The opinion of the court was delivered by
Bkewer, J.:The plaintiff in error filed its petition in the district court of Bourbon county against the defendant in error to enjoin the collection of a tax levied in the year 1870, against certain real estate of the plaintiff, and containing two causes of action. The first is to enjoin a tax, amounting to about $10,000, levied against that portion of the “Cherokee Neutral Lands” lying in Bourbon county, and to which the plaintiff acquired title by patent from the United States bearing date November 2d, 1870. The petition alleges, that, at the time of the levy of this tax, the plaintiff had neither the legal nor equitable title to these lands, but that they were in the U. S. government and the Cherokee tribe of Indians, and hence the lands were exempt from taxation.' The second cause of action is to enjoin the collection of a tax levied against certain lands granted by the U. S. government to the state of Kansas to aid in the construction of the railroad of the Kansas and Neosho Valley Railroad Company, (the former corporate name of the plaintiff,) by an act of congress approved July 25th, 1866, which grant had not been accepted by the state of Kansas at the time of the levy of said last-mentioned tax. The facts were agreed between the respective parties, and are contained in a written stipulation on file herein, which, by order of the court below, was made a part of the. record. The court below found for the defendant, and rendered judgment accordingly. The facts contained in the stipulation above referred to, and the exhibits thereto attached, relating to the first cause of action, are as follows:
1st, That the lands mentioned in the. first cause of action in the petition, are a part of the “ Cherokee Neutral Lands,” *313so-called, and the same mentioned in the first part of article 17 of the Treaty between the United States and the Cherokee Nation of Indians, proclaimed August 11, 1866.
2d, That, in pursuance of the provisions of article 17 of said Treaty, as amended by the United States Senate, and a supplemental article thereto, ratified June 6, 1868, James E. Joy, on the 8th of June, 1868, entered into a contract with the then Secretary of the Interior Department of the United States for the purchase of said “ Cherokee Neutral Lands; ” by the terms of which contract, Mr. Joy was to pay for the same to the Secretary of the Interior, as trustee for the Cherokee Nation of Indians, at the rate of one dollar per acre, as follows: Within ten days, the sum of' $75,000; $75,000 on the 30th days of August, 1868, 1869, and 1870, respectively; and $100,000 per annum thereafter, until the whole purchase-money should be paid. It was further agreed, in and by said contract, that the United States should cause said lands to be surveyed as public lands were usually surveyed, and, on the payment by Mr. Joy of $50,000, to set apart for him a quantity of said land in one body, in as compact form as practicable, extending directly across said lands from east to west, and containing a number of acres equal to the number of dollars thus paid, and from time to time to convey the same by patent to said Joy, whenever requested so to do, in such quantities, and by legal subdivisions, as said purchaser should indicate; and, on the payment of each additional installment, w.ith interest, as therein stipulated, to set apart for said purchaser an additional tract of land, in compact form, when the said purchaser might request, but extending directly across the neutral lands from east to west, containing a number of acres equal to the number of dollars of principal thus paid; and to convey the same to said purchaser, or his assigns; and so on from time to time until the whole should be paid; and no conveyance of any part of said lands to be made until the same should have been paid for as provided for in the said contract.
3d, That on or about the 1st of March, 1869, Mr. Joy assigned and conveyed to the plaintiff all his right, title and. interest, in and to said contract, and to the lands therein described.
4th, That prior to said 1st of March, 1869, Mr. Joy had paid to the Secretary of the Interior portions of the purchase-money for said lands, and had received from the United States patents for a corresponding number of acres of the same, set *314apart for him in pursuance of the provisions of said contract; but that no part of the said “Cherokee Neutral Lands” situate in Bourbon county was included in said patents.
5th, That on the 8th of August, 1870, the plaintiff, as such assignee of Mr. Joy, paid to the Secretary of the Interior, the sum of $437,478.50, the balance of the principal and interest then due and unpaid upon said contract, after deducting the payments so as aforesaid made by Mr. Joy; and, on the 2d of November, 1870, received from the United States a patent, conveying to said plaintiff the balance of said “Cherokee Neutral Lands,” not so as aforesaid patented to Mr. Joy, and including in said patent that portion of said lands situate in Bourbon county.
6th, That in September, 1870, there was levied and assessed against said lands in Bourbon county, and by the proper officers of said county, the tax mentioned in the first count of plaintiff’s petition, and that the same, with the statutory penalty of ten per cent., is in the hands of the defendant for collection.
7th, That the Cherokee Indians retained at the time of the levy of this tax, and still retain their tribal organization and national existence.
It seems from this agreed statement that the only interest the plaintiff had in these lands, at the time of the levy and assessment of the tax, was derived from a contract of purchase upon which no portion of the purchase-money had been paid. For while the contract provided for the sale of the entire 800,000 acres, and some money had been paid thereon, yet it also provided for the conveyance of the land as rapidly as paid for, acres for dollars; and all the land paid for had been in fact conveyed by patent prior thereto. Of course, the government had no lien upon the lands patented for the purchase-money of those unpatented; and the plaintiff had no right to a conveyance of the latter until it had paid therefor the contract-price of a dollar per acre. There was therefore but a simple contract of purchase, upon which the purchaser had' paid nothing. The legal title was in the government, and while the plaintiff had an equitable interest in the land, it had not the full equitable title. If these lands had been public lands, beyond any question, under the recent *315decision of the supreme court of the United States in the case of the Kansas Pacific Rly. Co. v. Culp, (17 Wall.,) reversing the decision of this court, (9 Kas., 38,) they would not have been subject to taxation. In that case the court says: “While we recognize the doctrine heretofore laid down by this court, that lands sold by the United States may be taxed before they have parted with the legal title by issuing a patent, it is to be understood as applicable to cases where the right to the patent is complete, and the equitable title is fully vested in the party without anything more to be paid, or any act to be done going to the foundation of his right.” But these were not public lands. The government held the legal title, but held it in trust for the Cherokee Indians. These Indians still retained their tribal organization and national existence. As such their property was exempt from state taxation. In the case of The Kansas Indians, (5 Wall., 737,) the supreme court decided that “as long as the United States recognizes their national character they are under the protection of treaties and the laws of Congress, and their property is withdrawn from the operation of state laws.” The same doctrine was recognized in the subsequent case of The New York Indians, (5 Wall., 761.) These decisions were placed not simply or mainly on treaty stipulations, but upon the broad ground that these Indian nations were under the protection and care of the general government, were separate nations, and outside the jurisdiction of the states. Speaking of the Shawnees Mr. Justice Davis uses this language: “If the tribal organization of the Shawnees is preserved intact, and recognized by the political department of the government as existing, then they are a people distinct from others, capable of making treaties, separated from the jurisdiction of Kansas, and to be governed exclusively by the government of the Union.” So that whether these lands were the property of the United States, or the Cherokee Nation, they were alike exempt from taxation. But there remains a more difficult question. These lands were originally ceded to the Cherokees by the treaty of December 29th, 1835. (7 U. S. Stat., 478.) By that treaty *316it was stipulated that these lands should never be included within the limits or jurisdiction of any state or territory without the consent of said Indians. By the treaty of 1866 they were ceded by the Cherokees to the United States. (14th U. S. Stat., 799.) The 17th article of that treaty is, so far as it bears upon the question, as follows:
“Art. 17. The Cherokee Nation hereby cedes, in trust, to the United States the tract of land in the state of Kansas, which was sold to the Cherokees by the United States under the provisions of the 2d article of the treaty of 1835, and also that strip of the land ceded to the nation by the 4th article of said treaty, which is included in the state of Kansas; and the Cherokees consent that said lands may be included in the limits and jurisdiction of said state.”
Upon this, counsel for defendant in error contends that the Cherokees, who at the time of this tax were the sole beneficiaries of this trust, the owners of the full equitable interest, subject only to the plaintiff’s right of purchase, a nation not occupying these lands, but domiciled outside the territorial boundaries of the state, had consented that the lands should become a part of the state, and subject to all'its laws, including its revenue and tax laws. If the Indians consented, who could object ? The restraints of the organic act and the act of admission were abrogated by this stipulation, and thereafter the authority of the state was full and absolute over the lands. It cannot be denied that there is great force in this argument. But it must be borne in mind that it is settled law to construe Indian treaties liberally in favor of the Indians. As said by Mr. Justice Davis, “ Enlarged rules of construction are adopted in reference to Indian treaties.” And by Chief Justice Marshall, in 6 Peters, 582: “The language used in treaties with the Indians shall never be construed to their prejudice, if words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of their treaty.” Now the purpose of this cession might be defeated, and would certainly be hindered, if from the very date of the treaty, and before the government had effected any sale, the state could burden these *317lands with its taxes, and subject them to sale for nonpayment. No benefit would inure to the Cherokees- by making them subject to taxation prior to a sale. The lands would be less rather than more salable. And we cannot suppose they intended to insert a stipulation which would throw a burden upon their property, and for which they receive no consideration. It seems to us rather that they intended simply to do away with the prior stipulation of exclusion, leaving the lands, as other Indian lands to which such a stipulation of exclusion had never attached, under the protection of the general government until such time as the latter should effect a sale. From these considerations it follows that these lands were not subject to taxation for the year 1870, and the tax proceedings should be perpetually enjoined.
II. In regard to the lands in question in the second cause of action, it is agreed in the statement of facts that they are a part of certain lands granted to the state of Kansas by a certain act of Congress approved July 25th, 1866; that the plaintiff in error had, at the time of the levy of the tax complained of, complied with all the conditions of said grant on its part to be performed; that the state of Kansas had not at the time of said levy accepted said grant, and never did accept the same until the 2d of March, 1871. Eeferring to the act of Congress, it appears from the first section that the grant of lands was to “ the state of Kansas for the use and benefit of said railroad company,” (the plaintiff herein.) By the third section it was provided that “when the governor of the state of Kansas shall certify that any section of ten consecutives miles of said road is completed in a good, substantial and workmanlike manner as a first-class railroad, then the said secretary of the interior shall issue to the said company patents for so many sections of the land within the limits above named as are co-terminous with the said completed section hereinbefore granted,” (and so for each successive section of ten miles:) “Provided, that if said road is not completed within ten years from» the date of the acceptance of the grant hereinbefore made, the lands remaining unpatented shall re*318vert to the United States; and provided further, that the said lands shall not in any manner be disposed of or incumbered by said company or its assigns, except as the same are patented under the provisions of this act.” Section seven requires that the acceptance of the company shall be in writing, and made within one year. These are all the provisions of the act that bear upon the question. It is agreed that no patent had been issued for these lands up to the time of commencing this action. Upon these facts counsel for plaintiff in error say — we quote from their brief:
“We claim that, notwithstanding such compliance on the part of the plaintiff in error with all of the conditions of this grant, no such complete, equitable title to the lands in question had passed to it at the time of the levy of this tax, as to entitle it to a conveyance by the United States of the legal title, but that this equitable title, as well as the legal, still remained in the United States: First, Because there had been no acceptance of the grant by the state of Kansas. This grant was made directly to the state of Kansas, for the use of the plaintiff in ei’ror; thus constituting the state the trustee, and the railroad company the cestui que trust. Second, Because the United States, in prohibiting the railroad company from disposing of or incumbering these lands until the patent should be given it under the provisions of the grant, clearly and unmistakably show, that it was their intention that no interest whatever in these lands should pass to the railroad company until these patents had been executed, but that the entire equitable, as well as the legal title should remain in the United States.”
It does not seem to us that either point is well taken. The case comes within the rule as laid down by Mr. Justice Miller in the case from 17th Wallace, just cited, “where the right* to the patent is complete, and the equitable title is fully vested in the party without anything more to be paid, or any act to be done going to the foundation of his right.” While the grant is in terms to the state for the use of the company, the act calls for no acceptance from the state, and provides for the issue of patents directly to the company, and specifies the conditions of the issue. Those conditions involve no action on the part of -the state, for while patents were to issue on the *319certificate of the governor, this was simply a provision on the part of the United States government to secure satisfactory evidence of the performance by the company of the conditions of the grant before a conveyance of the lands. The company had nothing more to pay, nothing more to do. It had complied with the conditions of the grant. Nothing remained, unless perhaps it were the evidence of such compliance. There was certainly nothing that went to the “foundation of its right.” Nor do we think the restriction on the company’s disposal of the land a restriction on the right of taxation. The government retained by it no interest in the land. The equitable interest of the company was in nowise limited. It was a naked restriction on the right to dispose or incumber. There is no reason for making it the basis of an exemption from taxation. We see no error in the ruling of the district court upon this point.
The case having been tried upon an agreed statement of facts, it is the duty of this court to direct what judgment shall be entered by the district court. The case will be remanded, with instructions to enter a judgment in favor of the plaintiff in error, enjoining and restraining all proceedings to collect the taxes for the year 1870 on the lands described in the first cause of action set forth in the petition, and for costs of suit. The costs of this court will be divided.
All the Justices concurring.