lished. It has not done so in this case, showing again how one of the parties to this treaty, which is a contract between the United States and the Seminoles, has construed it. A treaty, like a statute, must be construed to give it effect if possible, and courts always adhere to this rule. In construing this treaty we have a right to take into consideration the situation of the parties to it at the time it was made, the property which is the subject-matter of the treaty, and the intention and purposes of the parties in making the treaty. To get at this intention we have a right to consider the construction the parties to the treaty-and who were to be affected by it-have given it, and what has been their action under it. The action of the United States, which I have cited, is sufficient to show its construction of the treaty. It is a matter of public notoriety that the other party to the treaty has agreed with the United States in its construction. Then we have both parties to it agreeing upon the same construction. That is the construction to be taken as the true one unless the parties to it were mutually led into this construction by fraud, accident, or mistake. In a case where the mutual construction was in the face of the language used and the rights of third persons had intervened, the language would be taken as governing. But in this case the rights of the third person is only inchoate at best, and it comes through and under one of the contracting parties, the United States; is not yet a vested right, and is claimed with the full knowledge of the party claiming the right, of the condition of this land when he set up his right. Therefore there is no hardship on him. It must be remembered that the United States is the custodian of all the lands in the United States, whether reserved or unreserved, and it is its power and province to say by either law, treaty, or Executive order of the President when these lands are open to settlement by the citizen. Has it said that these lands in controversy, by the third article of the Seminole treaty, are so open to settlement? The reservation of lands for any specific purpose by the Government, if expressed in the most accurate, concise, and precise form of words is but an expression of a desire of the Government to use them for that purpose. It does not part with its title by reserving them, but simply gives notice to all the world that it desires them for a certain purpose; therefore the same precision and accuracy is not required as in case of a conveyance. Does not the Government express its desire by the language of this treaty? The language is: "In compliance with a desire of the United States to locate other Indians and freedmen thereon," the Indians convey, &c. There is an expression of all that could be done by the most formal instrument, to wit, the desire or purpose of the Government. The Government for fifteen years, judging from its action, thought it had given expression to its desire sufficiently plain to reserve these lands. The Indians have thought so too, and so I think. I am of the opinion that it is sufficient to set aside the land now in controversy for the purpose expressed in this third article of the treaty. But it is claimed in this case that this land is open to settlement by virtue of the sixth section of an act of Congress, approved July 27, 1866, entitled "An act granting lands to aid in the construction of a railroad and telegraph line from the States of Missouri and Arkansas." That section is as follows: "That the President of the United States shall cause the lands to be surveyed for 40 miles in width on both sides of the entire line of said road after the general route shall be fixed, and as fast as may be required by the construction of said railroad, and the odd sections of land hereby granted shall not be liable to sale or entry or preemption before or after they are surveyed, except by said company, as provided in this act; but the provisions of the act of September, 1841, granting pre-emption rights and the acts amendatory thereof, and the act entitled an act to secure homesteads to actual settlers on the public domain, approved May 20, 1862, shall be, and the same are hereby, extended to all other lands on the line of said road when surveyed, excepting those hereby granted to said company." It is further claimed that this grant of lands to this railroad company applies to lands in the Indian country. The Executive Department of the Government decided, through the Commissioner of the General Land Office, October 13, 1877, in the following language that it did not. "But in addition," he says, "I think the demand cannot be complied with for the reason that the company has no grant of lands in the Indian Territory. That without entering upon the question of the intent of Congress to make a present graut of such lands, which I do not understand the company to claim, an ultimate grant even was not contemplated by the act, except such grant might be acquired from the Indians by the company." Whether this is so or not, I do not decide, because it is not necessary in this case. It must be remembered that this treaty with the Seminoles was prior to the act of Congress just cited. The first was adopted March 21, 1866, and the latter July 25, 1866. It is a principle of the law, declared by the Supreme Court of the United States in Wilcox vs. Jackson (13 Pet., 266), that "Whenever a tract of land has been appropriated to the public use it is severed from the mass of the public domain, and subsequent laws of sale are not construed to embrace it though they do not in terms except it." Again, the Supreme Court, in the Leavenworth, Lawrence and Galveston Road 8. United States, 2 Otto, 733, affirms the doctrine in Wilcox vs. Jackson, "that a tract lawfully appropriated to any purpose becomes thereafter severed from the mass of public lands, and that no subsequent law or proclamation will be construed to embrace it or to operate upon it, although no exception is made of it. This doctrine," says the court, "applies with more force to Indian than to military reservations." And again it says: "Congress cannot be supposed to include them by a subsequent law general in terms." If this land in controversy was by the 3d article of the Seminole treaty reserved for Indian settlement by competent authority, then it was an Indian reservation as much as if it was actually occupied by Indians by authority of the Government, it having been reserved prior to the passage of the railroad grant and charter. This law being general in its terms, not making any special reference to these lands, cannot be held to embrace them, although it declares that all other lands except those granted to the railroad are open to settlement. I think these cases a e conclusive on this point. But again, suppose we take the language of the section and undertake to apply the pre-emption law of 1841 and the homestead law of 1862 "to all other lands," to what conclusion must we come? If we apply these laws we must apply the whole of them, and in such application we find that these laws did not apply to any lands reserved by treaty, law of Congress, or proclamation of the President. These lands being reserved they did not apply to them any more than the homestead and preemption laws now in force apply to them, and the words "all other lands on the line of said road," must, under the law, be construed to mean all other lands not reserved by treaty, law of Congress, or proclamation of the President. I think, therefore, from the authorities I have cited, and from the language of this section, that there is no doubt that this act of Congress has not changed the lands in controversy from the condition of a reservation They being in that condition they can only be taken out of it by clear and specific language expressive of the will of the power which under the law can restore them to the public domain subject to homestead and pre-emption settlement by the citizen. One other point is necessary to be decided in this case, and that is whether these lands, although they may be reserved, are a part of the Indian country, because lands may be reserved and yet not be a part of the Indian country. The Government can and does reserve lands for a variety of purposes other than Indian reservations; for forts, arsenals, dock and navy yards, national parks, &c, and because they may be reserved they do not necessarily become a part of the Indian country. It is necessary they should be a part of such country, in this case, to make the defendant liable to the penalty sued for, because, although these lands may be reserved from settlement, and the defendant would have no right to settle on them, and could be by competent authority ejected from them, yet to make him liable under this statute he must have intruded into the Indian country, been put out once, and returned thereto a second time. The defendant was the first and second time arrested upon lands which were originally the lands of the Creeks. They were defined by treaty with them, and when owned by them were clearly and unmistakably Indian country. By treaty of the 7th of August, 1856, the Creeks conveyed these lands to the Seminoles. They were taken possession of and occupied by the Seminoles until they were conveyed to the United States. They were most certainly a part of the Indian country all this time. They are within what is well known and recognized by the Government of the United States as the exterior boundaries of what is called and known as the Indian country. These boundaries have been established by acts of Congress, treaties, and proclamations of the President. The case of The American Fur Company vs. United States, 2 Pet., 137, decides "that a country which has been purchased of the Indians, and which is not included within the boundary line defining the Indian country, ceases to be Indian country." This is undoubtedly true. But it does not decide that a country purchased from the Indians ipso facto ceases to be Indian country. It may be within the exterior boundaries of their country over which the laws of the United States for the government of the Indian country extend, or there may be Home law or treaty or Executive order under which it still continues to be Indian country, as in the case of the United States vs. 43 Gallons of Whisky, 3 Otto, 188. The case of Bates vs. Clark, 5 Otto, 204, decides that as soon as Indians part with their title the land ceases to be Indian country without any further act of Congress, unless by the treaty by which the Indians parted with their title, or by some act of Congress, a different rule was made applicable to the case. I think it clear in this case that by the terms of the Seminole treaty a different rule was made applicable, and this view of the case is strengthened when we consider the purpose for which the Government purchased it; the fact that it is surrounded on all sides by other Indian reservations, and the further fact that it is within the exterior boundaries of what is now and what has been for over a quarter of a century known and recognized by the Government of the United States, by the surrounding States, and by the public generally as the Indian country. The moment the Government purchased the land, and by the same act simultaneous with such purchase, it reserved it for a specific purpose. That purpose was the same as the one for which the land had been used for thirty-three years, ever since the Creek treaty of the 14th of February, 1833. It was Indian country beyond question while the Creeks and Seminoles occupied it. The Government obtained it for Indian occupancy. Of course it could not at the same moment make the treaty and transplant other tribes on the land, but we find it commenced to do so as soon thereafter as possible. It has gone on and treated it as devoted to that purpose by settling on a large portion of it Indian tribes. It cannot be presumed that for fifteen years the Government has had a tract of country within the very heart of the Indian country which it purchased, and has permitted to remain in such condition as it might become a place of refuge for criminals and outlaws who could depredate and prey upon their Indian neighbors and others with immunity from punishment; especially when the Government has pledged protection and security from intruders to all the tribes in the Indian country. Yet this is so if this is not Indian country, because the laws of the United States would not extend over it, and it would not be within the jurisdiction of any State or Territory. It never intended this. It did not by its treaty of purchase with the Seminoles do it. By its act of reservation of this country, situated as it was, and being reserved for the purpose it was, it continued still to be Indian country as much as if it had been at that time entirely occupied by Indians. Now, in the estimation of many persons, it may be desirable to open this country for settlement. If so, it must be done by the power that has a right under the Constitution and laws of the country to do it. It must not be asked or expected that to accomplish this end the courts will break or even bend the timbers of the law. Especially when that power in the Government which could act, has time and again refused to act. The courts do not make the laws. They interpret, construe, and execute them as they find them. From my views of the law, as applicable to this case, upon the facts set up by the defendant, he is liable for the penalty under the law, and the demurrer to the answer must be sustained. It is so ordered. A proclamation by the President of the United States of America. Whereas it has become known to me that certain evil-disposed persons have, within the territory and jurisdiction of the United States, begun and set on foot preparations for an organized and forcible possession of and settlement upon the lands of what is known as the Indian Territory, west of the State of Arkansas, which Territory is designated, recognized, and described by the treaties and laws of the United States and by the executive authorities as Indian country, and as such is only subject to occupation by Indian tribes, officers of the Indian Department, military posts, and such persons as may be privileged to reside and trade therein under the intercourse laws of the United States; And whereas those laws provide for the removal of all persons residing and trading therein without express permission of the Indian Department and agents, and also of all persons whom such agents may deem to be improper persons to reside in the Indian country; And whereas in aid and support of such organized movement it has been represented that no further action will be taken by the Government to prevent persons from going into said Territory and settling therein, but such representations are wholly without authority: Now, therefore, for the purpose of properly protecting the interests of the Indian nations and tribes, as well as of the United States in said Indian Territory, and of duly enforcing the laws governing the same, I, Rutherford B. Hayes, President of the United States, do admonish and warn all such persons so intending or preparing to remove upon said lands, or into said Territory, without permission of the proper agent of the Indian Department, against any attempt to so remove or settle upon any of the lands of said Territory; and I do further warn and notify any and all such persons who may so offend that they will be speedily and immediately removed therefrom by the agent according to the laws made and provided, and that no efforts will be spared to prevent the invasion of said Territory, rumors spread by evil-disposed persons to the contrary notwithstanding; and if necessary the aid and assistance of the military forces of the United States will be invoked to carry into proper execution the laws of the United States herein referred to. In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the city of Washington, this twelfth day of February, in the year of our By the President: R. B. HAYES. WM. M. EVARTS. Secretary of State. UNAUTHORIZED SETTLEMENT IN THE INDIAN TERRITORY. The Commissioner of Indian Affairs: DEPARTMENT OF THE INTERIOR, SIR: I am in receipt of the papers accompanying your letter of the 19th instant, and further reference of 21st instant, respecting an anticipated attempt by citizens of the United States and others to possess themselves, under guise of settlement, of a large portion of the Indian Territory embracing the lands acquired by the treaties of 1866 with the various Indian nations or tribes in that Territory, and held for Indian purposes, according to the common understanding of the objects of said treaties. Among these papers are communications from the Cherokee and Creek delegations, inclosing a printed copy of a letter from Augustus Albert, of Baltimore, Md., to E. C. Boudinot, a Cherokee Indian, now in this city, and of his reply thereto, dated 31st ultimo, stating in effect that these lands are a part of the public lands of the United States, and as such subject to settlement, excepting such portions as have been actus ally appropriated to the use of the Indian tribes located thereon. Certain newspaper articles are also inclosed, conveying intimations of an organized movement during the coming month for the possession of these lands upon the theory that they are, in contemplation of law, free and open to settlement as public lands of the United States. By the intercourse act of June 30, 1834, this tract of territory, with others, was declared Indian country, and for its government the basis was created of the present in ercourse laws as embodied in the Revised Statutes, sections 2111 to 2157. Since that period, although the boundary of the Indian country has been varied under the operation of numerous laws, the whole Indian Territory has been regarded as Indian country, subject to no State or Territorial laws, and excepted from judicial process except under special enactments providing for a limited and restricted jurisdiction for the purposes of which it has been, by section 533, Revised Statutes, attached to the western district of Arkansas. None of the land or general laws of the United States have been extended to any part of the Indian Territory, except as to crimes and punishments and other provisions regulated by the intercourse acts. This being the condition of things, it is clear that no authorized settlement could be made by any person in the Territory except under the provisions of the intercourse laws, such person having first obtained the permission provided for in those statutes. It may be further stated that no part of said Territory remains free from appropriation either to a direct trust assumed by treaty, or by reservation for tribes thereon under Executive order, except that portion still claimed by the State of Texas, and lying between Red River and the north fork of the same. [See the various treaties, agreements, and Executive orders from 1866 to the present time.] By section 2147, Revised Statutes, authority is. expressly granted to the officers of the Indian Department to remove from the Indian country all persons found therein contrary to law, and the President is authorized to direct the military force to be mployed in such removal. You are instructed to furnish a copy of this communication to the respective Cherokee and Creek delegations, and to direct the agents and officers of the Indian service to use their utmost vigilance in the removal of all such unauthorized persons as may attempt to appropriate by settlement any of the lands aforesaid, and make prompt report of any and all cases of such attempted trespass, for the information of this Department. Very respectfully, C. SCHURZ, By the President of the United States of America: A proclamation. Secretary. Whereas it has become known to me that certain evil-disposed persons have, within the territory and jurisdiction of the United States, begun and set on foot preparations for an organized and forcible possession of, and settlement upon, the lands of what is known as the Indian Territory, west of the State of Arkansas, which Territory is designated, recognized, and described by the treaties and laws of the United States and by the executive authorities as Indian country, and as such is only subject to occupation by Indian tribes, officers of the Indian department, military posts, and such persons as may be privileged to reside and trade therein under the intercourse laws of the United States; And whereas those laws provide for the removal of all persons residing and trading therein without express permission of the Indian department and agents, and also of all persons whom such agents may deem to be improper persons to reside in the Indian country: Now, therefore, for the purpose of properly protecting the interests of the Indian nations and tribes, as well as of the United States, in said Indian Territory, and of duly enforcing the laws governing the same, I, Rutherford B. Hayes, President of the United States, do admonish and warn all such persons so intending or preparing to remove upon said lands or into said Territory without permission of the proper agent of the Indian Department against any attempt to so remove or settle upon any of the lands of said Territory; and I do further warn and notify any and all such persons who may so offend that they will speedily and immediately be removed therefrom by the agent, according to the laws made and provided, and, if necessary, the aid and assistance of the military forces of the United States will be invoked to carry into proper execution the laws of the United States herein referred to. In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the city of Washington, this twenty-sixth day of April, in the year of our Lord one thousand eight hundred and seventy-nine, and of the Independence of the United States one hundred and third. By the President: WILLIAM M. EVARTS, Secretary of State. RUTHERFORD B. HAYES. [Senate Ex. Doc. No. 20, Forty-sixth Congress, first session.] Message from the President of the United States, communicating, in answer to a Senate resolution of May 7, 1879, information in relation to an alleged occupation of a portion of the Indian Territory by white settlers. MAY 16, 1879.-Read, ordered to lie on the table and be printed. To the Senate of the United States: In response to a resolution of the Senate of the 7th instant, requesting information in reference to an alleged occupation of a portion of the Indian Territory by white settlers, &c., I transmit herewith a copy of my proclamation, dated April 26, 1879, also copies of the correspondence and papers on file and of record in the Department of the Interior and the War Department, touching the subject of the resolution. EXECUTIVE MANSION, May 15, 1879. R. B. HAYES. A proclamation by the President of the United States of America. Whereas it has become known to me that certain evil-disposed persons have, within the territory and jurisdiction of the United States, begun and set on foot preparations for an organized and forcible possession of and settlement upon the lands of what is known as the Indian Territory, west of the State of Arkansas, which Territory is designated, recognized, and described by the treaties and laws of the United States, and by the executive authorities, as Indian country, and as such is only subject to occupation by Indian tribes, officers of the Indian Department, military posts, and such persons as may be privileged to reside and trade therein under the intercourse laws of the United States; And whereas those laws provide for the removal of all persons residing and trading therein, without express permission of the Indian Department and agents, and also of all persons whom such agents may deem to be improper persons to reside in the Indian country: Now, therefore, for the purpose of properly protecting the interests of the Indian nations and tribes, as well as of the United States, in said Indian Territory, and of duly enforcing the laws governing the same, I, Rutherford B. Hayes, President of the United States, do admonish and warn all such persons so intending or preparing to remove upon said lands |