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

tense that by any direct act of congress haa
the selection of this reservation been ap-
proved, and the difficulty presented Ia sought
to be avoided on two grounds: First, that
the provision is unconstitutional, "a inter-
.ering with the treaty making power vested
in the president and senate, which do not
regard as we'll taken; second, that BY the
-acquiescence-and acts Of congress
in making appropriation under the treaty,
speaking in other acts of the reservation,
ETC., there is an implied approval of the
selection. This BY no means follows. Ap
preparations might have been made under
certain provisions of the treaty without
affecting in any manner the question of se-
lection of the reservation and the reference
to it in other acts do not speak of it "a an
accomplished fact, but the reservation pro-
vided for or established BY the treaty.
But aside from this, what did the govern
A. d. 1877, toward carrying out the provi-
sions Of the treaty relating to the reserva-
ton? Did it not prior to that time uni
formly refuse to construct the buildings on
the reservation rs provided for in the treaty,
although appropriations were made there
for? During period of over eight years, a
survey of the reservation was never ordered,
neither were all the Indians who were par
ties to the treaty ever settled thereon no
locations of land were ever made by any
Indians, and no patents issued and no Indi-
ans naturalized BY becoming land owners.
On the contrary, it is a matter ofpublic his
tory that many of the tribes have never oh.
served the treaty but have been constantly
on the war path. refusing to come under the
control of the government and be settled on
any reservation. As early as the spring of
1876 the government implicitly repudiated
the existence of reservation under that
treaty, by permitting settlements to the ex-
tent Of many thousand people in these hills;
protecting immigrants, freight trains, and
the construction of telegraph lines by mill
itary force; sending officers TO collect inter-
nal revenue from the people engaged in bust
ness here. And congress, by an act ap-
proved August 10Th, 1876, virtually an
nulled and set aside the whole treaty. 1t is
in the form Of n proviso following provi-
sion. making certain appropriations under
this treaty, and is in the..following language:
"That none Of said sums for said Sioux In
dians shall be paid to any band thereof
while said band is engaged in hostili,ies
against the white people, and hereafter there
shall be NJ appropriation made for the sub
aistence of said Indians, unless they shall
first agree to relinquish all right and claim
to any country outside of the boundaries of
the permanent reservation established by
the treaty of 1868 for said Inc ians, and also
20 much of their said permanent reservation
as lies west of the one hundred and third
meridian of longitude, and shall also grant
the right Of way over said reservation to the
country thus ceded, for wagon or other roads
from convenient and accessible points on the
Missouri river; in all. not more than three
iii number, ano unless they will receive all
such supplies herein provided for and pro-
v.ded for by said treaty of 1865, at such
points and places on the said reservation
and in the vicinity of the Missouri river,
as the president may designate" Itmay be
observed that the supplemental treaty sub
sequently made with these Indians and ra,i-
fed by congress- on the 2Sth dav of Febru-
ary, A. D. 1877, continued all the modifica.
tions of the former treaty set out in the
above proviso.
Is it to be presumed that if congress had
regarded this as a legally established reser,
this summary way, without any new treaty
with the Indians, to have DESTROYED and
abrogated it? The action Of the govern.
ment and the confused character of the leg
islation by congress, do not leave the ques-
ton altogether free from doubt. But as be.
fore stated with my view of the power OF
congress over the public lands, and that the
public domain is not to be aggregated or dis.
posed of by presumption or implication, and
in the light Of the express provision in the
act approved July Goth, 1867, that the selec-
ton made by the commission of certain ter
ritory to constitute the reservation, shou d
be approved by congress; and there never
having been any such approval until the
2Sth day of February, A. D. 1877; am O
the opinion and so hold, that the country
embracing the mine in controversy, at the
time Of the location thereof as alleged in
the complaint, was not within any lndiar
reserv alton, and that no reservation under
the treaty pleaded. ever had any legal exis
tance until the said 2Sth day of February
1877. This view Of the case is supported b.
the opinion Of Judge Dundy, United State.
district Judge for the state of Nebraska in
the case of the United States ex ree., John
Gordon VS.. George Crook, major genera
commanding the military department Of tn
Platte, delivered at chambers, At Falls City
Nebraska, August Oath, 1875.
After reviewing the legislation of con-
eress ON the subject. this learned Judge pro
ceeds: 1T is true that the treaty wher
made, was to have no binding force until i
should be ratified bv the senate; and it j
equally true that that part of the treat,
which sets apart the said reservation, wa
to have no binding force until it was ap
proved by congress It seems tha. the sen
ate ratified the treaty as required by th
first section Of the act of congress creating
the commission; but have seen no act o
resolution indicating in any. way that con
gress approved Of the selection of the res
ervation. Argument was advanced to shov
that ratification by the senate alone, OF tn
treaty, was sufficient. But it is only fair t
presume that congress meant precisely wha
it stated when its approval was required
The term congress- as here used, and as
ia generally used and understood. means th