The daily union. [volume] (Washington [D.C.]) 1845-1857, 1854-08-22
PRE- EMpTIoN IN KANSAS AND NEBRASKA.

! 1hE-EMIllON IN hANSAS AMI NEDhAShA.
The following opinion of the Attorney General as to pre-
empon in the Territories OF Kansas and Nebraska is COM
muncated for publication by the Department ofhe Interior
/ ATTORNEY GENERALS OFFICE,
l4th August 1854.
! SIR: Your communication of the 9th instant covering
that of the Commissioner Indian Affairs of the 9Th nst
questions to the legal relation between certain
provisions of the of Congress of July 3d. 1854 TO
bsh the Offices of New Mexico Kansas
and Nebraska grant donations to actual settlers therein
and for other purposes and certain treaties OF May aswth
/ the Delaware, Ioway, and Wea Indians,
BY the treaty concluded and signed May 9Th 1854 rati-
fed by the Senate July llth 1854, and proclaimed July
lTth 1854 between the United States and the Delaware In
dans they coded to the United States the land called the
Outlet the price OF ten thousand dollars and other
lands within certain defined boundaries be paid for
after mentioned
! BY article the United States agreed to cause all the
lands ceded excepting the said Outlet TO be surveyed in
the that public lands are surveyed And the
President will, the whole any portion OF said
lands surveyed proceed TO offer such surveyed lands
for sale public auction in such quantities as he may
deem proper being governed in all respects in conducting
such sales by the laws of the United States respecting the
sales of public lands and such of the lands may not
be sold the public sale shall thereafter be subject to pri-
waite entry in the manner that private entries are
made of the United States lands all of such lands as
remain unsod after being subject to private entry for three
years at the minimum government price, may by act OF
Congress- be graduated and reduced in price until all the
said lands sod regard being had in said graduation
and reduction to the interest of the Deawares and also to
the speedy settlement of the country
BY article the United States agree to pay to the Della
tribe all the moneys received from the sales OF the
lands provided to be surveyed in the preceding article after
deductng thererom the of surveying managing and
selling the same.
Article le 1t is agreed by the parties hereto that the
provisions of the of Congress approved 3D. OF March,
1907 in relation to lands coded to the United States shall,
far applicable be extended to the lands herein ce-
| ded."
The act of Congress alluded in the 10th article is to
be found in the I'd volume of the Statutes Large, page
44 chapter 46 The material provisions OF that act appi-
cable to the lands ceded by the Dcawares that amy
person persons SHALL after the passing OF this act take
possession of make settlement on any lands ccded or
secured the United States by any treaty made with
foreign nation by cession from any State to the Uni
ted States which lands shall not have been previously sold
coded or leased by the United States the claim to which
lands by such person persons shall not have been pre-
viously recognised and confirmed by the United States
or if any person shall such lands to be thus
cupied taken possession of settled &C. the President
of the United States may have them removed and take
such and employ such military force as he may
| Judge necessary and proper for that purpose.
The treaty between the United States and the Ioway In
dams concluded and signed May lt 1854 ratified by the
Senate July llh 1854 and proclaimed by the President
July 18TH 1854 contains stpuatons for the sale of the coded
lands and payment OF the proceeds to the oway Indians
similar the stipulatons of the treaty with the Deawarcs
and also refers the above-ced act of Congress of
! March 3D. 1907.
The treaty between the United States and the Wea and
other tribes of Indians, concluded and signed May 30th
1854 ratified by the Senate and proclaimed in the present
month of August provided for the surveying OF the lands
ceded to the United States into townships and sections
and for the selection of certain quantity reserved to
Il Ind; nf coded
sold for the benefit of the Indians and the whole proceeds
after deucng the of surveying managing and sell
ing be paid the Indians The provision for the man
ncr of selling similar that in the treaties with the Della
wares and Ioways except that the act of 1907 for expeng
n,ruders is not mentioned in this treaty
These treaties when ratified il is to be observed take
effect from the day which they respectively con-
/ cluded and signed.
BY these treaties the lands ceded be sold public
auction upon the account and for the benefit of the Della
wares oways and Weas respectively they paying the cost
of surveying managing and selling. The legal title, do
MAN, and jurisdiction in the United States but the
equitable beneficiary interest in the proceeds of sales is in
the Indians The proceeds of the sales to be accounted
for by the United States after deducng the costs of sur
veying managing, and selling the considerations for
the cesons of jurisdiction and sovereignty the United
! States
The treaties expressly require that the lands shall be
offered ut public auction before they can be subject to r-
vate entry in any form
Question thereupon arises upon the following provision
4 of the act of Congress referred to, viz
aThat all The lands to which the Indian title has been
or shall be exingushcd within said Territory of Nebas
ka and Kansas shall be subject the operation of the pre-
empon of the fourth September, ls4 and under the
conditions restrictions and stpulnons therein mention
ed Propidea ho,cesey that where uhsurveyed lands
claimed by preempton notice of the specific tract claimed
shall be fled within three months after the survey has been
made in the field and tlure to file such notice pay
for the tracts claimed before the day fixed for the public
sale of the lands by the proclamation of the President
the United States the parties claiming sac land shall for
felt all right thereto Provided said notices may be filed
with the survey orgenera and acted by him. until Other
arrangements shall have been made by law for that pu
t pose
Now the difference between sales at public auction and
sales to pe-empone. is essential and notorious and thu
taking up OF land by presumption uncr the pros isions
the act of ls4l applied by that of 1854 to the Territories
of Nebraska and Kanzas is inconsistent with the particular
spuations for public sale in the treaties with the Della
wares Ioways and Wcas.
The Commissioner states that it claimed the part
persons intending to set up prescriptions under the act Of
July ed 1854 that this act constitutes contract between
them and the United States and that in far regards
the s,nations OF the treaties with p peiawares Iowa.
and Weas of May previous with which the act Us they as
sumo s in conflict those sipuations are TO be considered
AS abrogated by the act Of Congress.
=, :doment there is not the slightest foundation fol
this pretenson either in the genera prnep'es q Jaw OF
on the proper construction of the letter of the statute
1.-THE act of Congress undertook in express terms,
annuI the stipuiatons OF treaty 10 question, y would m
necessary TO discuss the relative authority OF treaty ano
s,ane But there is no such extraordinary thing III ih