The daily union. [volume] (Washington [D.C.]) 1845-1857, 1854-08-22

hey any therein affecting the proceeds of sale Here
ample field in which give effect TO the preempon pro
! visions OF the act of Congress
TO this view of the subject and waving for Ii.
present all question the relative authority of treaty
and of Congress- lei suppose for the arguments
sake that these various public acs-nainely the several
treaties with the Deawares, the Ioways, the Weas, the
Otoes the Mssouras the Omahas the kckapoos and the
Sacs and Foxesand the act Of Congress all acts Of the
same character and authority that is to say all treaties
acts of Congress This view of the gives to the pre-
empton pretension all the premises which il can claim
and much than it is entitled to by rule OF law
Surprising this however it is clear that If all these
were acts Congress of their respective dates then they
are to be construed together and by no established rule
would the provision for general right of pre-emponh
the Territories of Nebraska and Kansas operate repeal
of the provision for the public sale of the lands of the
Deawares loways and Weas. On the contrary, in such
case the general right of pre-empton would have tok
construed applying only to those lands which, by the
other Cor treaties not reserved for some other
Destination Of which there is AN abundance TO satisfy all
the calls Of the statute
The rgh, Of pre-emption accorded by the act Of 1854
does not extinguish by repeal reservations belonging
the United States no does it extinguish any special
rights reserved TO the Deawares, Ioways, and Weas
Beyond this grant prescriptions Of the lands cedcd by
the Delawares, Ioways, and Weas with condition, and
upon trust be sold public auction for their account
and benefit would be violation of the treaties breach
of trust fraud upon the Indians.
Against so disposng Of the choicest lands at the mini
price settlers and preemptoners the treaties with
Deawarcs and oways have expressly provided ad
dtona guarantee by the stipulation in relation to the
of March 3d. 1907 But because the Wcas in their treaty
have not anticipated bad faith the part OF the Omitted
States and expressly fenced against BY invoking to their
aid the of 1907 they not therefore to be deauded
The stipuations in the treaties with the Delaware To-
ways and Wes respecting the lands ceded to them upon
trust the sold at public auction and the net
tn, fpOc to- he
understood They are absolutely inconsistent with pre-
epons TO settlers at the minimum price Therefore the
precmptons in the Territories of Nebraska and Kansas
granted by the act of July 22d 1854 by reference to the
operation the of September ith 1884, must be restrict
ed to lands other than those ccded by the Delawares To-
ways and Weas upon trust to be sold by the United states
| on account and for the benefit of the Indians.
The aOuet7 coded by the Delawares is subject to be To-
Gated by prccmponer because it is excepted from the
lands to De surveyed and sold for the benefit Of those M
I dians.
! BY thus limiting the prescriptions TO those lands in
which the Indians have title reserved interest," the
treaties with tho pelnwares, Ioways, and Weas will have
their due effect and the statute for granting prescriptions
will also have its due aud proper efectand force without
conflict with any of the treaties, by action Oh the other
lands ceded by the Indians.
In waving as unnecessary and supcrfuous IN the pres
en case any discussion the relative authority OF these
treaties and an act of Congress- let ME not be understood
as acceding tue doctrine that u spulatons Of treaties
are subject bc repealed modified at any time by oct
of Congress- Without going into that question here II
suices remark that every treaty IN express compact
in the solemn form in which the United States can
make compact
/ Not to observe a treaty TO violate deliberate and
| press engagement To violate such engagements OF
/ treaty with any foreign power affords Of course good
cause war When Congress takes upon itself to disregard
the provisions of any foreign treaty. il nfringes the
same in the exercise of sovereign right and yolun-
arily accepts the be when, in 1898, u annned
| the treaties between the United States and Franco
i There is distinction undoubtedly, between treaty with
foreign power and treaty with Indians who ore sub
ects of the United States Examples may be cited OF acts
of Congress which operate SO us to modify or amend
treaties with Indians As their sovereign ana Their guar
dan have occasionally assumed to acting in Their
interest and own and not in such case violating en-
gagements with them but seeking to give beneficial
effect such engagements for though they be weak and
strong they subjects aud masters yet they are not
the entitled the exercise towards them of the most
scrupuous good faith the part of the United States
1t not be Inferred because Congress may in some
cases have modified by legislation this that incident Of
Indian relations for their benefit under paramount p,
al exgency that therefore Congress intended before the
ink had become dry these treaties with the Delaware
Toways and Wea violate those treaties and to do this
deliberately and wantony for the petty object of enabling
a few individuals obtain lands at the minimum price
rather than at the price Of public sale and so to inict
/ wrong and loss to that amount on the Indians.
/ feel entire confidence in the belief that Congress had
such discredabe intention in fact and assuledy such
is the legal intendmcnt OF the act of Congress
As for the idea suggested in behalf of these indylduas
that the of Congress raises contract between the SET
tiers and the government is singular oblquity OF Wis
ion which perceives in that act md fails to see
any in the several treaties with the Indians. The obvious
the suggestion is that implication OF egisla
tive contract between the and individuals can
be raised by a violation of law.
I In fine my opinion that the act Of Congress gives pre-
cmption only in such Of those lands ceded ~
quired first to be offered Mt public sale that the lands
ceded by the Dcawares Ioways and Wens ereondon
being first offered public sale opened TO
presumption by the act of Congress than was the military
reservation II Fort eaYenwerh thai thGse nEas eannos
be taken up by settlers under claim Of prescription ana
that all claims of pe-cnpon there will be merely void in
law aud will confer right, or hereafter, on which
to demand the issue of patent from tie Commissioner OF
: Public Lands.
Moreover il will be the duty of the President TO main
tan by force need be- the pighted fifth Of the United
u States in this behalf
4 am sir very respectfully, your ohcqient scryan,,
u G. CUSHING,
\ Hon. ROBERT McCLrLLANp,
4 Secretary of the Interior
u IMPORTANT Dlscos ERY--The Gazette Heb1onad,uc de
Medicine q nc Chirmyerie gives account Of some
periments equally important in practical in tcoret
cal pon, OF view aud from which il results that air passed