the contract if there is no loss, and to repu- | whatever for his baggage beyond the value of diate it in case of loss." 250 francs, unless he agreed that he would subject it to the Harter act. But if that law was made applicable its provisions controlled, and therefore the carrier became en

It was decided that the carrier was re sponsible, but his liability was limited to the value expressly agreed upon in the bill of lading. Did the conditions in the steam-titled to all the benefits of the 3d section of er ticket in the case at bar come within the principle announced in either of the foregoing cases?

One of the conditions reiterated in various forms in the bill of lading is as follows: "The shipowner or agent shall not under any circumstances be liable for any loss or delay of or injury to passengers' baggage carried under this ticket, beyond the sum of 250 francs, at which such baggage is hereby valued, unless a bill of lading or re-wise the baggage would not have been subceipt be given therefor, and freight paid in advance on the excess value at the rate of 1 per cent, or its equivalent, in which case the shipowner shall only be responsible according to the terms of the shipowner's form of cargo bill of lading, in use from the port of departure."

The requirement, then, was that the baggage of the passenger must be valued at 250 francs, and no more than that sum could be recovered under any circumstances, unless any excess of amount be declared and a named percentage on the increased value be paid, and unless the passenger agreed to ship his baggage as cargo and take a bill of lading for it. Now the only theory upon which it can be assumed that the law of 1893, the Harter act, does not apply to the carriage of the baggage of a passenger, is that the statute in question only relates to merchandise shipped as cargo; and for which a bill of lading is taken. The requirement, therefore, if the passenger desired to value his baggage at a greater sum than 250 francs, was that he must ship it in such a manner as to bring it within the terms of the Harter act. This obvious meaning of the condition is stated and insisted on in the brief in behalf of the carrier, where it is said:

the act, exempting from all loss or damage resulting from faults or errors in navigation or in the management of the vessel, and for other causes which are specified in the section in question. To make this exaction was consequently but in effect to demand that the passenger agree, as a prerequisite to any increased valuation of his baggage, to subject it to a risk of loss brought about by the negligence of the carrier, when othermitted to risk arising from such neglect,— an obvious requirement exempting the carrier from the consequences of his own negligence. On the other hand, if the assumption be indulged in that the baggage of the passenger was within the purview of the Harter act, a stipulation embodied in another provision of the ticket, relieving the carrier under any and every circumstance from every conceivable neglect of his serv ants, "either in matters aforesaid or otherwise howsoever," was a plain violation of the prohibitions contained in the 2d section of the Harter act. It follows, if the Harter act* did not apply to the baggage of a passenger, the stipulation which compelled the passenger, if he wished to value his baggage, to agree to subject it to that act, was an illegal effort on the part of the carrier to relieve himself from liability for his negligence. If this result is escaped by treating the baggage of the passenger as within the scope of the Harter act, then there are provisions found in the ticket which are void, because they contain stipulations for immunity from negligence which are in direct conflict with the prohibitions of that act. Indeed, the conditions contained in the ticket seem to have been devised-at all events, they lend themselves to the infer"The ticket in this case certainly does not ence that they were devised-to so operate fall within the words 'bill of lading or ship-as to keep the baggage of the passenger outping document,' used in §§ 1,*2, and 4 of the side of the scope of the Harter act, in order Harter act. These are expressions perfect- to avoid the provisions of that act forbidly well understood in commerce, and apply ding the insertion of certain conditions as to bills of lading covering trade shipments, to negligence, and that when this result was which are almost invariably insured. That obtained to immediately secure the bringCongress meant by the words 'bill of lading of the passenger's baggage within the ing or shipping document' but one thing, influence of the act for the purpose of ennamely, bill of lading, appears from the re- abling the carrier to enjoy the immunity fusing to issue on demand 'the bill of lad- from negligence which that act accords in ing herein provided for,' and does not men- certain cases. We think the conditions were tion the words 'shipping document' at all. unjust and unreasonable and void because "On the other hand, for personal baggage in conflict with public policy, and if the accompanying the passenger no bill of lad- considerations which have led us to this coning or shipping document is, so far as we clusion be for a moment put aside, it is far know, ever given. If the libellants had in- from clear that other conditions contained tended their personal baggage to fall with- in the ticket would not, from another point in the provisions of the Harter act, they of view, lead to the same result. In addicould have accomplished it, as provided in tion to the exaction with which the right the ticket itself, by declaring the value of to state an excess of value over 250 francs the baggage over 250 francs, paying freight was burdened, the ticket contains a provion the excess, and getting a bill of lading." sion to the effect that, whatever be the value The passenger, then, was subjected to the of the baggage, under no circumstances will inevitable alternative of having no recourse the carrier be liable for the neglect of him

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self or his servants. Giving effect, then, I not encumbered with the illegal and arbito all the provisions of the ticket, it may be trary conditions which are here presented. doubted whether it does not result from We express no opinion on such question. them that not only was the baggage, when Manifestly, what is a reasonable maximum valued at 250 francs, but also when valued amount when a larger value is allowed to be at any increased amount, subjected to any carried as baggage by paying an additional and every risk arising from the negeligence compensation is a different question from of the carrier or his servants. what is a reasonable amount where the right to declare and pay for a larger sum is refused, or, what is equivalent thereto, is permitted only upon condition that the passenger subjects himself to conditions which are void as against public policy. Indeed, the circuit court of appeals adverted, in its opinion in this case, to the suggestion made in The Majestic, and said that the limit of 250 francs was reasonable because of the right given the passenger to increase the amount by paying a larger but reasonable compensation. As we hold that no such right was allowed because its enjoyment was burdened with conditions which were void because against public policy, the only reason upon which the justness of the limit was sustained ceases to apply.

It remains only to consider whether, although the conditions found in the ticket be void because against public policy, recovery for the baggage lost must be limited to the sum of 250 francs because of the statement of that amount in one of the provisions of the ticket. It is to be doubted whether in reason it can be said that the limit as fixed in the ticket can be separated from the context in which it is found, and be deemed to be an independent valuation fixed by the parties, irrespective of the right to name an increased sum stated in the same provision of the ticket which contains the valuation. But if it can be treated as a separate valuation, unaccompanied by the conditions attached to it, and from which it takes its

fore unnecessary to decide whether the ticket delivered and received under circumstances disclosed by the record gave rise to a contract embracing the exceptions to the carrier's liability which were stated on the ticket. We intimate no opinion on the subject.

origin, then the question is this: Is it just In view of the nature and duration of the and reasonable for a transatlantic carrier voyage, of the circumstances which may be to put an absolute limit of 250 francs, about reasonably deemed to environ transatlantic the equivalent of $50, as the value of the cabin passengers, and the objects and purbaggage of a cabin passenger, whether first poses which it may also be justly assumed or second class, and to refuse, except upon the persons who undertake such a voyage illegal conditions, to allow any greater sum have in view, we think the arbitrary limito be carried as baggage? In The Majestic, tation of 250 francs to each passenger, un166 U. S. 378, 41 L. ed. 1040, 17 Sup. Ct. accompanied by any right to increase the Rep. 597, the liability of the ship for bag- amount by an adequate and reasonable progage was under consideration. No conten-portional payment, was void. It is theretion was made that the ticket was not a contract, but the question was whether the conditions printed on the back were a part of the assumed contract, and, if so, were they valid. One of the conditions limited recovery to £10 for each passenger, unless a greater sum was declared and paid for. The right to declare the larger value was not burdened with the illegal condition found in the ticket now under consideration. Had it been otherwise, the requirement would not have had the same significance, as the ticket considered in The Majestic was issued prior to the adoption of the Harter act, and therefore, whether the baggage was carried as such or as cargo, it would have equally enjoyed an immunity from loss brought about by the negligence of the car: JOHN SCHRIMPSCHER et al., Plffs. in rier or his servants. The ticket considered in The Majestic, as does the one now before us, allowed a capacity of "20 cubical feet of luggage for each person." The court in The Majestic, commenting on the restriction to £10 for each passenger, said it was a (p. 386, L. ed. p. 1043, Sup. Ct. Rep. p. 602) "limitation which, we must say, does not strike us as exactly reasonable, in view of the '20 cubical feet of luggage which the company had expressly contracted to carry.'

It was decided in The Majestic that, even on the hypotheses of a contract evidenced by the ticket, the conditions on the back were not binding. The present case does not require us to decide whether the sum of 250 francs would be a reasonable limit if the right to fix a larger amount was

The decree below must be reversed, and the cause remanded to the District Court, with directions to ascertain the actual damage sustained by the libellants, and to enter a decree in their favor for the amount of such damages, with interest and costs. And it is so ordered.

Err.,

v.

(183 U. S. 290)

JOHN S. STOCKTON et al.

of

Ejectment-limitation actions-land patented to incompetent Indian—color of title.

1.

The heirs of a Wyandotte Indian to whom, as an incompetent, was allotted a tract of land, under the treaty of January 31, 1855, between the United States and the Wyandotte to Indians, are bound Institute ejectment against those claiming to hold such land adversely under a grant from such incompetent within the period specified by the statute of limitations, after the date of ratification of the treaty of February 23, 1867, removing all restrictions upon sales of lands patented to

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Incompetent Wyandottes which should thereafter be made.

2. Conceding that so long as Indians maintain their tribal relations they are not chargeable

and that such Indians shall be deemed to be

To these answers plaintiffs filed a reply to the effect that the ancestor of the plaintiffs, from whom they derived title by de scent, was an incompetent Indian, and classed as such under the treaty between the United States and the Wyandotte tribe of Indians, concluded January 31, 1855, and, as such incompetent, was prohibited from alienating any of the lands in controversy, except only the power to lease the same for the term of two years; that defendants and those under whom they claim were bound by the same prohibition, and could have acquired nothing further than such leasehold

with laches or failure to assert their claims within the time prescribed by statute, they lose such immunity when their relations with their tribe are dissolved by accepting allotments of land in severalty under a treaty which provides that the organization and relation of such Indians with the United States as an Indian tribe shall be dissolved and terminated on the ratification of such treaty, citizens of the United States, and entitled to all rights, privileges, and immunities as such. 8. A deed executed by an Indian patentee un-interest in the land; that defendants occuder the treaty of January 31, 1855, between the United States and the Wyandotte Indians, valid upon its face, in which the grantor cov enanted that he was seised in fee simple, had good right to sell the same, that it was free from encumbrance, and that he would warrant and defend the title unto the grantees against the claims of all persons,-constitutes color of title in the grantees, who paid value therefor and had no notice of any defect in the title of their grantor, although the patentee was classed as an incompetent under such treaty, and took under a patent which provided that the land should never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior.

pied such lands in subordination to the rights of plaintiffs' ancestor, and that no notice had ever been brought home to plaintiffs of an adverse claim by defendants.

A jury having been waived and the case submitted to the court, judgment was rendered for the defendants. An appeal was taken to the supreme court of the state, which affirmed the judgment of the lower court. 58 Kan. 758, 51 Pac. 276. Whereupon plaintiffs sued out a writ of error from this court.

*Messrs. William M. Springer, James M. Mason, and Charles H. Nearing for plaintiffs in error.

No brief was filed for defendants in error.

Mr. Justice Brown delivered the opinion of the court:

4. The failure of the Secretary of the Interior to confirm or avoid a sale of land by an incompetent Indian in violation of the treaty of January 31, 1855, between the United States and the Wyandotte Indians, does not prevent the statute of limitations from be ginning to run against the right of his heirs This case turns upon the proper conto maintain ejectment against his grantees at struction of article XV. of a treaty with a the date of ratification of the treaty of Feb-number of tribes of Indians, including "cerruary 23, 1867, removing all restrictions upon tain Wyandottes," concluded February 23, sales of land patented to incompetent Wyan- 1867, and proclaimed October 14, 1868. 15 Stat. at L. 513, 517.

dottes which should thereafter be made, and authorizing the Secretary of the Interlor to investigate and confirm or avoid such sales theretofore made.

[No. 19.] Argued November 22, 1901. Decided

uary 6, 1902.

The facts of the case are substantially as follows:

On January 31, 1855 (10 Stat. at L. 1159), the United States entered into a Jan-treaty with the Wyandotte Indians, by the second article of which they ceded to the United States certain lands purchased by

them of the Delawares, the object of which cession was that "the said lands shall be subdivided, assigned, and reconveyed by a patent, in fee simple, in the manner hereAfinafter provided for, to the individuals and

IN ERROR to the Supreme Court of the State of Kansas to review a judgment affirming a judgment for plaintiff in an action of ejectment in the Court of Common Pleas of Wyandotte County, Kansas. firmed.

See sane case below, 58 Kan. 758, 51

276.

members of the Wyandotte Nation, in severPac.alty." By the third article provision was

made for a survey of the lands, the appointment of commissioners to divide the lands among the individuals of the tribe, and to make up lists of all the individuals and members of the tribe, "which lists shall exhibit, separately, first those families, the

Statement by Mr. Justice Brown: This was an action of ejectment brought in the court of common pleas of Wyandotte county, Kansas, by John Schrimpscher and about forty others, heirs of one Carey Rod-heads of which the commissioners, after due gers, deceased, a Wyandotte Indian, against John S. Stockton and ten others, to recover a tract of land which had been allotted to certain Wyandotte Indians under the treaty of 1855.

Answers were filed by three of the defendants, containing general denials of the allegations of the petition, and pleas both of a three-year and a fifteen-year state statute of limitations.

inquiry and consideration, shall be satisfied are sufficiently intelligent, competent, and prudent to control and manage their affairs and interests, and also all persons without families; second, those families, the heads of which are not competent and proper persons to be intrusted with their shares of the money payable under this agreement; and, third, those who are orphans, idiots, or insane." Article four provided for the is

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sue of unconditional patents in fee simple Carey Rodgers thus became possessed of to those reported by the commissioners to be two tracts of land, one of 64 acres as the competent to be intrusted with the control heir at law of his grandmother Margaret and management of their affairs and inter- C. Cherloe, and the other of 57 acres as a ests; "but to those not so competent the personal allotment to himself. As plaintiffs patents shall contain an express condition state that a settlment of the case has been that the lands are not to be sold or alien- made so far as relates to the Cherloe tract, ated for a period of five years; and not then, we shall dismiss that tract from our opinwithout the express consent of the Presi-ion. The deed of Carey Rodgers's own aldent of the United States first being ob- lotment of November 15, 1864, was clearly tained," etc. void, since as to this contract, at least, he was incompetent, and took under a patent which provided that the land should never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior. If the case stood upon defendants' rights under this deed alone, there could be no doubt whatever that Rodgers's heirs were entitled to the land.

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ing of the parties the Secretary may con- | with their tribe were dissolved by accepting firm such sales, require an additional allotments of lands in severalty. Now, the amount to be paid, or declare the sales void. very first article of the treaty of 1855 proNo action was ever taken under the 3d vides: "Art. 1. The Wyandotte Indians clause to procure a confirmation by the Sec- having become sufficiently advanced in civilretary of the Interior of the deed by Rod-ization, and being desirous of becoming citigers of November 15, 1864, so that, at the zens, it is hereby agreed and stipulated that time the treaty of 1868 was ratified, the their organization and their relations with possession of the lands was in the defend- the United States, as an Indian tribe, shall ants or their grantors holding adversely to be dissolved and terminated on the ratificathe heirs of Rodgers, but the title still re- tion of this agreement; except so far as mained in such heirs by reason of the fact the further and temporary continuance of that his deed to Cooper and Stockton was the same may be necessary in the execution void, and no proceeding had been taken un- of some of the stipulations herein; and from der the 3d clause of article XV. to confirm and after the date of such ratification,*the or validate it. But although the treaty of said Wyandotte Indians, and each and every 1855 and the patent to Rodgers had express- of them, except as hereinafter provided, ly provided that there should be no aliena-shall be deemed and are hereby declared to tion by the grantee or his heirs, the treaty be citizens of the United States, to all inof 1868, which took effect after his death, removed all restrictions upon alienations which should thereafter be made, either by the incompetent grantee Rodgers or his heirs, who thereafter held an alienable title, and were bound to assert such title within the time specified by the statute of limi-and the jurisdiction of the United States tations, although no title could be gained by adverse possession so long as the land continued to be inalienable by Rodgers and his heirs. McGannon v. Straightlege, 32 Kan. 524, 4 Pac. 1042; Sheldon v. Donohoe, 40 Kan. 346, 19 Pac. 901.

tents and purposes; and shall be entitled to all the rights, privileges, and immunities of such citizens; and shall in all respects be subject to the laws of the United States and of the territory of Kansas, in the same manner as other citizens of said territory;

and of said territory shall be extended over the Wyandotte country in the same manner as over other parts of said territory." There was an immaterial exception not necessary to be noticed here.

It seems, however, that this provision did Their disability terminated with the not prove entirely satisfactory to some of ratification of the treaty of 1868. The the Indians, who regretted their emancipaheirs might then have executed a valid deedtion and the loss of the protection of the of the land, and possessing, as they did, an government; and in the treaty of 1868 unincumbered title in fee simple, they were there was incorporated in the preamble a chargeable with the same diligence in begin- recital that "a portion of the Wyandottes, ning an action for their recovery as other parties to the treaty of 1855, although takpersons having title to lands; in other ing lands in severalty, have sold said lands, words, they were bound to assert their and are still poor, and have not been comclaims within the period limited by law.pelled to become citizens, but have remained This they did not do under any view of the statute (whether the limitation be three or fifteen years), since it began to run at the date of the treaty, 1868, and the action was not brought until 1894, a period of over twenty years.

without clearly recognized organization, while others who did become citizens are unfitted for the responsibilities of citizenship; and . . have just claims against the government, which will enable the portion of their people herein referred to to begin anew a tribal existence;" therefore it was agreed by article thirteen that the United States would set apart for the Wyandottes certain land ceded by the Senecas, in order to provide for these Indians, and would make a register of all who declared their desire to be and remain Indians in a tribal condition, who should thereafter constitute the tribe.

Plaintiffs, however, seek to avoid the effect of the statute by insisting, first, that statutes of limitations do not run against Indians; second, that defendants were not in possession under color of title, and therefore the statute is not available to them; third, that no title by limitation could be acquired as against the right of the Secretary of the Interior to investigate and declare the conveyance in question to be void, It is sufficient to say of this that it could and hence the statute would not begin to not apply to Carey Rodgers personally, since run until after such action by the Secretary. he died before the treaty was ratified; and 1. Conceding, but without deciding, that there is no evidence that his heirs ever so long as Indians maintain their tribal re-elected to resume their tribal relations and lations they are not chargeable with laches or failure to assert their claims within the time prescribed by statutes, as to which see Felix v. Patrick, 145 U. S. 317, 330, 36 L. ed. 719, 725, 12 Sup. Ct. Rep. 862, 36 Fed. 457, 461; Swartzel v. Rogers, 3 Kan. 374; Blue Jacket v. Johnson County, 3 Kan. 299; Wiley v. Keokuk, 6 Kan. 94; Ingraham v. Ward, 56 Kan. 550, 44 Pac. 14, they would lose this immunity when their relations

to become again members of the incompetent class. As article XV. removed all restrictions upon the sale of lands by incompetents if the heirs of Carey Rodgers took the position that the article did not apply to them, they assumed the burden of proving that fact.

2. Plaintiffs' assertion that defendants were not in possession under color of title is untenable. They had taken possession un