
119 U.S. 55 (1886)
BUTTZ
v.
NORTHERN PACIFIC RAILROAD.
Supreme Court of United States.
Argued October 26, 27, 1886.
Decided November 15, 1886.
APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF DAKOTA.
*63 Mr. Albert G. Riddle and Mr. Henry E. Davis for appellant. Mr. James E. Padgett was with them on their brief.
Mr. W.P. Clough for appellee.
*66 MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court, as follows:
The land in controversy and other lands in Dakota, through which the Northern Pacific Railroad was to be constructed, was within what is known as Indian country. At the time the act of July 2d, 1864, was passed, the title of the Indian tribes was not extinguished. But that fact did not prevent the grant of Congress from operating to pass the feeof the land to the company. The fee was in the United States. The Indians had merely a right of occupancy, a right to use the land subject to the dominion and control of the government. The grant conveyed the fee subject to this right of occupancy. The Railroad Company took the property with this incumbrance. The right of the Indians, it is true, could not be interfered with or determined except by the United States. No private individual could invade it, and the manner, time, and conditions of its extinguishment were matters solely for the consideration of the government, and are not open to contestation in the judicial tribunals. As we said in Beecher v. Wetherby, 95 U.S. 517, 525: "It is to be presumed that in