Kansas weekly herald., 1854-09-15
sssassf,tS0as ias the DeIzsCere


The question submitted for examfsstion i
whether the unsurysyed lands which hAzve beel
ceded to the United States by the sesslawares'
are now open to settlers in Kansasfer pre-emp
tion? Until saw the opinion Of tiie very abl,
and accomplished Attorney Generaiof the Uni
ted States supposed little or no da,bt existed
on the question. That opinion em4 mating as il
does from the highest law officer In the Govern
ment Is entitled to great ccnsideratisn and there
should be no attemPtto controyert it unless there
are strong and apparent grounds for doing so.
But it has happened THAT onr zsbleEt Attorney
Generals in the midst Of "a nuii.. ..sazious and
arduous duties hszs give orfn11ns tHat the sp-
prsme. .cosift, sftsr L OF 5ottn sides has
found = bF erroaes;ss 4 wy serious fnsesti-
geeeecf ~ ths-w who'll subjeet has convinced me
thate zen. .cusHINc's opinion would meet the
same Fate, and TIE following are thereasons that
hays'lod me to this conclusion:
BIZ article 2, of the Delaware treaty of May
s. 1s55, the United States sagree to have the ce-
rieSassu Iexeepting the said <sssst ley aiir-
vowed as soon as it can conveniently be done, In
: the same manner that the public lands are sur
-reyea-such surrey to be commensed and pros
acuted as the President of the United States may
deem best. And the President viH, SO soon as
the whole o. any portion Of said lands are sur
veyed, proceed to offer such survs yed lands for
sale, at public auction, in such quantities as he
may deem proper-being governed In all re-
spects, in conducting such sales, by the laws OF
the United States respecting the SKIES the pub
lie lands; and such of the lands as may not be
sold at the public sales, shall thereafter be sub
lect to private entry, in the same r1anner that
private entries are made of Unit,d States lands;
and any, Or all, of such lands aseenain unsold,
after being three years subject tol ,Vate eatr5s
at the minimum government psi,l may, ,lly act
: of Congress, be graduated and reduced in price,
arltif ali said lands sfe Eegsd being had IN
said graduation and reduction "a the interest
he selawares, AKA also to the speedy settlement
of the country" And by article 8, $4,000 are
be paid for the eout let;' and Tor the lands to
1e Surveyed, the proceeds of the sale, after de-
iu-'ingt the cost OF surveying, maHa5ins and sell
ing the same.
sErheys<tae Congrsss of July 22d, 1854, sec Il,
Drides s:that all Tie lands to sflfc.. indfafT
Ie. has been or shall be extngnished within
id territories Of Nebraska AID Kansas, shall
essA;sst to the operations of the presumption
= of ,th September, 1871, ansl-u,.asr the con-
itionssxestyicsiors and stipulations therein NEIL
.;oned. faoFrpED. HOWEVER, that when unsuT-
! ,exed lands are claimed by pre-emption, notice
slaimed shall be fled with
in three months after the survey has been made
in the field, and on failure to file such notice OF
onav for the tracts claimed before the day fixed
fo- the public sale OF the lands by the procla-
nation of the President of the United States, the
parties claiming such lands shall forfeit alright
thereto: PROVIDED, said notices may be filed
with the surveyor general and be noted BIZ
him on the township plats, until other arrange
ts s6sif hE7r- 5essp n,stsS By law for that
purpose"
Now in the first place, let US see ii the words
IF the statute conflict with the true meaning and
.sntioa Of the treaty.
Y ,.;I He VIII !. places lac ,l. the tFeS. a,
o,(the same footing But there is this impor-
tant difference between them. With the To-
was it is agreed, that s'until after the land
! shall have been surveyed and the surveys ap-
proved, no white persons or citizens shall be
spernitted to make thereon any location or set
tlement." Had similar clause been inserted in
the treaty with the Deiawares, their intention
70 exclude settlers previous to the survey would
be apparent. As there is clause of the kind,
/ they cannot we'll be said to claim the purpose
expressed in it.
Generally the Indians have sold their interest
in the territory in gross for round sum, as in
the case OF the "outlet." 1t may be for their
Eatlvantage to deviate from that course. The
IADelawares have done so in regard to the most of
t9their land. The stipulations in the treaty i'm
hiatt J,pd 70 he o4h Iio
zlfands are sold. That process is well known.
All the land is advertised to be sold by public
] auction, and such as has not been legally pre-
e1npted is thus sold. The difference therefore,
between the disposal of the ssoutlet' and the
lest of the land is that in case, they sell at
wholesale and in the other at retail. That
surely does not strike down the cherished right
Of pre-emption. On the contrary it is obviously
for the interest of the Delawares to encourage
the exercise of this right By settlement of
some portion Of their land, the value of the re-
mainder will be greatly increased. The building
4 of thriving towns and the cultivation Of ada
tcent sections or quarter sections, will command
/. higher prices for what is sold by auction; so
. that if but half of the minimum price of whai
will be acquired by pre-empdon was paid them
j they would then be gamers. But how would i
4 operate if the right of entry and prescription
1 is denied. Settlers would turn in another di
\ rection. There are other localities open tina
s are desirable. Two Of three years might elaps
the surveys would beeompleted; and b.
that time settlements would have acquired
great growth in those other localities. Thel
population would concentrate and attract tn
varied elements of civilization. Consequent
the land Of the Deiawares, uninhabited and un
improved, would presebt-far less inducement
ito the purchaser. From full view of the trea
ltx-it then aDDears very doubtful to saw tn