail. There is no question as to the complete
legislative power of the United States over the land of the
Wyandottes while it remained in their occupation before their
quitclaim to the United States. Lone Wolf v. Hitchcock,
187 U. S. 553
187 U. S. 565
When they made that grant, they excepted this parcel. Therefore it
remained, as the whole of the land had been before, in the
ownership of the United States, subject to the recognized use of
the Wyandottes. But the right of the Wyandottes was in them only as
a tribe or nation. The right excepted was a right of the tribe. The
United States maintained and protected the Indian use or occupation
against others, but was bound itself only by honor, not by law.
This mode of statement sounds technical, perhaps, but the
principles concerned are not so. The government cannot be supposed
to have abandoned merely for a moment, and for a secondary matter
,its general attitude toward the Indians as wards over whom and
whose property it retained unusual powers so long as they remained
set apart from the body of the people. The very Treaty of 1867,
cited in the bill, providing for the resumption of the tribal mode
of life by the Wyandottes, shows that the United States assumed
still to possess such unusual powers. It seems to us that the
reasonable interpretation of the language as to the burying ground
is not that the United States declares itself subject to a trust
which no court could enforce against it, if against anyone
(See Naganab v.
Page 216 U. S. 91
U.S. 473; Oregon v. Hitchcock, 202 U. S.
), while, on the other hand, it stripped itself of any
protecting power that otherwise it might have retained. It seems to
us more reasonable to suppose that the words, "shall be permanently
reserved and appropriated for that purpose," like the rest of the
treaty, were addressed only to the tribe, and rested for their
fulfillment on the good faith of the United States -- a good faith
that would not be broken by a change believed by Congress to be for
the welfare of the Indians.
We are driven to the conclusion that, even if the suit is not to
be regarded as a suit against the United States within the
authority of the cases cited, 202 U. S. 202
60 and 202 U. S. 473
United States retained the same power that it would have had if the
Wyandotte Tribe had continued in existence after the Treaty of
1855; that the only rights in and over the cemetery were tribal
rights, and that the plaintiff cannot establish a legal or
equitable title of the value of $2,000, or indeed any right to have
the cemetery remain undisturbed by the United States.
We are of opinion that, in view of the circumstances, it is just
that the bill should be dismissed without costs. Act of March 3,
1875, c. 137, § 5, 18 Stat. 472.
Decree reversed. Bill dismissed without costs.