Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-11-19
an IMPORTANT OPINION.

AN VVuNVVW.
chief Jussice shannon Esplains home
Matters ia Rotation 10 settlers flights
aud the sale OF Liquor.
The following op,nion OF Chief Justice
Shannon in the case Of the United States
against Joseph Ellis, indicted aud tried fol
introducing liquor into the Indian country,
is of general interest:
BY act Of congress of May Is, 1874, the
custody Of these lands was transferred from,
the war department to that Of the interior.
The lands described are:
lst--Such portions of the military reser-
walton of Fort Randall, Is we're actually
occupied by settlers prior to the l4th oi
June, 1860, at which date the president, BY
order, set apart said reservation for military
purposes and
2d-Such portions Of said military reser.
walton as were released from military occu.
patton and control between the years 1867
and 1870, and were during that time settled
upon in good faith and in the belief that the
lands were open to settlement.
Thus the custody of the lands was, for q
certain purpose, transferred.
BY the second section of the statute, the
secretary OF the interior was authorized to
confirm. in accordance with existing laws,
the titles of such settlers thereon, as may BIZ
reported BY The secretary of war for that
purpose, and to cause patents to be Issued
for such lands as the aforesaid settlers may
be entitled to under existing laws and the
provisions Of the act.
Accordingly on the 22d day Of April,
1879, the secretary Of war transferred the
custody of the land settled, and reported
certain names as those Of settlers. to the
secretary OF the interior, among which is
the name of the defendant.
second class, to.wit: As one settling be-
tween 1867 and 1870, in the belief that the
lands were open to settlement.
The next thing we find from the papers
i'll evidence, is a certain direction or order
from the secretary of the interior to the sur
veyor general Of Dakota Through the com.
missioner of the land office) to extend the
lines of public surveys, to the end that the
several claimants on the lands may obtain
patents. This order to the surveyor general
here bears date the Goth Of April, 1875
1t appears next that the lands were no.,
surveyed until June or July, 1875.
1t was not until April 9th, 1877, that the
defendant appeared at the land Office at
Springfield, to attend to his interests. at
which time he made his application under
the homestead laws, and on the same day of
his first application was permitted to make
final proof under said homestead law., as il
is alleged from certified exhibits Of entries
at the office at Springfield.
In the mean time, to wit on the Goth day
OF May, 1875, the order of President Grant
vas Issued, Withdrawing from sale and set
tlement and proclaiming the eastern part
OF said military reservation "a set apart for
The use OF the several tribes Of Sioux In
dams as an addition to their reservation, and
making 1t Indian country, to wit that
part of it which lies on this side of the Mis-
souri, river and Immediately above the
Yankton reservation. The military reser.
walton on the other side of the river being,
ever since the treaty of 1868, also Indian
country.
The defendant, as We have seen, was re-
ported BY the secretary of war as q settler
in good faith and in the belief that the lands
were open to settlement. The object of the
law was merely to conserve his rights a. q
settler. He was not to be driven of the
military reservation. He could, in accord.
ance with then existing laws, proceed to get
title, but he was bound to proceed as any
ether settler, to wit: under the pre.emption
or under the homestead law, or under some
other known procedure. The act only gave
him a right to q patent when he, as a settler,
should be entitled to it under then existing
laws in connection with that act. Thi, act
did not dispense with any of the requisites
declared by the homestead Law then in force.
The secretary of the interior in carving
out the authority bestowed was expressly
confined to confirming the titles in 'accord.
ance with existing laws" The titles were
to be obtained by pursuing the legal modes
then existing and we'll known.
The patent to be obtained by such settler
was one to which he was "entitled under
existing laws"
This defendant admits be has no patent.
How then does he claim title? 1t is as.
serted that he has an equitable title although
not the legal title.
Now. the law is we'll settled, that when
public lands have been surveyed and placed
in the market, or otherwise opened to pri.
vate acquisition, a person who complies
with all the requisites necessary to entitle
him to q patent in q particular lot or tract
Is to be regarded as the equitable owner
thereof, and such land is no longer open tc
location.
But II, IN the process or mode of acquir.
ing, a patent, anything requisite remains ia
be lone by the claimant, he is not entitled
to a patent.
When the prerequisites are complied
with, the settler for the irsl
time acquires a vested interest In the land.
He Is then entitled to q certificate of entIy
from the local land officers, and ultimately
TO 9 patent from the United States. Until
such payment and entry, or until full com
Pliance With the necessary requisites,-the
laws 10 relation to the public lands, give to
the settler only a privilege Of pre-cnption
or homestead, in case the lands are offered
for sale or opened to homestead in the usual
manner;-tba Is q privilege in preference
to others. ITO prove up" as it is popularly
termed. ~
The particular act of congress now under
consideration gave to This defendant such
privilege. in q special or exceptional case
reserving to him the rights of a settler In
good faith, as to land claimed to be part of 8
military reservation, but, ss heretofore re-
marked, the patent could not be issued tn
him in any other way than under the exist
ing " And he mnst show a confirma-