This action was instituted by plaintiffs, as heirs at law of José and Pablo Apis, against the United States, under a special act of congress approved January 28, 1879, as follows:

The petition was filed July 22, 1884, and the case transferred from the Northern to the Southern district of California, February 24,1896. Plaintiffs5 claim rests upon a Mexican grant, made November 7, 1845, by Pio Pico, governor of California. The genuineness and due execution of the grant are satisfactorily established. The grant on its face shows, among other things, that Indians were established on, and occupying, some of the lands at the date of the grant, and provides that the grant is made without prejudice to such Indians. Plaintiffs have not shown, nor undertaken to show, that Indians are not now in the occupancy of some of the lands; nor have they shown, nor undertaken to show, what particular lands Indians do occupy. The evidence, however,' does show affirmatively that one, at least, of the Indians who were upon said lands at the date of the grant to plaintiffs, were occupying them as late as two or three years ago; and the map introduced by plaintiffs also shows an Indian village on said lands. That Indians were in possession of some of these lands in 1845 appears, as already stated, on the face of the expediente itself. In his report upon the petition of the claimants, Arguello, the prefect, states that the land is “occupied with some small summer crops and a few fruit trees that they have there in their style some natives, for which reason, if the petitioners will engage themselves not to molest them, there is no obstacle against granting their petition.55 The concession of Gov. Pico declares “that the grantees shall not molest the Indians that will have previously established their residence there, and occupied some small tracts of land.55 And the formal grant declares: “But they shall not in any manner molest the Indians who are at present established in it, and occupy some lands that they can go on cultivating and possessing notwithstanding this grant.55

One of plaintiffs5 witnesses, H. G. Stephens, testified that some of the sections claimed by plaintiffs, and which the witness specified, were included within an Indian reservation, created by an executive *933 order, December 27, 1875. That order, so far as material here, was as follows:

Although said order was not introduced in evidence, the court takes judicial notice of it. Jenkins v. Collard, 145 U. S. 546 , 12 Sup. Ct. 868; Jones v. U. S., 137 U. S. 202 , 11 Sup. Ct. 80; Caha v. U. S., 152 U. S. 211 , 14 Sup. Ct. 513; Code Civ. Proc. Cal. § 1875, subd. 3. Of the sections reserved by that part of the order above quoted, sections 16 and 23, and parts of sections 17, 21, 22, 25, 26, 27, 34, and 35, are included in the lands claimed by plaintiffs.

On January 12,1891, congress passed an act entitled “An act for the relief of the Mission Indians in the state of California” ( 26 Stat. 712 ), which contains, among others, the following provisions-:

On December 29, 1891, by executive order, and pursuant to the aforesaid act of congress of January 12,1891, all the sections embraced in the executive order of December 27, 1875, except section 16, were reserved for Mission Indians. These sections, as already stated, are parts of the land claimed by plaintiffs.

On the 13 th day of September, 1892, the following patent was issued:

This document, like the executive order of December 27, 1875, is a matter of which the court takes judicial notice. The lands described in said document are embraced in the executive orders before mentioned.

Besides the brief filed by the United States district attorney on behalf of the government, Messrs. Shirley 0. Ward and Frank D. Lewis, as amici curia;, have also submitted a brief in the case. Among the grounds of opposition to plaintiffs’ claim urged in these briefs are the following: First, that the government, by the act of congress of January 12, 1891, and (he patent issued pursuant, thereto, granting to the Mission Indians a large portion of the lands claimed by plaintiffs, withdrew the lands so granted from the operation of the act of January 28, 1879, which authorized the institution of this action by plaintiffs; second, that plaintiff's have not only failed to show affirmatively that at the time of the passage of the act last aforesaid, January 28, 1879, there were no adverse valid claims to any of the lands now in controversy, but, on the contrary, they have shown that Indians were at said date in possession of portions of said lands, with valid claims thereto, under the laws of the United States, and that plaintiffs did not “before filing their claim and title,” which was the institution of this action, execute releases to said Indians for the portions of said lands so held by them; third, that plain (ills’ claim is barred by various statutes of limitation; fourth, that, since the institution of thin action, plaintiffs have been guilty of such laches as precludes them from a recovery.

If the act of January 12, 1891, and patent issued pursuant thereto, were valid, they, of course, withdrew the lands described in (he patent from (he operation of the act of January 28, 1879. Plaintiffs, however, assail the validity of (he act of 1891, on the ground that congress had no power to make any disposition of said lands, contrary to the provisions of the act of 1879, during the pendency of proceedings authorized by the last-named act; citing Doolan v. Carr, 125 U. S. 618 , 8 Sup. Ct. 1228; Newhall v. Sanger, 92 U. S. 761 ; and U. S. v. McLaughlin, 127 U. S. 428 , 8 Sup. Ct. 1177. These cases do not support the contention to which they are invoked. In Doolan v. Carr, supra, there was no denial by the court of power in congress to dispose of land embraced within a Mexican claim, under judicial consideration; but the court simply held that such land was not “public land,” within *936 the meaning of the acts of congress making grants to railroads, and was reserved from the granting clause of those statutes. The same is true of the other two cases last above cited, namely, Newhall v. Sanger, and U. S. v. McLaughlin. In the last-mentioned case, the court, referring to the opinion in Newhall v. Sanger, say:

I remark, in passing, that the reference in the above excerpt to treaty obligations has no application to the case at bar, because whatever rights plaintiffs may have originally had under the treaty lapsed long before the passage of the act of 1879.

Recurring to the main question, I repeat that none of the cases cited by plaintiffs deny to congress power of disposition over lands embraced within the boundaries of an unconfirmed Mexican grant, while the supreme court has repeatedly asserted that a clear exercise of the power cannot be restrained or interfered with by the judiciary. Grisar v. McDowell, 6 Wall. 363 ; Whitney v. Robertson, 124 U. S. 190 , 8 Sup. Ct. 456; and Botiller v. Dominguez, 130 U. S. 238 , 9 Sup. Ct. 525.

In Grisar v. McDowell, supra, the court says:

In Whitney v. Robertson, supra, the court says:

In Botiller v. Dominguez, supra, the court says:

It should be remembered, however, that the power of congress i.o dispose of lands embraced within, a Mexican claim, while under judicial investigation, pursuant to the general law of March H, 1851, and protected by treaty stipulation, is not involved in the case at bar. The permission accorded plaintiffs, by the act of 1879, to present their claim for confirmation or rejection, was a gratuity on the part of the United States, revocable at any time before final decree in the proceeding thus authorized.

Plaintiffs further contend that the act of 3879, allowing them to present to this court, for confirmation or rejection, their claim io *938 La Jolla, is a special act, relating only to their title, and hence not affected by the later act of 1891, which provides generally for allotment of lands to Mission Indians, citing Ex parte Crow Dog, 109 U. S. 570 , 3 Sup. Ct. 396; and, further, that, by the act of 1879, La Jolla was appropriated to a particular purpose, and is not within the scope of any subsequent grant by congress, which does not expressly include it, citing Iron Co. v. Cunningham, 155 U. S. 373 , 15 Sup. Ct. 103.

It is true that said act does not mention “La Jolla,” by name, but it does direct the commissioners to include, as far as practicable, in the contemplated reservation, such lands as had been in the actual possession of the Indians for whom the reservation was to be created. Now, since the commissioners, who are presumed to have done their duty, — i. e. to have followed the directions of the statute under which they were acting, — included a part of La Jolla in the reservation selected by them, it follows, nothing being shown to the contrary, that the Indians had been in the actual possession of the part so selected,— and therefore it was among the lands intended by congress for the proposed reservation. This conclusion is strengthened by the fact that the only lands which the commissioners were not to select are specified in the proviso to section 3 of said act, as follows:

The appraisal provided for in the preceding section is as follows:

If it be conceded that the act of 1879 was a law “providing for the disposition of the public domain,” still, since the privilege accorded plaintiffs by said act was not contractual, as already indicated, it can hardly be contended that any valid rights have yet attached in favor of plaintiffs to La Jolla, or can attach before a final decree of confirmation. Furthermore, it should be observed, in construing the act of 1891, that the cases cited by plaintiffs, and hereinbefore noticed, of Doolan v. Carr, Newhall v. Sanger, and U. S. v. McLaughlin, are inapplicable, for the reason that the words “public lands,” which were determinative in said cases, are not employed in the act of 1891 to designate the lands from which the reservations were to be selected.

For the foregoing reasons, I think that plaintiffs’ claim, so far as concerns the lands which have been granted to the Mission Indians pursuant to the act of January 12, 1891, must be rejected. There are other reasons, equally as satisfactory, why there should not be a decree of confirmation as to any of the lands embraced in plaintiffs’ claim.

The act of January 28, 1879, devolves upon the court a peculiar duty. The genuineness and due execution of the grant are not the only matters submitted to the court’s decision. Congress, while recognizing *939 the possibility that there were adverse claims, did not ascertain and except from the operation of the act such adverse claims, but devolved that duty upon the court, and, as shown by the provisos of said act, ivas unusually careful to protect all valid claims arising under any laws of the United States. Said provisos require — First, that no lands shall be confirmed to said claimants to which there are valid claims existing under any law of the United States at the date of the passage of the act; second, that a decree of confirmation shall not affect any valid adverse right of any other person or persons, thus leaving open for further consideration the question of the existence of adverse rights, even 'though the land should be confirmed to the claimants; third, that claimants, before filing their claim and title, shall execute releases to any persons who may be in possession of any portion of said lands, under valid claims, and that, before rendering a decree of confirmation, the court shall ascertain that said releases have been duly executed. This duty the court can discharge only by holding that it is incumbent on plaintiffs to show affirmatively that, at the date of the act, no person was in possession of any part of the land in controversy, under a valid claim under any law of the United States, or, if any person was so in possession, that, before filing their claim and title, plaintiffs released to such person the land so possessed by him. This plaintiffs have failed to do. On the contrary, their evidence shows that, of the Indians who were upon the land in 1845, there was at least one of them occupying the lands as late as two or three years ago. A map introduced in evidence by plaintiffs also shows that there is on a part of the lands in controversy an Indian village. Since the original grant to plaintiffs itself shows that there were residing on these lands at the date of the grant, in 1845, certain Indians, it is not unreasonable to assume, in the absence of proof to the contrary, that the present inhabitants of said Indian village are descendants of the Indians referred to in said grant. This assumption is strengthened by the facts that the act of January 12, 1891, provided that the reservation to be selected by the commissioners for any band of Mission Indians should include, as far as practicable, the lands and villages which had been in the actual occupation of said Indians; and the reservation so selected and patented does include a large part of the lands in controversy. Besides, if the Indians who now inhabit said village are without possessory or other rights, because of their not being descendants of the Indians who occupied said lands in 1845, this is one of the matters which plaintiffs, by the act of 1879, are required to show as a prerequisite to any decree of confirmation.

That the Indians who were thus occupying the land in 1845, and their descendants, then had, and now have, valid rights, has been settled by the supreme court of California (Byrne v. Alas, 74 Cal. 628 , 16 Pac. 523 ); and this interpretation of the law is binding upon the federal courts (Christy v. Pridgeon, 4 Wall. 196 ). In Byrne v. Alas, supra, it is true that the rights of the Indians were preserved under the patent which was issued on the decree of confirmation. In the case at bar, it is argued by plaintiffs that, since there has been no decree of confirmation nor patent, the rights of the Indians have *940 lapsed, and that the act of congress of 1879, under which plaintiffs are now proceeding, gives permission only to José and Pablo Apis, and their representatives, to file their claim to the property in controversy. This argument of plaintiffs leaves out of view the executive order of December '27, 1875, which the president was authorized to make (Grisar v. McDowell, 6 Wall. 363, 382 ), reserving to the Mission Indians certain parts of the land in controversy. When the executive order of December 27,1875, was issued, the lands in question were a part of the public domain. Section 13 of the act of March 3, 1851, provides:

If, therefore, it be conceded that the possessory rights of the Indians lapsed with plaintiffs’ original grant, because said grant was not presented to the commissioners under the act of March 3, 1851, still the executive order above mentioned gave, or, in effect, restored to, said Indians their rights of permanent use and occupancy.

Plaintiffs further insist that these possessory rights are not “valid claims,” within the meaning of the act of January 28, 1879, for the reason that the reservation created by said executive order was the property of the government solely, and, if the object of the proviso to said act had been the protection of the rights of the government, different phraseology would have been employed. In this view I cannot concur. While the government undoubtedly was interested in the reservation created by said executive order, the substance of that order was a dedication to the Indians of the lands therein described. Leavenworth, L. & G. R. Co. v. U. S., 92 U. S. 733 . Nor was this use of •the land “a temporary use,” as urged by plaintiffs. On the contrary, it was declared to be, and has since in fact become, a permanent use, through the operation of the subsequent act of January 12, 1891 ( 26 Stat. 712 ), and the grant of September 13, 1892, made pursuant to said act.

In the case of Railroad Co. v. Roberts, 152 U. S. 117 , 14 Sup. Ct. 498, cited by plaintiffs, the court uses this language:

Again, the supreme court has said: •

Plaintiffs further claim that the reservation of 1875 was not contractual, and that congress had the power to subject the lands embraced within said reservation to the operation of the act of 1879, under the constitutional provision: “Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” Const. U. S. art. 4, § 3, subd. 2. Conceding that congress possessed • the power here asserted, still, as I have already shown, the power has not been exercised. Plaintiffs have not only failed to show that no part of the lands they claim were possessed by persons having valid claims thereto under the laws of the United States on January 28, 1.879, but, on the contrary, have shown that at said date there were Indians occupying portions of said lands, under valid claims, and no releases of said lands to said Indians have been made by plaintiffs. The act of 1879 expressly provides, as already shown, that such releases shall be executed before plaintiffs file their claim and title, and further requires the court, before rendering any decree of confirmation, to ascertain that said releases have been duly executed. This requirement not having been complied with, plaintiffs’ claim must be rejected.

The foregoing views render unnecessary further mention of the other grounds upon which said claim is resisted. A decree conformable to this opinion will be entered.