Omaha daily bee., 1902-03-16
RED MEN LOSE THEIR CASE
Indians Are Defeated in Last Stand
Against the PalefaCes.
OPENING RESERVATIONS TO SETTLERS
Consent of the Tribes H. Held by
federal Court Not Necessary
Congress Supreme in
the Matter.

WASHINGTON, March 15.-The court Of
appeals Of the District Of Columbia has de-
MED the petition Of Lon Wolf and his as
sociates for rehearing In the case against
Secretary OF the Interior Hitchcock, re-
Gently decided by this court adversely to
the Indians. Judge Springer, counsel for
Lone Wolf and the other Indian plaintiffs,
has made a stubborn fight and has been
defeated at every turn. The question in
controversy is whether congress could,
without the consent of the Indians, abolish
their reservation and open the lands to
settlement and entry.
A singular feature Of the case Is that
when the bill opening the Kiowa reserva-
tion was pending before congress, secre-
tary Hitchcock, not having time to investi-
gate the matter thoroughly, and acting at
the suggestion Of the Indian commissioner
who is always a jealous advocate OF the
cause Of his Indian wards, wrote a letter
to the committee on Indian affairs in con-
gress protesting against the passage OF the
bill and declaring that IL 1t was passed
without a provision requiring its submits
sion to the Indians and its ratification by
them, no court in the country would sus-
tain II and all would declare 1t unconstitu-
~tional."
Congress Ignores Petition.
Congress, however, not needing the pro-
test, passed the bill without making the
suggested change. Later, In their suit to
entoin Secretary Hitchcock from executing
the provisions Of this act, the Indians
copied into their bill OF complaint this let
ter OF the secretary. This made Il a trihe
embarrassing for Secretary Hitchcock. but
1t did not deter him from endeavoring TO
give full effect to the will Of congress-. The
duty OF defending the suit fell upon Judge
Van Devanter, assistant attorney general
for the Interior department. who, with the
concurrence Of Secretary Hitchcock, gave
his best efforts to sustaining the congress
sional act. In this he met with unqualified
success In every court where the question
has been presented.
The opinion Of the Court Of Appeals de-
nying the motion for rehearing was deliy-
cred by Chief Justice Alvey, and is as fol-
lows:
The motion for reargument in this case
fails to bring to our view any matter that
we have not already fully considered, and
therefore we find nothing in the reason as
signed for reargument that would Justify
the granting Of the motion. We had sup
posed that, when this court determined, as
1t did, that 1t had no power or Jurisdiction
to go behind the acts of congress, ratifyine
the cession made by the Indians to the
United States and providing for the distri-
button and settlement Of the lands ceded
to find grounds for declaring those acts
null and void we had virtually decided the
case against the complainants and that
their bill must necessarily be dismissed.
Only Right of Occupation.
But without making a question as to
that controlling view Of the case, the COM
plainants, in their motion for reargument.
have suggested hat this court has not
treated the title Of the Indians to the lands
coded to them BY the treaty OF 1898 as be-
ing anything more than q mere title by
occupancy under and in subordination to
the power and control of the congress OF
the United States. The treaty of 1868 GER
tainly did not vest In the Indians, either
In their individual or tribal capacity, any
thing more than the right to occupy the
lands as against the United States, until
II was found necessary to make other pro-
vision for them.
There was no grant OF estates, either of
freehold or leasehold; only a mere right
to occupy and use the lands according to
the habits and customs Of the Indians; but
those rights Of the Indians were sacred to
them as against every one, until congress
made provision for assuming control over
the lands and making other disposition
thereof, upon such terms and conditions as
congress should prescribe.
Contention of COmpIainants.
THE contention Of the complainants in
this respect, as stated in the brief Of their
counsel, is this:
Indians occupying lands in this country
under provisions Of treaties with the United
States cannot be deprived Of the use and
occupancy Of such lands without their con-
sent, except by due process OF law; aud
such lands cannot be taken from them ex-
cept in compliance with the treaty provi-
sions under which such lands were acquired.
TIL right Of the Indians as to their occu-
pancy is as sacred as that of the United
States to the fee.'
I'VE hold that It is not a judicial ques-
tion Of due process of law to be determined
by the courts, but that it is a political Ques-
ton for determination by congress, and,
congress having acted with all the facts
before 1t, including the memorial and pro-
test Of the Indians against the act Of rati-
h~eation, that act Of ratification Is final and
conclusive. and the courts have no power
or jurisdiction over the subject.
Motion for reargument overruled."