The complainants, as the heirs of Charles Land, deceased, claim title to a tract of land, situate within the Choctaw District, in this State ; being section No. 21, in township 16, range 1, west. They show that the title is derived through their ancestor, by purchase from an Indian woman by the name of' Istanchi, alias Betsey Beames, who, as the head of a Choctaw family, claimed title to the land, under the provisions of the 14th article of the Dancing Rabbit Creek treaty, concluded between the United States and the Choctaw tribe of Indians, on the 27th day of September, 1830 : she sold to Charles Land, and gave her bond to make title as soon as her title was perfected under the terms of the treaty. By the article referred to, each head of a Choctaw family, desiring to become a citizen of the State, by signifying such intention to the agent of the United States, within six months from *169the ratification of the treaty, became entitled to a section of land, for which a grant in fee simple was to be issued, after a residence of five years thereon. The testimony in the case, proves the continued residence of Istanchi upon section 21, for the period of five years ; and establishes a compliance, on her part, with all the requirements of the treaty necessary to perfect her title to the land. The complainants set up title to the east half of said section, under a location of what is commonly called a floating claim, made in the name of Josiah Doak, to whom a right is given by the supplement to said treaty, of locating a half section of land, upon any unoccupied and unimproved land in the district where he lived. The complainants pray that the representatives of Thomas Land may be compelled to relinquish to them all title acquired under the location of said floating claim, and that Sims and wife may convey, by quitclaim deed, all the title to said section which descended to them as the heirs of Istanchi. As the allegations of the bill are fully sustained by the proofs, the mere question of title between the parties seems to be the leading question for decision. The defendants insist that the Court can give no relief in this case : 1. Because it arises under a treaty made by the United States with the Indians, both parties claiming under that treaty; that the case is, therefore, exclusively cognizable in the courts of the United States. 2'. It is insisted, that the refusal of the agent residing with the Indians to register the application of Istanchi, was final and conclusive upon her rights, as a judicial act, and cannot be questioned in this Court.
1. I do not think that there is anything in the first point made by the defendant. The fact that both parties claim title under a treaty to which the United States is a party, has nothing in itself to exclude the jurisdiction of this Court. Although the 2d section of the 3d article of the Constitution of the United States declares, that the judicial power shall extend to all cases, in law or equity, arising under treaties made by their authority, yet it does not confer exclusive jurisdiction upon the federal courts, in all such cases. The mere fact that the rights of the parties to the land in controversy grew out of a treaty, cannot have the effect of ousting the jurisdic*170tion of the Court, when both parties, and the subject-matter of the suit, are otherwise completely within its cognizance.
This is a mere matter of private litigation between citizens of the same State, relating to a subject within the ordinary jurisdiction of a court of equity, involving no question affecting the public, or touching the relation of either of the contracting parties to the treaty. I find nothing in the nature of the claims of the parties litigant, or in the source from which they are derived, which confers exclusive jurisdiction on the federal courts. The 25th section of the judiciary act of 1789, furnishes a legislative exposition of the 2d section of the 3d art. of the constitution, directly opposed to that now urged for the defendants in this case. That act provides, that the judgments of the highest court of a State, in which was drawn in question the construction of any clause of a treaty, where the decision is against the title of either party, set up under the treaty, such decision may be reexamined, reversed, or affirmed by the Supreme Court of the United States. Thus it appears, that the right of a State court to take original jurisdiction of a question of private right, growing out of a treaty, was fully recognized by the very government that is supposed to forbid it. 2. As to the second objection, I see nothing in the terms of the treaty, which clothed the Choctaw agent with such power and discretion as is here claimed for him. I do not find that the right of an Indian to the contemplated reservations, under the treaty, is made to depend finally, and conclusively, upon any lawless discretion, or arbitrary caprice, which the agent might choose to play off, in regard to them. The conditions upon which such right is made to rest, are embodied in the treaty itself, and could not be impaired, restricted, or modified by the mere will of the agent, or of any other power. The right to a reservation depended upon the fact, that Istanchi was the head of a Choctaw family, and that she “ signified ” her intention to the agent, of becoming a citizen of the State. Upon such application her right vested, and became complete and perfect, after a residence upon the land of five years, subsequent to the ratification of the treaty ; and the abstract right was not rendered the less perfect, by the refusal of the agent to register her name, and application. It was *171his duty to register the application ; but his arbitrary refusal, or wanton neglect, to comply with his duty, could not have the effect of divesting a right accruing under the treaty, which had thus been in part distinct from, and independent of, his sanction. His duties were those of a mere recorder, and were purely ministerial in their character, having nothing of the conclusive attributes of a judicial sentence. Here it is in evidence, that the Indian woman applied, through her agent, to be registered according to the terms of the treaty, and the agent refused to note the application, saying she ought to go west of the Mississippi river. If this refusal was sufficient to exclude her' claim, then it was perfectly within his power to defeat one of the most important parts of the treaty. Even if the powers of thé agent were judicial and conclusive in their character, still his conduct, in reference to this claim, could in nowise affect its validity, because the sentence or judgment of a judicial tribunal, is only conclusive upon the matter actually considered and adjudged. But here nothing was decided, but simply a.refusal to take cognizance of the application. Upon the whole, I shall direct a decree, declaring the complainants entitled to the section of land, No. 21, and appointing a commissioner, to convey to them all the title thereto, acquired by the representatives of Thomas Land, through the float located in the name of Josiah Doak, as also all the title which Sims and wife acquired thereto, by descent, as the heirs of Istanchi. The bill must be dismissed as to Forester ; the complainants having acquired no title by their purchase from Istanchi to the land reserved by the treaty to her daughter.