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article of the treaty with the Chippewas of Lake Superior of 30th September, 1854, which is in these words.

ó Article 10. All missionaries and teachers and other persons of full age, residing in the Territory hereby ceded, or upon any of the reservations hereby made by authority of law, shall be allowed to enter the land occupied by them at the minimum price whenever the surveys shall be completed to the amount of one quarter section each.” A permit or trader's license may show that the party to whom the same was issued, was lawfully in the Indian country, but it is no evidence that such person was residing there. Neither do the facts that an individual was the proprietor of goods which were for sale under a license issued to him, and that a trading post was actually occupied by his agents who were transacting business for him, furnish any basis for a valid claim to enter land under article 10 of said treaty. The beneficiaries intended and provided for thereby, were those who were residing upon the land claimed by them at the time said article was written and inserted in the treaty, and they could not be subsequently increased in number. Although it is stipulated by the 13th article that “this treaty shall be obligatory on the contracting parties as soon as the same shall be ratified by the President and Senate of the United States,” yet it cannot be thence inferred that it was meant to extend the time of “residiny," as employed in the 10th article. The treaty when ratified related back to the time of signing, and the ratification only confirmed the claims of those who were residing upon the land at the date of the execution of the treaty.

This case will be remanded to the local office, with instructions to the Register and Receiver to require strict proof to be produced as to whether the said Kimball was actually residing upon the land he claims, at the time the treaty was made and entered into, and if it shall appear that he was not so "residing” at that time, then his claim to enter said land must be rejected, and the application of said Crozier to enter the land be claims by pre-emption, may then be considered on its own merits, and in view of such proof as may have been or may be adduced in support thereof. The papers in the case you will find herewith enclosed.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 646.

Classification of sections of Indian Reserves, &c.


May 23, 1859. Şir :-Referring to the 11th section of the Act, making appropriations for sundry civil expenses of the Government, (No. 358,) for the year ending the 30th June, 1860, I deen it advisable to state the principles which, in my opinion, should form the basis of the rules and regulations referred to.

The separate sections allotted to individual Indians should be classified under two heads, viz; those which lie within, and those which lie outside of the limits of a tribal reservation. The former should be declared forever inalienable by the reservee or his heirs, except to a member of his tribe, or to the United States; the latter should be alienable under such restrictions as will prevent fraud and imposition, and secure to the reservees the full value of their land.

I have to direct that you prepare “ rules and regulations,” for the issuance of patents to such Indians in Kansas Territory as may be entitled thereto, under treaty stipulations, and the Act of Congress already quoted. These regulations should be drawn up in conformity to the principles here laid down, and when completed, will be submitted for the approval of this Department. Very respectfully, your obedient servant,

J. THOMPSON, Secretary. Hon. A. B. Greenwood, Commissioner of Indian Affairs.

No. 647.

Under the Act of Muy 19, 1858, providing for pre-emptions, on the Lake

Pepin Reserve, to defeat the pre-emptor, a consent to the location of scrip subsisting and unrevoked, must be shown.


Washington, May 24, 1859. Sir:- After a review of the case, wherein John Murray claiming by pre-emption certain tracts in the Sioux half-breed reservation, Faribault, now St. Peter's District, Minnesota, under the Act of Congress of May 19, 1858, (No. 330,) appeals from your decision in favor of a location of Sioux half-breed scrip, issued to Antoine St. Antoine, No. 162 east, for one hundred and sixty acres, by Alexander Faribault, as attorney for said half-breed, I am of the opinion that the case should be remanded for a full investigation before the local officers, of which both Murray and Faribault should have due notice; said investigation to be had, under the views hereinafter expressed.

I remark, that the evidence taken before the magistrate, tends to show, and the local officers have reported, that Murray would be entitled to preemption, had he not consented to the location of the scrip. His pre-emption right is thus prima facie good, unless the affirmation of another proposition is established against him, viz: that the land was located with his consent. There is a date for the scrip location to be made and to attach, and on that date, the consent of the settler must be subsisting and unrevoked. I cannot think that it was the design, or is the effect of the law of May 19, 1858, to compel this Department to examine into all the negotiations, or verbal or written agreements, that may have been made by adverse claimants by way of compromise, and with a view of merging their claims to a piece of land.

In this case, the application to locate the scrip, is dated the 18th May, 1857; to defeat the prima facie right of the pre-emptor, a consent subsisting and unrevoked, must be shown to have existed on that day.

Further, as the law directs us to pay respect to the settlement, and disregard the location, unless made with consent, the location must not only have been made, but must have been good in other respects, if an adverse settlement under the law is shown to exist. In this case, the authority of Faribault to locate the piece of scrip in question, is not spread before us. If on file, it should have been forwarded, and if not on file, the original or a certificate copy of a record, dating back to the location, or earlier, must be filed.

The papers in the case, are now returned to your office. So far as they bear on the question of consent, they tend to show the existence of such consent only at dates subsequent to the filing of the scrip.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 648. The Act of 17th July, 1854, in relation to the Lake Pepin Reserve, pro

tected settlements of half-breed Indians. The Act of 1858, legalized

those made by white settlers. Claims of land within plowed lines," no other occupancy being shown,

will not be allowed. South Wabashaw, may be entered as a town, if the occupants did not consent to the location of scrip.


June 14, 1859. Sir :-From your report of the 15th of April last, and the papers which accompanied the same, it appears that a certain tract of land, lying within the limits of what was formerly know as the “ Lake Pepin Reserve,” in Minnesota, designated as the northeast quarter of section 32, and the west half of the northwest quarter of section 33, township 111, of range 10 east, is claimed by the corporate authorities of the town of Wabashaw, under the Act of 23d May, 1844, (No. 79.) Adverse claims to said land, are preferred on the part of certain holders of half-breed Indian scrip, issued under the Act of July 17, 1854, (No. 243.)

You have decided against the claim of the town authorities; and that said land is subject to scrip location.

From this decision, an appeal has been taken to this Department, and I now proceed to consider the facts and questions involved in said case.

Each half-breed settler within said reserve, is protected by law, from adverse pre-emption rights, or scrip location, to the extent of his settlement and occupancy, and has a valid claim, and a superior right to the particular subdivision or subdivisions thus held. The Act of July 17, 1854, recog. nized and protected the settlements of the half-breeds. The Act of 1858, (No. 330,) confirmed their rights in this respect, and at the same time legalized settlements made by white settlers antecedent to its passage. It is incumbent on the Department to administer both of these laws, so as to accomplish the objects contemplated by them, by securing to each class of settlers the rights intended to be conferred. But neither the Act of 1854, nor that of 1858, recognized any right or title of the half-breeds, to all the lands embraced in any claim lines which they may have marked out. Such claimants were not restricted to any particular or specified tracts or bodies of land, but each might locate a part of his scrip upon the tract occupied by him, and the residue elsewhere. The claim of the half-breeds to lands within their “plowed lines,” cannot be regarded. The law evidently contemplated, that the scrip should be located according to the legal subdivisions, and in order to constitute settlement and occupancy thereof, it is necessary that residence, cultivation, or improvement, be shown. It was intended to confer on each half-breed Indian settler, an exclusive right to locate scrip upon the land occupied by him, should he desire so to do, but that right did not extend to circumjacent lands, which were settled on or in the occupancy of half-breeds, or white settlers, unless their consent were given to such location. What are the facts of this case ? Did the settlement or occupancy


any of these half-breed claimants extend over the land, which is now claimed under the Act of 1844, by the town authorities of Wabashaw? That none of said half-breed Indians, were actually settled, or resided upon any of the legal subdivisions thereof, is conceded. Was there any such actual occupancy by them as the law contemplates, and will protect? Does any of this land appear to have been improved, cultivated or used in such manner as to indicate real occupancy, by said half-breeds or either of them? The evidence does not satisfy my mind, that prior to the establishment of the town, or since, any such improvement was made thereon, or that


such act was performed by any of said claimants as is requisite and essential to denote actual occupancy by them. As both the settlements of white persons and of half-breeds, are protected by law, there is but one way in which scrip can be legally located on lands thus occupied, and that is by the consent of the settler.

This case may be remanded to the local office, with instructions to the Register and Receiver to enquire into and take testimony, as to whether such consent was given by the settlers or occupants of the land in controVersy.

If it shall appear that no such consent was given, said land is subject to entry, under the Act of May 23, 1844, and upon a full compliance with said law, by the proper authorities of the town, they may be permitted to enter the same, in accordance with its provisions.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 649.

In relation to the issue of Patents to Indian reservees in Kansas.


June 30, 1859. Sir:-Your letter of the 23d ult., in regard to the issuance of patents to Indian reservees in the Territory of Kansas, has been received. The law therein referred to, provides that patents shall issue “upon such conditions and limitations, and under such guards and restrictions as may be prescribed by said Secretary” (of the Interior.) Under the authority of this law, I have to direct that patents shall issue to all Indian reservees in Kansas Territory, containing simply a condition, that “the said tract shall never be sold or conveyed, (by the grantee,) or his heirs, without the consent of the Secretary of the Interior, for the time being.” The patents should issue in this form, to all reservees, without regard to the competency of the individual, or the location of the reserve.

Rules and regulations shall be prepared, setting forth the terms upon which the Secretary will consent to a sale, by an Indian reservee. These should be based upon the classification made in my letter of the 23d ult. (No. 645.) I agree with you, however, as to the propriety of discriminating between competents and incompetents, although, even in respect to the former, due care should be taken to protect them against fraud.

Very respectfully,
Your obedient servant,

J. THOMPSON, Secretary. Hon. A. B. Greenwood, Commissioner of Indian Affairs.

No. 650.

Where a half-breed Indian occupied and cultivated land in the Lake Pepin

Reserve, an adverse Pre-emption Claim thereto cannot be maintained.


August 25, 1859. Sir:--The questions presented by the appeal of A. T. Sharpe, Esq., from the decision which you have rendered, in favor of the scrip location of Antoine Grignon, and against the right of John Mahony to pre-empt the south half of the northwest quarter of section 15, township 110, range 10, in the St. Peters, Minnesota, District, have been considered, and the papers received with your letter of the 5th ultimo, are returned.

It appears that Mahony settled upon the northwest quarter of said section 15, in the year 1855, and that in July, 1858, he filed his declaration of pre-emption” therefor, in accordance with the provisions of the Act of Congress of May 19, 1858, which declares that settlements made theretofore on the body of land “known as the half-breed tract,” lying on the west side of Lake Pepin and the Mississippi river, "are valid, so far as they do not conflict with settlements made by half-breeds, and that the settlers shall have the benefit of the pre-emption laws of the United States, any location of half-breed scrip thereon after the date of the settlement, notwithstanding."

It further appears, that on the 18th day of May, 1857, scrip was located on the north half of said northwest quarter, in the name of Nancy Buisson, a half-breed, and it is alleged, that said Nancy has, since the year 1845 or 1846, occupied and cultivated a portion of said tract, and that on the same day, other scrip was located on the south half of said northwest quarter, in the name of Antoine Grignon. It is not claimed, however, that said Antoine, who is a half-breed, ever occupied or resided upon the land so located. If the allegation, that Nancy Buisson was an occupant and cultivator of the north half of said northwest quarter, is established by satisfactory proof, the settlement of Mahony will conflict with that of the said half-breed and his claim to that extent must be rejected.

It has already been decided, that mere “plowed lines,” without any other occupancy or use, can attach no valid rights of half-breeds to the lands surrounded thereby. The land claimed by Buisson must have been actually cultivated or used by her, otherwise the settlement of the preemption claimant would entitle him to that portion of the land in controversy with her. As against Antoine Grignon, Mahony would also seem to be entitled to the land

in controversy between them, provided his improveupon it were of such a character as to meet the requirements of the



In view of all the circumstances, I think the case should be remanded to the local office, with instructions to the Register and Receiver to require all the parties in interest to produce further proofs in support of their respective claims, after giving due notice of the time and place of hearing.

Very respectfully, &c.,

MOSES KELLY, Acting Secretary. Commissioner of the General Land Office.

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