« PreviousContinue »
Conformably to the law of the United States, legitimate titles to every description of property, personal and real, existing in the ceded Territories are those which were legitimate titles under the Mexican law in California and New Mexico up to the 15th of May, 1846, and in Texas up to the 2d of March, 1836.
Gadsden purchase.- Treaty with Verico, proclaimed June 30, 1854. (Art. 5.) All the provisions of the eighth and ninth, sixteenth, and seventeenth articles of the treaty of Guadalupe Hidalgo shall apply to the territory cered by the Mexican Republic in the first article of the present treaty, and to all the rights of persons and property, both civil and ecclesiastical, within the same, is fully and effectually as if the said articles were herein again recited and set forth.
(Art. 6.) No grants of land within the territory celled by the first article of this treaty bearing date subsequent to the day—25th of September-when the minister and subscriber to this treaty on the part of the United States proposed to the Government of Mexico to terminate the question of boundary, will be considered valid or be recognized by the United States, or will any grants made previously be respected or be considered as obligatory which have not been located and duly recorded in the archives of Mexico.?
A considerable part of the territory occupied by Indian reservations is unfit for cultivation without irrigation; therefore the following legislation, touching water rights and privileges, is given:
An act changing the mode of surveying the public lands on any rirer, lake, bayou, or waier
Sec. 2407. Whenever, in the opinion of the President, a departure from the ordinary method of surveying land on any river, lake, bayou, or water-course would promote the public interest, be may direct the surveyor-general in whose district such land is situated, and where the change is intended to be made, to cause the lands thus situated to be surveyed in tracts of two acres in width, fronting ou any river, bayon, lake, or water-course, and running back the depth of forty acres; which tracts of land so surveyed shall be offered for sale entire, instead of in half-quarter sections, and in the usual manner and on the same terms in all respects as the other public lands of the United States.
An act granting the right of way to ditch and canal ouners orer the public lands, and
for other purposes. Sec. 9. And be it further enactedl, That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes bave vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is liereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this aet, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.”
Laws permitting Indians to take up public lands.- Under the act of Augnst 4, 1854, entitled “ An act to graduate and reduce the price of the public lands to actual settlers and cultivators,” some Indians purchased Jand. (United States Statutes, Vol. X, p. 574.) By their treaty of July 31, 1855, the Chippewa Indians of Michigan were per
"The Public Domain, 1883, p. 133. 2 United States Statutes at Large, Vol. X, p. 1035. 3 Ibid., Vol. IV, p. 34. 4 Revised Statutes of the United States, 2d edition, 1878, sec. 2407, p. 4'1. SI'nited States Statutes at Large, Vol. XIV, p. 2:13.
mitted to receive their title to land so purchased without “actual ocenpancy or residence,” in order to sell and dispose of the same. (United States Statutes, Vol. II, p. 627.)
By act of March 3, 1875, the Indians were permitted to homestead. The following is the law:
That any Indian born in the United States, who is the head of a family, or who has arrived at the age of twenty-one years, and who has abandoned, or may hereafter abandon, his tribal relations, shall, on making satisfactory proof of such abandonment, under rules to bo prescribed by the Secretary of the Interior, be entitled to the benefits of the act entitled "An act to secure homesteads to actual settlers on the public domain," approved May 20, 1862, and the actsamendatory thereof, except that the provisions of the eighth section of the said act shall not be held to apply to entries made under this act: Provided, howerer, That the title to lands acquired by any Indian by virtue hereof shall not be subject to alienation or incumbrance, either by voluntary conveyance or the judgment, decree, or order of any court, and shall be and remain inalienable for a period of five years from the date of the patent issued therefor: Prorided, That any such Indian shall be entitled to his distributive share of all annuities, tribal fonds, lands, and other property, the same as though he had maintained his tribal relations; and any transfer, alienation, or incumbrance of any interest he may hold or claim by reason of his former tribal relations shall be void.
That in all cases in which Indians have heretofore entered public lands under the hoinestead law, and have proceeded in accordance with the regulations prescribed by the Commissioner of the General Land Office, or in which they may hereafter be allowed to so enter under said regulations prior to the promulgation of regulations to be established by the Secretary of the Interior, under the fifteenth section of this act, and in which the conditions prescribed by law have been or may be complied with, the entries so allowed are herelıy confirmed, and patents shall be issued thereon; subject, however, to the restrictions and limitations contained in the fifteenth section of this act in regard to alienation and incumbrance.1 Approved March 3, 1875.
The act of July 4, 1884, provided that such Indians as may now be located on public lands, or as may, under the direction of the Secretary of the Interior, or otherwise, hereafter so locate, may avail themselves of the provisions of the homestead laws as fully and to the same extent as inay now be done by citizens of the United States ; and to aid such Indians in making selections of homesteads and the necessary proofs at the proper land offices, $1,000 or so much thereof as may be necessary is hereby appropriated; but no fees or commissions shall be charged on acconnt of said entries or proofs. All patents therefor shall be of the legal effect, and declare that the United States does and will hold the land thus entered for the period of twentyfive years, in trust for the sole uso and benefit of the Indian by whom such entry shall have been made, or, in case of his decease, of his widow and heirs according to the laws of the State or Territory where snch land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his widow and heirs as aforesaid, in fee, discharged of said trust and free of all charge or incombrance whatsoever.?
Indians cannot pre-empt public lands, and they cannot remove, disability by declaring in the form of the statute their intention to become citizens.
Citizenship is not requisite for the ordinary purchase of public land.
It may be done by a foreign alien, and a fortiori by a mere denizen or domestic alien, such as are the Indians, 3
By act of July 4, 1884, sec. 10. No part of the expenses of the public lands service shall be deducted from the proceeds of Indian lands sold throngh the General Land Office, except as authorized by the treaty or agreement providing for the disposition of the land. (United States Statutes, Vol. XXII, p. 93.)
"United States Statutes, Vol. XVIII, p. 240, sccs. 15, 16. 2 Indian appropriation act, July 4, 1881, Statutes 23, p. 961. 3 Opinion of Attorney-General, Vol. VII, p. 753.
Manner of dissolving tribal relations.-A circular to registers and receivers, issued by the General Land Office August 23, 1881, states:
Upon any Indian applying to enter land under the above act, yon will allow him to do so without payment of fee or commission, but you will require him to furnish a certificate from the agent of the tribe to which he belongs that he is an Indian of the age of twenty-one, or head of a family, and not the subject of any foreign country. The certificate of any other officer of the Indian Department, particularly where the Indian making application is not attached to any particular agency, will serve as well.
In a previous circular letter to registers and receivers by the General Land Office, they are instructed “to peremptorily refuse all entries and filings attempted to be made by others than the Indians occupying lands in the possession of Indians who have madeimprovements of any value whatsoever thereon, and, further, when lands are unsurveyed” no apportionment will be allowed within the region of Indian settlers until thesurveys have been made and the land occupied by Indians ascertained and defined.
Leasing of Indian lands.—The Attorney General, on July 21, 1885, in reply to certain questions propounded by the Interior Department, touching the legality of the leases of Indian lands, rendered his opiniou that under existing statutes of the United States (twelfth section of the trade and intercourse act of June 30, 1831, 4 Statutes at Large, p. 730, reproduced in section 2116 of the Revised Statutes) the several Indian nations or tribes, regardless of the character of the title by which they hold their lands, whether the same be a fee-simple or a right of occupancy only, are precluded by the force and effect of the statute from either alienating or leasing any part of their sereral reservations, or im. parting any interest or claim in or to the same, without the consent of the Government of the United States, and that a lease of land for graz. ing purposes is as clearly within the statutes as a lease for any other or for general purposes, the duration of the term being immaterial.
The Attorney-General further holds that in the absence of any treaty or statutory provisions to that effect, neither the President, Secretary of the Interior, nor any other officer of the Government bas power to make, authorize, or approve any leases of lands held by Indian tribes; instancing the act of Cougress of February 19, 1875 (18 Statutes at Large, p. 330), "authorizing the Seneca Nation of New York Indians to lease lands within the Cattaraugus and Allegany Reservations, and to confirm existing leases," as significant that, in the views of Congress, Indian tribes can not lease their reservations without the authority of some law of the United States.'
Land in severalty.—The following is the text in full of the act which permits certain Indians to possess their land individually:
AN ACT to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laucs of the United States and Territories orer the Indians, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases where any tribe or band of Indians has been,
Report of Commissioner of Indian Affairs 1865, PP. xviii, xix.
or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon in quantities as follows:
To each head of a family, one-quarter of a section;
To each other single person under eighteen years now living, or who may be born prior to the date of the order of the President directing an allotment of the land embraced in any reservation, one-sixteenth of a section : Provided, That in case there is not sufficient land in any of said reservations to allot lands to each individual of the classes above named in quantities as abore provided, the lands embraced in such reservation or reservations shall be allotted to each individual of each of said classes pro rata in accordance with the provisions of this act: And provided further, That where the treaty or act of Congress setting apart such reservation provides for the allotment of lands in severalty in quantities in excess of those herein provided, the President, in making allotments upon such reservation, shall allot the lands to each individual Indian belonging thereon in quantity as specified in such treaty or act: And provided further, That when the lands allotted aro only valuable for grazing purposes, an additional allotment of such grazing lands, in quantities as above provided, shall be made to each individual.
Sec. 2. That all allotments set apart under the provisions of this act shall be selected by the Indians, beads of families selecting for their minor children, and the agents shall select for each orphan child, and in such manner as to embrace the improvements of the Indians making the selection. Where the improvements of two or more Indians have been made on the same legal subdivision of land, unless they shall otherwise agree, a provisional line may be run dividing said lands between them, and the amount to which each is entitled shall be equalized in the assignment of the remainder of the land to which they are entitled under this act: Provided, That if any one entitled to an allotment shall fail to make a selection within four years after the President shall direct that allotments may be made on a particular reservation, the Secretary of the Interior may direct the agent of such tribe or baud, if such there be, and if there be no agent, then a special agent appointed for that purpose, to make a selection for such Indian, wbich selection shall be allotted as in cases where selections are made by the Indians, and patents sball issue in like manner.
Sec. 3. That the allotments provided for in this act shall be made by special agents appointed by the President for such purpose, and the agents in charge of the respective reservations on which the allotments are directed to be made, under such rules and regulations as the Secretary of the Interior may from time to time prescribe, and shall be certified by such agents to tho Commissioner of Indian Affairs, in duplicate, one copy to be retained in the Indian Office and the other to be transmitted to the Secretary of the Interior for his action, and to be deposited in the General Land Office.
Sec. 4. That where any Indian not residing upon a reservation, or for whose trile no reservation has been provided by treaty, act of Congress, or executive order, shall make settlement upon any surveyed or unsurveyed Jands of the United States not otherwise appropriated, he or she shall be entitled, upon application to the local landoffice for the district in which the lands are located, to have the same allotted to him or her, and to his or her children, in quantities and manner as provided in this act for Indians residing upon reservations; and when such settlement is made upon unsurvoyed lands, the grant to such Indians shall be ailjusted upon the survey of the lands
(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 sball 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 assembled, shall also have the sole and exclusive 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 Pennsylvania 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 recognized 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 conHicting 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 inhabitants 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 complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was devied 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 fised in the secoud article. By this treaty the powers of government, and the right to soil, which had previously been in Great Britain, passed definitely to these States.
It has never been doubted See Chapter IV on Trading Regulations. ? 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 Largo, Vol. I, p. 19.