TAXATION OF PUBLIC LANDS.

Under the present practice, after the register's certificate and receiver's receipt have been issued for lands purchased of or acquired from the United States, the authorities of the States or Territories in which they lie list them for taxation although no patent has issued. Prior to this only the value of improvements is taxed, not the land, as the fee is in the United States. States containing public lands renounce their right to tax the public domain at the time of their admission into the Union. A State may tax land after it has been entered and paid for, although no patent has been entered (issued) therefor. (Carroll v. Safford, 3 How., 441; Levi v. Thompson, 4 How., 17; Carroll v. Perry, 4 McLean, 25; Astrom v. Hammond, 3 McLean, 107; Witherspoon v. Duncan, 4 Wall., 210; S. C., 21 Ark., 240.)

CHAPTER XVI.

INDIAN RESERVATIONS FROM THE PUBLIC DOMAIN.

EXTINGUISHING THE INDIAN TITLE TO LANDS.

Preliminary to survey of lands within the public domain the United States requires the extinction of the Indian title or Indian right of occupancy thereof. Without this being done the surveys will not be made.

The ninth article of the Articles of Confederation declared

The United States in Congress assembled have the sole and exclusive right and power of regulating the trade and managing all affairs with the Indians not members of any of the States: Provided, That the legislative right of any State within its own limits be not infringed or violated.

Under this, September 22, 1783, Congress issued a proclamation prohibiting and forbidding all persons from making settlements on lands inhabited or claimed by Indians without the limits or jurisdiction of any particular State, and from purchasing or receiving any gift or cession of such lands or claims without the express authority and direction of the United States in Congress assembled.

It further declared that every such purchase or settlement, gift or cession, not having the authority aforesaid should be "null and void," and that no right or title should accrue in consequence of any such purchase, gift, cession, or settlement.

INDIAN OCCUPANCY TITLE TO THE PUBLIC DOMAIN-HOW EXTINGUISHED.

From the organization of the National Government it has been the rule of the Nation to purchase the occupancy right from the Indians, generally giving them more value in the compensation than the use of the ceded lands is worth to the Indians. The Government has never attempted to survey and dispose of lands prior to their cession by the Indians.

The civil status of the Indians has been defined by a long series of statutes and court rulings.

In the cases of the Cherokee Nation v. Georgia (5 Peters, 1), and Worcester v. Georgia (6 Peters, 515), the Indian tribes residing within the United States were recognized in some sense as political bodies, not as foreign nations nor as domestic nations, but still possessing and exercising some of the functions of nationality; but by act of Congress of March 3, 1871, it was provided that hereafter no recognition by treaty or otherwise should be made by the United States of the claim of any Indian tribe as being an independent nation, tribe, or power. They hold a relation of wardship to the General Government and are subject to its control. A State legislature has no jurisdiction over the Indian territory contained within the territorial limits of the State; but in the case of New York v. Dibble (21 Howard, 366), it was decided that the State holds the sovereign police authority over the persons and property of the Indians, so far as necessary to preserve the peace and protect them from imposition and intrusion.

In regard to right of soil it was settled in the case of the United States v. Rogers (4 Howard, 567), that the Indian tribes are not the owners of the territories occupied by them. These are vacant or unoccupied public lands belonging to the United States.

In the case of Johnson v. McIntosh (8 Whaton, 543), it was held that the Indian tribes were incompetent to transfer any rights to the soil, and that any such conveyances were void ab initio, the right of property not subsisting in the grantors. The right of making such grants was originally in the Crown, but by the treaty of 1783 it was surrendered to the United States. In previous pages has been shown the process by which several of the States originally composing the American Union divested themselves of this right by transferring both territorial jurisdiction and title to the soil by cession to the General Government. In the case last mentioned Chief Justice Marshall, in delivering the opinion of the court, thus grounded the right of the Government upon prior discovery:

The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired. They ma ntain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest, and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise. The power now possessed by the Government of the United States to grant lands, resided, while we were colonies, in the Crown or its grantees. The validity of the titles given by either has never been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with or control it. An absolute title to lands cannot exist at the same time in different persons, or in different governments. An absolute must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the Crown, subject only to the Indian right of occupancy, and recognize the absolute title of the Crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.

We will not enter into the controversy whether agriculturists, merchants, and manufacturers have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be respecting the original justice of the claim which has been successfully asserted. The British Government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave to them. These claims have been maintained and established as far west as the Mississippi River by the sword. The title to a vast portion of the lands we now hold originates in them. It is not for the courts of this country to question the validity of this title or to sustain one which is incompatible with it.

Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse if not justification, in the character and habits of the people whose rights have been wrested from them.

The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the right of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections and united by force to strar gers.

When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them without injury to his fame and hazard to his power.

But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people was impossible, because they were as brave and high-spirited as they were fierce, and were ready to repel by arms every attempt on their independence. What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country and relinquish

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ing their pompons claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighborhood, and exposing themselves and their families to the perpetual hazard of being massacred.

Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighborhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the Crown originally claimed title, being no longer occupied by its ancient inhabitants, was parceled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the Crown, or mediately through its grantees or deputies.

That law which regulates and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty.

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance and afterward sustained; if a country has been acquired and held under it; if property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right and to the usages of civilized nations, yet, if it be indispen sable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by courts of justice.

(See also Fletcher v. Peck, 6 Cranch, 87; Mitchell v. U. S., 9 Peters, 711; Clark v. Smith, 13 Peters, 195; Latimer v. Poteet, 14 Peters, 4; Jackson v. Porter, 1 Paine, 457; Blair v. Pathkiller, 5 Yerger, 230; Vanhorn v. Dorrance, 2 Dallas, 304; Choteau v. Molony, 16 Howard, 203; Godfrey v. Beardsley, 2 McLean, 413.)

The court confined itself to the discussion of questions essential to a statement of the actual law governing the relations of the Indian tribes. It assumes the concrete fact that the General Government holds the right of eminent domain as well as the title to the soil in the public lands, subject, however, to the right of occupancy by the Indians, and that "the Indian inhabitants are considered merely as occupants, to be protected while in peace in the possession of their lands, but incapable of transferring an absolute title to others." The Constitution of the United States gives to Congress the "power to dispose of and to make all needful rules and regulations respecting the territory, or other property, belonging to the United States." The "territory" or soil, here classed with other property, may be disposed of under rules and regulations prescribed by the legislative authority. The question now arises whether Indian occupancy is an indefeasible right, or whether it is merely a privilege which the Government may withdraw when the interests of civilization or the pressure of immigration may demand it.

According to the above rulings in the case of Johnson v. McIntosh, the General Government has the right to terminate the occupancy of the Indians by "conquest or purchase." Does this involve the right of forcibly dispossessing them of that occupancy?

Very large portions of the public domain have been acquired by peaceable purchase; other portions have been acquired by conquest, various tribes having been successively subjugated, and, as the price of peace, they were compelled to part with a portion of their hunting-grounds and move upon reservations.

INDIAN HOMESTEADS.

The fifteenth and sixteenth sections of the act of March 3, 1875, extend the benefits of the homestead act of May 20, 1862, and the acts amendatory thereof (now embodied

in sections 2290, 2291, 2292, and 2295 to 2302, inclusive, of the Revised Statutes) to any Indian born in the United States, who is the head of a family, or who has arrived at the age of twenty-one years, and who has abandoned or may hereafter abandon his tribal relations, with the exception that the provisions of the eighth section of said act of 1862 (section 2301 of the Revised Statutes) shall not be held to apply to entries made thereunder, and with the proviso that the title to lands acquired by any Indian by virtue thereof shall not be subject to alienation or incumbrance, either by voluntary conveyance, or the judgment, decree, or order of any court, and shall be and remain inalienable for a period of five years from the date of the patent issued therefor. An Indian desiring to enter public land under this act must make application to the register and receiver of the proper district land office; also, an affidavit setting forth the fact of his Indian character; that he was born in the United States; that he is the head of a family or has arrived at the age of twenty-one years; that he has abandoned his tribal relations and adopted the habits and pursuits of civilized life; and this must be corroborated by the affidavits of two or more disinterested witnesses.

If no objection appears, the register and receiver will then permit him to enter the tract desired according to existing regulations, so far as applicable, under the homestead law, the register writing across the face of the application the words "Indian homestead-act of March 3, 1875"; they will note the entry on their records and make returns thereof to the General Land Office, with which they will send the affidavits submitted. It will be observed that the provisions of the eighth section of the act of May 20, 1862 (section 2301 of the Revised Statutes), which admits of the commuting of homestead to cash entries, do not apply to this class of homesteads.

All lands obtained under the above act are exempt from liability for debts contracted prior to the issuing of patent therefor.

When Indians become citizens of the United States they are entitled to the benefits of all the settlement and other land laws, as are other citizens.

Homesteads of all classes are returned upon monthly abstracts by registers and receivers, and the class or kind noted in "Remarks." No list or statement of the number of entries made under the above act can be (at this time) obtained, but the total number of entries made under it in all States and Territories will not exceed 100 to June 30, 1880.

There have been several acts passed relating to settlements by Indians upon the public lands, such as the acts of June 10, 1872, and May 23, 1876, which were for the Indians of the tribes known as Ottowas and Chippewas of Michigan. These were allowed to make entries of lands of former Indian reservations of Michigan. Probably some 500 or more of such entries have been made and perfected. (See Statutes at Large and Revised Statutes.)

PROCEDURE IN MAKING AN INDIAN RESERVATION.

The method of making an Indian reservation is by an Executive order withdrawing certain lands from sale or entry and setting them apart for the use and occupancy of the Indians, such reservation previously having been selected by officers acting under the direction of the Commissioner of Indian Affairs or that of the Secretary of the Interior, and recommended by the Secretary of the Interior to the President.

The Executive order is sent to the Office of Indian Affairs, and copy thereof is furnished by that office to the General Land Office, upon receipt of which the reservation is noted upon the land office records and local land officers are furnished with copy of the order and are directed to protect the reservation from interference; after this the Indians are gathered up and placed upon the reservation.

PROCEDURE IN ABOLISHING AN INDIAN RESERVATION.

When such reservation is no longer required, and the President is so informed by the Secretary of the Interior, an Executive order is issued restoring the lands to the public domain, and the order being received by the Commissioner of Indian Affairs,