By the Court,
Downer, J.The title to lot forty-three in the *166Stockbridge Reservation is involved in this action. It is part of the lands which were to be allotted according to the act of Congress of March 3d, 1843 (5 U. S. Stat. at Large, 645), to the Stockbridge Indians. The first section of the act provides that the township, containing twenty-three thousand and forty acres, “ may be partitioned and divided among the different individuals composing said tribe of Stockbridge Indians, and may be held by them separately and severally in fee simple, after such division shall have been made in the manner hereinafter provided.” Sections two, three, four and five relate to the board of commissioners to make the division or allotment, the manner of making it, and the report of their proceedings. Section six provides that three copies of the report and the map (accompanying the same should be made, one of which should be deposited in the office of the secretary of the territory of Wisconsin, one in the office of the clerk of the county within which the lands are situated,and the other should be transmitted to the President of the United States, “who shall [should] thereupon cause patents to be issued to the several individuals named in said report, for the lands so apportioned to them respectively, by which the said persons shall [should] be authorized to hold the said lands in fee simple to themselves, their heirs and assigns.” The seventh section is to the effect that the report should be filed in each of said offices, and transmitted to the President on or before January 1, 1844, and after the same should be so filed and transmitted, the said Stockbridge tribe of Indians, and each and every of them, should be citizens of the United States to all intents and purposes, with all the rights and privileges and immunities of such citizens; should be subject to the laws of the United States and of said territory, the same as other citizens; and the jurisdiction of the United States and the said territory should be extended over said township or reservation in the same manner as over other parts of the territory, and their rights as a tribe or nation, and *167their power of making or executing their own laws, usages or customs, should cease.
It is proved or admitted in this case, that, in pursuance of the provisions of this act, the commissioners allotted the lands, and caused reports of their proceedings to be filed, and transmitted a copy thereof to the President of the United States, within the time therein specified, and that lot forty three was allotted to Jonas Thompson, one of the Indians.
By an act of Congress approved August 6, 1846, the act of 1843 was repealed, and the Stockbridge tribe of Indians restored to their tribal government and rights; and provision was made for such as desired to become and remain citizens of the United States, to register their names within three months. After that time the township was to be divided into two parts, one known as the Indian District, the other as the Citizen District, according to the strength and number of the respective parties. The lands in the Indian District were to remain and be held in common, those in the Citizen District to be divided, and each Indian who became a citizen was to have his ratable propor'tion of land, for which a patent was to be issued vesting the title in fee simple in the patentee.
There is no proof that anything was ever done under this act, and the treaties of 1848 and 1866 made with these Indians furnish presumptive proof that both the Citizen party and the Indian party were dissatisfied with and embarrassed by it, and refused to carry into effect its provisions.
On the 10th day of November, 1848, Jonas Thompson, the allottee of the lot 43 under the act of 1843, conveyed the lot to John Brown by warranty deed, under whom the defendant below, apellant in this court, claims ; and on the 24th day of November, fourteen days after conveying the lot, a treaty was executed between the tribe and the United States, and in the roll or census of those who compose the tribe and renounce all benefit of the act of 1843 is found the name of Jonas 'Thompson. This treaty, in its preamble, recites that it has *168been found impracticable to carry into effect the provisions of the act of August 6, 1846, without infringing upon private rights acquired in good faith under the act of 1843, and that with a view of relieving both the Indian and the citizen parties of said tribe from their embarrassments and to secure to each their just rights, the treaty was made, by which the tribe (composed of those whose names were in the roll above mentioned) renounced the benefit of the act of 1843, and sold the township of land to the United States. The fourth article of the treaty provides “ that such of said lands as were allotted ,by the commissioners, under the act of 1843, to members of said tribe who have become citizens of the United States (a schedule of which is hereunto annexed), are hereby confirmed to such individuals respectively, and patents therefor shall be issued; that the residue of said lands shall be brought into market, but shall not be sold at less than the appraised value, unless the Senate of the United States shall otherwise determine.”
This tribe being still dissatisfied, and' many of its members refusing to move to lands beyond the Mississippi, as they agreed to do by the treaty, on the 5th day of February, 1856, another treaty was made with them, by which they jointly and severally ceded to the United States all their remaining interest in the lands at the town of Stockbridge; and the thirteenth article of this treaty provides that the Secretary of the Interior might examine into the sales made by the Stockbridge Indians to whom lots of land were allotted under the act of 1843, and if they were improperly made, or without a proper consideration, they might be set aside, and patents might be issued for such lands, and to such persons as the secretary should find entitled to the same. And the fourteenth article provides that “ the lots of land the equitable title to which shall be found not to have passed by valid sales from the Stockbridge Indians to purchasers, and such lots as have by the treaty of 1848 been receded to the United States, shall be sold at the mini*169mum price of ten dollars per acre ” for certain descriptions, and five dollars per acre for tbe residue. Then follow further provisions, that purchasers of lots on which Indians had made improvements should, in addition to the minimum price, pay for the improvements, and that actual settlers and civilized persons of Indian descent should have the right of preemption.
The counsel for the appellant contends that by the act of 1843, as soon as the report of the commissioners showing the allotment of the lands had been transmitted to the President, the members of the tribe became and were citizens of the United States, and that the title to the lands allotted vested in the parties to whom they were respectively allotted, in fee simple ; that the issuing of the patents was a mere ministerial act, and was unnecessary to vest the title; that the parties took as grantees under the act of Congress without patents; that the act of 1846, repealing the act of 1843, could not. divest the title thus acquired; and even if it did, that the title was restored and confirmed by the treaties to all the allottees who had accepted the lands allotted to them, and to their assigns; that the spirit of the acts and the treaties taken together is to fully protect purchasers in good faith from the Indians of any lands allotted to them, and which they had conveyed before the making of the treaty of 1848; and that inasmuch as Thompson, to whom the land in question- was allotted, conveyed it before the execution of the treaty, the appellant is protected. This position has been maintained with great ability, and with reasoning that is very plausible, if not sound. We are inclined to the opinion that the position is tenable. But owing to the view we have taken of the title of the plaintiff below, it is unnecessary for us to pass upon the title of the defendant. The plaintiff must recover upon the strength of his own title. He claims title under the act of Congress of August 8, 1846, by which the United States granted to the state of Wisconsin “ a *170quantity of land, equal to one balf of three sections in width, on each side of the Fox river and the lakes through which it passes.” What lands passed by this act to the state ? Not one half of the lands on both sides of the Fox river equal in width to three sections; for a large part of such lands had been previously sold by the United States, and probably thousands of acres of them were sold after the passage of the act before the governor of the state selected the lands pursuant to its provisions. It may be that the state, under that act, became seized of such of the lands selected by the governor as the United States had not, before the passage of the act, nor after its passage and before the selection, disposed of or appropriated to their own use, but of none other. The Stock-bridge Reservation the United States, by the act of 1848, had given in fee simple to the Stookbridge Indians. Congress repealed that act, but in the repealing act provision is made for the disposition of these lands, otherwise than giving them to the state. If the repealing act was valid in all respects, of which we have some doubt, the United States never asserted their rights under it, but subsequently ratified the allotments and sales under the act of 1843 as to a part of the lands, and acquired a title to the remainder by purchase of the tribe and of individuals. The act of 1843 is based upon the idea that the Stookbridge Indians would drop the customs of savages, and assume those of civilized men, and make these lands their permanent home or residence. The repealing act also, as it appears to us, contemplates a permanent occupation of these lands by these Indians. The lands were to be divided between the citizen and tribal parties; those who elected to become and remain citizens were to have their lands conveyed to them individually in fee simple; such as preferred the tribal government were to hold their lands in common, the legal title remaining in the United States for the use of the tribe. The latter held their lands by a tenure somewhat different from that by which other tribes occupied the public lands of the United *171States. Wilcox v. Jackson, 18 Pet., 498. The Stockbridges held, occupied or owned these lands under and by virtue of a treaty made with them before the act of 1843, and under the acts of Congress, which gave them such rights and title as preclude the idea that Congress, by an act approved two days after the last act under which they held the lands, should grant them to the state, and thus authorize the state, or those claiming under it, to drive the Indians from the very lands secured to them by the acts of Congress of 1843 and of the 6th of August, 1846. The treaty of 1848, providing that a part of these lands should be brought into market at their appraised value, and that of 1856, providing that they should be sold at not less than Jive dollars per acre, are inconsistent with the idea that the lands had previously been granted to the state
The act of Congress of August 3, 1854, authorized the' governor of the state of Wisconsin to select the balance of the lands to which the state was entitled under the provisions of the act of 8th August, 1846, out of any of the unsold public lands subject to private entry at $1.25 per aere, and not subject to preemption. The land in question could not be selected under this act, for it was not subject to entry at the price therein specified.
The counsel for the respondent insists that the exceptions to the finding of the circuit court are not such as to enable the court to review the evidence. It is immaterial whether they are or not. The facts found do not show title to the land in the plaintiff, or warrant the conclusion of law of the circuit court, that the plaintiff below owned the land in fee simple. All the material facts proved are in the finding, and no exceptions were necessary.
We come to the conclusion that the title to the lands did not vest in the state under and by virtue of either of the acts of Congress, and consequently the plaintiff below had no title:
*172The judgment of the circuit court is reversed, with costs, and a venire de novo awarded.
A motion for a rehearing was made in this cause, which was disposed of at the June Term, 1865, as follows :