The opinion of the court was delivered by
Kingman, C. J.:Four errors are assigned to which attention will be given in their order. The court excluded a copy of a letter written by commissioner "Wilson to Hon. W. E. Niblack as to the status of the land in controversy. This was right. The letter was to a private individual. Its contents «did not tend to prove any facts; they only showed the opinion of an officer of the government as to the title to certain lands. The act of congress referred to only makes an exemplified copy of a paper evidence where the paper itself would be evidence; and the commissioner’s letter would not be evidence in this case.
II. The witness Abbott was asked the question, “Did Graham Rogers, one of the acting chiefs of the Shawnees, in Washington City, before the adoption of the fifth modified rule, execute a deed to you of the land in controversy?” Hie *553court refused to permit the question to be answered. There is no explanation of the use that could be made of the answer, nor can we perceive any relevancy. It did not show or tend to show that the title was transferred from the Shawnee tribe to Abbott. If there was such a deed made, and it conveyed no title, as both parties contend, then even the introduction of the deed itself, if one existed, became immaterial.
III. The court refused to permit Mr. Eoberts, the agent, to testily whether he knew that the defendants were in possession and occupancy of the land at the time of the sale, and whether he promised them the land should not be sold till he had given them notice and a preference. Answered either way the testimony would have had no bearing upon the case under the issues on trial. Again, the questions were not proper cross-examination of the witness: and if considered as in chief, were not in proper form. The record is silent as to the grounds of objection, or the reason of the court. In any view the questions were immaterial and irrelevant.
IY. The only other error alleged is that the judgment was for the plaintiff when it should have been for the defendants. The cause was tried by the court without the intervention of a jury, and a judgment rendered for the plaintiff, to which defendants excepted. The questions presented to this court are purely questions of law, the counsel upon either side in then-arguments conceding the facts as they appear of record. The action was for the recovery of four hundi-ed acres of land in Johnson county. The plaintiff below (defendant in error in this court) claiming by a deed from Graham Eodgers and Charles Tucker, chiefs of the Shawnee Nation, to him. . The consideration of the deed is $2,000. It is attested by James E. Abbott and E. S. Eoberts, and acknowledged before Eoberts the U. S. Indian agent for the Shawnees. On the 5th of January, 1870, the acting Commissioner of Indian Affairs submitted this deed to the Secretary of Interior for his approval, and on the 6th of January, 1870, the deed was approved by the Secretary of the Interior. It is claimed that this deed when so made and acknowledged vested the legal title to the land in *554the defendant in error. The plaintiffs in error admit the regularity of the steps taken to procure the deed, and that it is done in conformity with the fifth modified rule of the Department of the Interior, but deny the power of the Department to dispose of the'lands, on two grounds: First, that the lands are part of the “ surplus lands ” of the Shawnee tribe, and are by the joint resolution of congress of 1869 to be sold to the settler occupying said lands, and having made improvements thereon, at the price of $2.50 per acre; (16 Stat. at Lai’ge, p. 53:) Second, That the Department had no power under the laws and treaties to dispose of the lands, unless it was under the joint resolution referred to: "Whether the decision of the first question be one way or the other, the proceeds of the sale go alike to the use of the Shawnee Indians as a nation, so that so far as they are concerned it makes no difference how it is decided, except as to the amount. If the plaintiffs in error are right in their construction of the laws and treaties, the Indians will get $2.50 per acre for the land when it is sold under the joint resolution of 1869. If the title of the defendant in error is good, then the Indians have already to their credit on the sale made to him, and paid to the proper department for their use, $5.00 per acre. The land is probably worth much more than either sum, so that to the parties the decision is one of much greater importance.
It is admitted by both parties that the land in controversy is a part of the two hundred thousand acres ceded to the Shawnee Indians by the second article of the treaty of 1854, between the government of the United States and the Shawnee tribe of Indians. (10 U. S. Stat. at Large, 1053.) "We are first to determine what is the status of this land, and this demands careful consideration of the whole treaty; but we think the grounds of our decision may be briefly stated so as to be understood. It appears from the record, and is conceded in argument, that the land in controversy was double allotment land made to Lewis Hayes and George Sylcambus, and that they have since received other lands. The plaintiffs in error contend that these lands have now become a part of the surplus land set apart for the *555absentee Shawnee Indians, and are covered by the joint resoluof congress of 1869. The defendant in error insists that they remained allotted lands, and were subject to the disposal of the department of the government having charge of Indian affairs. The condition of the lands is anomolous, and one not contemplated by the treaty. That instrument makes no positive provision for a case of double allotments, such a contingency not having suggested itself to the parties. The treaty provides that there is to be a certain specified quantity of land out of the two hundred thousand acres given, first, to the churches, societies, and schools, and a few individuals named in the treaty, on certain terms; second, two hundred acres are to be allotted to each Shawnee Indian who shall elect to hold his land in severalty; third, those Indians of the Black Bob and Long-Tail bands who shall prefer to hold their lands in common are to have land amounting to two hundred acres each set apart in one body to be held in common; and after all these selections are made it is supposed there will be a surplus, which shall be set apart in one body of land, in a compact form, under the direction of the president of the United States, for the use of such absentee Indians of the tribe as shall return within a given time; and what of this tract is not so taken by the absentees within the stipulated time is to be sold for the benefit of the whole tribe. In these different ways the whole of the two hundred thousand acres ceded to the Shawnees by the treaty were to be appropriated. All these various selections were made in due time, and by the proper authorities, and the same became fixed by the selections made. It then became known that there was a small portion that had been double allotted, including the land in controversy. The different societies and individuals had all the land they were entitled to. The Indians who chose had their head-rights. Those who preferred had their proportion assigned them in common. The residue had been set apart for the absentees in one body in a compact form under the direction of the president of the United States. These different selections and lists of land were required to be made out within certain periods designated in the treaty, and *556were so made out, aud thus the status of the laud became established. Its character was fixed. The absentee lands were set apart by the president as surplus land, in a compact form as the treaty required. The land in controversy is seven or eight miles from that body. It is probably true that if no mistake had been made the body of the absentee lands would have been increased by eight hundred acres; but it is obvious that the identical land in question never could, under the provisions of the treaty have been a part of the “ surplus,” because the surplus was to be in one body in a compact form. It is not denied that the mistake is one that could be corrected by the courts if any one of the parties to the treaty had been the sufferers thereby. Each of the classes of beneficiaries have received all that class was entitled to if no mistake had been made. The surplus was more than sufficient to meet the requirements of the absentees, leaving a large residue to be disposed of for the benefit of the Shawnee nation. The tract in dispute also belongs to the nation, but not as “ surplus ” lands under the treaty. No provision is made for double allotments. They are outside the treaty. The status of the land became fixed by the selections as made and recorded, and the nearest that we can come to the spirit of the treaty is to hold them as allotted lands not taken by the allottees, and thus become the property of the nation to be disposed of under the direction of the government. This must be the view taken by the department of the Interior in making provision for the sale of the land under the fifth modified rule in accordance with which the defendant in error purchased the land.
The question remains, had the chiefs of the Shawnee nation acting for the nation, the right to dispose of these lands, with the consent of the Secretary of the Interior? At an early day the principle was adopted that the Indians could not dispose of their lands without the consent of the government. This consent may be given by treaty or by act of congress, and we know of no other way. Undoubtedly the consent may be given by the executive, in the execution of the terms of a treaty, or in carrying out the provisions of a statute, when this power is *557given in the treaty or statute, for then it is in fact the consent of the treaty-making or legislative branch of the government, expressed through the executive. The learned counsel for the defendant in error, as we understand him, goes one step further, and claims that this consent may be given “ as in this case by the executive branch of the government acting under and by virtue of the general powers conferred on the executive.” If by this is meant that the Indians may dispose of their land by consent of the executive where the executive by the provisions of any treaty or law is authorized to give such consent, then it is undoubtedly true; but if it is to be understood as asserting the doctrine that the consent of the executive without the previous authorization thereto of the law-making department is all that is necessary, then it asserts a doctrine contrary to the fundamental principles and the uniform practice of the government, and cannot be sanctioned. No precedent or authority for such a position is referred to, nor has any fallen under our observation.
We have not been able to find where the executive has been authorized by law to give his consent to the disposal by the Shawnee chiefs of the land belonging to the nation. We are referred to several provisions of laws and treaties which wo will notice briefly. The act of congress of July 9th, 1832, 1 Brightley’s Digest, 421, is referred to; but surely it needs no argument to show that the power to direct and manage Indian affairs, and all matters arising out of Indian relations, does not authorize the sale or consent .to the sale of the Indian lands. In all the years that it has been in force, no such construction has been given it. The ninth article of the treaty of May 10th, 1854, provides for issuing patents to such Shawnees as may have made separate selections, but nowhere makes any provision for the lands of the Shawnees except for such as are absolutely taken by individual members of the tribe, and held in severalty, and none others. The act of congress of March 3, 1859, (11 U. S. Stat. at Large, 431,) authorizes the Secretary of the Interior to cause patents to issue to such Indians as have made selections, such patents to be under such *558guards and. restrictions as may be prescribed by said secretary. These are all the acts of congress or treaties that have any bearing on the questions that have been pointed out or met the observation of the court, and none of them are such as in our view give any validity to the sale made by the chiefs to the defendant in error. If the foregoing propositions are correct, then neither of the parties to this action has any right to the land; it still remaining the property of the Shawnee tribe of Indians, to be held or disposed of as the government and the Shawnees may agree. It is not a part of the surplus, and therefore not covered by the joint resolution of congress referred to, and therefore the plaintiffs in error have no rights in the land. The title of the defendant in error is not such as the law sanctions, and therefore he could not recover. It follows that the judgment of the court below is erroneous, and must be reversed.
All-the Justices concurring.