UNITED STATES
v.
NEW YORK INDIANS.

*468 Mr. Solicitor General, Mr. Assistant Attorney General Pradt and Mr. Charles C. Binney for the United States.

Mr. Jonas H. McGowan and Mr. Guion Miller for the New York Indians.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

As a disposition of either one of these motions will practically dispose of the other, both may properly be considered together.

The preamble to the treaty of Buffalo Creek of January 28, 1838, 7 Stat. 550, recites that "the following articles of a treaty are entered into between the United States of America and the several tribes of the New York Indians, the names of whose chiefs, headmen and warriors are hereto subscribed, and those who may hereafter assent to this treaty in writing, within such time as the President shall appoint." The second article of the treaty also recites that "it is understood and agreed that the above described country" (the land ceded) "is intended as a future home for the following tribes, to wit: The Senecas, Onondagas, Cayugas, Tuscaroras, Oneidas, St. Regis, Stockbridges, Munsees and Brothertowns residing in the State of New York, and the same is to be divided equally among them according to their respective numbers, as mentioned in the schedule hereunto annexed." The treaty purports to be signed by the headmen of the Senecas, Tuscaroras, Oneidas residing in the State of New York as well as at Green Bay, St. Regis, Onondagas residing on the Seneca reservation, the principal Onondaga warriors, Cayugas and the principal Cayuga warriors; but the schedule, immediately following the signatures, contains also the names of the Stockbridges, Munsees and Brothertowns. The commissioner on behalf of the United States certifies that this schedule was made before the execution *469 of the treaty. Following this there are certain certificates by the commissioner to the effect that the treaty was assented to by the Senecas, Tuscaroras, St. Regis, Oneidas, Cayugas and Onondagas. On January 22, 1839, the President sent the treaty to the Senate with the following message:

"To the Senate of the United States:

"I transmit a treaty negotiated with the New York Indians which was submitted to your body in June last and amended.

"The amendments have, in pursuance of the requirement of the Senate, been submitted to each of the tribes assembled in council, for their free and voluntary assent or dissent thereto. In respect to all the tribes, except the Senecas, the result of this application has been entirely satisfactory. It will be seen by the accompanying papers that of this tribe, the most important of those concerned, the assent of forty-two out of eighty-one chiefs has been obtained. I deem it advisable, under the circumstances, to submit the treaty in its modified form to the Senate for its advice in regard to the sufficiency of the assent of the Senecas to the amendment proposed.

"Washington, 21st January, 1839."

The assent of the Senecas having been procured, the treaty was afterwards ratified.

The question was thus presented to the Court of Claims whether the Stockbridges, Munsees and Brothertowns — who did not actually sign the treaty — gave their assent, and the Court of Claims found as a fact that they were actually parties to it. There was certainly some evidence in support of this finding which also accorded with the opinion of this court in Fellows v. Blacksmith, 19 How. 366, 372, in which an objection was taken on the argument to the validity of the treaty, on the ground that the Tonawanda band of the Seneca Indians was not represented by the chief and headmen of the band in the negotiations and execution of it. "But," said the court, "the answer to this is, that the treaty, after executed and *470 ratified by the proper authorities of the Government, becomes the supreme law of the land, and the courts can no more go behind it for the purpose of annulling its effect and operation than they can behind an act of Congress."

But we are now asked to direct the Court of Claims to find:

First. What constituted the Onondagas at Onondaga, Oneidas at Green Bay, Stockbridges, Munsees and Brothertowns parties to the treaty of Buffalo Creek, as proclaimed April 4, 1840?

Second. Whether or not the Oneidas at Green Bay, Stockbridges, Munsees and Brothertowns resided in the State of New York when the treaty of Buffalo Creek was proclaimed, or when they became parties thereto?

But if these be material facts, they were equally so when the findings were made at the first hearing, and the attention of the court should have been called to the matter, and a more particular finding requested. The motion contemplates an order upon the court to send up the testimony upon which it had found the ultimate fact that these three tribes were parties to the treaty, and inferentially for us to pass upon the sufficiency of that testimony to establish such ultimate fact. If the finding of these probative facts were deemed material within the case of United States v. Pugh, 99 U.S. 265, application should have been made when the case was first sent here for a finding of such facts. In the Pugh case the Court of Claims found certain circumstantial facts, and the question this court was called upon to decide was whether those facts were sufficient to support the judgment. But this court did not hold that, where the Court of Claims was satisfied that the evidence before it fully established a fact, it was bound to insert all the evidence upon that point, if the losing party thought the court made a mistake. This court has repeatedly held that the findings of the Court of Claims in an action at law determines all matters of fact, like the verdict of a jury, and that where there is any evidence of a fact which they find, and no exception is taken, their finding is final; Stone v. United States, 164 U.S. 380; Desmare v. United States, 93 *471 U.S. 605; Talbert v. United States, 155 U.S. 45; and in McClure v. United States, 116 U.S. 145, this court distinctly held that it would not remand a case to the Court of Claims with directions to return whether certain distinct propositions, in requests for findings of fact, presented to that court at the trial of the case, were established and proved by the evidence, if it appeared that the object of the request to have it so remanded was to ask this court to determine questions of fact upon the evidence. In The Santa Maria, 10 Wheat. 431, 444, it was said by Mr. Justice Story: "We think, therefore, that upon principle every existing claim which the party has omitted to make at the hearing upon the merits, and before the final decree, is to be considered as waived by him, and is not to be entertained in any future proceedings; and when a decree has been made, which is in its own terms absolute, it is to be carried into effect according to those terms, and excludes all inquiry between the litigating parties as to liens or claims which might have been attached to it by the court, if they had been previously brought to its notice." See also Hickman v. Fort Scott, 141 U.S. 415.

But it is difficult to see how the proposed findings, if made, could be deemed material. This court held that the treaty of Buffalo Creek was a grant in prœsenti of a certain tract of land in Kansas, described by metes and bounds. The second article of the treaty indicates that the grant was made upon the basis of 320 acres for each inhabitant, the recital "being 320 acres for each soul of said Indians as their numbers are at present computed." But the grant was not of 320 acres for each soul, but of a tract of land en bloc. Under the decision of the court a present title thereto passed to the Indians. This being the case, the United States are in no position to show that the Government erred in its computation of souls, or that certain tribes who are named in the treaty did not assent to it. If the land passed under the treaty, then it is only a question between the Indians themselves who were signatories thereto or assented to its terms. The only object of the proposed order, though it is but faintly outlined in the briefs, must be to show that if the Stockbridges, Munsees and Brothertowns *472 never assented to the treaty, the grant should be reduced in the proportion of 320 acres to each member of these tribes. But this is an indirect attack upon the decree. The case was remanded to the Court of Claims, not to determine who were actually parties to the treaty, or to recompute the number of souls, or in any other way to reduce the extent of the grant, but to render a judgment for the amount received by the Government for the Kansas lands, less an amount of lands upon the basis of which settlement had been made with the Tonawandas, and less the 10,240 acres allowed to thirty-two New York Indians, "together with such other deductions as may seem to the court below to be just." But there is nothing to indicate that the Court of Claims was at liberty to redetermine who were parties to the treaty, and entitled to the benefit of its provisions. That question had already been settled beyond recall. The motion for additional findings must therefore be denied.

The denial of this motion practically disposes of the appeal, as the action of the court below in its supplemental findings was in strict conformity with the mandate of this court. It found the amount of land sold by the United States, the cost and expense of surveying and platting said lands, the number of acres allowed to the Tonawanda band, the number allotted to the thirty-two Indians, and, after deducting the expense of surveying and platting, the amount paid by the United States in settlement of the Tonawanda band and thirty-two Indians, there remained of the value of the land at $1.25 per acre the sum of $1,967,056. The court further found who the New York Indians were, who were parties to the treaty, and as a conclusion of law judgment was entered for the above amount. This court has repeatedly held that a second writ of error does not bring up the whole record for reëxamination, but only the proceedings subsequent to the mandate, and if those proceedings are merely such as the mandate command, and are necessary to its execution, the writ of error will be dismissed, as any other rule would enable the losing party to delay the issuing of the mandate indefinitely. The Santa Maria, 10 Wheat. 431; Roberts v. Cooper, 20 How. 467; Tyler v. Magwire, 17 *473 Wall. 253; The Lady Pike, 96 U.S. 461; Supervísors v. Kennicott, 94 U.S. 498; Stewart v. Salamon, 97 U.S. 361.

In Stewart v. Salamon, supra, Mr. Chief Justice Waite observed: "An appeal will not be entertained by this court from a decree entered in the Circuit or other inferior court, in exact accordance with our mandate upon a previous appeal. Such a decree, when entered, is in effect our decree, and the appeal would be from ourselves to ourselves. If such an appeal is taken, however, we will, upon the application of the appellee, examine the decree entered, and if it conforms to the mandate, dismiss the case with costs. If it does not, the case will be remanded with proper directions for the correction of the error. The same rule applies to writs of error." Humphrey v. Baker, 103 U.S. 736; Clark v. Keith, 106 U.S. 464; Mackall v. Richards, 116 U.S. 45.

The appeal will therefore be

Dismissed.

The CHIEF JUSTICE, MR. JUSTICE HARLAN and MR. JUSTICE BREWER dissented.