McCook weekly tribune. (McCook, Neb.) 188?-1886, 1885-04-23
TIE QUESTION OF LANDS FOE 70.
Gen. Garland Sets Fora. HIS p2eus Concerm-
ing The Hfnnebdgo Reserrofiou


Gen. Garland Sets Fort. HIS Tiems Concern.
ing The Hfnneba0o Resercafio,a.
Acknowledgement Garland's opinion on the
Winncbago reservation has been made public
lie reeites that Clark Thompson, under an act
OF congress OF February 81 1853, and by dlrec.
ton OF the Indian commissioner, removed the
Winncbagoes from Minnesota to what is now
known as the Winnebago reservation, and also
under an act of March 3, 1868, he removed the
members of the Sisseton, Naturalization,
Wahpeton and Wahpakonta Sioux to what IS
known as the Crow Creek agency; also the
Winnebagoes, on March s. 1865, ceded their
lands to the United States and west to Ne
braska, and in 1866 the various bands of Sioux
on the Crow Creek reservation were removed
10 Nebraska, and wandering bands of Sioux
went upon and occupied the abandoned lands.
The opinion is substantially as follows:
These reservations have not been merged
IN the public domain. The Indian commits
sloners map for 1S4S shows them among the
various reservations in the United States
When the treaty of 1853 was made the wan
dering Sioux on these lands were parties to
IT through the chiefs Of the tribes from whom
lhey had wandered: They have remained
ever since on these lands with the consent of
the United States. The questions submitted
Tor opinion turn upon the Interpretation of the
words OF the second article of the treaty, that
is to say. land in addition thereto ali exist
Ing reservations on the eastern bank
OF the river Shall be and the same Is
sic set apart for the absolute and undjsturbcd
use OF the Indians herein named If the old
Winnebago and Crow Creek reservations an
sWcred TO the description of the existing res
ervation on the east bank of the river at the
time the treaty was entered into, they are pro-
tected by it and the executive order of Febru-
airy "a, 1884, restoring portions of them to the
public domain, is imperative and void, being
In violation of the treaty find by the third
ana fourth articles of the treaty with the Lis
setons and Wahpetons, February 10, 1867, that
reservations are set apart for certain members
OF said band, who were not sent to the Crow
Creek reservation. In proclaiming this treaty.
thus excepting from its operation members Of
the tribes who were parties to it. on the ground
that they had already been provided with
settlement on the Crow Creek reservation. the
executive necessarily recognized and adopted
all that had been done toward establishing the
reservation now in question. This action was
subsequent to the removal of the Winnebagoes
and Sioux, and the cesson of the former of
their lands At the time of the treaty tho
lands IN question had been validly appropri-:
ated as Indian reservations, and being on the
cast bank of the Missouri river fell,
:, within fno the treaty, and was protected by;
utive to throw open lands to entry But if II
am wrong in this view; If the argument of the'
executive order of February ~, 1885, the
treaty of 1868, in SO far as it processes to Sc,
cure lands to the Sioux on the east bank ia
made to have no effect whatever, because there
is no land so situated which answers to the
description used in the treaty, and the emin-i
ent and intelligent gentlemen who represented.
the government in concluding the treaty are
placed IN the somewhat embarrassing position:
of having offered to the Indians reservations
on the east bank when there was none there
Tor 1t is fact that if the lands in question
were not reservations there was no reserva-
ton on the east bank except the Yankton
reservation, which, however, could not pos
sibly have been in contemplation, because it
was established by a previous treaty, made in
1S59, with the fanktonias, who were not par
ties TO the treaty of 1858. and could not, there
fore, be affected by it. If then, it be true that
these lands were not technical reservations at
the time of the treaty of 1868, it is obvious the
contracting parties must have used the term
reservation in some secondary sense; and
when we see that there has been an uninter-
rupted practical appropriation of the lands as
Indian reservations from 1868 to the promulga-
ton of the executive order as so described in the
Indian commissioners maps and the reports Of
the secretary of the interior to congress, We
cannot Tor moment be at a loss to know what
that sense is. Nobody is better established in;
AesoOh vi ououOllt}. thdb Will tut cApOuuuST
of statute or other indictment is Satisfied
that term in it is not to be taken in its nor
NAL acceptation, it becomes his duty to give it
the sense in which it appears to have been
used. So here, if these lands are found not
to be reservations in strict legal sense, bu.
understood to have been such generally and
by the government itself, the grant must be
held to refer to such lands as were reputed to
be reservations. The words in the treaty are:
amply sufficient to point out the portion of the,
public domain Intended to be coded. To these!
considerations may be added that Indian trea-,,
ties are not construed strictly but literally liz
favor of the Indians. e opinion, 465, the
Kansas Indians; Wallace, 49, In conclu- ,
sion, l am of the opinion that the lands in )
question are covered by the treaty of the gath
of April, 1853, and consequently that the exc,
cutive order of the 9th of February, 1885. is
imperative. have the honor to be yours,
very respectfully,
(Signed) A. Fl. GARLAND,
Encouragement
To the Secretary oft he Interior.