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the Government with these tribes is a great public interest, and their settlement upon reservations has been considered a matter of great importance. Indeed, it has been the settled policy of the Government for many years. A reservation from the public lands therefore for Indian occupation may well be regarded as a measure in the public interest and it is for public use.
In the case of the United States against John Leathers, tried and decided by Hillyer, district judge of the district of Nevada, an order of reservation, made March 23, 1874, of lands in the State of Nevada for Indian occupation was passed upon.
Tbis case was thoroughly and vigorously contested, but the argument de rived from the jurisdiction and sovereignty of the State is not noticed in the decision of the judge. It makes no figure in the case. He does decide that the reservation was legally and rightfully made by the President, and this after a thorough examipation of the authorities.
Reservations created by executive order con be restored to the pub. lic domain by the same authority without an act of Congress.
The earliest issue of an executive order for an existing reservation was that of May 14, 1855, setting apart the Isabella Reservation, in Michigan.?
Sixty-one reservations exist by executive order at the present time, as follows:
RESERVATIONS ESTABLISHED BY EXECUTIVE ORDER.
California.-Klamath River, Mission (21 reserves), Tule River, and
Dakota Territory.—Crow Creek, Old Winnebago, Fort Berthold, and
Idaho Territory.—Cour d'Aléne and Lembi.
Nevada.—Duck Valley, Moapa River, Pyramid Lake, and Walker
New Mexico Territory. - Mescalero, Apache, and Zuni.
Washington Territory.-Chehalis, Columbia, Colville, Muckleshoot,
REGULATIONS PERTAINING TO INDIAN RESERVATIONS.
by law, March 3, 1807.
Titles of intruders forfeited.
i Public Domain, 1883, p. 243. Report of Indian Commissioner, 1882, p. 272. Ibid., 1884, pp. 256–265.
President authorized to have them removed.
Forfeitnres to inure to the benefit of the United States : Provided, That nothing herein contained shall be construed to affect the right, title, or claim of any person to lands in the Territories of Orleans or Louisiana before the boards of commissioners established by the act entitled 'An act for ascertaining and adjusting the titles and claims to land within the Territory of Orleans and the district of Louisiana'shall have made their reports and the decision of Congress been had thereon.” (Act of March 2, 1805, chapter 26.)
(Sec. 2.) Actual settlers may hold under the United States as tenants at will, under bargains with the officers of the land offices.
Conditions prescribed : “Provided, however, That such permissiou shall not be granted to any such applicant, unless he shall previously sign a declaration stating that he does not lay any claim to such tract or tracts of land, and that he does not occupy the same by virtue of any claim or pretended claim derived, or pretended to be derived, from any other person or persons: And provided also, That in all cases where the tract of land applied for includes either a lead mine or salt spring, no permission to work the same shall be granted without the approbation of the President of the United States, who is hereby authorized to cause such mines or springs to be leased for a term not exceeding three years, and on such conditions as he shall think proper.”
(Sec. 3.) Applications to be entered on books.
(Sec. 4.) Marshals, etc., authorized, under instructions from the President, to remove intruders.
Penalties for keeping possession after notice to give it up: "Provided always, and it is further enacted, That nothing in this section contained shall be construed to apply to any persons claiming lands in the Territories of Orleans or Louisiana whose claim shall have been filed with the proper commissioners before the first day of January next." ]
The following rules are quoted from the “Regulations of the Indian Department," published in 1884:
(Sec. 525). The right of the Indians to the reservations ordinarily occupied by them is that of occupancy alone.
They have the right to apply to their own use and benefit the entire products of the reservation, whether the result of their own labor or of natural growth, so they do not commit waste. If the lands in a state of nature are not in a condition for profitable use, they may be made so; if desired for the purpose of agriculture, they may be cleared of their timber to such an extent as may be reasonable under the circumstances, and the surplus timber taken off by the Indians in such clearing, and not required for use on the premises, may be sold by them. The Indians may also cut dead and fallen timber and sell the surplus not needed for their own use; they may cut growing timber for fuel and for use upon the reservation; they may open mines and quarry stone for the purpose of obtaining fuel and building material; they may cut bay for the use of tho live-stock, and may sell any surplus not needed for that purpose. They may not, however, cut growing timber, open mines, quarry stone, etc., to obtain lumber, coal, building material, etc., solely for the purpose of sale or speculation. In short, what a tenant for life may do upon the lards of a remainderman the Indians may do upon their reservations, but no more. (Sec. 262. Instructions, 1880; United States v. Cook, 19 Wallace, 591 ; acts of March 22, 1882, March 31, 1882; Secretary of Interior, May 19, 1882; 9636, 1882, Indian Office.)
(526). Agents must be the judges of the necessity of clearing land for the purpose of improvements.
(Sec. 262, Instructions 1880.) (527). Money derived from the sale of timber, hay, etc., must be taken up and accounted for as directed under the head of miscellaneous receipts. (Sec. 262, Instructions 1880.)
United States Statutes at Large, Vol. II, chap. 46, pp. 445–116.
(532). Indians have no right to grant, lease, or otherwise convey the lands occapied by them for any purpose whatever, unless such conveyance be made in accordance with treaty or with law. (Sec. 2116, Revised Statutes.)
That for the purpose of inducing Indians to labor and become self-supporting, it is provided that hereafter, in distributing the supplies and annuities to the Indians for whom the same are appropriated, the agent distributing the same shall require all able-bodied male Indians between the ages of eighteen and forty-five to perform service upon the reservation, for the benefit of themselves or of the tribe, at a reasonable rate, to be fixed by the agent in charge, and to an amount equal in value to the supplies to be delivered ; and the allowances provided for such Indians shall be distributed to them only upon condition of the performance of such labor, under such rules and regulations as the agent may prescribe : Provided, That the Secretary of the Interior may, by written order, except any particular tribe, or portion of tribe, from the operation of this provision where he deems it proper and expedient. (United States Statutes at Large, Vol. XVIII, pp. 176, 449.)
(540). Agents are instructed to take such measures, not inconsistent with law, as may be necessary to protect those Indians who have adopted the habits of civilized life, and received their lands in severalty by allotment, in the quiet enjoyment of the lands allotted to them. (Sec. 2119, Revised Statutes.)
(541). If any person of Indian blood, belonging to a band or tribe which receives or is entitled to receive annuities, and who has not adopted the habits of civilized life and received lands in severalty by allotment, commits a trespass upon the lands of any Indian who has so received his lands by allotment, the agent of such band or tribe shall ascertain the damages resulting from such trespass, and the sum so ascertained shall be withheld from the payment next thereafter to be made either to the band or tribe to which the party committing the trespass belongs, as in the discretion of the agent he shall deem proper; and the sum so withheld shall, if the Secretary of the Interior approve, be paid over to the party injured. (Sec. 2120, Revised Statutes.)
(542). Whenever such irespasser as is mentioned in the preceding section is the chief or head-man of a band or tribe, the agent shall also suspend the trespasser from his office for three months, and shall, during that time deprive him of all the benefits and emoluments connected therewith. The chief or head-man may, however, be sooner restored to his former position if the agent so directs. (Sec. 2121, Revised Statutes.)
(569). Indians must be permitted to sell their crops or other articles produced by them at the nearest market town, proper precautions being taken to guard them against fraud or obtainivg intoxicating liquors. (Sec. 246, Instructions 1880, Circular 68, Indian Office.)
(528). The military, when stationed at a post within ap Indian reservation, bave a right to cut and use timber and hay to an amount sufficient for their necessities, without liability to make payment therefor to the Indians, or to any person in their behalf. No person except Indians, officers of the Indian service, and the military are authorized to cut timber or hay upon Indian reservations, and the rights of said escepted classes are carefully limited and restricted as stated above. (Secs. 263, 264, Instructions 1880.)
(530). Where provision is ma:le by treaty for the establishment of cattle-trails across Indian reservations, and such trails have been established with the consent of the Indians and the approval of the Department, cattle-men will be permitted to cross such reservation, care being taken by the agent that the established route is not deviated from, and that unnecessary time is not consumed upon the reservation. (Sec. 270, Instructions 1880.)
(531). Subject to the preceding section, no white person or persons will be permitted to drive stock across Indian reservations or Indian country without first having obtained the consent of the Indians and the approval of the Iudian Office. Persons
violating this section, and section 529 (2117 Revised Statutes), are liable to a penalty of one dollar for each animal driven upon the reservation. (See. 271, Instructions 1680; sec. 2117 Revised Statutes.)
(533). Settlement on any lands secured to the Indians by treaty, surveying or attempting to survey, or in any manner to designate the boundaries of such lands, is expressly forbidden by law under a penalty of one thousand dollars. (Sec. 272, Instructions 1880; sec. 2118, Revised Statates.)
(534). Foreigners are forbidden to go into the Indian country without a passport from the Department of the Interior, agent, or commanding officer of the nearest military post, or to remain therein after the expiration of such passport, under a penalty of one thousand dollars. Such passport must show the object of the visit, tho time allowed to remain, and route of travel. (Sec. 2134, Revised Statutes.)
(535). Hunting on Indian lands by others than Indians, except for subsistence in the Indian country, is prohibited. Any violation of this section will render the oftender liable to a forfeiture of all his guns, traps, ammunition, etc., and to a further penalty of five hundred dollars. (Sec. 2137, Revised Statutes.)
(537). Indian agents have authority to remove from the Indian country all persons found therein contrary to law, and the military may be used for the purpose under direction of the President. Any person who, having been removed, returns thereafter to the Indian country is liable to a penalty of one thonsand dollars. (Secs. 2147, 2148, Revised Statutes.)
(538). The Commissioner of Indian Affairs is authorized and required, with the approval of the Secretary of the Interior, to remove from any tribal reservation any person thereon unlawfully, or whose presence on the reservation may, in the judgment of the Commissioner, be detrimental to the peace and welfare of the Indians, and may employ such force as may be necessary for the purpose. Sec. 2149, Revised Statutes.)
Indian land tenure.-In the proclamation of George III, dated October 7, 1763,' four principles of government in Indian affairs, in force to the present day, are laid down: (1) The recognition of the Indian's right of occupancy:
And whereas it is just and reasonable, and essential to our interest, and the security of our Colonies, that the several nations or tribes of Indians, with whom we are connected, and who live under our protection, should not be molested or disturbed in the possession of such parts of our doininions and territories, as, not having been ceded to, or purchased by us, are reserved to them, or any of them, as their hunting grounds. (2) The right to expell white intruders on Indian lands:
All the lands and territories not included within the limits of our said three new Governments or within the limits of the territory granted to the Hudson's Bay Company; as also all the lands and territories lying to the westward of the sources of the rivers which fall into the sea from the West and Northwest as aforesaid; and we do hereby strictly forbid all * subjects from making
settlements or taking possession of any of the lands above reserved.
And we do further strictly enjoin and require all persons whatever, who have wilfully or inadvertently seated themselves upon any lands within the countries above described, or upon any other lands, which not having been ceded to, or purchased by us, are still reserved to the said Indians as aforesaid, forth with to remove themselves from such settlements.
(3) The right to purchase Indian lands is vested solely in the government: We do, with the advice of our Privy Council, strictly enjoin and require that no private person do presume to make any purchase from the said Indians of any lands reserved to the said Indians
if at any time any of the said Indians should be inclined to dispose of the said lands, the same shall be purchased only for us, in our
1 American Archives, 4th series, Vol. 1, col. 174. S. Ex. 95-9
(4) The right to regulate trade and license traders :
Every person who may incline to trade with the said Indians, do take out a license for carrying on such trade, from the Governor or Commander-in-chief of any of our colonies respectively
and also give security to observe such regulations as we shall at any time think fit
to direct and appoint for the benefit of the said trade.! Section 4 of the ninth article, of the Articles of Confederation of July 9, 1778, states :
The United States in Congress assenibled, shall also have the sole and exclusivo right and power of
regulating the trade and managing all affairs with the Indians, not members of any of the States; provided that the legislative right of any State, within its own limits, be not infringed or violated.
In 1783 Penusylvania Laving need to negotiate with certain Indians living west of the Ohio River, yet claiming territory within the State lines, the General Assembly, September 12, 1783, referred the matter of treating with these Indians to Congress, “ being deeply impressed with the delicacy of touching the subject of Federal relations." 3
On September 22, 1783, Congress issued a proclamation forbidding private purchase or gift of lands from Indians, or settlements to be made upon unceded Indian territory.
The Constitution states in section 3 of Article IV: “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." 4
The right of eminent domain is recoguized by the Supreme Court as vested in the United States. Chief Justice Marshall decides in the case of Johnson v. McIntosh :
On the discovery of this immense continent, the great nations of Europe were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the Government by whose subjects, or by whose authority, it was made, against all other European Governments, which title might be consummated by possession.
In the establishment of these relations the rights of the original inhabitacts were in no instance entirely disregarded, but were necessarily to a considerable extent impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to completo sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it.
By the treaty which concluded the war of our Revolution Great Britain relinquished all claim, not only to the government, but to the “proprietary and territorial rights of the United States," whose boundaries were fixed in the second article. By this treaty the powers of government, and the riglit to soil, which had previously been in Great Britain, passed definitely to these States.
It has never been doubted 1 See Chapter IV on Trading Regulations. 2 United States Statutes at Large, Vol. I, p. 7, Art. 9, sec. 4. 3 Journals of Congress, Vol. IV, pp., 273-274. 4 United States Statutes at Large, Vol. I, p. 19.