, 1868-05-08
TAe Lapunl nII..ion rlalm-

The Lapwaf Mission Claim.
EDITOR SrAfnsnAH AT the late term Of The
Distriet Court, held At Lewiston, l. T, one Of
Ine moss important cases heard was that Of the
Ameriean Board Of Commissioners for Foreign
hissoos %. James O'Esi, Indian Agent At he
LAprai Agency. The plaiutfs at as early day
a. 1881, sent out missionaries 10 the Indian
aioes Of Oregon, and the missionaries so sent
lose.ee stations at several points-one BY Rev.
" Whitman, 10. Wallis WslIs Valley; aootber
y key. e. Walker at oolyilie Valley, and Rev.
~ SpauldtqR located one 90 Lapwai creek,
| 0lestS@tef Rlver, tbsn 10 Oregon, how the hand
in contest. The Indian war OF IS46 and ls47.
was initiated BY the Whitman massacre and
with much difficulty aud danger the other mis-.
sonAries made their escape from the country to
the Willamette Valley. In Is49, Oregon was
organized, and the first section Of the organic
act provided, " That the title To the land. NOT
exceeding Elk hundred and forty acres now oc
cupied as missionary stations amoug the Indian
tribes in said Territory, together with the i'm
proVemeuts thereon, be confirmed and estabIishS
ed in the several religious societies to whom
they respectively belong" 10 this country At
that time there was no missionaries, as they had
hed for their lives. Fearing that some question
might arise as to the term used in the organic
act, iDow occupied" because at that date the
missionaries we're not really in person upon any
OF these stations, Congress in the organic act
Of Washington Territory, passed March I'd, 1853,
provided, "That the title To the land, not ex.
eeedng six hundred and forty acres, now occu.
pied as missionary stations amoug the Indian
| tribes of said Territory or that may hare been
80 occupied missiondry stations prior to The pas
sage Of the act estabShiag The Territorial Govern
He'lt Of Oregon, together with the improvements
thereon, be confirmed and established to the
several religious societies to which said mission.
ary stations respectively belong" In 1856, Gov.
Stevens made treaty with the Nez Perce lodi,
ans whereby the land upon which the Lspwai
station is situated was reserved to the Nez Perce
Indians The Hale treaty, confirmed in 1867,
makes the same reservation. Iu 1859 the Iudi,
an agent located their agency upon this mission
ary station, moved into the missionary's houses
aud occupied the uissionarys cultivated fields
and orchards. The missionaries have since that
time been kept out Of possession, and against
the protestatiOns OF the missionaries, the Indian
agents have kept forcble possession of the pre-
mises, denying that the society bad any right
thereto. This suit was instituted by the mission.
ary society to obtain possession of their station
The Indian agent claims that the District Court
has not jurisdiction TO try the right TO this nd
because it is on an Indian reservation They
rely 10 support of this proposition upon the lst
section of the organic act of Idaho Territory
This section provides " that all that part of the
territory Of the Uuited States included within
certain lines, describing the Ines) should be
created into Idaho Territory" These lines em.
brace all the reservations aud this laud. Then
la provision OF the same section IL l. provided
thaS GOshiug 10 this act shall be construed to i'm
pair the rights of Indians, to person or property
or include any territory which has not been
treated for with the Indians, but that the same
is excluded from said Territory aud every other
State and Territory. This last clause it is |
claimed, excludes the Indian Reservations from |
Idaho Territory, aud consequently from the |
jurisdiction OF the territorial courts. 1t claims |
ed that th, acts of ls48 aud 1858, organizing the
territories of Oregon and Washington did not |
convey to plaintiffs the title to this land, for the
reason that the right 20 the possession of the |
land, upOn those dates was in the Indians and |
not 20 the United States and that for this reason
the Unitel States had not the power 10 grant the |
right of possession. That the treaties with the
Neg PerceI still reserved the right of possession
in the Indians, where it remains until the Indi-
ans choose to sell, and the United States to pur>
chase the same, and 10 the meantime the Mis-
sionary Society's title would remain 10 abeyance.
The plaintiffs claim that the United States at the /
time the said organic acts we're passed, was the
absolute owner of the fee simple title to this land
and had tie absolute legal right to control it in
every respect, among which rights was the abs
solute right of possession. That the Indian right
of occupaicy was only right which the United |
States could extinguish at will. There are the
following authorities which the plaintiff referred
to in support of this position First, Story's |
Constitution He had not the authority in court
l suppose his reference was to Sec. T. of said
authority, which says that notwiIhstanding the
Indian right of occupancy, the European dis.
coverers claimed and exercised the right to grant
the land while yet in possession of the natives,
subject to the Indian right of occupancy /; and |
the title so granted was universally admitted to
convey sufficient title in the soil to the guar
antees in perfect dominion, or as it is sometimes
expressed in treaties on public law it was trans.
fer of pkeaUm ct HtiLe domininm." Which means |
right to the soil forever and right to the actual
possession and se4hereof. Again, 29th section,
same authority says, at has never been doubted |
that either the United States the several States
had clear title to all the lands within the boun-
dary lines described in the treaty, subject ouly |
to the Indian right of occupancy, an the exeLu-
sive power to extinguish that right, was vested |
in that government which might constitution
ally exercise it," Sec 49, The validity of the |
title given by either the United States or States
has Lever been questioned in our courts. 1t has |
been exercised uniformly over territory 10 posS |
session OF the Indians. The existence OF this |
power must negative the existence of any which l
may conflict Herewith or control it. An a5so-
lutte title TO land can not at the same time exist |
in different persons or in differeot goTernmeuts.
An absolute title is the exclusive title of all |
others Incompatible Herewith. All Of our iusti.
the absolute title 10 the Grown !
Tor government) subject only to the Indian right
of occupancy and recognize the absolute title
Of the lCrowu) Government to extiueuish that
right. Secs. 1852 aud 1853 says 10 effect that 10.
dIsns were not considered to have any more title
to the land than brutes who rambed over it.
These authorities appear clear enough. For it
is eEident that if the Indians have q right of oc,
cupsncy until they choose 70 sell it, then they
have 10 effect an absolute title 10 fee, for this is
all the title which any one can have. If this
were true, lhen Government, instead of having
an absolute title, would have no title at all. All
of land before purchase from tSe
Indians woald be void. The United States would
be trespasser when it established fort or sta.
tiou, and its grants for railroads would BE- null
tiles. Yet Atty. Gen. Bates has declared that
the organic acts were absolute grants Of these
Mission Stations in the Indian country AID other
Mission Stations granted, OF the same kind Of
lands have been always considered valid, and the
highest title known 70 the law.
This appears to be conclusive, that as early as
1853, plaintiff had the absolute title to this land
with the right of occupancy vested in the Mis'
sionary Society at that date. Then plaintiff
riafm cd thai this Ian nofh ha fak afta |