Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1877-12-11
nrles TO LAME


Judge Bennett's Opinion Whereby he
knocks Over tho Previous Rights
OF the Sioux to the Black
Htlls Country.
/ The following is the opinion Of Judge
Bennett in regard to the validity of titles "a
Black Hills property, acquired previous to
the treaty by which the Sioux Indian. ceded
the Black Hills country to the government !:
Henry Burmaster ct al. vs. Cephas Tuttle
ct al.
In district court of Lawrence county.
First Judicial district Dakota, October
term, A. D., 1877.
This is an action for the recovery of q
certain quartz mine, now known as the
Aurora and in possession of defendants.
Plai, tiff allege that they, on or about the
2Slh day of June, 1876, discovered and To-
Gated said mine, marked and defined the
boundaries by proper and suitable stakes,
and that discovery stake was placed at the
di.covery shaft upon which was placed q
written notice calling the mine "Montana
Lode" and containing the names OF plaintiffs
as locators. That they continued to work
upon, improve, and develop the same until
about the 10th day Of July, 1876, when they
were driver off by Certain persons then
Gaining and owning the Hidden Treasure
mine, with menaces, threats, and by the
presentation of loaded revolvers and rifles
in q threatening MANNER" and who held
possession of the same 40 against these plain
tifts, all of which facts the complaint alleges
were we'll known to the defendants in this
action.
1t is further alleged that in the month of
FEBRUARY, 1877, two of the plaintiffs went to
said Montana mine for the purpose of in
specting the same and taking possession
thereof, if possession could be obtained with
out actual danger to life, when they found
the mine in possession of defendants Cephas
Tuttle and Charles III. DIETRICH, who refused
to yield possession.
Defendants in their answer after trav-
ersing the allegations of the com olaint pro-
ceed. And defendants for a further, separ-
ate and legal defense to 90 much of said
complaint as claims title to the so called
Montana mine (now alleged by plaintiffs to
be identical with the Aurora, but whether it
is or not defendants are not advised, but as
sumo that it is) as being in controversy in
this action. Aver and charge the truth to
be that until the 18th day Of FEBRUARY, A.
D., 1877, the said mining ground was loca-
ted within the limits of, and constituted =
portion of that certain Indian reservation
reserved for the exclusive possession and
occupation of certain bands OF tribes of Sioux
Indians, by public treaty made by the
United States, and said bands or tribes of
Indians entitled "a treaty between the
United States Of America and different
tribes of Sioux Indians" concluded April
29th ct seq. 1878, ratification advised Feb.
uary 18th 1879, and which said treaty was
duly proclaimed by the president of the
United States on FEBRUARY "a, 1869, as being
ratified and confor med and binding upon all
persons in the United States.
That said treaty provided that no per-
sons except the Indians mentioned therein
and such officers, agents and employees of the
United States as might be authorized to
enter upon said reservation in discharge of
duties epioined by law should ever be per-
mitted to pass over. settle upon or reside
upon the same That said treaty was and
remained valid and subsisting public treaty
of the United States until the 2Sth day OF
FEBRUARY. 1877, aforesaid, when new treaty
between the United States and said tribes of
Indians surrendering said reservation Tor
theportion thereofthat embraced the ground
in controversy was duly proclaimed by the
president of the United States as having
been made as being in force.
That prior to the issuance Of the procla-
nation Of the president aforesaid, it was an
unlawful act for any person to attempt to
obtain title to any land for mining or other
purposes, within the limits of said reserva-
ton and that said lands first became public
lands of the United States, open to explor-
alton, occupancy and purchase under the
laws of the United States, on the issuance of
the proclamation of the president last afore-
said That at the date Of said proclamation
and at all times thereafter prior to the COM
mencement of this suit these defendants were
IN the actual continuous, peaceable, lawful,
and exclusive possession and occupancy Of
the ground in the controversy herein claim
ing title thereto against all persons whom
soever.
That plaintiffs nor any OF them on the
said 2Sth day Of February, A. D., 1877, OF
at any time prior thereto, belonged to any
ofthe classes Of persons who by the terms Of
said treaty were permitted to pass over, and
settle upon, or reside upon said reservation
and as against said plaintiffs these defeD-
dants plead the said treaty and the provi-
sions thereof, as bar to all causes of action
contained in said complaint as set up any
title to the ground in controversy, or seek
to recover the possession thereof against
these defendants, by virtue of any acts done
or pretend. rights to the same, claimed te
have been acquired by plaintiffs prior to the
2Sth day of February, A. D., 1877 aforesaid
To this portion Of defendants, answer
plaintiffs interpose general demurrer with
certain specific grounds of objection, mo-
necessary here to set out.
! The questions presented by this demurre,
have been able argued, the discussion takins
a wide range, and shall not attempt, MOI
do I deem it necessary to pass upon all the
points presented by counsel. Wbateve,
rights plaintiffs may have if any in thu
property in dispute must have accrued prio1
to the 18th day of February, A. D., 1877
and while the treaty made in 1868 by tn,
government with certain tribes of Sioux In
dams was in full force and effect, and which
is pleaded by defendants in bar of action
That this treaty was made, ratified and pro
mulgated, and was valid and subsisting on,
is not controverted.
| 1t was the policy of the government from
its organization down to quite recent date
to treat with Indian tribes as with ;ndonen