Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1885-08-06
THE INDIAN GRAZING LEASES.

attorney general and his opinion
was made public last Saturday.
The questions were whether there
was any law authorizing a lease oI
Indian lands to whites for any pur.
pose by any person, or for approx
ing The same by any department
or official:
"Questions," writes the attorney
general, "are propounded with ref
erence to certain Indian reserva-
tions, namely: First Cherokee
lands in the Indian Territory west
of 96 degrees of longitude, except
such parts thereof as have hereto
fore been appropriated for and con-
veyed to friendly tribes of Indians.
"Second, the Cheyenne and Ar
apahoe reservation, in Indian Ter
ritory.
"Our government has ever claim
ed the right and from a very early
period, its settled policy has been
to regulate and control the aliena-
ton or other disposition by Indian
nations or tribes of their lands.
This policy was originally adopt
ed in view of their peculiar charac-
ter and habits, which render them
incapable of sustaining any other
relations with the whites than that
of dependence and pupilage."
A number of statutory provis-
ions, some of them enacted last
century, are then quoted in sup
port of this assertion.
1.-THE last named section" :" 2116,
revised statutes, declares mo pur-
chase, grant, lease or other con-
veyance of lands, or any title or
claim thereto from any Indian ma
tion or tribe of Indians shall be of
any validity in law or equity I'M
less the same be made by treaty or
constitution H."
"This statutory provision is very
general and comprehensive. It's
operation does not depend upon
the nature or extent of the title to
the lands which tribe or nation
may hold. Whether such title be
fee simple or right of occupancy
merely is not material. In either
case the statute applies. 1t is not
therefore deemed necessary or inn
portant, in connection with the
subject under consideration 10 in.
quire into the particular right or
title TO the above mentioned reser-
vations held by Indian tribes or
nations respectively, which claim
that whatever the right or title
may be each Of these tribes or ma
ton are precluded by the force and
effect OF the statute from either
alternating or leasing any parts of
its reservation, or imparting any
interest or claim in the same with
out the consent Of the government
Of the United States. A lease OF
land for grazing purposes is as
clearly within the statute as lease
for any other or for general pur-
poses, and the duration of the term
is immaterial. One who enters
with cattle or other live stock up
on the Indian reservation under
that description, made in violation
Of the statute, is an intruder and
may be removed therefrom as such,
Notwithstanding his treaty with
the consent of the tribe. Such
consent may exempt him from the
penalty imposed by section 2,117,
revised statutes, for taking his
stock there; but it cannot validate
the lease or confer upon him any
legal right whichever to remain up
on the land; and to this extent and
no further, was the decision Of
Judge Brewer, in the United States
VS.. Hunter, 81, federal reports 615.
But the present inquiry in sub
stance is whether the department
Of the interior can authorize these
Indians TO make leases Of their
lands for grazing purposes, or
whether the approval Of such leas-
es by the president or secretary of
the interior would make them law
ful or valid. Whether the presi-
dent or the department has author
ity TO lease for such purposes any
part of an Indian reservation.
Il submit that the power Of the
department 10 authorize such leas-
es to be made; Of the president or
the secretary 10 approve or make
the same, il it exist at all, rests
upon some law, and must therefore
be derived from either a treaty OF
a statutory provision. i am not
aware Of any treaty provision APP
plicable 10 the particular reserva-
tions in question that confers such
powers. The revised statutes con-
tain provisions regulating contracts
or agreements with Indians and
prescribing how they (shall be ex.
cuted and approved (section 2,103
but these provisions do not include
contracts Of the character described
in section 2,116, hereinbefore men
toned. No general power appears
TO have been conferred by the stat
ute upon either the president on
the secretary, or other officer oi
the government 10 authorize or ap.
prove leases of lands held by in.
dian tribes, and the absence o.