(dissenting). Briefly stated, my view of the law applicable to this case is as follows: The general policy of the Government is to protect Indians, not admitted to citizenship, against the craft of the whites, who have a more just appreciation of the *720value of titles to land, and are much more shrewd in driving bargains than they. Section 2116 of the Revised Statutes of the United States, copied in the opinion, was never intended to accomplish the result reached in this case. While it prevents Indians from executing valid leases and conveyances of their lands, the restriction was intended to operate by depriving the Indians of power to divest themselves of their titles to, and interests in, real property without the consent of the United States. Persons negotiating treaties with them are made liable to a penalty, but none is imposed on the Indians. The maxims ex turpi causa non oritur actio and in pari delicto potior est conditio defendentis do not apply, because the Indians are not in equal wrong. They do not deal on equal terms, and are not violators of any penal statute. They occupy, rather, the relation to deeds and leases made by them that other persons legally incapable of contracting do to their contracts. The effect of the law is to deprive them of power to convey, not to punish them for attempting to do so.
Although the lease under consideration was terminable at any time at the pleasure of the Indians, and, although the Government of the United States had the undoubted right to compel the lessees to vacate the land notwithstanding the lease, it yet did not excuse the lessees from payment according to its -terms for the use and occupancy of the land while they were permitted to remain in possession of it. It cannot be that Congress ever intended that an Indian, or a tribe of Indians, should be prohibited from recovering for the use and occupation of lands leased to white men after the lessees had enjoyed the benefits of the lease. Such a construction would be turning legislation intended as a shield for the weak and unsuspecting into a sword in the hands of their enemies. It seems to *721me that these views more nearly- accord with the decision in Land Company v. Thompson (57 Kan. 792) and United States v. Hunter (21 Fed. Rep. 615). I see no reason why the Indians may not recover the stipulated rental for the time their lands were actually occupied by the defendants.