193 U.S. 127 (1904)
DELAWARE INDIANS
v.
CHEROKEE NATION.
No. 240.
Supreme Court of United States.
Argued December 1, 2, 1903.
Decided February 23, 1904.
APPEAL FROM THE COURT OF CLAIMS.
*128 Mr. Walter S. Logan, with whom Mr. Charles M. Demond was on the brief, for appellants.
Mr. John J. Hemphill and Mr. William T. Hutchings for respondents.
MR. JUSTICE DAY delivered the opinion of the court.
On June 28, 1898, the Congress of the United States passed an act entitled "An act for the protection of the people of the Indian Territory and other purposes." 30 Stat. 495. By the twenty-fifth section of the act it is provided:
"That before any allotment shall be made of lands in the Cherokee Nation, there shall be segregated therefrom by the commission heretofore mentioned, in separate allotments or otherwise, the one hundred and fifty-seven thousand six hundred acres purchased by the Delaware tribe of Indians from the Cherokee Nation under agreement of April eighth, eighteen hundred and sixty-seven, subject to the judicial determination of the rights of said descendants and the Cherokee Nation under said agreement. That the Delaware Indians residing in the Cherokee Nation are hereby authorized and empowered to *129 bring suit in the Court of Claims of the United States, within sixty days after the passage of this act, against the Cherokee Nation, for the purpose of determining the rights of said Delaware Indians in and to the lands and funds of said nation under their contract and agreement with the Cherokee Nation dated April eighth, eighteen hundred and sixty-seven; or the Cherokee Nation may bring a like suit against said Delaware Indians; and jurisdiction is conferred on said court to adjudicate and fully determine the same, with right of appeal to either party to the Supreme Court of the United States."
Under this section the present suit was prosecuted in the Court of Claims by the Delaware Indians residing in the Cherokee Nation, as a tribe and individually, joined by certain others suing for the surviving registered Delawares, their children, descendants and personal representatives, against the Cherokee Nation, for the purpose of determining the right of the Delaware Indians "in and to the lands and funds of said nation" under the contract and agreement with the Cherokee Nation dated April 8, 1867. This contract sets forth:
"Now, therefore, it is agreed between the parties hereto, subject to the approval of the President of the United States, as follows:
"The Cherokees, parties of the first part, for and in consideration of certain payments and the fulfillment of certain conditions hereinafter mentioned, agree to sell to the Delawares for their occupancy, a quantity of land east of the line of the 96° west longitude, in the aggregate equal to one hundred and sixty acres for each individual of the Delaware tribe, who has been enrolled upon a certain register made February 18, 1867, by the Delaware agent, and on file in the Office of Indian Affairs, being the list of Delawares who elect to remove to the `Indian country,' to which list may be added, only with the consent of the Delaware council, the names of such other Delawares as may, within one month after signing of this agreement, desire to be added thereto, and the selections of the lands to be purchased by the Delawares may be made by said Delawares in *130 any part of the Cherokee reservation east of said line 96° not already selected and in possession of other parties, and in case the Cherokee lands shall hereafter be allotted among the members of said nation, it is agreed that the aggregate amount of land herein provided for the Delawares to include their improvements according to the legal subdivisions when surveys are made (that is to say, one hundred and sixty acres for each individual), shall be guaranteed to each Delaware incorporated by these articles into the Cherokee Nation, nor shall the continued ownership and occupancy of said land by any Delaware so registered be interfered with in any manner whatever without his consent, but shall be subject to the same conditions and restrictions as are by the laws of the Cherokee Nation imposed upon native citizens thereof.
"Provided that nothing herein shall confer the right to alienate, convey or dispose of any such lands except in accordance with the constitution and laws of said Cherokee Nation.
"And the said Delawares, parties of the second part, agree that there shall be paid to the said Cherokees from the Delaware funds now held or hereafter received by the United States, a sum of money equal to one dollar per acre for the whole amount of one hundred and sixty acres of land for every individual Delaware who has already been registered upon the aforesaid list, made February 18, 1867, with the additions thereto heretofore provided for.
"And the Secretary of the Interior is authorized and requested to sell any United States stocks belonging to the Delawares to procure funds necessary to pay for said lands; but in case he shall not feel authorized, under existing treaties, to sell such bonds belonging to the Delawares, it is agreed that he may transfer such United States bonds to the Cherokee Nation, at their market value, at the date of such transfer.
"And the said Delawares further agree that there shall be paid from their funds now or hereafter to come into possession of the United States a sum of money which shall sustain the same proportion to the existing Cherokee national fund that *131 the number of Delawares registered as above mentioned and removing to the Indian country sustains to the whole number of Cherokees residing in the Cherokee Nation. And for the purpose of ascertaining such relative numbers the registers of the Delawares herein referred to, with such additions as may be made within one month from the signing of this agreement, shall be the basis of calculation as to the Delawares, and an accurate census of the Cherokees residing in the Cherokee Nation shall be taken under the laws of that nation within four months, and properly certified copies thereof filed in the Office of Indian Affairs, which shall be the basis of calculation as to the Cherokees.
"And that there may be no doubt hereafter as to the amount to be contributed to the Cherokee national fund by the Delawares, it is hereby agreed by the parties hereto that the whole amount of the invested funds of the Cherokees, after deducting all just claims thereon, is $678,000.
"And the Delawares further agree that in calculating the total amount of said national fund there shall be added to the said sum of $678,000 the sum of $1,000,000, being the estimated value of the Cherokee neutral lands in Kansas, thus making the whole Cherokee national fund $1,678,000; and this last mentioned sum shall be taken as the basis for calculating the amount which the Delawares are to pay into the common fund.
"Provided, that as the $678,000 of funds now on hand belonging to the Cherokees is chiefly composed of stocks of different values, the Secretary of the Interior may transfer from the Delawares to the Cherokees a proper proportion of the stocks now owned by the Delawares of like grade and value, which transfer shall be in part of the pro rata contribution herein provided for by the Delawares to the funds of the Cherokee Nation; but the balance of the pro rata contribution by the Delawares to said fund shall be in cash or United States bonds, at their market value.
"All cash, and all proceeds of stocks, whenever the same may fall due or be sold, received by the Cherokees from the *132 Delawares under the agreement, shall be invested and applied in accordance with the twenty-third article of the treaty with the Cherokees of August 11, 1866.
"On the fulfillment by the Delawares of the foregoing stipulations, all the members of the tribe registered as above provided, shall become members of the Cherokee Nation, with the same rights and immunities, and the same participation (and no other) in the national funds, as native Cherokees, save as hereinbefore provided.
"And the children hereinafter born of such Delawares so incorporated into the Cherokee Nation shall, in all respects, be regarded as native Cherokees."
The treaties which led up to this agreement are referred to in the contract and were ratified in 1866. The fifteenth article of the treaty of August 11, 1866, between the United States and the Cherokee Nation provided:
"Article XV. The United States may settle any civilized Indians, friendly with the Cherokees and adjacent tribes, within the Cherokee country, on unoccupied lands east of 96 degrees, on such terms as may be agreed upon by any such tribe and the Cherokees, subject to the approval of the President of the United States, which shall be consistent with the following provisions, viz: Should any such tribe or band of Indians settling in said country abandon their tribal organization, there being first paid into the Cherokee national fund a sum of money which shall sustain the same proportion to the then existing national fund that the number of Indians sustain to the whole number of Cherokees then residing in the Cherokee country, they shall be incorporated into and ever after remain a part of, the Cherokee Nation, on equal terms in every respect with native citizens. And should any such tribe, thus settling in said country, decide to preserve their tribal organizations, and to maintain their tribal laws, customs, and usages, not inconsistent with the constitution and laws of the Cherokee Nation, they shall have a district of country set off for their use by metes and bounds equal to one hundred and sixty acres, *133 if they should so decide, for each man, woman, and child of said tribe, and shall pay for the same into the national fund such price as may be agreed on by them and the Cherokee Nation, subject to the approval of the President of the United States, and in cases of disagreement the price to be fixed by the President.
"And the said tribe thus settled shall also pay into the national fund a sum of money, to be agreed on by the respective parties, not greater in proportion to the whole existing national fund and the probable proceeds of the lands herein ceded or authorized to be ceded or sold than their numbers bear to the whole number of Cherokees then residing in said country, and thence afterwards they shall enjoy all the rights of native Cherokees. But no Indians who have no tribal organizations, or shall determine to abandon their tribal organizations, shall be permitted to settle east of the ninety-sixth degree of longitude without the consent of the Cherokee national council, or of a delegation duly appointed by it, being first obtained. And no Indians who have and determine to preserve their tribal organizations shall be permitted to settle, as herein provided, east of the ninety-sixth degree of longitude without such consent being first obtained, unless the President of the United States, after a full hearing of the objections offered by said council or delegation to such settlement, shall determine that the objections are insufficient, in which case he may authorize the settlement of such tribe east of the ninety-sixth degree of longitude."
Article IV of the Delaware treaty, referred to in the agreement of April 8, 1867, is in the following terms:
"Article IV. The United States agree to sell to the said Delaware Indians a tract of land ceded to the government by the Choctaws and Chickasaws, the Creeks, or the Seminoles, or which may be ceded by the Cherokees in the Indian country, to be selected by the Delawares in one body in as compact a form as practicable, so as to contain timber, water, and agricultural lands, to contain in the aggregate, if the said Delaware *134 Indians shall so desire, a quantity equal to one hundred and sixty (160) acres for each man, woman, and child who shall remove to said country, at the price per acre paid by the United States for the said lands, to be paid for by the Delawares out of the proceeds of sales of land in Kansas, heretofore provided for. The said tract of country shall be set off with clearly and permanently marked boundaries by the United States; and also surveyed as public lands are surveyed, when the Delaware council shall so request, when the same may, in whole or in part, be allotted by said council to each member of said tribe residing in said country, said allotment being subject to the approval of the Secretary of the Interior."
At the time of moving upon these lands there were 985 registered Delawares, of whom 212 survived at the beginning of this suit, together with children and descendants of those deceased.
The agreement of April 8, 1867, was before this court in the case of the Cherokee Nation v. Journeycake, 155 U.S. 196. While the precise questions involved in the present controversy were not then before the court, the rights adjudicated turned upon the construction of the agreement of April 8, 1867, and its nature and the history of the events which led up to its execution by the parties thereto were the subjects of consideration and determination by this court. In that case it was held that under the agreement the registered Delawares were incorporated into the Cherokee Nation, and as members and citizens thereof were entitled to participate in the proceeds of the sale of a portion of the Cherokee lands upon equal terms with native Cherokee citizens. The claim is made that the contract of 1867 secured to the registered Delawares individually, or to the Delawares as a tribe, the 157,000 acres of land which were to be set off to them east of the ninety-sixth meridian. This agreement was made and entered into in pursuance of the treaty stipulations hereinbefore referred to. And while it may be regarded as arising from these preliminary treaties with the United States, the care with which it was *135 made and the evident intention of the parties to deal at arm's length with full knowledge of their respective rights and aims, leaves little to be gained from these preliminary treaties as an aid to construction, except as a means of placing ourselves in the situation of the parties when the contract was signed and delivered. It is the claim in behalf of the Delawares that if not technically an estate in fee, one was conveyed permanent in its character and transmissible by descent to the children and kin of the registered Delawares, or at least it was a holding which should endure so long as the Delawares and their descendants continued to exist as a tribe.
It was held in the Journeycake case to be the purpose of this agreement to incorporate the registered Delawares into the Cherokee Nation, with full participation in the political and property rights of citizens of that nation. As a part of the general agreement, provision is made for rights in certain lands as a home for the Delawares who are to remove from their Kansas lands to the Indian Territory. These lands are to pass to registered Delawares and they are to have the privilege of selecting them from unoccupied lands east of the line 96 degrees west longitude. This right is conferred not upon the Delaware Nation, but upon certain registered Delawares who are to be incorporated into the Cherokee Nation. To such is given a quantity of land equal in the aggregate to 160 acres for each registered Delaware, whose name is required to be entered upon a register to be filed in the Office of Indian Affairs, the lands thus conveyed being distinctly declared to be sold to the Delawares "for their occupancy." This limitation, in what may be characterized as the habendum clause of the conveyance, does not import a holding beyond the life of the first taker, and is entirely inconsistent with the idea of permanency of tenure in the estate conveyed unless there is something in the nature of Indian titles to lands or in the terms of the instrument which requires an enlargement of an estate for occupancy into one the equivalent of a fee. It is argued that an estate of occupancy is the ordinary estate of the Indian tribes and *136 embraces all the title held by them, the fee remaining in the United States. There is nothing to prevent the United States if it chooses to convey a fee to the Indian tribes from so doing.
Indeed, in the sixteenth clause of the treaty with the Cherokee Nation of August, 1866, it is provided that a fee may be conveyed to friendly Indians settled west of the ninety-sixth meridian. But for the present purpose, it is unnecessary to speculate as to the nature of the Indian title derived from the United States by treaty. The nature and extent of the Cherokee title has been settled by previous adjudications of this court. In the case of Cherokee Trust Funds, 117 U.S. 288, 308, it was held that the lands in the Cherokee Nation belonged to them as a political body, and not to its individual members, and speaking of the rights of individual Cherokees it was said: "He had a right to use parcels of the lands thus held by the nation, subject to such rules as its governing authority might prescribe."
The lands of the Cherokee Nation are not held in individual ownership, but are public lands, though held for the equal benefit of all the members. Stephens v. Cherokee Nation, 174 U.S. 445, 488; Cherokee Nation v. Hitchcock, 187 U.S. 294. Under the patent issued to the Cherokees for their lands, whatever title conveyed was to the Cherokees as a nation, and no title was vested in severally in any of the Cherokees. Cherokee Nation v. Journeycake, 155 U.S. 196, 207.
In an agreement incorporating certain Delawares into the Cherokee Nation it is important to consider under what terms and conditions its citizens held and used the lands occupied by them. We are here dealing with the extent of the title conveyed as between Indian tribes, and the question is what did the Cherokees convey in the agreement to the Delawares who came within the terms of the compact and who were to be incorporated into the Cherokee Nation. In addition to the limitations expressed in the conveyance, "for occupancy," we find other terms of the instrument inconsistent with the grant of a perpetual estate. It is provided that in case the Cherokee *137 lands shall hereafter be allotted among the members of said nation, the aggregate amount of land provided for the Delawares to include their improvements according to the legal subdivisions when surveys are made (that is to say, one hundred and sixty acres for each individual), shall be guaranteed to each Delaware incorporated by the articles into the Cherokee Nation. The lands which are for occupancy of the Delawares are described as "Cherokee lands," and a provision made which secures 160 acres to include their improvements to each registered Delaware in case of allotment. If the full title was intended to be transferred to the Delawares, either as a tribe or individually, this stipulation to secure the rights of the Delawares in the contingency named was entirely superfluous. Further, the contract reads: "Nor shall the ownership and occupancy of said lands by any Delawares so registered be interfered with in any manner whatsoever without his consent, but shall be subject to the same conditions and restrictions as are by the laws of the Cherokee Nation imposed upon the native citizens thereof. Provided, that nothing herein shall confer the right to alienate, convey or dispose of any such land except in accordance with the constitution and laws of said Cherokee Nation."
These stipulations, wholly inconsistent with the full title of the Delawares to the lands in question, must be read in the light of the constitution and laws of the Cherokee Nation as to the holding of land by Cherokee citizens.
The provisions of the Cherokee constitution and the statutes passed in pursuance thereof pertinent to the subject are collected in the opinion of the Court of Claims in the Journeycake case, and are cited in a note to the opinion of this court in the same case. 155 U.S. 196, 207. From them it is apparent that lands to be held upon the same terms as the Cherokees hold their lands cannot be alienated by those who occupy and hold them, but the ownership is lodged in the Cherokee Nation. The individual has no right to alienate or lease the lands. The nation grants and restricts the right of occupancy. The title *138 to the lands is vested in the government, to be held and controlled in such wise as to promote the general welfare. Under these restrictions and conditions the registered Delawares held the lands set apart for their occupancy. In the laws of the Cherokee Nation we find that the use of the terms "for use and occupancy" was not an unfamiliar form of expression in describing the character and limitation upon the right of private ownership. Thus in the act relating to the public domain, and reserving tracts of lands one mile square along railroads at stations, and providing for the sale of town lots, it is provided that the purchaser shall acquire no other rights than those of use and occupancy. If the lands in question were granted in perpetuity to the Delawares, we have the awarding of an estate of this character carved out of lands recognized in the agreement as continuing to be Cherokee lands, belonging to the nation which expressly limits the conveyance of its lands to its own citizens for use and occupancy only. Again, if it was intended to provide for the children or heirs of the first takers  the registered Delawares  we should expect to find some words in the agreement competent for that purpose, conceding that the technical terms of the common law to create an estate in fee need not have been used. As to the children of the registered Delawares we find this specific provision: "And the children hereafter born of such Delawares so incorporated into the Cherokee Nation shall in all respects be regarded as native Cherokees." This provision is utterly inconsistent with the grant of an estate in the lands to survive the "occupancy" of the registered Delawares. Such children are to have the rights of native Cherokees and no more. Their parents were incorporated into the Cherokee Nation with certain specific rights; the children were to stand upon an equality with their adopted brethren of the Cherokee blood.
The importance of the issue now distinctly made as to the title to these lands has led us to give renewed examination to the question of the extent and character of the interest conveyed to the Delawares, in the lands in controversy. In the *139 Journeycake case, while it is true that the precise question was not the same as is now presented, full consideration to all the terms of this contract was given in order to determine the interests of the Delawares in the Cherokee lands sold, and the court, speaking by Mr. Justice Brewer, used this pertinent language, the force of which has not been diminished in the light of subsequent examination aided by the arguments and briefs of counsel now presented: "So far as the provision in the agreement for the purchase of homes is concerned, it will be perceived that no absolute title to these homes was granted. We may take notice of the fact that the Cherokees in their long occupation of this reservation had generally secured homes for themselves; that the laws of the Cherokee Nation provided for the appropriation by the several Cherokees of lands for personal occupation, and that this purchase by the Delawares was with the view of securing to the individual Delawares the like homes; that the lands thus purchased and paid for still remain a part of the Cherokee reservation. And as a further consideration for the payment of this sum for the purchase of homes the Delawares were guaranteed not merely the continued occupancy thereof, but also that in case of a subsequent allotment in severally of the entire body of lands among the members of the Cherokee Nation, they should receive an aggregate amount equal to that which they had purchased, and such a distribution as would secure to them the homes upon which they had settled, together with their improvements. So that if, when the allotment was made, there was for any reason not land enough to secure to each member of the Cherokee Nation 160 acres, the Delawares were to have at least that amount, and the deficiency would have to be borne by the native Cherokees pro rata. In other words, there was no purchase of a distinct body of lands, as in the case of the settlement of other tribes as tribes within the limits of the Cherokee reservation. The individual Delawares took their homes in and remaining in the Cherokee reservation, and as lands to be considered in any subsequent allotment in severally among the members of *140 the Cherokee Nation. All this was in the line of the expressed thought of a consolidation of these Delawares with and the absorption of them into the Cherokee Nation as individual members thereof. If it be said that all of the Delaware trust funds were not turned into the national fund it will be remembered that there was no impropriety in the reservation of a part thereof in order to enable the Delawares to make such improvements as they might desire on the tracts that they selected for homes, and also that there was no certainty that all the members of the Delaware tribe would elect to remove to the Cherokee country, and that those who remained in Kansas were entitled to their share in the Delaware national funds."
If such be the true construction of the agreement, it is nevertheless insisted that it should not be literally enforced in view of the understanding of the parties, more particularly of the Delawares, that they were thereby receiving full title to the occupied lands. To establish this contention it is claimed that in view of the character of the contracting parties they should not be held to the strict rule of evidence which denies the competency of parol testimony to contradict written agreements, and a class of cases is cited of which Worcester v. Georgia, 6 Pet. 515, may be taken as an example. The language of Mr. Justice McLean is quoted, in which he said (p. 582):
"The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used in the latter sense. . . . How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction."
But the learned Justice was here dealing with a treaty negotiated between the representatives of the United States and those of the Indians, wherein the disparity of the contracting parties in education and knowledge of law and the use of language is obvious.
*141 The contract of April 7, 1867, was negotiated between representatives of Indian nations meeting upon equal terms. In the testimony of John G. Pratt, called for the Delawares, and at one time Indian agent for the Delaware agency, it appears:
"Question. Do you know whether or not the agreement frequently referred to in your testimony was read over to the two delegations representing the Delawares and Cherokee tribes of Indians?
"Answer. It was read over repeatedly; read over and corrected and altered and read over again several times, and each party put in his suggestions, until they finally harmonized.
"Question. Then, as I understand, the agreement, as finally signed, expressed the wishes of both sides, and both sides were fully satisfied with all it contained?
"Answer. No; the Delawares were not satisfied, but they signed because it was the best they could do. They wanted to own the land outright.
"Question. They did not contend at any time afterwards that the agreement did not fully express what they intended to express, did they?
"Answer. No, sir; I did not hear anything of that kind."
We can perceive no room in this case for a departure from the familiar rules of the law protecting written agreements from the uncertainties of parol testimony. The testimony offered was in the main that of interested persons nearly thirty years after the agreement had been reduced to writing and signed by the parties thereto. Nor can we find a latent ambiguity in the terms of the contract which requires the admission of parol testimony to explain its effect. In the light of the circumstances and the language used in the writing, its construction is not rendered difficult because of latent ambiguities. It is claimed as a cogent circumstance, which should be considered in construing this agreement, that the Cherokee Nation received one dollar per acre for these lands  a sum sufficient to cover their full value, and of consequent importance in determining the character of the estate conveyed. *142 In the Journeycake case it was held that, in consideration of the sum paid for citizenship rights, the Delawares obtained an interest in the lands of the Cherokee Nation, although the same were not considered in making up the sum paid for what has been denominated the right of citizenship. In that case it is pointed out that at the time the agreement under consideration was made the Cherokee Nation possessed, in addition to the "neutral" lands in Kansas, which were estimated at $1,000,000 in making up the total of the Cherokee national fund of $1,678,000 upon the basis of which the Delawares paid into the common fund

"Strip" lands in Kansas (about) ...........   400,000 acres.
Lands west of 96 degrees, Indian Territory,
   (about) ................................ 8,000,000  "
Lands east of 96 degrees, Indian Territory
   Home reservation (about) ............... 5,000,000  "

In that case it was held that the Delawares acquired a right in the distribution of the proceeds, not only of the Kansas lands, but as well in such sales as were made of this vast domain held by the Cherokee Nation. Of this feature of the agreement Mr. Justice Brewer, in the Journeycake case, says: "Neither should too much weight be given to the fact that the Delawares were to pay for their homes at the rate of one dollar an acre, for by that purchase they acquired no title in fee simple, and it is not unreasonable to believe that the price thus fixed was not merely as compensation for the value of the lands, (to be taken in the eastern portion of the reservation, where the body of the Cherokees had their homes, and therefore probably the most valuable portion of the entire reservation,) but also as sufficient compensation for an interest in the entire body of lands, that interest being like that of the native Cherokees, limited to a mere occupancy of the tracts set apart for homes, with the right to free use in common of the unoccupied portion of the reserve, and the right to share in any future allotment."
*143 We conclude, then, that the registered Delawares acquired in these lands only the right of occupancy during life, with a right upon allotment of the lands, to not less than 160 acres together with their improvements, and the children and descendants of such Delawares took only the rights of other citizens of the Cherokee Nation as the same are regulated by its laws.
The bill further seeks to exclude from the allotment of Cherokee lands and funds certain citizens alleged to have been illegally admitted to citizenship, thereby wrongfully diminishing the shares of the Delawares in the common property. At the time of the agreement of April 7, 1867, the constitution, secs. 2 and 5, of the Cherokee Nation had been amended to read:
"SEC. 2. The lands of the Cherokee Nation shall remain common property until the national council shall request the survey and allotment of the same, in accordance with the provisions of article 20th of the treaty of 19th July, 1866, between the United States and the Cherokee Nation.
"SEC. 5. No person shall be eligible to a seat in the national council but a male citizen of the Cherokee Nation, who shall have attained to the age of twenty-five years, and who shall have been a bona fide resident of the district in which he may be elected at least six months immediately preceding such election. All native-born Cherokees, all Indians, and whites legally members of the nation by adoption, and all freedmen who have been liberated by voluntary act of their former owners or by law, as well as freed colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months from the 19th day of July, 1866, and their descendants who reside within the limits of the Cherokee Nation, shall be taken and deemed to be citizens of the Cherokee Nation."
These constitutional provisions were in full force when the Delawares acquired their rights and when they were incorporated, or, as the agreement expressed it, "consolidated," with *144 the Cherokee Nation. Under its terms the Delawares have participated in political rights and have taken part in the government of the nation. It is claimed that these amendments were illegally adopted for want of compliance with authorized methods for amending the national constitution. But the nation has never undertaken to set them aside or call in question their force and effect. They were in the fundamental law when the Delawares were made a part of the Cherokee Nation and the rights exercised were only those belonging to the nation when the Delawares saw fit to subject themselves to the laws of a new nation of which they were to become a component part upon equal terms with other citizens. The Cherokee Nation has many of the rights and privileges of an independent people. They have their own constitution and laws and power to administer their internal affairs. They are recognized as a distinct political community and treaties have been made with them in that character. Cherokee Trust Fund Cases, 117 U.S. 288. It is not reasonable to suppose that in the act under which these proceedings were brought it was intended to authorize inquiry into the administration of the political affairs of the Cherokee Nation with a view to setting aside the adoption of constitutional amendments and the revision of political action in admitting persons to citizenship in the nation under authority of its constitution. The same conclusion disposes of the contention of the appellants that relief can be granted in this case in respect to alleged maladministration of the financial affairs of the Cherokee Nation with a view to holding it to account in favor of the Delawares prosecuting this suit. We are authorized by the enabling act to determine the contractual rights of the Delawares in the national lands and funds, not to overhaul the political and administrative action of the Cherokee Nation.
The act authorizing this suit contemplates a determination of the rights and interest of the Delawares residing in the Cherokee Nation in the lands and funds of the Cherokee Nation under the compact of April, 1867. That it was the purpose *145 of Congress to have a full and final determination of such rights is further shown in the Cherokee allotment act of July 1, 1902. Section 23 of this act provides:
"SEC. 23. All Delaware Indians who are members of the Cherokee Nation shall take lands and share in the funds of the tribe, as their rights may be determined by the judgment of the Court of Claims, or by the Supreme Court if appealed, in the suit instituted therein by the Delawares against the Cherokee Nation, and now pending; but if said suit be not determined before said commission is ready to begin the allotment of lands of the tribe as herein provided, the commission shall cause to be segregated one hundred and fifty-seven thousand six hundred acres of land, including lands which have been selected and occupied by Delawares in conformity to the provisions of their agreement with the Cherokees dated April eighth, eighteen hundred and sixty-seven, such lands so to remain, subject to disposition according to such judgment as may be rendered in said cause; and said commission shall thereupon proceed to the allotment of the remaining lands of the tribe as aforesaid. Said commission shall, when final judgment is rendered, allot lands to such Delawares in conformity to the terms of the judgment and their individual rights thereunder. Nothing in this act shall in any manner impair the rights of either party to said contract as the same may be finally determined by the court, or shall interfere with the holdings of the Delawares under their contract with the Cherokees of April eighth, eighteen hundred and sixty-seven, until their rights under said contract are determined by the courts in their suit now pending against the Cherokees, and said suit shall be advanced on the dockets of said courts and determined at the earliest time practicable."
These acts contemplate a judgment of the court which shall determine the rights of the Delawares and Cherokees in the lands and funds of the Cherokee Nation in such wise as to enable a division to be made conformable to the rights of the parties as judicially determined. The Court of Claims rendered *146 a decree dismissing the bill. Whilst agreeing with the conclusions reached in that court, as to the rights of the Delawares, we think the bill was broad enough in its allegations and prayer for relief to require a definite settlement of the rights in controversy. Instead of dismissing the bill we think a decree should have been entered finding the registered Delawares entitled to participate equally with Cherokee citizens of Cherokee blood in the allotment of lands of the Cherokee Nation, with the addition that if there is not enough land to give to each citizen of the nation 160 acres, then the registered Delawares shall be given that quantity, together with their improvements. In all other respects the Cherokee citizens, whether of Delaware or Cherokee blood, should be given equal rights in the lands and funds of the Cherokee Nation. The decree dismissing the bill is so modified as to conform to the terms just stated; and as so modified it is
Affirmed.


252 Cal.App.2d 817 (1967)
THE PEOPLE, Plaintiff and Respondent,
v.
DAVID DEAN SIPLINGER, Defendant and Appellant.
Crim. No. 12335.
California Court of Appeals. Second Dist., Div. One.
July 25, 1967.
 Herbert E. Selwyn, under appointment by the Court of Appeal, for Defendant and Appellant.
 Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Rose-Marie Gruenwald, Deputy Attorney General, for Plaintiff and Respondent.
 FOURT, J.
 This is an appeal by David Dean Siplinger from a judgment of conviction on one count of first degree murder (Pen. Code,  187) and two counts of assault with a deadly weapon with intent to commit murder (Pen. Code,  217). Appellant pleaded not guilty and not guilty by reason of insanity, but the jury found him guilty as charged and sane on the date the offenses charged were committed. The death penalty was not requested by the prosecution. Appellant's motion for a new trial or for a reduction of the murder conviction to second degree was denied. Siplinger was denied probation and was sentenced to state prison on each count as prescribed by law, the counts to run concurrently.
 Appellant contends that the court erred in deleting a portion of the manslaughter instruction, in denying appellant's motion to reduce the degree of the murder conviction, and in permitting a gun never introduced into evidence to be exhibited before the jury without a proper admonition. These contentions are without merit.
 The facts, as related by eyewitnesses, disclose that Ann Sugarmeyer met Siplinger at the home of her sister a year or so before the crime. Several months later Ann moved to Reno, Nevada, where she lived with Siplinger intending to obtain a divorce so that they could be married. This plan was not fulfilled, however, and they returned to Los Angeles together in November 1964. When Ann left him in January 1965, Siplinger threatened to kill Ann and her family and take away her three-year old son. Ann was pregnant with Siplinger's child, but she was working to support herself and her son. Siplinger attempted to cause Ann trouble at her place of employment, wrote letters to her employer attempting to have her discharged and occasionally tried to follow her home so that Ann several times reported him to the police.
 Ann had two sisters: Dorothy Stephens, who resided at 613 *820 Grant Street in Santa Monica and Edith Thompson who lived in northern California but was visiting the Stephens family when the crime took place. Their mother, Ruth Vincent, lived in a room behind Dorothy's home.
 On July 25, 1965, Ruth visited Ann in the afternoon and they then decided to return to Dorothy's home for a talk. Ruth drove and Ann's son sat between them on the front seat of the car. Siplinger, who was determined to talk to Ann that day, found them and followed them down Wilshire Boulevard and over to Dorothy's home. A couple of times he attracted their attention and shouted that he wanted to talk to Ann, but she refused saying that he must first speak to Dorothy and Joe Smith, who was then living with Dorothy.
 When they reached Dorothy's house, Ruth stopped the car and told Ann that she should get into the house as fast as she could while Ruth would take her son around and bring him in the back door. Ann jumped out of the car and hurried toward the house but Siplinger parked his car in the middle of the street, took a gun from the glove compartment, and ran after her. Ann turned when he called her name and suddenly saw him standing on the sidewalk pointing a gun at her. She heard one shot and ran into the house, stumbling over a board set up to confine Dorothy's baby, and fell into the kitchen.
 Ann's sisters were in the breakfast room drinking coffee when the noise outside attracted their attention. Dorothy got up and ran for the front door. Ruth, who was still in the car, saw Siplinger get out of his car with a gun in his hand and advance upon Ann, calling her name. After Ann turned around, Ruth tended to Ann's son, but she heard two shots and, looking up, she saw her daughter Dorothy leave the house and fall on the doorstep. Ruth immediately stopped her car and jumped out. She advanced on Siplinger, who was standing near his car, and he pointed the gun at her but she continued to approach. He shot her once in the arm when she was about 20 feet away and when she failed to stop, he shot her a second time in the chest. When she was hit the second time, Ruth turned back toward the house with the thought in mind to get help for Dorothy, who was lying at the foot of the front steps. She tried to reach the telephone but fell in the middle of the living room. Meanwhile, Siplinger got into his car and fled.
 The Lindstroms, who lived in an apartment next door to the Stephens' residence, heard shots and went outside to investigate. Mr. Lindstrom first looked from the window and saw *821 Siplinger, whom he later positively identified, standing with a pistol held in both hands shooting towards the victims. When he went outside he found Dorothy Stephens lying on the steps and ran back home to call the police. His wife went to Dorothy's aid and Dorothy told her, "I have been shot. I know who shot me. ... It was Dave Siplinger. ... I am dying." Dorothy Stephens died soon thereafter from a gunshot wound in the chest which perforated the right lung and caused a massive hemorrhage.
 Siplinger testified in his own defense. He, at first, claimed he purchased the gun about a week and a half before the crimes for target practice, but confessed he never used it for that purpose. Later, he testified that he also purchased the gun for protection from Joe Smith. Siplinger claimed he had been threatened by Joe, both directly and through others. He knew Joe had a gun which he always carried with him at night to the service station where he was employed and occasionally at other times. Joe, however, testified that the gun which was registered in Dorothy's name had been purchased by her as a gift for him. It was kept in the headboard of a bed at their home and Joe never carried it to the station because there was a strict policy prohibiting firearms. Moreover, he had never threatened appellant with a gun. Once when Siplinger filed an action against Ann, Joe accompanied her to court and after the case was dismissed Siplinger said he would get them all some way, sometime. Joe then promised to whip him if ever he interfered with the family and rebuked him for threatening women.
 Siplinger further testified that on July 25th he blacked out after taking some clothes to the laundry and remembered nothing more until 10:30 p.m. that evening when he became aware that he was at the home of a friend and an officer was telling him he was under arrest. However, in his admissible statements to the police made shortly after the shooting, he said that he had taken the gun out of the glove compartment, had gotten out of the car and followed Ann to the house. Although he was upset and nervous, he made no mention then of an earlier period of unconsciousness that day. He stated that he had spent some time in a mental institution in 1958 after a period of some type of unconsciousness and had then attempted to commit suicide in a fit of depression over a woman. He also had visited a doctor during the spring of 1956 to obtain medication for his nerves after Ann left him, and on July 25th he had taken prescribed tranquilizers to stave off nervousness *822 and trembling. He felt hostile toward Ann at that time because, although he loved her, she wouldn't let him see her or her son and he felt he would not be allowed to see the child of his which Ann was carrying. He admitted that he had attempted to have her discharged because he wished to hurt her as she had hurt him. He was hostile toward Ann's mother as well because, while he was living with Ann, Ruth several times had argued with him about the method of rearing Ann's son and he felt that Ruth was partially responsible for the separation.
 Three psychiatrists reported independently that they could observe no organic reason for interference with Siplinger's memory on July 25th and felt that he was then acting consciously. Electroencephalogram test results were normal.
 [1] Siplinger contends that the court erred in deleting portions of the instruction which distinguished manslaughter from murder  [fn. 1] because this prevented the jury from considering appellant's defense that during a period of unconsciousness he committed a misdemeanor in violation of Penal Code, section 417, which provides:
 "Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, ... in a rude, angry or threatening manner, ... is guilty of a misdemeanor."
 This section is inapplicable to the facts since no misdemeanor was charged, there is no evidence that Siplinger "drew" or "exhibited" the gun in a "rude, angry or threatening *823 manner" and it is not a lesser included offense in this case. Siplinger withdrew the gun from the glove compartment of his car, advanced upon Ann calling her name, and when she turned deliberately shot at her. He missed and killed Dorothy. Thereafter when Ruth approached him he shot at her and wounded her twice. He was imbued with malice towards the entire family as evidenced by threats he made to Ann when she left him and to Joe Smith at a later meeting with the family. It is not error to refuse an instruction which is not supported by the evidence. (People v. Jones, 184 Cal.App.2d 464, 469 [7 Cal.Rptr. 424].) This was clearly not a killing in the course of a misdemeanor, but in the course of the other felonies of which Siplinger was convicted: two counts of assault with a deadly weapon with intent to kill. [2] The misdemeanor described by Penal Code section 417 "... is not included in a charge of assault with intent to murder, and therefore on a trial on an information charging the latter offense, the court may properly refuse to charge the jury upon the subject matter of section 417 of the Penal Code. (People v. Piercy, 16 Cal.App. 13 [116 P. 322].)" (People v. Diamond, 33 Cal.App.2d 518, 522-523 [92 P.2d 486]; People v. Jones, supra, p. 469; People v. Zilbauer, 44 Cal.2d 43, 51 [279 P.2d 534].)
 The California Supreme Court recently determined that the trial court's failure to instruct the jury concerning the terms of Penal Code section 417 may constitute reversible error under certain conditions not herein present. (People v. Wilson, 66 Cal.2d 749 [52 Cal.Rptr. 156, 427 P.2d 820].) In that case Wilson did not deny committing the homicides but interposed by his own testimony two defenses to first degree murder: (a) that he was unconscious at the time he killed his victims, and (b) that the crimes did not constitute felony murder because when he forcibly entered his estranged wife's apartment, gun in hand, his intent was to scare rather than assault the occupants. He testified that he became unconscious of his conduct only after he was left in the dwelling alone with the two victims whom he ultimately killed. The trial court rejected the requested instructions concerning unconsciousness and Penal Code section 417 instructions were apparently neither submitted nor considered. Wilson's testimony with respect to the absence of an initial intent to kill was, however, supported by the fact that he permitted one of the occupants to leave the apartment unmolested and fired at two of the others in what he considered to be merely self- defense. (People v. Wilson, supra, p. 757.) *824
 In the instant case Siplinger testified that he blacked out well before the criminal episode and, unless his defense of unconsciousness were believed, all other evidence indicated a maliciously intentional assault. Siplinger made no claim to innocent intentions and the jury, adequately instructed on the subject of unconsciousness and retrograde amnesia, rejected that defense and found him guilty not only of first degree homicide, but of two counts of assault with a deadly weapon with intent to kill. Under these circumstances the absence of Penal Code section 417 instructions, even were these considered applicable, could have had no effect on the verdict and were not prejudicial. Our position is confirmed by the Wilson decision wherein the court rejected the same grounds for reversing the assault conviction as to one victim who was merely injured when Wilson shot in "self-defense" because Wilson "did not claim that he shot at ... [the victim] to scare him nor ... that he was unconscious at the time of that shooting." (People v. Wilson, supra, pp. 764, 765.)
 The jury was fully instructed on the defense of unconsciousness or retrograde amnesia and on the subject of voluntary manslaughter. The jury was informed that manslaughter was a necessarily included crime and that it should return a verdict on the lesser included offense if in doubt as to the crime of which Siplinger was guilty. The jury, which was properly and adequately instructed, weighed the evidence and discarded appellant's defense of unconsciousness.
 [3] Appellant next mistakenly contends that the court should have reduced the charge to second degree murder because there was insufficient evidence of premeditation and deliberation and only the "wildest circumstantial evidence" and the victim's dying declarations were adduced to connect appellant with the crime. Appellant is mistaken. The uncontroverted direct evidence obtained from eyewitnesses was that appellant drove up, parked his car in the street, stepped out of his car with his gun in his hand, and deliberately fired at Ann. Ann escaped injury by running into the house, but Dorothy came out just then and was fatally shot. The girls' mother, who approached appellant in an attempt to protect them, was shot twice in clear view of eyewitnesses, each of whom later identified appellant as the person who did the shooting and then took flight in his car.
 The jury acted within its province to reject appellant's explanation of the shooting and his possession of the gun. They were justified in inferring from his prior threats and his behavior *825 on the day of the shooting that he bought the gun to implement his plan for revenge. The events immediately preceding the shootings demonstrate appellant's hostility and his intent to inflict physical harm on Ann and her family. He followed their car even though Ann told him she would not talk to him and when her mother stopped to let Ann out, he stopped his car also and shot at her while she was on her way to the house. Whether he deliberately intended to kill Ann's sister, Dorothy Stephens, or whether she was hit by a shot intended for Ann, the circumstances compel the conclusion that the crime was murder in the first degree. Appellant could not reasonably contend that the shots fired at Ann and her mother were not premeditated and deliberate. [4] As to the homicide of Dorothy Stephens, the doctrine of transferred "intent" applies "... [u]nder that doctrine when a person purposefully attempts to kill one person but by mistake kills another instead, the law transfers the felonious intent from the object of the assault to the actual victim. [Citations.] ... 'In other words, the crime is exactly what it would have been if the person against whom the intent to kill was directed had been in fact killed.' " (People v. Clayton, 248 Cal.App.2d 345, 349-350 [56 Cal.Rptr. 413].)
 The prosecution did not offer appellant's gun into evidence because of a potential search and seizure issue which they wished to avoid; ballistics evidence was inappropriate because the gun was not offered. Appellant asserts that it was error for the court to permit the prosecution to exhibit the gun before the jury during examination of prosecution witnesses and then withdraw it from their further inspection without admonishing the jury to disregard the gun. [5] An appellate court is limited to a consideration of matters contained in the record of the trial proceedings. (People v. Roberts, 182 Cal.App.2d 431, 438 [6 Cal.Rptr. 161]; People v. English, 249 Cal.App.2d 70, 73 [57 Cal.Rptr. 126]; People v. Merriam, 66 Cal.2d 390, 397 [58 Cal.Rptr. 1, 426 P.2d 161].)
 [6] The record discloses that the gun was on the counsel table in view of the jury during the early stages of the trial and until the voir dire of the police officers with reference to the search and seizure issue. Although the court determined the search and seizure issue in the prosecution's favor, the prosecution nonetheless prudently decided to withhold the gun from evidence. The gun was then removed from the counsel table during a jury recess with the approval of defense counsel, who assured the court that he would not move for a *826 mistrial thereupon. We conclude that the display of the gun was not, in any event, prejudicial. [7] Evidence resulting from a search incident to a lawful arrest or obtained in "hot pursuit" of the principal suspect is admissible. (Warden, Maryland Penitentiary v. Hayden, 386 U.S. 903 [18 L.Ed.2d 782, 87 S.Ct. 1642], decided May 29, 1967.)
 [8] Officer Nedelcove on voir dire testified that on July 25, 1965, he received information that a shooting and possible homicide had taken place at 613 Grant Street in Santa Monica and that the suspect, identified as Siplinger, had left a vehicle in the 400 block of Hollister where it was under observation. Nedelcove immediately located the car under the observation of Officer Crabbe, verified the license plate and observed that the radiator was still warm. Appellant was not in sight. Nedelcove found no registration; he checked the glove compartment and came upon an envelope bearing Siplinger's name and address. When he searched the car he found the gun under the driver's seat and preserved it for evidence; the automobile was impounded. Although appellant was not present and did not consent, the officer had no search warrant, and the search was not incident to Siplinger's arrest, it clearly occurred in the course of "hot pursuit." It would have been imprudent for the officers to fail to make such a search for weapons under the circumstances. (Gouled v. United States, 255 U.S. 298, 309 [65 L.Ed. 647, 652, 41 S.Ct. 261].)
 The gun was neither identified nor singled out for the jury's consideration, and we find no prejudice in the conduct of the prosecution with respect to the weapon or otherwise.
 The judgment is affirmed.
 Wood, P. J., and Lillie, J., concurred.
 "When the mortal blow, though unlawful, is struck in the heat of passion or is excited by a sudden quarrel such as amounts to adequate provocation, the law, out of forbearance for the weakness of human nature, will disregard the actual intent, and will reduce the offense to manslaughter. In such a case, even if an intent to kill exists, the law deems that malice, which is an essential element of murder, is absent."
 "[If a person while committing a felony causes another's death, malice is implied, and the crime is murder. If while committing a misdemeanor he causes another's death, there is no malice, and he is guilty only of manslaughter.]"
 "[There are many acts which are lawful but nevertheless endanger human life. If a person causes another's death by doing such a dangerous act in an unlawful or criminally negligent manner, without realizing the risk involved, he is guilty of manslaughter. If, on the contrary he had realized the risk and acted in total disregard of the danger to life involved, malice would be implied and he could be guilty of murder.]"
NOTES
[fn. 1]  1. "Manslaughter is distinguishable from murder principally in this: That though in manslaughter the act which occasions the death be unlawful or likely to be attended with bodily mischief, yet the malice, either express or implied, which is an essential element of murder, is wanting, and the act being imputed to the infirmity of human nature, the correction ordained for it is proportionately lenient.


207 Wis.2d 310 (1996)
558 N.W.2d 881
Christopher M. BAUDER, Plaintiff-Appellant,
v.
DELAVAN-DARIEN SCHOOL DISTRICT and Cincinnati Insurance Company, Defendants-Respondents.
No. 95-0495.
Court of Appeals of Wisconsin.
Submitted on briefs October 31, 1996.
Decided November 27, 1996.
*312 On behalf of plaintiff-appellant, the cause was submitted on the briefs of Steven R. Wassel of Wassel, Kilkenny, Danz, Mistrioty & Lettenberger of Delavan.
On behalf of the defendants-respondents, the cause was submitted on the brief of Thomas H. Koch and Joseph S. Goode of Kravit, Gass & Weber, S.C. of Milwaukee.
Before Anderson, P.J., Brown and Nettesheim, JJ.
BROWN, J.
Christopher M. Bauder was injured when a deflated soccer ball struck him in the eye during gym class. The class had been moved inside to a gym because of inclement weather. Bauder sued the Delavan-Darien School District, but the suit was dismissed by summary judgment on grounds of governmental immunity. We affirm because none of *313 the exceptions to governmental immunity apply here. We also affirm the dismissal of a related nuisance claim.
[1, 2]
Wisconsin protects political units of state government from lawsuits sounding in negligence where the alleged act does not arise from a ministerial duty imposed in law. Section 893.80(4), STATS., provides:
No suit may be brought against any . . . political corporation, governmental subdivision or any agency thereof . . . or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.
Quasi-judicial and quasi-legislative acts are synonymous with discretionary acts and governmental officers are entitled to immunity for such acts. See Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 682-83, 292 N.W.2d 816, 825-26 (1980). Ministerial acts, on the other hand, are not generally subject to immunity. C.L. v. Olson, 143 Wis. 2d 701, 710, 422 N.W.2d 614, 617 (1988). The first issue is whether the physical education teacher's decision to move the class indoors and play soccer with a deflated ball in a gym was a ministerial or discretionary act.
Bauder argues that because the laws of this state require a school district to provide physical education classes to students, the actions of the physical education teacher in carrying out this duty are ministerial. He observes that in carrying out its duty to provide physical education, the legislature has mandated that each school board "[p]rovide safe and healthful facilities." Section 121.02(1)(i), STATS. Bauder *314 claims that this ministerial duty was violated when the teacher created an unsafe and unhealthy situation by placing too many people without eye protection in too small of an area to play soccer with a deflated ball.
[3, 4]
We disagree that the teacher's decision was a breach of a ministerial duty. A duty is ministerial "only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." Sheridan v. City of Janesville, 164 Wis. 2d 420, 425, 474 N.W.2d 799, 801 (Ct. App. 1991) (quoted source omitted). While the obligation to provide physical education classes is mandated, and thus ministerial, the manner in which those classes are conducted is not specified either by state statute or by the school district under the facts of this case. The teacher made a decision to move the class indoors. He also decided to deflate the ball, hoping to reduce the chance of injury. We hold that the teacher's judgmental decision was a discretionary and not a ministerial act.
There is an exception to the governmental immunity law known as the "known present danger exception." Bauder claims that it applies here. He contends that the teacher's activities gave rise to a known present danger so certain that nothing was left for the teacher's discretion. He cites the teacher's own explanation for why be deflated the ball and why he instructed the students not to hit the ball in the airto keep the game less dangerousas proof that the teacher knew the activity to be inherently dangerous to the students. Bauder cites an affidavit provided by his own expert that deflating a ball will actually cause *315 more susceptibility to eye injuries, not less, and that playing in a gym that is not designed for soccer is also dangerous in and of itself. Bauder concludes that the "known present danger exception" is appropriate here.
[5]
The "known present danger exception" gets its genesis from Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977). There, a park manager had been at the park for a number of years. He knew the park well; he knew the park was open at night; and he knew there was a trail with a sheer drop off which never had a rail and never had a warning sign. The park manager thus was well aware that the trail would be hazardous at night and agreed that he would not want to be on the trail at night. Yet, despite knowing of this dangerous condition, nothing was done to alleviate the danger. The Cords court had a very definite opinion about the park manager's nondecision. It wrote that there can be no "policy" to leave "obviously" dangerous conditions alone. See id. at 538, 259 N.W.2d at 678. It wrote that "the duty to either place warning signs or advise superiors of the conditions is, on the facts here, a duty so clear and so absolute that it falls within the definition of a ministerial duty." Id. at 542, 259 N.W.2d at 680 (emphasis added).
[6]
What differentiates the exception carved out in Cords from the facts in this case is that deflating the ball is not an "obvious" danger to students. While Bauder's expert certainly has an opinion that a deflated ball is dangerous, it is not an opinion that is so clear and so absolute that no reasonable person would think to use a deflated ball. And while a gym is not usually used to play soccer, it is not so clear and absolute, as Bauder claims it to be, that school gyms *316 should be used only for basketball and nothing else. This is not the same kind of case as Cords. The "known present danger exception" does not apply.
Bauder contends that one other exception to the immunity doctrine is present. He notes cases holding that even though a governmental officer may have made a discretionary decision, if that discretionary decision is not made in the context of governmental activity, the officer will not be immune from suit.
This exception comes from Scarpaci. There, a medical examiner who was employed by Milwaukee county made a discretionary choice to conduct an autopsy of a deceased child, and the parents claimed that he made that decision without authorization from them as required by law. Because he was a county employee at the time of his decision, the doctor claimed that his discretionary choice to conduct the autopsy was protected under governmental immunity. See Scarpaci, 96 Wis. 2d at 680, 292 N.W.2d at 824.
But the supreme court disagreed. It held that while the decision to conduct an autopsy is a governmentally-related discretionary decision, the actual performance of the autopsy is a medical procedure, not a governmental choice. Thus, the court held that a doctor employed by an arm of government may not use governmental immunity as a tool to prevent a claim of negligence resulting from the exercise of medical discretion. Id. at 686-87, 292 N.W.2d at 827.
Bauder argues that this exception should apply here because even though the teacher may have had governmental discretion concerning how to provide physical education to the students, his actual decision to have his students play soccer indoors with a deflated ball was not an exercise of governmentally-related *317 choice. We could discuss this issue at length, but all we need to say here is that this court has limited the Scarpaci exception to cases involving medical discretion. Stann v. Waukesha County, 161 Wis. 2d 808, 818, 818 n.3, 468 N.W.2d 775, 779 (Ct. App. 1991). While Bauder believes this court to be wrong and asks us to overrule our case law, this is not the appropriate forum. He may request the supreme court to overrule us.
Bauder finally argues that he has a nuisance claim. He correctly asserts that the immunity statute does not apply to nuisance claims. He incorrectly asserts that he has such a claim. His claim is grounded on the theory that the gymnasium was designed for a ten-person basketball game. Since the gym was not being used for its intended purpose, Bauder contends that the gym was a nuisance at the time of the injury.
[7]
A nuisance is a "wrong which may arise from the unreasonable or unlawful use by a person of his own property. [It is] an unreasonable activity or use of property that interferes substantially with the comfortable enjoyment of life, health, safety of another or others." State v. Quality Egg Farm, Inc., 104 Wis. 2d 506, 517, 311 N.W.2d 650, 656 (1981) (quoted source omitted).
[8]
Bauder asserts that a question of fact exists as to whether the use of the gym for indoor soccer was unreasonable. But we do not agree that a question of fact exists. The question is not whether a reasonable person in a plaintiff's or a defendant's position would regard the use of property to be unreasonable, but whether reasonable persons generally, looking at the whole situation impartially and objectively, would *318 consider it unreasonable; and regard must be had, not just for the interests of the person harmed, but also for the actor and for the interests of the community as a whole. Soukoup v. Republic Steel Corp., 66 N.E.2d 334, 341 (Ohio Ct. App. 1946); see also Abdella v. Smith, 34 Wis. 2d 393, 398-99, 149 N.W.2d 537, 539-40 (1967).
[9]
Looking at the question in this light, the trial court gave the succinct answer. The court wrote that "[the facility] is a gym and physical education classes were being conducted in it. This is hardly a nuisance." We could not agree more. It is not unreasonable for the school district and indeed for the community to view a gym as a multipurpose facility for varying sports and aerobic activities. Reasonable persons generally would not seriously debate whether what happened in this case is a "nuisance."
As well, while Bauder's expert opined that the gym was not intended for soccer, the district points out that the expert had no personal knowledge of this. We agree that this is another reason why the nuisance claim fails. We affirm the dismissal of the negligence and nuisance claims.
By the Court.Judgment affirmed.


991 A.2d 227 (2010)
201 N.J. 436
STATE of New Jersey, Plaintiff,
v.
Brian CARTER, Defendant-Movant.
Nos. M-774 September Term 2009, 065397
Supreme Court of New Jersey.
March 4, 2010.
ORDERED that the motion for leave to appeal is granted.


                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 02-4951
CORNELL A. PARRISH, JR.,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
                 James R. Spencer, District Judge.
                           (CR-02-103)

                      Submitted: April 18, 2003

                       Decided: May 15, 2003

   Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

                            COUNSEL

Frank W. Dunham, Jr., Federal Public Defender, Robert J. Wagner,
Assistant Federal Public Defender, Richmond, Virginia, for Appel-
lant. Paul J. McNulty, United States Attorney, Laura C. Marshall,
Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                     UNITED STATES v. PARRISH
                             OPINION

PER CURIAM:

   Cornell A. Parrish, Jr., appeals his conviction for possession with
intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1)
(2000). Finding no reversible error, we affirm.

   Parrish contends that the district court should have granted his
motion to suppress the evidence and the statements obtained as a
result of a search warrant because the search warrant affidavit was not
supported by probable cause, and the good faith exception to the
exclusionary rule under United States v. Leon, 468 U.S. 897 (1984),
did not apply. We review a district court’s factual findings underlying
a motion to suppress for clear error, and the district court’s legal
determinations de novo. Ornelas v. United States, 517 U.S. 690, 699
(1996); United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).
When a suppression motion has been denied, we review the evidence
in the light most favorable to the government. See United States v.
Seidman, 156 F.3d 542, 547 (4th Cir. 1998). We have reviewed the
record and conclude that the search warrant application established
probable cause to search Parrish’s residence. We therefore decline to
review Parrish’s claim regarding the good faith exception to the
exclusionary rule.

   Accordingly, we affirm Parrish’s conviction. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

                                                          AFFIRMED


516 F.2d 980
Robert S. STRAUSS, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 74-1028.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 18, 1975.Decided May 27, 1975.

Robert S. Strauss, Chicago, Ill., Hugo E. Martz, Valparaiso University (School of Law), Valparaiso, Ind., for petitioner-appellant.
Donald B. Mackay, U. S. Atty., J. Douglas Weingarten, Asst. U. S. Atty., Springfield, Ill., for respondent-appellee.
Before FAIRCHILD, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges.
CUMMINGS, Circuit Judge.

1
In September 1968, petitioner Robert Strauss and Thaddeus M. Ohrynowicz were charged with a check-kiting scheme in violation of 18 U.S.C. §§ 1341 and 1342.1  After a jury trial, petitioner was convicted on Counts II and IV under Section 1341 and on Counts V, VIII and X under Section 1342.  The evidence against Strauss is summarized in our prior opinion affirming his conviction.  United States v. Strauss, 452 F.2d 375 (7th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455.  This appeal results from the district court's denial without opinion of petitioner's motion under 28 U.S.C. § 2255.  We reverse.

2
Petitioner contends that in light of United States v. Maze, 414 U.S. 395, 94 S.Ct 645, 38 L.Ed.2d 603, it is now clear that the conduct for which he was tried and convicted violates neither Sections 1341 nor 1342.  Maze held that 18 U.S.C. § 1341, the so-called mail fraud statute, did not reach a scheme to defraud where an accused obtained goods and services from motel operators through a stolen credit card, knowing that the victims would subsequently mail the sales slips to a bank which would later mail it to the lawful owner of the credit card.  The Court reasoned that Maze's "scheme reached fruition when he checked out of the motel(s), and * * * he probably would have preferred to have the invoice misplaced by the various motel personnel and never mailed at all."  414 U.S. at 402, 94 S.Ct. at 649.  Therefore, the Court held that the mailings were not "sufficiently closely related to Maze's scheme to bring his conduct within the statute."  414 U.S. at 399, 94 S.Ct. at 648.  Strauss also contends that he was denied the constitutional right to a speedy trial.  He claims that if his position as to either of these arguments is accepted, he is entitled to relief under Section 2255.

3
Conceding that Maze is "retroactive," the Government agrees with petitioner that a Section 2255 action will lie to attack collaterally on Maze grounds a pre-Maze mail fraud conviction, citing Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109, and United States v. Travers, 514 F.2d 1171 (2d Cir. 1974).  The Government further concedes that the use of the mails proved at trial was insufficiently related to Strauss' scheme to bring his conduct within Section 1341.  Therefore, the Government acquiesces in petitioner's motion for relief as to Counts II and IV charging Section 1341 violations.2  With respect to Counts V, VIII and X charging Section 1342 violations, however, the Government makes no similar concessions.

I. The Section 1341 Counts

4
As noted supra, the Government concedes that the propositions of law set forth in Travers, supra, relating to both the "retroactive" effect of Maze and the availability of collateral relief to attack pre-Maze convictions are correct.  While such government concessions are often useful to a court, they do not, at least as to questions of law that are likely to affect a number of cases in the circuit beyond the one in which the concessions are made, relieve this Court of the duty to make its own resolution of such issues.  Thus we proceed to a determination of the legal issues largely independently of the Government's concessions.

A. Retroactive Effect of Maze

5
In examining the effect of a Supreme Court decision that, in effect, declares the prior interpretation of a statute by a circuit in error, it is useful to note the characterization of the phrase "the law of the circuit" suggested by Judge Friendly in Travers, supra:

6
"The Government urges in effect that Maze was indeed an overruling decision in that it changed 'the law of the circuit' indeed of several.  But reliance on the quoted expression, of rather recent vintage, which is only a short-hand way of saying that the views of a court of appeals on an issue of federal law may remain undisturbed for a long time, can lead to dangerously wrong results.  There are not eleven omnipresences of federal law brooding over various portions of the United States; in the long run there is only one, although some time may be needed to reveal it."  (At 1174, n. 4.)

7
A similar view was expressed by this Court in Gates v. United States, 515 F.2d 73 at 78 (7th Cir. 1975), where in reference to a Supreme Court decision which settled a split among the circuits as to the meaning of a statute (rejecting the interpretation adopted by this Court), Judge Hastings stated:

8
"The decision of the Court in (Warden v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383) interpreting the 1970 Comprehensive Drug Abuse Prevention and Control Act was a declaration of what the law had meant from the date of its effectiveness onward.  United States v. Estate of Donnelly, 397 U.S. 286, 294-295, 90 S.Ct. 1033, 25 L.Ed.2d 312 (1970).  A statute does not mean one thing prior to the Supreme Court's interpretation and something entirely different afterwards."

9
Both Gates, supra, and Travers, supra, rely upon the opinion of this Court in Brough v. United States, 454 F.2d 370 (7th Cir. 1971).  In Brough petitioner sought to attack his selective service conviction in a Section 2255 proceeding.  Brough argued that a decision of the Supreme Court, which had been handed down after his appeal had been rejected, had shown the interpretation by this Court of the allegedly violated statute to be erroneous.  In the opinion granting the relief sought, the Court stated:

10
"To apply (Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156) prospectively only would indicate that a federal statute duly enacted by Congress could mean one thing prior to the Supreme Court's interpretation and something entirely different afterwards.  Here the relationship of § 3282 to §§ 462 and 453 had never been considered by the Supreme Court prior to Toussie.  Nevertheless, a statute, under our system of separate powers of government, can have only one meaning.  An interpretive rule, such as 32 C.F.R. § 1611.7(c), concerning that statute is either consistent with the statute or inconsistent.  If inconsistent, as the Supreme Court found in Toussie, then the prior interpretation is, and always was, invalid.  It necessarily follows that Toussie should have retroactive application in the case at bar.

11
"In sum, the doctrine of retroactivity has been developed in cases dealing with criminal proceedings where new constitutional procedural protections had been announced.  (Citations omitted.)

12
"We conclude that the standards thus far developed for applying new constitutional protections prospectively only have no application in the instant appeal to the statutory interpretation by the Supreme Court."  (Emphasis in the original, 454 F.2d at 372-373.)

13
Our evaluation of these cases leads us to accept Judge Friendly's position that Section 1341 has always had the meaning given it by the Supreme Court in Maze.  Thus we hold with the Second Circuit that Maze must be applied "retroactively."  Consequently, the rationale of affirmance in petitioner's direct appeal was in error.

B. Availability of Collateral Relief

14
In Davis v. United States, supra, the Supreme Court recognized that a petitioner under 28 U.S.C. § 2255 need not allege a constitutional violation to challenge his sentence successfully.  417 U.S. at 342-346, 94 S.Ct. 2298.  Thus in accord with the language of Section 2255, a claim is cognizable thereunder if grounded in the "laws," as well as in the Constitution, of the United States.3  The opinion in Davis is careful to note that not every asserted error of law is cognizable under Section 2255, 417 U.S. at 346, 94 S.Ct. 2298.  Referring to Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, the Court stated in Davis:

15
"We suggested (in Hill ) that the appropriate inquiry was whether the claimed error of law was 'a fundamental defect which inherently results in a complete miscarriage of justice,' and whether '(i)t * * * present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'  * * *  The Court did not suggest that any line could be drawn on the basis of whether the claim had its source in the Constitution or in the 'laws of the United States.'

16
"In this case, the petitioner's contention is that the decision in Gutknecht v. United States (396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532), as interpreted and applied by the Court of Appeals for the Ninth Circuit in (United States v. Fox, 454 F.2d 593 (9th Cir. 1971)) after his conviction was affirmed, establishes that his induction order was invalid under the Selective Service Act and that he could not be lawfully convicted for failure to comply with that order.  If this contention is well taken, then Davis' conviction and punishment are for an act that the law does not make criminal.  There can be no room for doubt that such a circumstance 'inherently results in a complete miscarriage of justice' and 'present(s) exceptional circumstances' that justify collateral relief under § 2255.  Therefore, although we express no view on the merits of the petitioner's claim, we hold that the issue he raises is cognizable in a § 2255 proceeding."  (Emphasis added, 417 U.S. at 346-347, 94 S.Ct. at 2305.)

17
Since we agree with the Government and petitioner that the mailings proved at trial were not sufficiently closely related to the purpose of the scheme to constitute a violation of Section 1341 under Maze,4 petitioner's "conviction and punishment are for an act that the (federal) law does not make criminal."  Therefore, there can be no room for doubt that Travers is correct in holding Section 2255 applicable to a situation like that of the petitioner.5  Accordingly, the district court must be instructed to grant the petition with respect to the counts involving Section 1341.6

II. The Section 1342 Counts

18
The Government asserts that the Section 1342 counts should be upheld.  In its brief, the Government argues:

19
"The acts charged in these counts were the acts of the defendant Strauss opening up an account in 3 different banks under false names and false addresses.  The defendant used these false names and addresses to lead the bank to believe that he could be contacted by mail.  This false belief was the basis for the banks opening accounts for the defendant Strauss under the false name and address.  Without this false belief, the check-kiting scheme could have proceeded no further."  (Government Brief at 10.)

20
The quoted paragraph is virtually the entire argument made by the Government for distinguishing Section 1342 from 1341 on the facts of this case.

21
As summarized by the Government, the evidence with respect to Count V disclosed that on September 12, 1967, Strauss opened a checking account at the National Bank of Bloomington, Illinois, under the false names of Jack Gold and Gold Discount Company, 530 North Center Street, Bloomington, Illinois.  The address was not that of Strauss nor that of Jack Gold.  Strauss was told that check orders would be placed by mail, and the bank ordered checks from Deluxe Check Printers, Inc. in Chicago, but they were later found to be undeliverable at the address given by Strauss.

22
As to Count VIII, the evidence showed that petitioner opened a checking account at the Millikin National Bank in Decatur, Illinois, under the false name of Jack Gold and World Trading Company, 143 East Prairie, Decatur, again resulting in checks being ordered from Deluxe.  The address given by petitioner was not that of Strauss, Gold or World Trading Company.

23
Finally, the evidence under Count X showed that an individual opened an account at the First National Bank, Springfield, Illinois, under the name of Gold Discount Company, with the account card being signed by Jack Gold as sole owner.  The address given was 509 East Jefferson Street in Springfield, and checks were ordered from the bank's check-printing department in Springfield without using the mails.

24
For conviction, Section 1342 requires that a person must use or assume a fictitious name or address and must have "the purpose of conducting, promoting, or carrying on by means of the Postal Service, any scheme or device mentioned in section 1341 of this title or any other unlawful business * * * " (emphasis supplied).  The statute applies only when the prosecution has established this purpose.  United States v. Frank, 494 F.2d 145, 154 (2d Cir. 1974).  The Government does not dispute that any receipt of funds by Strauss occurred before the three banks used the mails, nor is it asserted that any of the checks ordered for the fictitious accounts through the mails or otherwise were used in the check-kiting scheme.

25
Sections 1341 and 1342 have accompanied each other in the statute books through a number of revisions.7  One court has expressed difficulty in ascertaining what advantage the Government gains by adding counts under Section 1342 to those under Section 1341.  United States v. Frank, supra at 154 (Friendly, J.).  Thus it is clear that the two statutes are closely related beyond simply being juxtaposed in the United States Code.8

26
In this case the Government has given us no reason to treat Section 1341 differently from Section 1342 with respect to the relation to the mails element.  Travers, with which the Government agrees in large part, apparently treated the Section 1341 and 1342 counts in exactly the same way.  The Second Circuit opinion notes that Travers attacked the Section 1342 convictions, as well as the Section 1341 convictions, on Maze grounds.  Yet in ordering relief on all counts, no separate mention is given to Section 1342.  We agree with the view apparently adopted by the Second Circuit in Travers9 that the "by means of the Postal Service" language in Section 1342 requires the same connection between the use of the mails and the scheme that was found necessary for Section 1341 violations in Maze.

27
Even assuming the Government to be correct in contending that petitioner "used the false names and addresses to lead the bank to believe that he could be contacted by mail," the actual use of the mails was not sufficiently closely related to the scheme under Maze to constitute a Section 1342 violation.  Like Maze, the petitioner would have undoubtedly preferred to have the advice letters, the only mailings charged, misplaced.  Also like Maze, the mailings themselves were not "for the purpose of conducting * * * any scheme."  Thus petitioner did not conduct his check-kiting scheme "by means of the mails" as is required under Section 1342.

28
As in Travers, the Government failed to prove an essential element in both the Section 1341 and 1342 counts.  Therefore, it is unnecessary for us to consider petitioner's alternative argument that he was denied a speedy trial under case law developed after our decision on the direct appeal.

29
Since we see no reason on the facts in this case to distinguish Section 1341 from Section 1342 for purposes of "retroactivity" or availability of collateral relief, the order denying petitioner's motion under 28 U.S.C. § 2255 is reversed, with instructions to grant the motion.

1
 18 U.S.C. § 1341 provides:
"Frauds and swindles
"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both."
18 U.S.C. § 1342 provides:
"Fictitious name or address
"Whoever, for the purpose of conducting, promoting, or carrying on by means of the Postal Service, any scheme or device mentioned in section 1341 of this title or any other unlawful business, uses or assumes, or requests to be addressed by, any fictitious, false, or assumed title, name or address or name other than his own proper name, or takes or receives from any post office or authorized depository of mail matter, any letter, postal card, package, or other mail matter addressed to any such fictitious, false, or assumed title, name, or address, or name other than his own proper name, shall be fined not more than $1,000 or imprisoned not more than five years, or both."

2
 In Count II it was alleged that Strauss and Ohrynowicz caused a Decatur, Illinois, bank to mail an "advice letter" on September 12, 1967, to a Springfield, Illinois, bank transmitting a worthless check dated September 11, 1967
Similarly, Count IV alleged that Strauss and Ohrynowicz caused a Springfield bank to mail an "advice letter" on September 13, 1967, to a Normal, Illinois, bank transmitting another worthless check, dated September 12, 1967.

3
 We need not reach the question whether petitioner's claim that he was sentenced for conduct that did not violate the statutes charged could be viewed as a constitutional or jurisdictional claim

4
 See discussion of the lack of sufficient connection at 985, infra

5
 Note the discussion of the ramifications of Davis with respect to pre-Maze convictions in Justice Rehnquist's dissent in Davis.  417 U.S. at 365-366, 94 S.Ct. 2298

6
 Since petitioner appealed his conviction, we are not presented with the problem suggested by Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, which is discussed in Travers, supra at 1176-1177.  Because this is not a case where appeal was foregone by the petitioner, we, unlike the Second Circuit, express no opinion on the availability of Section 2255 relief, in light of Maze, to those persons who did not perfect an appeal from their convictions under Sections 1341 or 1342

7
 As to 18 U.S.C. § 1341, see 18 U.S.C. 1940 ed., § 338 (Mar. 4, 1909, c. 321, § 215, 35 Stat. 1130 (derived from R.S. § 5480; Mar. 2, 1889, c. 393, § 1, 25 Stat. 873) ).  As to 18 U.S.C. § 1342, see 18 U.S.C. 1940 ed., § 339 (Mar. 4, 1909, c. 321, § 216, 35 Stat. 1131 (derived from Mar. 2, 1889, c. 393, § 2, 25 Stat. 873 )

8
 Of course, since 18 U.S.C. § 1342 reached the use of a false name or address in connection with any "unlawful business," its substantive sweep may exceed that of Section 1341 which reaches fraud and similar crimes

9
 It is insignificant that the writ in Travers was one for coram nobis, rather than habeas corpus.  See Travers, supra, 1174, 1175