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[264 U.S. 446, 447] The Attorney General and Mr. H. L. Underwood, of Washington, D. C., for the United States.
Mr. Arthur E. Griffin, of Seattle, Wash., for appellee.
Mr. Justice SUTHERLAND delivered the opinion of the Court.
Appellee, an Indian of the Quillehute tribe, brought suit in the federal District Court for the Western District of Washington to determine his right to an allotment of an 80-acre tract of land in the Quinaielt Indian Reservation in that state. Authority for bringing the suit is found in 28 Stat. 305, c. 290, as amended by 31 Stat. 760, c. 217 (Comp. St. 4214, 4215). The treaty with the Quillehute and other Indians, made in 1855, among other things, provides for the removal and settlement of these Indians upon a reservation to be selected for them by the President, and for the payment by the United States of $2,500 'to clear, fence, and break up a sufficient quantity of land for cultivation.' 12 Stat. 971, arts. 2 and 5. The President is authorized by article 6 of the treaty, at his discretion, to cause the reserved lands to be surveyed and assign the same to individual Indians or families for permanent homes on the same terms and under the same conditions as are provided in article 6 of the treaty with the Omahas, concluded in 1854. 10 Stat. 1043, 1044. By the General Allotment Act, as amended, it is provided:
The land in question was selected by Payne in 1911, after survey, through and with the approval of an allotting agent of the United States. It is of mixed character, 40 or 50 acres being timbered, and the remainder being bottom land, lying along the Raft river.
The sole question we are called upon to decide is whether the land, being timbered, is to be excluded from the operation of the Allotment Act which speaks only of agricultural and grazing lands. Both courts below determined the question in the negative (284 Fed. 827), and we agree with them. The treaty makes no restriction in respect of the character of the land to be 'assigned,' and while the Allotment Act, being later, must control in case of conflict, it should be harmonized with the letter and spirit of the treaty, so far as that reasonably can be done, since an intention to alter, and pro tanto abrogate, the treaty, is not to be lightly attributed to Congress. These Indians yielded whatever claims they may have had to a valuable and extensive area in exchange for a relatively small reservation, relying upon what they undoubtedly understood to be an assurance on the part of the general government that they would be given individual and permanent homes therein. They are an unlettered people, unskilled in the use of language (Jones v. Meehan, 175 U.S. 1, 10 , 11 S., 20 Sup. Ct. 1, 44 L. ed. 49), with regard to whom the United States occupies the position and assumes the responsibilities of virtual guardianship, bound by every moral and equitable consideration to discharge its trust with good faith and fairness (Choctaw Nation v. United States, 119 U.S. 1, 28 , 7 S. Sup. Ct. 75). Construing the treaty liberally in [264 U.S. 446, 449] favor of the rights claimed under it, as we are bound to do (Hauenstein v. Lynham, 100 U.S. 483 , 487), we conclude that the character of the lands thereafter to be set apart for them severally was not restricted. The authority of the President is, broadly, to assign 'lands,' and that it was not meant to exclude timber lands is borne out by the provision for a payment 'to clear, fence and break up a sufficient quantity of land for cultivation,' which may well mean to 'clear' it of timber. It follows that, if the Allotment Act is now construed to exclude such lands from allotment, a materially restrictive change will have been wrought in the terms of the treaty. Such a construction is to be avoided, if possible. Chew Heong v. United States, 112 U.S. 536, 541 , 5 S. Sup. Ct. 255.
It is common knowledge that vast bodies of land, originally covered with timber, in some of the public land states, including eastern Washington, have been acquired by private entry, cleared and brought under cultivation. The view that such lands were open to entry for agricultural purposes seems to have been generally recognized and acted upon (see Johnson v. Bridal Veil Lumbering Co., 24 Or. 182, 184-186, 33 Pac. 528) and, so far as we are advised, has never been questioned by the Land Department of the United States. We are therefore constrained to reject the rigidly literal interpretation of the Allotment Act for which the government here contends. It is not an unreasonable view of the requirement that an allotment shall not 'exceed eighty acres of agricultural or one hundred and sixty acres of grazing land' to say that it was meant, not to preclude an allotment of timbered lands, capable of being cleared and cultivated, but simply to differentiate, in the matter of area, between lands which may be adapted to agricultural uses and lands valuable only for grazing purposes.
The decree of the Circuit Court of Appeals is
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