, 1886-03-25
julie Il Opinion.

". II. White for defendant:
Oral opinion at the conclusion Of
argument in contempt proceeding
against defendant
By JrpGz RoGER S. GREENE:
The statute in reference to the
donation claims cited in the arSu-
ment throws no light upon the CUES
fion before the court. The section
cited from that statute simply excepts
from the operation of that act, lands
belonging to the classes enumerated
or referred to in the statute.
Nv opinion Is that the President OF
the United States is vested with am
pla mower to reserve from the public
lands, suitable portions thereof for
Indian reservations / conceive that
power is given him by those acts of
Congress which authorize him to
make regulations in regard to Indian
Affairs. He had authority, then, to
set apart a reservation from the pub
lie lands for the Malah Indians, for
aught that appears. The donation
act and the amendment TO 1t do not
touch the question.
4 treaty was made by this govern
ment with the Makah Indians where
by a certain tract of land was set
apart for their uses There is moth
ing in that treaty whereby it was
stipulated that the President should
make no enlargement of the tract de
scribed IN the treaty nor was there
any stipulation which prevented him
from making further reservations for
the uses of those Indians. l think
that he had the power to do it and
that he made the reservation, men
toned in the answer by virtue OF his
having general power to make reser-
vations for the use of Indians. Then,
he having done so, certainly no one
has a tight to object except some one
who claims a special interest in the
lands under authority of law-either
some settler on the land or person
otherwise entitled by virtue of the
the land laws of the United States, or
this tribe of Makah Indians, party
to the treaty. The Washington Fur
Co. is not claiming here to hold as a
settler under the land laws of the
| United States, nor is the Makah tribe
of Indians here objecting to this re
servation as being contrary to the
stipulation of their treaty In fact,
so far as the Indians are concerned,
the additional reservation is directly
in-the line of their interest
Passing from this point, the power
of the President, | come to that as to
the power of the court to recognize
the act of the President. Political
power in this country is divided into
three branches: Legislative, Execu-
tive and Judicial, which branches are
co ordinate and equal in dignity,
The act of any one of them may be
either public or private. The public
acts are such as concern everybody
and of which therefore everybody
must take notice. Private acts are
such as interest limited number of
individuals or some single individual
and therefore are not necessarily
brought to the notice of every other.
The same rule, as | understand it ap-
plies to the distinction between pub
lie and private acts and their recog-
milton, whether the acts are OF the
Legislative, Executive or judicial
branch of the government. just as
there are acts of Congress which are
general in their nature and which
must be taken notice of by exery citi
zen and every one within the reach
of congressional jurisdiction, just so
there are public acts of the President
Of the United States which must be
taken notice of by every one within
the United States as being consti
tutional exercise cf authority by the
President These acts whether Of
President or Congress are taken no
tice of in every court in every suit in
which it may be necessary that they
should be noticed. There are acts
of Congress which affect only pri
vate individuals or some particular
corporation, or some special private
matter and which no one would pre-
sumo to take notice of unless they
were drawn to his attention or un
less he were directly interested. OF
such an act no court would take no
tice unless it was alleged and proven.
Similarly, the acts of the President,
eitter directly performed by him or
through departmental head, or the
head of some bureau or whatever sub
ordinate sometimes affect individuals
only, and those acts are not to be
taken notice of by the courts simply
because they are done, but only on
their being not only alleged but prov
en-. A like analogy might be drawn
with regard to the acts of the judi
cial branch of the government. Some
acts of the court are acts of which
everybody must take notice, and there
are other acts of which no person
need take notice until they are
brought to his particular attention.
The order of the President setting
apart under authority of an act Of
congress, tract of public land for an
Indian Reservation is public Exc
cutive act, and in the nature a pro
clamation. Formal publication is no
mere essential to its validity than
publication would be to validate a
congressional. act.
Where court is bound to take
Judicial notice of an act of another
branch of the government, there it
will look to whatever source of in
formation it finds in order to get the
information that it needs. Now, I
have cast about for information re-
garding what the President has done
if anything towards setting off an
addition TO the Makah Indian Reser-
vation as fixed by treaty, and | have
become satisfied in my own mind
that he Eas set off a considerable
tract of land lying between the straits
of Fuca as the boundary on the north
and the Pacific Ocean as the boun-
Diary on the west and including all
the main land at Neah Bay. not in
eluded in the reservation as defined
by treaty, and lying to the south east
OF the reservation which the treaty
described.
A fact of which the court takes
judicial notice is something from
which it cannot escape, whatever may
be the issue before it. 1t is bound to
take notice of it, just as it is bound