The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-08-23
Presumption In Kansas and nebrasIEa.
ATTORNEY Generals OFFICE,
AuRust IA 1854,


covering that Of the Commissioners OF Indsu Affairs
Of the Sth inst presents questions o. to she legal
yelation between certain provisions OF the act ol
CuDg,ess of July 22d, 1864, to establish tne Offices
of suIv. y0r general of New Mexico, Kansas, and
kNehvasks, to grant donations 20 actual settlers
there D AID for other purposes, and cera tca lies
\ Of hsy last with the Delaware, Iowa and wea
| BY the treaty concluded and signed May G, 1854,
| ratified ~ the Senate July Ilth. 1854. a1d pro
clsned July l7tbp 1864 bet WeeD the Uuited States
ap6 the Dvlasvarc' Indians, trey ce led to the
Upted 6tates tpe Isn6 called "the Outlet" at the
pri Of tn thsusand dollars and other lands with
| In certain defined boundaries, to 10 paid for as
| after me ptioptd.
By article 2 the United States agreed to cause
| oil the lands ceded,
manner that Iubuc hsds arc surveyed And the PIesi
cent Will, tie whole any portion OF said
& s.s o. 20 oea a.
deem proper. being governed in all pects in cendHc
s such eaee ~ the laws Of be United states respect
Rot b. sold at the public sale cha thereafter be
c' 70 private entry 10 the same manner that rrvate
Ii.s Ade Of the United states latds auy all
.f such isnds remain ursod after being subject
r7ate sn'iy for tnree years at tho mniuum govern.
me,t nice, may BY oct OF Congress be graduated
being hd in said graduation and redsction to the ia
rect q 'h- feaswares, and, aso TO the speedy sett,msn
Of he country.
By article the United States agrse to pay to the
Eeinca.c ibe
AL the Moneys received from the ascs Of the lends
provd,d to Surveyed In the precediug article. after
otdnctpE tberefrom the cost Of surveying, managing
tnc selling the
Art Ie 1t is sgreed by the parties iereto that the
ISL in relation 10 lands ceoed to tie United States
sha SO far as applicable be extended to The lands here
IN ceced.
The act Of Congress alluded to in the 10th article
Is TO be found in stconc volume Of the Statutes at
LsIRe, page 445, chapter 46. Tie material provi-
tOns OF that act, applicable to the LANDS ceded by
tie IelawaIas, arc, tbat il any person OF persons
shall, ofer the possing Of this act take
pt secession Of or AXE q settlement on any
anos ceded or secured to the Unied Slater,
by any treaty mace with q foreign alton, or
by ccssion from any State to the United Dtaess,
which lands shgll lot have been previously sold,
c.ded. sr taseo by 10 ULitcd States, or tho claim
10 which lands by such person persons shall not
hsve been previously Recognized and confirmed by
the urit'd Stses or il any person shall cause such
Ion de 70 be thus occupied, taken pos .esson Of, or
settled." &C.. the President Of the Unthd States
may have them removed, and take such means aud
employ such military force as he may judge neces
! s2Ty and proper for that GTpose.
The tray between tie United States and tho
! Iowa ln6ans colcluIed and signed May Eth,
1854. rsti1ed by the Senate July llth, 1854, and
lIoca'med BY the President July i7fb. 1854, cen
and pay neht Of tire proceeds to the Iowa Inde1s,
similar 10 the stipulatoDs of the treaty with the
Deawares al also refers TO tho above cited AIT Of
| Congress Of Mai ch Q, 1907.
| Weas. ard other .r hes Of Indians, concluded and
| tigItd May 30tb, 1854, ratified by tic Scnats, and
| Proclaimed in the present month Of August, pro-
vic Cd fer the surveying Of the lands cedod TO the
for the selection OF certain quantity reserved to
the Indians; the remainder Of the lands coded are
TO be sold fer the benoft of the Indians, and the
whole pIo eeds, after dcducting the cost Of survey
ing, managing, and selling, to be paid to the la
diabs. TIE provision for the manner OF selling il
similar to that in tEe treaties with the Dela vares
a,d l'was, EXCEPT that the act of 1907 for cxpel
iIG intiuctrs is not mentioned in this treaty.
Thcso treaties, when ratified, it is to be observed
take Effect from the day on which they were 10
spettiycly concluded ard signed.
By ,hcsc tratics, Mo lands ceded are to he sold
at public auction, uion tho account, and for th
btreGt, Of the DelawaIes, Iowas, and Weas, re-
81 ectve)y they payr the cost of surveying mana
ging aad nelng. The legal title, domain and ju-
be enGciaIy interest in tic proceeds Of sales is in
the iLGiaps. The proceeds Of tho sales, to bc az
counted for by tic United Ststcs, after deducting
the costs Of Surveying, managing ard sell! y, arc
the considerations for tic ceRsions Of jurisdiction
and sovereignty to the United States.
The treaties expressly require that the lands shall
tc offered at public auction before they can lie sub
jcct to private entry in any FORM
Question theuupCn arises upon the following pro
vision OF the act Of Congress referred to, wiz
That all tLa lancs 70 which the Indan title has been
shall be, cxnJstcd within said Territories Of Nehrss
ka and haIsas shah be subject the operation of the
\
tened provided however that where unsurveyed Ian Il
esed sha Il cd wi,Sn three months As aer the sur
veg has been in the field and failure ale such
notice pay for The tracs claimed before the day fixed
for the public slo az tie lands by the proclamation of
tie President Of The United Statcs the parties claiming
such lard shall forfeit all right thcreo provided. said
notices may be Glod with the Surveyor. General and
acted on by him, until other arrangements sLau haze
| been made ly law for that purpose.
| Now, the dilte ence between salcs ut public auc-
| titn add sales to proemptioners is essential and
notorious; and the taking up of land by prc.cmp.
tion under the provisions Of the act Of ISL, aI-
Piled by that Of 1854 to the Territories OF Nebraska
and Kansas, IL inconsistent with the particular
stipulaiioDs for public sale in the treaties with the
Deiawares, Iowls, and Weas.
The Commissioner STATE that il is claimed on the
| part Of persons intending to set up pre.cmptons
under the act Of July 22d, 1864, that this act
stitutes contract between them and the United
States and that in 30 far az regards the spulaons
of the treaties with the Dclawares. Iowas, and
Weas, of May previous, with which the act as they
assume, is in conflict, those stpulations 10 be
considered as obrogated by the act Of Congress.
in my Judgment thcro Is not the slightest 9ounda-
tion for this pretension, either in the general prn-
cpcs Of Jaw, or or tho proper construction Of the
letter Of the statute.
If tho act Of Congress undertook, in express
terms TO aDnu the stipulaiions at treaty IN ques-
ton, IT wonld be necessary to discuss tho relative
authority of treaty and statute. But there il
such extraordinary thing in the statute rs an cy-
press repeal. 10 10 speak, OF those treaty stpua-
tioDs. The protcnce OF repeal il on the assumption
OF Implied repeal by iDcompatbility Of provision.
| But wien al the treaties for eytinguishing the
| Indian titles in Ksnsas and Nebraska arc taken
into consideration, a. they should be in order TO
| az eriain the real mind Of Congress in passing
this act it win be 8en that there i nothing u the
| oct 10 justify tho assumption OF the pre- emp
tiop1rs, and Of course, nothing TO sustain they're
| tcEdcd consequences. 1t the time OF the passage
OF the act OF Cone ress the United States bad lands
within tho Territories Of Nebyssla and Kansas, tho
| Indian t.tIe 20 whicn had been extinguisied, and
! which were then public lands for the sole benefit
and use OF the United States-naIney, the "Outletn
! cedcd by the Dclawares themaclyes the lands
cedcd by The 0ttocs and Missourias by the treaty
ossiarch Is, 1864; by the omahas Marcl, Is, 1854;
| by the Kiclapoos, May IL, 1854; and by tho sacs
and Foxes, May IT, 1864. In the lands 80 cedcd by
these trcatics the indians have no interest or tits
leeol or equitable; nor have they any use therein
affecting the proceeds Of sale. Here i ample field
4 .ohx