The Caldwell tribune. [volume] (Caldwell, Idaho Territory [Idaho]) 1883-1928, 1885-04-24
QUESTION OF LADS FOR 10.
kSru. Garland Sets Forth His Tietrs Concern
ina the Vinnebago Reservation.

IAN. garland Sets Forth His Tieirs Concern.
ina the Winnebago Reservation.
Attorney General G%arland's opinion on the
Winnebago reservation has been made public.
He recites that Clark Thompson, under an act
of congress of February 81, 1863, and by direc-
ton of the Indian commissioner :emoved the
Winnebsgoes from Minnesota TO what IS now
known as the Winnebsgo reservation, and also
under an act of March 3, 1865. ne removed the
8 Member of the Sisscton, Medawakatton,
vWahpeton and Wahpakonta Sioux to what is
known ss the Crow Creek agency; also the
Winnebagocs, on March s, 1865, coded their
lands TO the United States aud west 10 Nc
braska. and in 1866 the varioEs bands Of Sioux
on the Crow Creek ~reseryat on were removed
to 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
siopxr's map for 1913 shows them among the
yakNus reservations in the United States.
Gkcn tie treaty of 1858 was made the. wan
&0fng Sioux on these lands were parties to
it. Through the chiefs of the tribes from whom
they had wandered. They have remained
ever since on these lands with the consent OF
the United States. The questions submitted
for opinion turn upon the Interpretation OF tie
words OF the second article of the treaty, that
is to say, land in addition thereto all exist
ing reservations on the eastern Dank
OF the river shall be and the same is
Gsicl set apart for the absolute and undistur1cd
use of the Indians herein named. If the old
Winnebago aud Crow Creek reservations an
swered to the description of the existing res
fryation on the east bank OF the river at the
{at the treaty was entered into, they are pro-
tected by it and the executive order of Febru-
ary 81, 1884, restoring portions of them to the
public domain, is imperative and void, being
in violation of the treaty | find by the third
and fouI tn articles of the treaty with the Lis
setons aud Wahpetons, February 10, 1861, that
reservations are set apart for certain members
of said band, who were not sent to the Crow
Creek reservation. In proclai mag this treaty.
thus excepting from its operation members OF
the tribes who were parties to 1t, on the ground
that they had already been provided with a
!. settlement on the Crow Creek reservation, the
.<xecutive necessarily recognized and adopted
that had been done toward establishing the
reservation now in question. This acton was
subsequent to the reno al of the Winnebagoes
and Sioux, ana the cession OF the former OF
their lands. At the time of the treaty the
lands in question had been val!dly appropri-
ated as Indian reservations, and being on the
east bank of the Missouri river, fell
within the treaty, and was protected by
it from the power of the exec
utive to throw open lands to entry. But II
am wrong in this view IL the argument ofthe
executive order of February -, 1888, the,
treaty of 1868, in so far as it processes to Sc
cure lands to the Sioux on the east bank is
lhade to have no effect whatever, because there
rs no land so situated which answers to the
description used in the treaty, and the emiu-
eDt and intelligent gentlemen who represented
the government in concluding the tr, atty are
placed in the somewhat embarrassing position
of having offered to the Indians reservations
on the east bank when there was none there,
for it is a fact that if the lands in question
were not reservations there was no reserya-
H. go thn oAAk L-.l- nx~AaAt Ahn IL
reservation, which, however. could not pos
sibly have been in contemplat on, because 1t
was established by a previous treaty, made in
1859. with the Yankionias, who were not par
ties to the treaty of 1865, 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 1SbS, it is obvious the
contracting parties must have used the term
j"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 %pronulga-
tion 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 for a moment be at a less to know what
that sense is. Nobody is better established in
reason or authority, that when the expounder
of a statute or other indictment is satisfied
that a term in it Is not to be taken in its nor
<pal acceptation, it becomes LII; duty to give it
Rhe sense in which it appears TO have been
used. So here, If these lands are found not.
to he reservations in a strict legal sense, but
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 ceded. To these
considerations may be added that Indian trea-
ties are not construed strictly but literally in
favor of the Indians. q opinion, 465, the
Kansas Indiaps; 5 Wallace, 737.) In conclu-
sion. / am of the opinion that the lands in
question are covered by the treaty of the oath
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. H. GARLAND,
Attorrcv-generaL