The conviction of the correctness of the foregoing propositions is so strong in my mind that I feel entirely content to rest upon them the affirmance of the conclusion reached by your office upon other grounds, it being apparent from the facts stated that, unless the withdrawal of 1872 was valid to forbid the exercise by a settler of the rights given by the pre-emption and homestead laws upon any public lands otherwise subject to them, Miller secured, by his settlement in 1878 and his residence thereafter, such a right as would prevent the selection by the company, if otherwise valid, from attaching to the quarter section taken by him.

THE COMMISSION DID NOT REVOKE FORMER WITHDRAWAL.

It has been seen from this statement of the facts, that, when the line of definite location was made and approved, the Commissioner of the General Land Office, while assuming to make no withdrawal of the lands within the indemnity limits, beyond forty and within fifty miles distant from the line of definite location, yet refrained from revoking the withdrawal of so much of the indemnity limits as happened to fall within the withdrawal made in 1972, upon the basis of the second establishment of a general route.

I am unwilling to accept the conclusion that there was any force whatever, independently of the statute, in the order of the acting commissioner of the 30th of March, 1872; or that, properly construed, it was designed to mean any more than a direction to the local officers to comply with the granting act.

INDEMNITY LANDS OPEN TO SETTLEMENT UNTIL SELECTED BY THE RAILROAD.

The consequence is, that until a valid selection by the grantee is made from the lands within the indemnity limits, they are entirely open to disposition by the United States or to appropriation under the laws of the United States for the disposition of the public lands. There is nothing in the line bounding the indemnity limits to distinguish lands within it from any other public lands; the only purpose of that being to place a boundary upon the right of selection in the grantee to make good losses sustained within granted limits. This effect has been most explicitly declared by the Supreme Court in the case of the Kansas Pacific Railroad Company vs. the Atchison, Topeka ani Santa Fe Railroad Company (112 U. S., 414), and in other cases. In that case, the Court said of an order of the Commissioner of the General Land Office similar to this, so far as applicable to indemnity limits:

"The order of withdrawal of lands along the probable lines' of the defendant's road, "made on the 19th of March, 1863, by the Commissioner of the General Land Office, affected "no rights which without it would have been acquired to the lands, nor in any respect con"trolled the subsequent grant."

It also said of the indemnity limits under discussion there:

"From what was thus expected (from the granted limits) other lands were to be selected "from adjacent lands, if any then remained, to which no other valid claims had originated. But what unappropriated lands would thus be found and selected could not be known before "actual selection. A right to select them within certain limits, in case of deficiency within "the ten-mile limit, was alone conferred, not a right to any specifl land or lands capable "of identification by any principles of law or rules of measurement. Neither locality nor "quantity is given from which such lands could be ascertained. If, therefore, when such "selection was to be made, the lands from which the deficiency was to be supplied had "been appropriated by Congress to other purposes, the right of selection became a barren right, for until selection was made the title remained in the government subject to its dis"posal at its pleasure."

NO POWER TO MAKE THE WITHDRAWAL.

It was in view of this difference and its consequences, that the language of the granting act was employed by Congress, by which it was explicitly provided that the provisions of the pre-emption and homestead laws" 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."

If lands within the indemnity limits are to be regarded as "on the line of said road." this declaration appears to me prohibitory of any withdrawal, for the benefit of this road. It might be that such lands could be withdrawn for some other public purpose, within executive authority to provide for, such, for example, as to constitute a reservation for Indians.

But this language was introduced into the same section which declared the granted lands not to be liable to sale, etc., and immediately following that declaration, and in the same sentence, so as obviously to mark the legislative intent to make clearly distinguishable the lands beyond the granted limits as being liable to disposition under those laws. Having so explicitly declared, it was not necessary to add a prohibition upon executive officers against withdrawal for the benefit of the road. It gave to any person entitled under the pre-emption or homestead laws to take any such lands the absolute right to acquire any proper quantity thereof, in accordance therewith; and this right an executive officer could not deprive the settler of. The act as much makes that his right as it makes it the right of the company to take the others.

I cannot be satisfied with the idea that this language was so introduced, in immediate qualification of and distinction upon the words rendering lands in the granted limits "not liable to sale or entry," for the mere purpose of declaring "what was already enacted by general laws." The general laws applied without this declaration, and they applied more extensively than this would apply them, since by the general laws entries of other kinds might, if conditions concurred, be also made. The aim of this language was, as 1 am forced to read it, towards the availability to settlement of all lands not granted. It was a vast grant, and even as so limited, a threatening shadow to fall on the settlement of the Northwest. Well might Congress say, "the lands granted you shall have, but you shall tie up no more from the actual settler to the prevention of development."

HOW THE LAND OFFICE FORMERLY CONSTRUED THE LAW.

Inasmuch, however, as I cannot regard the original order of withdrawal in 1872 as obligatory to deny Miller's rights for the other reasons given, it is unnecessary further to press the argument that when his land fell within the indemnity limits of the road it was open to his appropriation under the homestead law, until selected by the Company.

In the view I have taken, it may not be necessary now to dispose of the claim of the Company to select this land, other than to say it has been validly entered under the homestead law by Miller, and any right it may have must be subject to his right to make final proof.

Yet I think it proper to draw your attention to the manner in which this claim of selec tion has been made. And, first, I think it should be observed that a mere claim of selection, not based upon such foundation as the law and the regulations of the Department require, cannot give a right. The selection must be one which is both well-founded in the necessity for it and the manner of making it, and, therefore, one within the direction and approval of the Secretary of the Interior. In this case, the original selection list gave no indication of the basis upon which a right of selection of this tract could be claimed. It proceeded upon the assumption that the Company might "select" as many lands as it saw fit, and make proof of its losses afterwards. This practice was, indeed, permitted for some time in the General Land Office, and thus it has happened that some railroad companies have selected, in lieu of lost lands, and procured certification of, lands much in excess in acreage of their losses for which the selections were admissible. It was also specially allowed in the case of this Company. But it was so allowed only upon condition that the basis was subsequently to be supplied, and no selection was valid until approved after such basis should be determined. It was thus only a question of the order of procedure.

THE ROAD MUST PROVE ITS CLAIM.

This practice was of doubtful validity, at least to give a right from date of first selection, and was changed some time since by departmental regulation. The act is explicit that, whenever, prior to the definite location of the line, "Ary of said sections or parts of sections, shall have been granted, sold, reserved, occupied by homestead settlers, or preempted, or otherwise disposed of, other lands shall be selected by said Company in liew thereof, under the direction of the Secretary of the Interior," etc., etc.

Manifestly it was necessary to point out the section, or the part of a section, which had thus been lost to the grant, and the manner of its loss, in order to authorize the taking of another tract of land in place of it. The Department ought, before approval of a selection, first to determine whether the land lost to the grant was so previously appropriated as to

furnish the basis of a selection, and it ought to be particularly shown for what specific lands lost specific selections were made. Until these facts appear, the Company has not established the right to appropriate from the body of lands open to its choice, but is confined to those specifically granted.

In accordance with this rule, my predecessor (Mr. Lamar) on the 4th of August, 1885, approved a circular from your office to the local officers, in which they were directed as follows:

"Before admitting railroad indemnity selections in any case, you will require prelimi"nary lists to be filed, specifying the particular deficiencies for which indemnity is claimed. ***Where indemnity selections have heretofore been made without specification of "losses, you will require the companies to designate the deficiencies for which such indem"nity is to be applied before further selections are allowed."

HOW TITLES MAY BE CLOUDED.

It was in obedience to the last clause that this company filed on the 25th of October, 1837, the list of particular deficiencies upon which the claim of selections in list number two, before mentioned, was based. That list excellently illustrates the necessity for the rule mentioned. Since 1883 the claim of this Company to take the 58,000 acres in list number two has remained a cloud upon all the lands embraced within it. Yet when called upon to specify particular lands lost from the granted limits, for which such a right of selection can exist, only 4,011 acres are shown, except by claiming indemnity for about 55,000 acres of lands, for the most part not particularly defined, lying within the Yakima Indian Reservation. But that Indian Reservation lies about two hundred miles southwesterly from the land of Miller. No absolute right to granted lands exists, and no right of selection for lands lost from the granted lands can possibly arise, until the line of definite location is made. It is unnecessary to elaborate so clear a proposition.

*

MILLER'S LAND NOT IN THE INDEMNITY LIMITS, AS CLAIMED.

The entire extent, then, to which a right of selection can now be accorded to this company, on the basis upon which they have claimed it in this list, is to indemnify the loss of about 4,011 acres. If the lands which they have chosen to select in this list number two be applied in the order in which they have named them for selection, to this deficiency, the entire right is satisfied by the lands in the first fifty or sixty tracts designated; while the land of Guilford Miller is, as has been stated, the one hundred and forty-ninth tract claimed. There does not appear, therefore, from any showing yet made by the company, that it has any right, whatever, to claim this land because of anything lost from the granted limits; nor has it, to this time, made any such claim, other than in this list number two.

Meantime, whatever may have been the validity of the order of withdrawal, it was revoked on the 15th of August last. If I were bound to regard Miller's homestead entry as irregular because in conflict with the subsisting withdrawal at the time it was made, yet, inasmuch as that withdrawal has entirely ceased, and no objection remains in any right of the company, or otherwise, so far as known to the Department, to his taking this land, and, inasmuch as his settlement and long residence (assuming his claims in respect thereto will be established by final proofs) entitle him to equitable consideration, it would appear to be not an improper exercise of discretion to now direct the allowance of his application for a homestead entry.

MILLER'S EQUITABLE AS WELL AS A LEGAL CLAIM.

I do not, however, for the reasons already so elaborately given, find myself under any necessity to sustain his claim upon any tender principles of merely equitable nature. He stands, in my judgment, upon a solid legal foundation in his claim upon the Government to the recognition of his right as a homesteader, and his entry should remain intact. Your decision to this effect is affirmed, and the papers in the case herewith transmitted.

CHAPTER XIX.

THE INDIAN BUREAU.

A CAREFUL BUSINESS POLICY ADOPTED IN DEALING WITH THE WARDS OF THE GOVERNMENT.

A Decline in the Number of Indian Outbreaks and a Marked Improvement in the Service.

The President has always manifested the closest interest in the treatment, condition and welfare of the Indians. In his first annual message he treated the question at some length, and, as the following extracts will show, with great intelligence and earnestness:

It is useless to dilate upon the wrongs of the Indians, and as useless to indulge in the heartless belief that because their wrongs are revenged in their own atrocious manner, therefore they should be exterminated.

They are within the care of our Government, and their rights are, or should be, protected from invasion by the most solemn obligations. They are properly enough called the wards of the Government; and it should be borne in mind that this guardianship involves, on our part, efforts for the improvement of their condition and the enforcement of their rights. There seems to be general concurrence in the proposition that the ultimate object of their treatment should be their civilization and citizenship. Fitted by these to keep pace in the march of progress with the advanced civilization about them, they will readily assimilate with the mass of our population, assuming the responsibilities and receiving the protection incident to this condition. The difficulty appears to be in the selection of the means to be at present employed toward the attainment of this result.

THE DESIRE OF THE INDIANS THEMSELVES.

Our Indian population, exclusive of those in Alaska, is reported as numbering 260,000, nearly all being located on lands set apart for their use and occupation, aggregating over one hundred and thirty-four millions of acres. These lands are included in the boundaries of one hundred and seventy-one reservations of different dimensions, scattered in twentyone States and Territories, presenting great variations in climate and in the kind and quality of their soils. Among the Indians upon these several reservations there exist the most marked differences in natural traits and disposition and in their progress toward civilization. While some are lazy, vicious and stupid, others are industrious, peaceful and intelligent; while a portion of them are self-supporting and independent, and have so far advanced in civilization that they make their own laws, administered through officers of their own choice, and educate their children in schools of their own establishment and maintenance, others still retain, in squalor and dependence, almost the savagery of their natural state.

In dealing with this question the desires manifested by the Indians should not be ignored. Here, again, we find a great diversity. With some the tribal relation is cherished with the utmost tenacity, while its hold upon others is considerably relaxed; the love of home is strong with all, and yet there are those whose attachment to a particular locality is by no means unyielding; the ownership of their lands in severalty is much desired by some, while by others, and sometimes among the most civilized, such a distribution would be bitterly opposed,

The variation of their wants, growing out of and connected with the character of their several locations, should be regarded. Some are upon reservations most fit for grazing, but without flocks or herds; and some, on arable land, have no agricultural implements: while some of the reservations are double the size necessary to maintain the number of Indians now upon them; in a few cases perhaps, they should be enlarged.

THE EFFECT OF CHRISTIAN TEACHING.

The history of all the progress which has been made in the civilization of the Indian, I think will disclose the fact, that the beginning has been religious teaching, followed by or accompanying secular education. While the self-sacrificing and pious men and women who have aided in this good work by their independent endeavor, have for their reward the beneficent results of their labor and the consciousness of Christian duty well performed, their valuable services should be fully acknowledged by all who, under the law, are charged with the control and management of our Indian wards.

RECOMMENDATIONS FOR A REFORMED SYSTEM.

I recommend the passage of a law authorizing the appointment of six commissioners, three of whom shall be detailed from the Army, to be charged with the duty of a careful inspection from time to time of all the Indians upon our reservations or subject to the care and control of the Government, with a view of discovering their exact condition and needs, and determining what steps shall be taken on behalf of the Government to improve their situation in the direction of their self-support and complete civilization; that they ascertain from such inspection what, if any, of the reservations may be reduced in area, and in such cases what part, not needed for Indian occupation, may be purchased by the Government from the Indians, and disposed of for their benefit; what, if any, Indians may, with their consent, be removed to other reservations, with a view of their concentration and the sale on their behalf of their abandoned reservations; what Indian lands now held in common should be allotted in severalty; in what manner and to what extent the Indians upon the reservations can be placed under the protection of our laws and subjected to their penalties; and which, if any, Indians should be invested with the right of citizenship. The powers and functions of the commissioners in regard to these subjects should be clearly defined, though they should, in conjunction with the Secretary of the Interior, be given all the authority to deal definitely with the questions presented, deemed safe and consistent.

They should be also charged with the duty of ascertaining the Indians who might properly be furnished with implements of agriculture, and of what kind; in what cases the support of the Government should be withdrawn; where the present plan of distributing Indian supplies should be changed; where schools may be established, and where discontinued; the conduct, methods and fitness of agents in charge of reservations; the extent to which such reservations are occupied or intruded upon by unauthorized persons; and generally all matters related to the welfare and improvement of the Indian.

They should advise with the Secretary of the Interior concerning these matters of detail in management, and he should be given power to deal with them fully, if he is not now invested with such power.

This plan contemplates the selection of persons for commissioners who are interested in the Indian question, and who have practical ideas upon the subject of their treatment.

In his second annual message he considered the whole question more fully and in line with his former recommendations, as shown by the following extracts: