p. 446), was subsequently relinquished by the State of Texas. (See proclamation of the President, U. S. Stats. at Large, vol. 9, p. 1005 declaring act of 1850, respecting the boundaries of Texas, to be in force.)

In consideration of the foregoing statement, it is the opinion of this office that the land in question is within the jurisdiction of the United States and does not belong to the State of Texas, as the map of the State, in the possession of the commanding officer at Fort Sill, is made to represent as belonging to Texas. The opinion is based on the fact that the Red River mentioned in the treaty with Spain in 1819, as laid down on Melish's map and referred to in the treaty, is identical with the present main Red River delineated on the maps of the United States, as upon inspection of the map referred to in the treaty, and now on the files of the State Department, is made to appear. Additional evidence of the identity of the Red River as represented on the Melish map with the main Red River, as shown on the map of this office, consists in the fact that the map of the United States of the Republic of Mexico by Disturnell, published in Spain in 1848, compiled from the best authorities and laws of Mexico, and which was used by the Mexican boundary commission in surveying the boundary between the United States and the Republic of Mexico, corroborates the course of the Red River as laid down on the Melish map referred to in the aforesaid treaty with Spain in 1819. It further appears that neither the Melish map nor that of Disturnell shows the North Fork of the Red River, and hence the latter could not have been regarded at the contemporaneous dates of the treaties as the boundary between the United States of America, Spain, Mexico, or finally the Republic of Texas.

In view, therefore, of the foregoing data the extreme portion of the Indian Territory lying west of the present North Fork of the Red River and east of the 100th meridian of west longitude from Greenwich, having been ceded by Spain to the United States, subsequently confirmed by the United Mexican States by treaty of January 12, 1823, and not claimed by Mexico since her independence from Spain, estops the State of Texas from claiming jurisdiction over that part of the Indian Territory, her own maps of later date showing the same as embraced within Greer County to the contrary notwithstanding.

The letter of the Secretary of War, with its inclosure and the wrapper, are herewith returned.

I have the honor to be, very respectfully, your obedient servant,
J. A. WILLIAMSON,

Hon. CARL SCHURZ,

Secretary of the Interior.

EXHIBIT No. 2.

Commissioner.

[Letter of Commissioner of the General Land Office.]

DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFCE,
Washington, D. C., January 5, 1882.

SIR: Respectfully referring to your letter of the 23d ultimo, requesting a copy of the report (if completed) on the survey of the United States and Texas boundary made under the provisions of the act of Congress approved June 5, 1858, I have the honor to state as follows:

The said survey was made under the direction of the honorable Secretary of the Interior, and the work in the field having been completed, the commissioner on the part of the United States, Mr. John H. Clark, was engaged in the preparation of his report, maps, &c., in the summer of 1861, in the office of the Secretary.

On August 3, 1861, the then Commissioner of the General Land Office, by authority of the Secretary, directed Mr. Clark to transfer the archives and personnel of the arvey to this office, which was accordingly done.

In response to a call from this office September 19, 1861, Mr. Clark, on September 30, 1861, submitted the report of the transactions of the boundary commission referred to in your letter, copy of which I herewith inclose.

Under date of October 3, 1861, this office requested Mr. Clark to close the work by the middle of the following month. It appears, however, that Mr. Clark was unable to complete the work within the time required.

On the 16th of January, 1862, the honorable Secretary of the Interior directed the mediate termination of the commission, and on January 25, 1862, the property belonging to the commission was transferred to this office.

The maps, &c., of the survey being in an unfinished condition, the report has never been made; hence I am unable to furnish the complete report which you request.

Very respectfully,

Hon. S. B. MAXEY,

N. C. MCFARLAND, Commissioner.

United States Senate.

Decision of Judge I. C. Parker on the status of lands in the Indian Territory.

OKLAHOMA.

(United States vs. D. L. Payne.)

FORT SMITH, ARK., May 11, 1881.

In the district court of the United States for the western district of Arkansas, at the May term thereof, A. D. 1881.

This is a civil suit in the nature of an action of debt to recover from defendant a penalty of $1,000 for having violated the law of the United States by being in the Indian country contrary to said law. The complaint charges that the defendant heretofore, to wit, on the 5th day of September, A. D. 1879, being in the Indian country contrary to law, was removed by the military forces of the United States, and that afterwards, to wit, on the 10th day of August, A. D. 1880, he, the said defendant, did return to said Indian country and was found therein contrary to the form of the statute in such case made and provided. For this reason plaintiff claims an action hath accrued against the defendant.

The defendant files his amended answer, in which he denies that he owes and is indebted to the plaintiff in the sum of $1,000 or any other sum in manner and form as stated in the complaint. He denies that on the 3d day of May, 1880, or the 10th day of August of that year, or at any other time, he was in the Indian country or any part thereof. He denies that he was at any time removed from the Indian country or any part thereof. Defendant further claims that by a treaty entered into between the United States and the Seminole tribe of Indians on March 21, 1866, they sold to the United States a large tract of land, then owned by said tribe in the country known as the Indian Territory situated between the Canadian River and the north fork of the Canadian River, and between the 97th and 98th degrees of west longitude. That said lands have ever since been and are now the property of the United States by an absolute and perfect title in fee-simple, and that they are a part of the public domain of the United States. That there is no Indian nation or tribe that has any title or right to any part of the same or any occupancy or possession thereof.

Defendant further answers that he made a settlement on section 14, in township 11 north, of range 3 west, of the Indian meridian, under the pre-emption and homestead laws enacted by the Congress of the United States; that said section is a part of the land so purchased and acquired by the United States from the Seminole Indians, and that it is situated within 40 miles of the line of the Atlantic and Pacific Railroad, to-wit, about 30 miles therefrom; that said settlement was made by him on or about the 1st day of May, 1880; that on the 15th of that month an officer of the United States Army and a squad of soldiers arrested him on or near said section 14 and removed him from said lands and from said so-called Indian Territory; that he returned to his said claim and settlement on or about the 4th day of July in said year, and was again, on or about the 15th day of said month, arrested at or near the same place by the officers and soldiers of the United States Army and forcibly expelled from said lands and from said Territory.

To this answer plaintiff files a demurrer, and for cause thereof says: 1st. That said answer does not set up sufficient facts to constitute a defense to plaintiff's complaint. 2d. That defendant's said answer is otherwise defective, and wholly insufficient to constitute a defense to plaintiff's complaint, and does not entitle him to the relief prayed for.

William H. H. Clayton, United States district attorney, and D. W. C. Duncan, for plaintiff; Thomas H. Barnes, William Walker, and James M. Baker for defendant. PARKER, J.:

The pleadings in this case seem to raise and present to the court for decision all the points there are in the case. The complaint alleges a state of facts which, if true, would render the defendant liable to the penalty.

Sections 2147 and 2148 Rev. Stat., 374. No white person has a right to go into the Indian country to reside without a permit, and if such person has once been put out and returns, he becomes liable to a penalty of $1,000, to be recovered in an action like the present one. The defendant denies that he is an intruder into the Indian country. He does not stop with this denial, but proceeds in his answer to set up certain facts, but says these facts do not make him liable, but that he was an American citizen legally and rightfully in the country.

The demurrer admits his facts, but says on them he is liable.

The question presented for decision in this case is: Was the land upon which the defendant had attempted to make a settlement, and the place where he was arrested

the first and second times, a part of or within the Indian country? If so, upon the other facts, he is liable to the penalty, because he admits his arrest and expulsion from the country, and under the law the liability arises upon a second intrusion into the Indian country after having been once expelled. The defendant claims that the land purchased from the Seminoles by the United States, by the treaty made with them March 21, 1866, is a part of the public lands of the United States, and as such is open to homestead and pre-emption settlement. That he made a settlement thereon under the laws of the United States relating to homestead and pre-emptions. He does not show that he has taken any of the requisite steps to give him even an inchoate homestead or pre-emption right. He could not, of course, if these lands were subject to the homestead and pre-emption laws, hold what he claims to have settled on, to wit, section 14, because, under the law, one person can only homestead or pre-empt 160 acres. (Sections 2259 and 2289, Rev. Stat.)

Did he have the right to homestead or pre-empt any of the land conveyed by the Seminole treaty of 1866 ?

Section 2258 Rev. Stat. provides "that lands included in any reservation by any treaty, law, or proclamation of the President for any purpose shall not be subject to the right of pre-emption unless otherwise specially provided by law." Section 2289 of the same statute provides "that every person who is the head of a family or who has arrived at the age of twenty-one years and is a citizen of the United States, or has filed his declaration of intention to become such, as required by the naturalization laws, shall be entitled to enter one quarter-section or a less quantity of unappropriated public lands upon which such person may have filed a pre-emption claim or which may at the time the application is made be subject to pre-emption at one dollar and twenty-five cents an acre." Are these lands reserved by any treaty, law, or proclamation of the President? If so, they are not subject to pre-emption settlement. Are they unappropriated public lands? If they are appropriated for another purpose than homestead settlement, or if they are not subject to pre-emption, they cannot be settled upon and acquired under the homestead laws. If these lands are included in a reservation for any lawful purpose made by treaty, law, or proclamation of the President, they cannot be settled upon and claimed by citizens of the United States, and the defendant would be wrongfully upon them. The lands upon which the defendant claims to have settled were originally a part of the Louisiana purchase. By such purchase the title thereto was vested in the United States. By the act of Congress of May 28, 1830, the President was authorized to set apart the country now known as the Indian country or Indian Territory into certain districts for the use and occupancy of Indians to be removed there from east of the Mississippi River.

The provisions of the act of 1830 were supplemented by treaties bargaining and conveying certain tracts to certain tribes, by far the greater part of it having been conveyed to five nations, to wit, the Cherokees, Choctaws, Chickasaws, Creeks, and Seminoles. These assignments were made to these tribes by the several treaties made with them, and the President, under the act of 1830, put them in possession thereof. The lands in controversy are a part of those which were, by the treaty of the 14th of February, 1833, made with the Creeks, set apart to them.

By the treaty of the 7th of August, 1856, made between the United States and the Creeks, they conveyed these lands to the Seminoles, provided, however, that the same should not be sold or otherwise disposed of without the consent of both tribes legally given. The Seminoles, by the third article of the treaty made between them and the United States, March 21, 1866, provided as follows: In compliance with a desire of the United States to locate other Indians and freedmen thereon, the Seminoles cede and convey to the United States their entire domain, being the tract of land ceded to the Seminole Indians by the Creek Nation under the provisions of article 1, treaty of the United States with the Creeks and Seminoles made and concluded at Washington, D. C., August 7, 1856." This conveyance was made by the Seminoles, as is recited in the preamble to this treaty, "in view of the urgent necessity of the United States for more land in the Indian Territory." The Creeks, by the seventh article of the treaty of June, 1866, consented to this cession by the Seminoles.

To my mind this language used in the third article of the Seminole treaty amounts to a conveyance of the title of the land described to the United States. But the fact that the title of the land is in the United States does not necessarily make it that part of the public domain which is subject to settlement by citizens of the United States under the homestead and pre-emption laws, because those laws are explicit that any lands which have been reserved by any treaty, law, or proclamation of the President are no part of the public lands of the United States subject to those laws so long as such reservation continues; and when any part of the public lands have been once lawfully reserved that reservation cannot be set aside except by a clear and explicit act of the lawful authority, showing thereby clearly a purpose to open to settlement by the citizen the land reserved.

If the language of this third article of the Seminole treaty amounts to a reservation, then the lands sold by the terms of said treaty to the United States by the Seminoles

and lying in the Indian country between the Canadian River and the North Fork of the Canadian River, and between the 97th and 98th degrees of west longitude, and a part of which this defendant was expelled from and to which he returned a second time and upon which he was a second time arrested, are not such lands as persons have a right to treat as public lands and settle upon under the homestead and preemption laws. Did the power which made this treaty have a right to reserve this land? Most certainly. The treaty-making power has a right to convey title to the lands of the United States without an act of Congress, and if a treaty acts directly on the subject of the grant it is equivalent to an act of Congress and the grantee has a good title.

Holden v. Joy (17 Wallace, 247); United States v. Brooks (10 Howard, 442); Meigs v. McClung (9 Cranch, 11); as long ago as the Cherokee Nation v. Georgia (5 Pet., 1); and Worcester v. The State of Georgia (6 Pet., 515). The Supreme Court of the United States, speaking through that most eminent of all American judges, Chief Justice John Marshall, held that a treaty with an Indian tribe was like a treaty with a foreign nation as far as the powers of the contracting parties were concerned; that it, like a treaty with a foreign power, was a law equally as sacred and equally as binding as a law of Congress. Now, if the treaty making power can convey title it can reserve a part of the public domain for a specific purpose, because this is but the exercise of a less higher power than that which conveys title. So can the President of the United States by an Executive order reserve a part of the public domain for a specific lawful purpose. Wolcott v. Des Moines Co. (5 Wallace, 681); Grisar v. McDowell (6 Wallace, 363). In the latter case the court says, "From an early period in the history of the Government it has been the practice of the President to order lands to be reserved from sale and set apart for public purposes, and that numerous acts of Congress recognize the authority of the President in this respect as competent authority." The United States court for Nevada, in the case of The United States v. John Leathers, has decided the same thing. So can Congress by law reserve a part of the public domain.

Then we find a reservation may be made, either by treaty, Executive order, or by act of Congress, and all of these methods are expressly recognized by the homestead and pre-emption laws. Then we find the power that made this treaty with the Seminoles had the right to reserve these lands for an Indian reservation or any public purpose. The question is, has this power done so in this case? Did the treaty-making power employ such languge as to indicate its purpose to reserve the land in controversy? No set form of words or phrases are necessary to set aside a reservation. The Sovereign is not parting with the title, but only setting it apart to be used for a specific public purpose. It is enough if there are sufficient words to indicate the purpose of the power that can act to show that in the given case it intended to act. Article

3 of the Seminole treaty says, “In compliance with the desire of the United States to locate other Indians and freedmen thereon, the Seminoles cede and convey," &c. And in the preamble it is recited that "in view of the urgent necessities of the United States for more lands in the Indian Territory," it requires a cession by said Seminole Nation of a part of its present reservation.

What was this urgent necessity for more lands in the Indian Territory? Certainly not to settle citizens of the United States upon, because it is a part of the open history of the times that both the legislative and executive departments of the Government have constantly and all the time refused to do this, and the Executive Department has at all times put forth its arm to keep citizens of the United States out of that country. Then could it have been desired by the Government for settlement by the citizens of the United States under the homestead and pre-emption laws? Hardly in the face of the fact already cited, and of the further fact that the Government had grven its pledges by its treaties and laws from the organization and occupation of that country by the Indians that, with the exception of a few privileged persons, white settlers were to be kept out of that country. Those pledges remain to this day, and the Government, through its Executive, whose duty it is to execute them, has constantly sought to make them good. All the tribes in the Indian Territory have implied or express pledges made in treaties or laws of the United States that they are to be free from intrusion of white persons. Whether this policy is right or wrong, whether it is a good or bad one, persons may entertain a difference of opinion. The courts did not establish it, but the law-making power did. The courts cannot change it, as they do not make the laws. It must be changed by the power that established it. Can it be presumed in the face of these pledges that the United States felt an urgent necessity pressing upon it for this comparatively small tract of country between the Canadian Rivers that it might open it to white settlement, surrounded as it is on all sides by Indian reservations, occupied by different tribes of Indians, except on the north, and there we find the Cherokee lands, which, by the express terms of the treaty of July 19, 1866, are to be sold and occupied by friendly Indians? Then, again, we find by a treaty made with that tribe February 27, 1867, the United States settled upon a tract thirty miles square of this identical land conveyed by the Seminole

tribe, the Pottawatomie tribe of Indians. Then, again, upon a part of this thirtymile tract, by an act of Congress of May 23, 1872, the Absentee Shawnees have been settled, so that now there remains of this whole Seminole cession only about twentyodd townships which is not at this time actually occupied by Indians. Again, by Executive order of the President of August 10, 1869, a large portion of this country obtained from the Seminoles was assigned for temporary occupation by the Cheyennes and Arapahoes. These acts of the Government plainly indicated its purpose in agreeing to the third article of the Seminole treaty, and what it accepted these lands for. Now, we must look to the acts of the Government since the adoption of this treaty in order to understand its purpose. We find that in the year 1866 it entered upon the policy of settling tribes of Indians, other than the five civilized tribes, in the Indian country. Since that time, by treaties, laws, and Executive orders of the President, it has settled upon reservations in the Indian country the Cheyennes, Arapahoes, the Kiowas, the Comanches, the Wichitas, the Pawnees, the Sac and Fox, the Nez Percés, the Poncas, the Modocs, the Kansas, the Osages, the Pottawatomies, the Absentee Shawnees, as well as some other small tribes. This explains why the treaty-making power thought on March 21, 1866, that there was an urgent necessity of the Government for more lands in the Indian Territory. This shows that the Government had not only a desire to locate other Indians in the Indian Territory, but to a great extent it has consummated that desire. It is a matter of public history that a number of these tribes which have been removed to the Indian country, taking advantage of the embarrassment of the Government growing out of the war of the rebellion, had gone on the war-path. The Government was desirous of securing peace with them and of settling them upon reservations where they could be civilized. It entered into treaties by which they were to be, and were, removed to the Indian country. Then, again, the white people in other localities were pressing on other tribes and demanding of the Government their removal. To get them out of the way of the white settlements, and to locate them where they would be free from intrusion by the whites, they were removed to the Indian country. 'Tis true but few of these tribes were settled on the lands in controversy, but I cite the conduct of the Government in order to arrive at its policy in regard to the Indian country, and from that policy to receive aid in the construction of the third article of the Seminole treaty. The Government wanted to locate other Indians and freedmen thereon.

The meaning of the United States in regard to locating other Indians therein is plain when we consider what action it has taken since that time in regard thereto. True, Congress has recently prohibited the location of certain other tribes of Indians in that country, but it has not by any law changed the general policy. It may have considered that these tribes were not proper ones to bring in contact with other Indians more eivilized. What did the Government mean by locating "freedmen thereon"?

Let us again go back to the history of the time when this treaty was made. We find that colored people were held in slavery in all the civilized tribes of the Indian Territory. Slavery was abolished there as well as elsewhere in the United States by the emancipation proclamation of the President, and by the 13th amendment to the Constitution, adopted the 13th of December, 1865, and such abolition of slavery was recognized by these tribes in the several treaties made with them in 1866.

The Government was desirous of protecting these freedmen and of securing them homes. It was not known how well the several Indian tribes who had held them in davery would observe their pledges to secure them the same rights they enjoyed. It was feared that prejudice growing out of their former condition as slaves and of race would be so strong against them that they would not be protected by the Indians. The Government had given them the boon of freedom, and it was in duty bound to secure it, in all that the term implied, to them. The Government feared that to do this it might be necessary to settle them in a colony by themselves. This purpose of the Government, should it become necessary, was manifested by the terms of the Choctaw treaty of April 15, 1866. Therefore, in making the treaty with the Semiholes, it sought to provide a home for such freedmen as had been held in slavery by the Indians in the Indian Territory, should that necessity occur to secure them in their rights. In the face of the surrounding condition of things at the time this treaty was made, we must conclude the Government meant these freedmen who had been slaves in the Indian Territory, and none others, and these could only be settled on this land by the anthority of and with the permission of the Government. Colored persons who were never held as slaves in the Indian country, but who may have been slaves elsewhere, are like other citizens of the United States, and have no more right in the Indian Country than other citizens of the United States.

Again, if this land is open to homestead or pre-emption settlement, it has been so ever since the treaty of 1866 with the Seminoles, and yet the Goverment has never attached it to any laud district. In perfecting title under the law the settler has to take certain preliminary steps. It has been the policy of the Government, when lands were open to settlement, as soon afterward as possible to establish a new land district or attach the lands thrown open to settlement to some district already estab