Washington sentinel. [volume] (City of Washington [D.C.]) 1853-1856, 1855-08-09

In compliance with your directions, nave eX-
ahmed these papers with as little delay as the
numerous points referred to therein would per-
NIT, and DOW submit the following report as the
result:
The object of Gov. Reeders communication
and evidence appears to be-
LIST. TO show that, notwithstanding the opinion
of Attorney General fancy in September, 1853,
in the case admitted by the governor TO be anal
ogous) OF Pottan atomie reserves, the reserva-
tons made by the 9th article Of the Kansas
treaty of 1925 operated grant in fee simple
IN favor of the parties therein named and not as
one oil mere occupancy, and that, as a conse-
quence, the reserves have right to ALLEVIATE the
same with the consent of the President; and,
ID That ''the rules and forms adopted by the
department, and the executive generally, for pur-
poses Of convenience and certainty and, like the
rules Of court, are at all times liable to be dis
pensed with modified il the end Of their adop-
ton has been reached and substantial require
ments complied with. 1t will, however" he
adds, be found that all the objections to the state
OF the papers and evidence have been fully OBJ
Waited"
First, as 10 the right IF the reseruces to SELL
Notwithstanding that the governor considers
the opinion Of Attorney General Taney,, in the
analogous of the Potiawatomie reserves un-
der the treaty Of 1892 "a brief and hasty one, /"
and one which ''wiii not bear comparison with
other opinions Of himself and other Attorneys
General, and the decisions of the Supreme Court
of the United States,'' | can find nothing in his
arguments or reasoning calculated TO impeach
the soundness of that opinion, or to convince me
that either the department or the Indians would
be benefited by giving preference TO his own ex-
position OF the true intent and meaning of the
article of the Kansas treaty under which the re-
serves, in which he is so deeply interested, were
set apart Nor am | convinced by his course Of
reasoning that the construction placed upon the
~
to the long-continued practice of the depart
ment;' nor has, as he asserts, reservation after
reservation been made sin language equiya-
lent to that employed in the 9th article of the
Kansas treaty, ''where the reserves have been
allowed to make deeds Had the governor
specified the cases to which he alludes, appre-
bend they would turn out, upon examination, to
be like his reference to the opinion of Attorney
General fancy in the of a reserve under
the supplement TO the Choctaw treaty of 1890.
which he supposed to be perfectly analogous to
these half-breod reserves, but which shows to-
tai mistake or msapprehension, on his part, of
the principles involved In the case under the
supplement to the Choctaw treaty, Governor
Reeder assumes that s'the language of the reser-
walton is no stronger than that of the Pottawato-
Rie treaty of 1880, (lS32,) the Kansas treaty
of 1926" but, by reference to Attorney General
Taney's opinion, (vol. 2, p 465, OPP Of Att.
Gem it will be seen that he considered the
supplement" as part and parcel of the main
instrument, and, as such, maintained that ssthe
trhole treaty must be considered together as form
ing but one treaty" Hence it is that from the
nature and character of the reserves made in the
agreement lie inferred to be ssthe intention of
the contracting parties TO place them on the same
footing with the like reservations made before. =
This conclusvely proves that the alleged analogy
between the principles involved in that decision
and the of the Kansas halfbreeds is more
fanciful than real. In the former, the whole
spirit and tenor of the treaty favored the right of
the reserves under the supplement TO ALLEVIATE
their reserves, while, in respect to the Kansas
halfbreed reserves, neither the letter nor spirit of
the treaty, nor OF the article providing for the
halfbreeds of the tribe, iustifies the interference
that it was intended TO confer upon them more
than a mere possessory right. The "principles
| Of the opinion" of Attorney General Taney so
far as know, have been inflexibly applied to all
treaties in which similar language has been used
in setting apart reservations; and, this being the
case, Governor Reeder is mistaken in surprising
that their application to existing treaties would
'reverse and reyolutionize the whole practice of
| the department On the contrary il is the sub
| stituton Of his views for those Of Judge Taney
which would produce that result
As indicating the views of the Senate Of the
United States TO the character of the reserves
| provided IN the Pottawatomie treaty Of 1892
have respectfully TO call your attention to the
fact that in the constitutional action of that body
upon the treaty of 26th September, 1888, with
| the Chippewas, Ottowas, Pottawatomies and the
supplementary articles thereto, the provision in
the 9Th article of the treaty, that sail the indi-
vidual reservations of land in the treaty con-
| cuded at Camp Tippecanoe, dated Doth October,
| 1892, shall be considered grants in fee simple
10 the persons to whom they are made, their heirs
aud assigns forever" and the provisions in the
4th supplementary article intended to give the
fec simple to two sections Of land reserved under
said treaty Of 1882 to "Me-sau-ke-qua, and her
Children" 10 herself alone, were stricken out.
(see Statutes at Large, vol. :, pages 1885, 443,
and notes at 447.
i 1t was in view of the fact that sales had been
made Of reserves under the Pottawatomie treaty
Of goth October, 1882, and which were regarded
| by the executive department on an opinion ex.
pressed by the Attorney General under date Of
Doth September, 1883, as null and void, that the
parties interested asked Congress TO grant 10 those
reserves the fee in the land Congress accord
ingly did SO enact by the law Of 9th March, lS4S,
under which sales Of some Of said reserves have
been approved. (See vol. 81 Apprchending a
similar state of things in the case Of the Kansas
halfbreeds, induced the report to be made TO YOU
upon the subject on the 18th November last in
which several questions were propounded with a
view 10 such decisions thereon as would enable
the office TO meet them as they should arise in
the discharge Of its current business, but such
decisions have not yet been received here
Especial Legislation by Congress was necessary
in the case Of the Pottawafomie treaty 70 Justify
the disposition which have been since made Of the
reserves under il in virtue Of the act of 1913
shall the executive department nor undertake to
dispense with such legislative interpositon in the
case Of reserves made, as admitted by Gov
Reeder, in similar language under the 9th article
Of the Kansas treaty Of 1926; Whether the act
Of l545 was intended as an exposition Of the true
meaning Of the grant in the Pottawatome treaty
to which il refers, free gift or concession
of fee-simple title in the land reserved TO the
Indian and Indian descendants therein provided
for, may well be considered matter Of doubt:
but there can be no question that, as the act was
special IN its terms and application, il is not to be
construed as general law or as having reference
TO reserves made in similar language in other
treaties not named therein. Congress, although il
cannot lessen or impair rights arising under trca.
ties, possessed ample power to make gift OF
donation Of the governments interest in those
lands, and there may have been special reasons
operating on the minds Of members in favor o
the claim Of the Pottawatomie reserves 10 fec
simple titles which might not exist in the case Of
the Kansas halfbreed or other reserves, even il
similarly situated For example: In case Of the
lands reserved TO the Sac and Fox half.brced,
under the treaty Of 1894, TO be held by tho "usua