Appendix — Rosebud Sioux Tribe v. Kneip
Supreme Court brief1977
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FILED
AUG S 1976
MICHAEL RODAK, JR. CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
No. 75-562
ROSEBUD Sioux TRIBE,
Petitioner,
HONORABLE RICHARD KNEIP, et al.,
Respondents.
ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
APPENDIX
| Volume I — Pages 1-472]
PETITION FOR CERTIORARI FILED OCTOBER 11, 1975
CERTIORARI GRANTED MAY 24, 1976
Wasrington, O.C. + THIEL PRESS + (202) 638.4521
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TABLE OF CONTENTS
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Answer of Defendant Counties of Mellette, Lyman,
Tripp, and Gregory (10/10/72) ..............0.06- G
Answer of Defendants, Honorable Richard Kneip and
Gordon Mydland (10/16/72)..............e5-0008 12
Order Adding Parties Defendant (1/11/73) ............. 27
Answer of Defendant United States (3/21/73)........... 28
yy gos i SPOTS TTTETELTTETi ree 30
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Entry
#1 H.R. 4740 56th Cong. Ist Sess. (1899) ........ 33
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#1B H.R. Rep. No. 486, 56th Cong. Ist Sess. (1900) .. 42
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GP 4 Be GUS GS. CRS GHOSED cc cc ccc ccvesscoss 48
DO GUMS, TG. TESD ccc ccc sc cccccseccases 48
#4 March 19, 1901 letters to Sec. of Interior and
Indian Inspector McLaughlin from W. A.
Jones Commissioner of Indian Affairs ..... 51
#5 35 Cong. Rec. 377 (1901-1902) ............. 59
i: 5 PPPS TET TT 59
BPG GE. TOD cc cvcccercteesnseccees 60
Pe OE, GE BUTE ccc ncceseceeresesene 60
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#5A
#5B
#6A
#7A
35 Cong. Rec. 2717
35 Cong. Rec. 2882
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35 Cong. Rec. 3450
35 Cong. Rec. 3541
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35 Cong. Rec. 44244425 ............05055.
35 Cong. Rec. 4569
35 Cong. Rec. 4608
35 Cong. Rec. 4715
35 Cong. Rec. 4750
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35 Cong. Rec. 48004807 ..............4..
35 Cong. Rec. 48554862 ...........50000-
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35 Cong. Rec. 49634971
35 Cong. Rec. 5013
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35 Cong. Rec. 5198
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S. Rep. No. 662, 57th Cong. Ist Sess. 1-6 (1902). .
H.R. Rep. No. 2099, 57th Cong. Ist Sess. 14
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35 Cong. Rec. 377 (1901-1902) .............
35 Cong. Rec. 412
35 Cong. Rec. 680
35 Cong. Rec. 2814
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H. R. Rep. No. 954, 57th Cong. Ist Sess. 14
(19GZ) ....
35 Cong. Rec. 377 (1901-1902) .............
35 Cong. Rec. 245
35 Cong. Rec. 206
35 Cong. Rec. 1279
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S. Doc. No. 31, 57th Cong. Ist Sess. 1-43 (1901)
35 Cong. Rec. 377 (1901-1902) .............
35 Cong. Rec. 747
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#9 =. 335 Cong. Rec. 377 (1901-1902)
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#9A_ S. Doc. 324, 57th Cong. Ist Sess. 1-7 (1902)
#10 36 Cong. Rec. 148 (1902-1903)
36 Cong. Rec. 141
36 Cong. Rec. 2409
fo er re re
#IOA H.R. Rep. No. 3839, 57th Cong. 2d Sess. 1-5
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#11 36 Cong. Rec. 148 (1902-1903)
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36 Cong. Rec. 2434
36 Cong. Rec. 2498
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36 Cong. Rec. 2747-2748
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#IIAS. Rep. No. 3271, 57th Cong. 2d Sess. 1-5 (1903) .
#12 Letter of June 30, 1903 from Commissioner of
Indian Affairs Jones to Indian Inspector
Mc Laughlin
2. ee 8 246 828.8 2 eC 8 2 oe ee
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1903
#13A Excerpt from Report of the Commissioner of In-
dian Affairs 1901. Letter dated Aug. 15,
1901 from the Supt. to the CIA ........
#14 36 Cong. Rec. 148 (1902-1903)
36 Cong. Rec. 1559
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#14A Excerpt from letter dated Aug. 31, 1903 from
Inspector James McLaughlin to the Sec. of
the Interior (N.A. Group 48, Records of the
Office of the Sec. of the Int., Ind. Div.)
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#14B Excerpts from Report of the Commissioner of Ind.
Affairs, 1903
#15 Act of April 23, 1904 ch. 1484, 33 Stat. 254
#15A 38 Cong.
38 Cong.
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38 Cong.
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38 Cong.
38 Cong.
38 Cong.
38 Cong.
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38 Cong.
38 Cong.
#15B H.R. Rep. No. 443, 58th
(1904)
#15C S. Rep. No. 651, 58th Cong.
#15D S. Doc. No. 158, 58th Cong.
38 Cong. Rec.
38 Cong. Rec.
38 Cong. Rec.
38 Cong. Rec.
38 Cong. Rec.
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Act of Feb. 7,
41 Cong. Rec.
41 Cong. Rec.
41 Cong. Rec.
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#21 Minutes of Council from Dec. 14 to Dec. 20, 1906
rn wee ee ee ok kn a ake’ 88
#21A Excerpt from letter dated Feb. 12, 1907 from In-
spector McLaughlin to the Sec. of the In-
terior (N.A. Group 75, BIA letters received,
1881-1907, 17945 Land (1907) .........
#2? Act of March 2, 1907 ch. 2536, 34 Stat. 1230
#22A 41 Cong. Rec. 241 (1906-1907) ..........-...
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41 Come. Rec. 172 2 ccc cee ee eens
41 Cong. Rec. 3004 .. 0... cece eee eee
41 Cong. Rec. 3103-3105 ...........2-055--
41 Cong. Rec. 3182-3183 .........2 00 ee eee
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41 Cong. Rec. 3552 .. 1... eee cere ee enees
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41 Cong. Rec. 4402 .. ww cece cece erences
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#22C S. Rep. No. 6838, 59th Cong. 2d Sess. 1-7 (1907) .
#22D H.R. Rep. No. 8109, 59th Cong. 2d Sess. 1-2
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#23 Letters of Dec. 5, 1906 to the Sec. of Int. & J.
McLaughlin from the Commissioner of Indian
Affeies, F. BG. Lemmp. .n cw ccc eccrine:
#24 41 Cong. Rec. 241 (1906-1907) .........-.+---
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#95 Letter of Dec. 19, 1906 to Sec. of Interior from
Comm. Leupp ......----+++eeeeee8> 944
#26 41 Cong. Rec. 24 (1906-1907) .....----.+55: 949
41 Cong. Rec. 27 ......-- cece cree ce eeeee 949
41 Cong. Rec. 50-S1 .......- 02 eee eee eees 949
41 Cong. Rec. 3207 .......--- ++ eee eeeees 950
41 Cong. Rec. 3323 .....-- eee eters 950
41 Cong. Rec. 4105 .. 2... 0 ee ee eee eres 951
#26A S. Rep. No. 6831, 59th Cong. 2d Sess. 1-5 (1907) . 952
#27 Letter of Dec. 15, 1906 to the Sec. of Int. from
Commissioner Leupp .....---+-+-+++5 962
#28 41 Cong. Rec. 241 (1906-1907) .....-...++-: 973
41 Cong. Rec. 3858-3861 .....----- eee ee> 973
#29 42 Cong. Rec. 494, (1907-1908) .......--5>- 983
42 Cong. Rec. 174 .......-- eee e eee eeees 983
42 Cong. Rec.3777 .....--- ee eee eee reees 983
42 Cong. Rec.421]1 ......- 22 eee reer: 984
42 Cong. Rec. 44044405 .....- eee eee 984
42 Cong. Rec. 4482 .....-- 52sec eee eeres 988
#29A S. Rep. No. 440, 60th Cong. Ist Sess. 1-2 (1908).. 989
#30 43 Cong. Rec. 228 (1908-1909) .......------ 992
43 Cong. Rec. 27 ......-- eee er eeeercees 992
43 Cong. Rec.65 ......-5- eee reece eerees 992
43 Cong. Rec. 1559... 21. ee eee ee eee 992
43 Cong. Rec. 1679 ......- eee e eee eres 993
#30A S. Rep. No. 887, 60th Cong. 2d Sess. 14 (1909) . . 995
#31 Letter of Feb. 10, 1909 to Senator Clapp from the
Sf arr 1002
#32 44 Cong. Rec. 268 (1909) ........-----555- 1007
44 Cong. Rec. 5 ...... 0 eee eee cece ec eecee: 1007
44 Cong. Rec. 132 ... 6.2... eee eee eters 1007
(vii)
Entry Page
#33 44 Cong. Rec. 268 (1909) ...........--+--. .. 1008
44 Cong. Rec. 318 2.1... cee eee eee ee ee eee 1008
44 Cong. Rec. 2013... 1... ee eee eee ees 1008
#34 Excerpt from letter dated April 2, 1909 from the
first Asst. Sec. of the Int. to Inspector Mc-
Laughlin (N.A. Group 75, BIA, Central File
1907-39, File 24400-09-3081, Pine Ridge ...1009
#34A Minutes of Council of Mar. 11, 1909 and April 21,
— Perr rer rT Ter eT Tt et te 1011
#35 Act of May 30, 1910 ch. 260, 36 Stat. 448 ...... 1044
#35A 45 Cong. Rec. 295 (1909-1910) .......---555- 1052
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45 Cong. Rec. 668 ........-- 2052s e eee eeee 1053
45 Cong. Rec.905 ......--- 22 ee eee eeeeees 1053
45 Cong. Rec. 958 .......-- 22 ee cere ee eees 1053
45 Cong. Rec. 1012-1013... . 16-62 eee eee 1054
45 Cong. Rec. 1065-1071 ....--.-- +e ee eens 1055
45 Cong. Rec. 1073-1075 2... 2. ee ee ee ee eee 1091
45 Cong. Rec. 1215 .. 2... eee eee eee eee 1103
45 Cong. Rec. 1752 .....--- eee eee ee eeees 1104
45 Cong. Rec. 5456-5473 ....-.--- eee ee eeee 1104
45 Cong. Rec. 5483 .......-- 20s e eee ee eeee 1203
45 Cong. Rec. 5538 ... 1... - eee eee eee eee 1204
45 Cong. Rec. 63246326 ........05--52 205: 1205
45 Cong. Rec. 6379-6381 ... 2... - 6 eee eee eee 1213
45 Cong. Rec. 6415-6416 ..... 2... 6602 e eres 1223
45 Cong. Rec. 64366437 ........--5525205> 1225
45 Cong. Rec. 6496 ........-- cece rece eeee 1233
45 Cong. Rec.6517 .....-..- 22sec cece cree 1234
45 Cong. Rec. 7128-7129 .........--0-+ ees 1234
#35B S. Rep. No. 68, 61st Cong. 2d Sess. 1-5 (1910) ... 1235
#35C H.R. Rep. No. 429, 61st Cong. 2d Sess. 1-5 (1910). 1246
#35D H.R. Rep. No. 1368, 61st Cong. 2d Sess. 1-5 (1910). 1257
——
(viii)
Entry Page
#36 Letter of Feb. 25, 1910 to President Taft from
Rosebud Indian Tribal Council ..........- 1266
#37 45 Cong. Rec. 295 (1909-1910) ..........-4-. 1267
45 Cong. Rec. 147 ... 2... eee cece eee neees 1267
4S Come. Rec. 10 .. ccc ccc cccccccccees 1267
45 Cong. Rec. 1135 .......- cece eee eecees 1268
45 Cong. Rec. 5476 ..... 0. cece ccc cerecees 1268
#37A H.R. Rep. No. 332, 61st Cong. 2d Sess. 1-5 (1910). . 1270
#38 Letter of Jan 13, 1910 to Congressman Burke from
the Sec. of the Interior ...........-..--.. 1280
#39 46 Cong. Rec. 147 (1910-1911) .......------. 1283
ie Se errr rr rrr rrr ree ere eee 1283
46 Comp. Rec. S$... ccc creer escvescess 1283
#40 Letter of Nov. 12, 1910 to Mr. Schofield from the
2d Asst. Commissioner of Indian Affairs .... 1284
#41 Series of letters between Mr. Derig & the 2d Asst.
Commissioner of Ind. Affairs ...........- 1286
#42 Minutes of Council of Nov. 1, 191] ........... 1290
#43 Act of Aug. 17, 1911 ch. 22,37 Stat. 21 ....... 1300
#44 49 Cong. Rec. 109 (1913) .......------ sees +1302
49 Come, Rec. 3 2... ccc ccc cc crereccccces 1302
49 Cong. Rec. 2209 .......- eee creer eceees “1302
49 Cong. Rec. 4210 ......... 2c eee eee ee ees 1303
#444 S. Rep. No. 1166, 62d Cong. 3d Sess. 1-5 (1913) .. 1307
#45 Letter to Senator Gamble from Sec. of Interior .. . 1318
#45A Letter dated April 26, 1913 from Supt. Rosebud
Indian Agency toCIA ............-44-- 1320
#45B Excerpts from letter dated Sept. 18, 1913 from the
Supt. Rosebud Ind. Agency to the CIA ..... 1324
#46 49 Cong. Rec. 109 (1913) .........---50 00s: 1326
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#47 49 Cong. Rec. 109 (1913) ..........--.-4-5- 1327
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#48 Petitions in oppositionto H.R. 28606 ........... 1328
#49 Letter of Dec. 9, 1915 to Sec. of Int. from Comm.
of Ind. Affairs ........ SE ote A ae ee 1356
#50 Series of 1915 letters between G. Van Meter and
Dept. of Interior .........-2e ee eeeees 1361
#51 Act of March 3, 1919, Public No. 338, 40 Stat.
se ta DN a Na a gg 1373
SG Came, Te. SOD nc ccc ccc ct ecceenns 1373
S7 Come. Rec. 1936-1699 .. wwe ec e eens 1374
57 Cong. Rec. 4784
#51AH.R. Rep. No. 742, 65th Cong. 2d Sess. 1-2 (1918) . 1377
#51B S. Rep. No. 745, 65th Cong. 3d Sess. 1-2 (1919) .. 1386
#52
#54
#55
Excerpt from the report of the General Accounting
Office filed July 12, 1934 in the Court of
Claims Docket No. C-531
Excerpts from the Constitution of the Rosebud
i Ce cg naw eacee nes 60.468 1394
Memorandum dated April 6, 1972 from the Field
Solicitor, Aberdeen, S.D. to the Area Direc-
i PT tte pe ceneeeuasecs 1398
Letter dated August 23, 1974 from the Acting Area
Director, Aberdeen, S.D. BIA to Neil Proto,
Esquire, Department of Justice .......... 1405
Excerpts from instruments from National Archives
Record Group N.75, Central Files, 1907-1921,
Bureau of Indian Affairs..............-..-.. 1409
ll
l
CIVIL DOCKET
UNITED STATES DISTRICT COURT
Rosebud Sioux Tribe,
Plaintiff,
VS.
Honorable Richard Kneip, Governor of the State of
South Dakota, and Gordon Mydland, Attorney General
of the State of South Dakota and The County of Mellette
and The County of Lyman and The County of Tripp and
the County of Gregory,
Defendants.
1972 * * * *& *
Aug. 28 8) Filing Amended Complaint
Sept. 22 9) Filing Memorandum Decision
Sept. 22 Correct Copy entered in 1972 S.D.
Order Book, Page 130
Sept. 27 10) Filing Order Denying Motion to
Dismiss by Defendants Kneip and
Mydland
* «+ * * *
Oct. 10 11) Filing Answer of Defendant Counties
of Mellette, Lyman, Tripp and Gregory
to Amended Complaint
Oct. 10 12) Filing Affidavit of Service of Answer
Oct. 16 13) Filing Answer of the Defendants Hon-
orable Richard Kneip and Gordon
Mydland
Nov. 20 14) Filing Motion for Change of Venue
Nov. 20 15) Filing Consent to Granting Motion
Nov. 20 16)
Nov. 20 17)
Nov. 20
Nov. 21
Dec. 22 18)
Dec. 22 19)
1973
Jan. 11 20)
Jan. 11 21)
Jan. 11 22)
Jan. 11
March 21 23)
Feb. 7 27)
Feb. 14 28)
Feb. 15 29)
Mar. 13 30)
2
Filing Consent to Granting Motion
Filing Order Changing Venue to Central
Division
Correct copy entered in 1972 S.D.
Order Book, page 151
Notice of Entry and copy of Order
mailed Richard Smith, C.J. Kelly and
William F. Day, Jr.
Filing Brief of Plaintiff with Appendice
to Brief
Filing Certificate of Service
Filing Motion to Amend Pleadings
Filing Stipulation
Filing Order to Amend Pleadings
Notice of Entry and copy of Order
mailed to William F. Day, Thomas R.
Vickerman and Richard A. Smith
Filing Separate Answer of United
States
+ * * * *
Filing Memorandum Opinion
se 6&4
Filing Order that Memorandum Opin-
ion Shall Constitute Court’s Finding of
Fact and Conclusion of Law
* * * * *
Filing Judgment Retuming Surplus
Lands to Public Domain
* * * * *
Filing Notice of Appeal
AMENDED COMPLAINT (8/28/72)
I
INTRODUCTION
(1) This is an action commenced by the Rosebud Sioux
Tribe of Indians, of Rosebud, South Dakota, seeking
declaratory judgment to ascertain the meaning of certain
acts of Congress which define the boundaries of the
Rosebud Indian Reservation
11
JURISDICTION
(2} jurisdiction is founded upon 28 U.S.C.A. § 1562.
This is an action pursuant to 28 U.S.C.A §2201 and
§ 2202 seeking to declare the rights and legal relations
among the parties hereto.
(3) The Plaintiff, Rosebud Sioux Tribe of Rosebud
South Dakota is a tribe of American Indians, recognized
as such by the United States of America and, thereunder,
by the Department of the Interior. The Rosebud Sioux
Tribe is organized pursuant to the Indian Reorganization
Act, Act of June 15, 1935, C. 260, 49 Stat. 378, 25
USCA § 476 et seq.
(4) The Honorable Richard Kneip is the Governor and
the Chief Officer for the State of South Dakota.
(5) Gordon Mydland is the Attorney General and
officer of State charged with the enforcement of the laws
of the State of South Dakota.
4
(6) The County of Mellette is a County of the State of
South Dakota and is organized pursuant to the laws
thereof.
(7) The County of Lyman is a County of the State of
South Dakota and is organized pursuant to the laws
thereof.
(8) The County of Tripp is a County of the State of
South Dakota and is organized pursuant to the laws
thereof.
(9) The County of Gregory is a County of the State of
South Dakota and is organized pursuant to the laws
thereof.
IV
FACTUAL ALLEGATIONS
(10) The Rosebud Indian Reservation had its beginning
in the Treaty of Fort Laramie 1851, 11 Stat. 749,
Volume 1, SDCL pp 63-66.
(11) In the Fort Laramie Treaty it was provided and
agreed to that the Sioux or Dahcota Nation should have a
territory described as:
commencing the mouth of the White Earth River,
on the Missouri River; thence in a southwesterly
direction to the forks of the Platte River; thence up
the north fork of the Platte River to a point known
as the Red Butte, or where the road leaves the river;
thence along the range of mountains known as the
Black Hills, to the head-waters of Heart River;
thence down Heart River to its mouth; and thence
down the Missouri River to the place of beginning.
(12) The Sioux Treaty of 1868, 15 Stat. 635, Volume
1, SDCL pp 105-112, reduced the size of this territory
when it established a new area for the Sioux Nation:
me
5
The United States agrees that the following district
of country, to wit, viz: commencing on the east
bank of the Missouri River where the forty-sixth
parallel of north lititude crosses the same, thence
along low-water mark down said east bank to a
point opposite where the northern line of the State
of Nebraska strikes the river, thence west across said
river, and along the northern line of Nebraska to the
one hundred and fourth degree of longitude west
from Greenwich, thence north on said meridian to a
point where the forty-sixth parallel of north latitude
intercepts the same, thence due east along said
parallel to the place of beginning; and in addition
thereto, all existing reservations on the east bank of
said river shall be, and the same is, set apart for the
absolute and undisturbed use and occupation of the
Indians herein named, and for such other friendly
tribes or individual Indians as from time to time
they may be willing, with the consent of the United
States, to admit amongst them; and the United
States now solemnly agrees that no persons except
those herein designated and authorized so to do, and
except such officers, agents, and employees of the
Government as may be authorized to enter upon
Indian reservations in discharge of duties enjoined
by law, shall ever be permitted to pass over, settle
upon, or reside in the territory described in this
article, or in such territory as may be added to this
reservation for the use of said Indians, and hence-
forth they will and do hereby relinquish all claims or
right in and to any portion of the United States or
Territories, except such as is embraced within the
limits aforesaid, and except as hereinafter provided.
(13) Finally, the Rosebud Reservation as a single
entity was created by the Treaty of 1889, an Act to
divide the Reservation of Sioux Indians into separate
reservations, 25 Stat. 888, Volume 1, SDCL pp
121-137.
6
(14) The newly created Rosebud Agency was estab-
lished as:
Commencing in the middle of the main channel
of the Missouri River at the intersection of the south
line of Brule County; thence down said middle of
the main channel of said river to the intersection of
the ninety-ninth degree of west longitude from
Greenwich; thence due south to the forty-third
parallel of the latitude; thence west along said
parallel to a point due south from the mouth of
Black Pipe Creek; thence due north to the mouth of
Black Pipe Creek; thence down White River to a
point intersecting the west line of Gregory County
extended north; thence south on said extended west
line of Gregory County to the intersection of the
south line of Brule County extended west; thence
due east on said south line of Brule County
extended to the point of beginning in the Missouri
River, including entirely within said reservation all
islands, if any, in said river.
(15) In the Act of April 23, 1904, Ch 1484; 33 Stat.
254, Volume 1, SDCL pp 152-159, the Congress of the
United States acted to allow non-Indian homestead in a
portion of the Rosebud Reservation wholly found within
the County of Gregory. The act affected that portion of
the Rosebud Reservation described as:
Commencing in the middle of the main channel
of the Missouri River at the intersection of the south
line of Brule County; thence down said middle of
the main channel of said river to the intersection of
the ninety-ninth degree of west longitude from
Greenwich; thence due south to the forty-third
parallel of latitude; thence west along said parallel of
latitude to its intersection with the tenth guide
meridian; thence north along said guide meridian to
its intersection with the township line between
7
townships one hundred and one hundred and one
north; thence east along said township line to the
point of beginning, the unallotted land hereby ceded
approximately four hundred and sixteen thousand
(416,000) acres, lying and being within the bound-
aries of Gregory County, South Dakota, as said
county is at present defined and organized.
(16) In the Act of March 2, 1907, Ch. 2536; 34 Stat.
1230, Volume 1, SDCL pp 159-162, the Congress of the
United States acted to allow non-Indian homestead in a
portion of the Rosebud Reservation, being the whole of
Tripp County and a part of Lyman County. The act
affected that portion of the Rosebud Reservation de-
scribed as:
That portion of the Rosebud Indian Reservation in
South Dakota lying south of the big White River and
east of Range Twenty five west of the sixth prin-
cipal meridian.
(17) In the Act of May 30, 1910, Ch. 260; 36 Stat.
448, Volume 1, SDCL—167-172, the Congress of the
United States acted to allow non-Indian homestead in
that portion of the Rosebud Reservation that now makes
up the County of Mellette.
(18) All areas within the present boundaries of the
Rosebud Sioux Indian Reservation, wherever they may
be, are “Indian Country” as defined by USCA § 1151.
(19) Within the areas of “Indian Country” of the
Rosebud Sioux Indian Reservation, the Plaintiff has
exclusive criminal jurisdiction, excepting for those crimes
defined in 18 USCA §1152, over all Indians to the
exclusion of the Jurisdiction of the Defendants.
(20) Within the areas of “Indian Country” of the
Rosebud Sioux Indian Reservation, the Plaintiff has
exclusive jurisdiction over all civil matters affecting
7
8
Indians to the exclusion of the jurisdiction of the
Defendants.
(21) At this time, in those portions of Gregory, Tripp,
Lyman and Mellette Counties within the Rosebud Reser-
vation ii: which non-Indian homestead has been allowed,
the State of South Dakota and the particular named
Counties are exercising their criminal and civil jurisdic-
tion over American Indians therein. This exercise of
criminal and civil jurisdiction by the defendants is to the
exclusion of the plaintiff’s criminal and civil jurisdiction,
as if the whole of these areas were not “Indian Country”
as defined by the laws of the United States.
(22) All of the Rosebud Reservation, as described in
the Sioux Treaty of 1889 is still “Indian Country” as
defined by the laws of the United States, and none of the
three homestead Acts, allowing non-Indian homestead
within the Rosebud Sioux Indian Reservation, reduced
the size of the Rosebud Sioux Indian Reservation.
Wherefore, the Plaintiff prays this Court to declare:
A. That the Act of April 23, 1904, Ch. 1484; 33 Stat.
254, allowing non-Indian homestead within that portion
of the Rosebud Sioux Indian Reservation that constitutes
Gregory County, did not reduce the size of the Rosebud
Reservation and that the portion of Gregory County
affected by the Act of April 23, 1904, remained “Indian
Country”’ as defined by the laws of the United States
depriving the defendants of all civil and criminal jurisdic-
tion over Indians therein.
B. That the Act of Marcy 2, 1907, Ch. 2536; 34 Stat.
1230, allowing non-Indian settlement in a portion of the
Rosebud Indian Reservation affecting Tripp and Lyman
Counties did not reduce the size of the Rosebud
9
Reservation and that the portions of Tripp and Lyman
Counties affected by the Act of March 2, 1907, remained
“Indian Country” as defined by the laws of the United
States depriving the defendants of all civil and criminal
jurisdiction over Indians therein.
C. That the Act of May 30, 1910, Ch. 260; 36 Stat. 448,
allowing non-Indian settlement in a portion of the
Rosebud Indian Reservation affecting Mellette County
did not reduce the size of the Rosebud Reservation and
Mellette County as affected by the Act of May 30, 1910,
remained “Indian Country” as defined by the laws of the
United States depriving the defendants of all civil and
criminal jurisdiction over Indians therein.
D. The Plaintiff further prays for its cost and disburse-
ments herein and for such other relief as the Court may
deem just.
Dated this 25th day of August, 1972.
ANSWER OF DEFENDANT COUNTIES (10/10/72)
Comes now the Defendant Counties of Mellette,
Lyman, Tripp and Gregory, and for their Answer to
Amended Complaint of Plaintiff allege:
1. Defendants deny each and every allegation, thing or
matter alleged in Plaintiff’s Complaint which is not
hereafter specifically admitted.
2. Defendants admit paragraphs I (1), III (3), (4), (5),
(6), (7), (8), (9); and IV (10) of Plaintiff's Complaint.
3. Concerning Plaintiff's Complaint II (2), Defendants
deny jurisdiction is founded on 28 USCA Sec. 1362.
Defendants admit balance of allegation.
10
4. Concerning Plaintiff's Complaint IV (11), Defen-
dants admit the allegation may be an excerpt out of the
language of the treaty, but denies that said treaty or
allegation is material as to where the Reservation bound-
aries are today.
5. Concerning Plaintiff's Complaint IV (12), Defend-
ants admit the allegation may be an excerpt out of the
language of the treaty, but denies that said treaty or
allegation is material as to where the Reservation bound-
aries are today.
6. Concerning Plaintiff's Complaint IV (14), Defen-
dants admit the allegation, but deny that said allegation is
materal to where the Reservation boundaries are today.
7. Concerning Plaintiff’s Complaint IV (14), Defen-
dants admit the allegation if it refers to paragraph IV (13)
of Plaintiff's Complaint.
8. Concerning Plaintiff's Complaint IV (15), Defen-
dants admit that Act took place, but that the Court
should interpret the Act as to its meaning. Defendants
allege that after allotment and homestead settlement, the
boundaries contemplated within the Act diminished the
reservation and that the same was no longer Indian
Reservation and/or Country, except as to individual
Indian Allotted lands.
9. Concerning Plaintiff's Complaint IV (16), Defen-
dants admit the Act took place, but that the Court
should interpret the Act as to its meaning. Defendants
allege that after allotment and homestead settlement, the
boundaries contemplated within the Act diminished the
Reservation and that the same was no longer Indian
Reservation and/or Country, except as to individual
Indian Allotted lands.
11
10. Concerning Plaintiff’s Complaint IV (17), Defen-
dants admit the Act took place, but that the Court
should interpret the Act as to its meaning. Defendants
allege that after allotment and homestead settlement, the
boundaries contemplated within the act diminished the
Reservation and that the same was no longer Indian
Reservation and/or Country, except as to individual
Indian Allotted lands.
11. Concerning Plaintiff’s Complaint IV (18), Defen-
dants do not have enough information in which to form a
belief and, therefore, deny the same; if the allegation
extends to lands outside the Defendants’ boundaries, said
allegation would not be material as to those areas.
12. Defendants deny paragraph IV (19) of Plaintiff's
Complaint.
13. Defendants deny paragraph IV (20) of Plaintiff's
Complaint.
14. Concerning Plaintiff's Complaint IV (21), Defen-
dants deny that they are within the boundaries of the
Rosebud Indian Reservation, or that their areas are
Indian Country. Defendants admit that they exercise
Criminal and Civil Jurisdiction over all area within their
borders, except Indian or Trust lands. Defendants deny
that the exercise of their jurisdiction is to the exclusion
of Plaintiff’s criminal and civil jurisdiction.
15. Concerning Plaintiff's Complaint IV (22), Defen-
dants deny the same.
16. That for a further and Affirmative Defense to
Plaintiff’s Complaint, Defendants allege that their bound-
aries are not within the Rosebud Indian Reservation and
are not Indian Country. That Defendants are free to
exercise Criminal and Civil Jurisdiction within their
12
boundaries, over all persons within their boundaries
regardless of race, creed, national origin or color.
WHEREFORE, Defendants pray that the Court deter-
mine that all lands within Defendants’ boundaries are not
Indian Country nor are said lands part of the Rosebud
Indian Reservation, and that actually Todd County,
South Dakota comprises the present Rosebud Indian
Reservation, and for such other and further relief as to
the Court may seem just, equitable and proper, and
Defendants pray that they have and recover their costs
and disbursements herein.
ANSWER OF DEFENDANTS KNEIP
AND MYDLAND (10/16/72)
COME NOW the Defendants, Honorable Richard
Kneip, Governor of the State of South Dakota, and
Gordon Mydland, Attorney General of the State of South
Dakota, and in answer to the Amended Complaint of the
Plaintiff, state as follows:
FIRST DEFENSE
The Amended Complaint fails to state a claim against
the named Defendants, or either of them, upon which
relief can be granted.
SECOND DEFENSE
The Amended Complaint fails to show jurisdiction of
the Court over the subject matter of this action as such
applies to the above named defendants.
Section 2201 of Tithe 28 of the United States Code
requires that an actual controversy exist between the
13
parties before the Federal Declaratory Judgment Act may
be invoked. There is no showing in the Amended
Complaint of any actual controversy between the Plain-
tiff, the Rosebud Sioux Tribe, and the above named
Defendants.
THIRD DEFENSE
The above entitled action should be dismissed by
reason of the failure of the Plaintiff to join indispensible
parties as parties to the above entitled action.
Under the laws of the United States, the Plaintiff, and
its enrolled members, are wards of the United States
Government. The United States of America, in law, is the
guardian of said Plaintiff, but is not named a party to this
action.
Under the allegations in said Amended Complaint
contained, the Plaintiff is seeking to greatly enlarge the
territorial boundaries of the Rosebud Sioux Indian
Reservation. Under the Enabling Act which authorized
the territory to be formed into the State of South
Dakota, and under the Compact between the State of
South Dakota and the United States of America, an
integral part of the Constitution of the State of South
Dakota, enacted in pursuance to such Enabling Act, it
was solemnly agreed by and between such parties, the
State of South Dakota, and the United States of America,
that all lands then in the possession of any Indian tribe
within the territorial limits of the State of South Dakota
would remain under the exclusive jurisdiction and control
of the Congress of the United States, until removed from
the possession of such Indian tribe.
If the Plaintiff be successful in its allegations as in said
Amended Complaint contained, in view of this solemn
14
Compact between the State of South Dakota and the
United States of America, multitudinous problems will
immediately arise because of the activity of the citizens,
the State of South Dakota, and its political subdivision,
in derogation of the exclusive jurisdiction and control of
the Congress of the United States. The solution of these
problems can be made only by the Congress of the
United States, and the United States of America. The
Plaintiff, as a ward of the Federal Government, has no
power or authority to attempt the solution of such
problems.
The United States of America and the Congress of the
United States are indispensable parties, not named as
parties, to the above entitled action.
FOURTH DEFENSE
The above named Defendants admit the allegations
stated in paragraphs 4, 5, 6, 7, 8 and 9 of Paragraph III of
said Amended Complaint.
The above named Defendants admit that the Congress
of the United States did enact those certain Acts of
Congress set forth in Paragraphs b0, 11, 12, 13, and 14 of
Paragraph IV of said Amended Complaint, but by such
admissions do not admit that these are the only Acts of
Congress affecting the territory thrown in dispute by the
Amended Complaint of the Plaintiff.
The named Defendants deny each and every other
material allegation, matter and thing, not heretofore
admitted or explained in said Amended Complaint
contained.
15
FIFTH DEFENSE
(Latches)
The Plaintiff is not entitled to maintain this suit or to
assert that the exterior boundaries of the Rosebud Sioux
Indian Reservation includes the Counties of Mellette and
Tripp, all of Gregory County West of the 99th Parallel,
and the described portion of Lyman County, hereinafter
designated as the “disputed area,” by reason of laches.
FACTUAL SITUATION
The Plaintiff in its Amended Complaint has admitted
the disputed area was opened for and homesteaded by
whites. It has admitted that such homesteading resulted
from the action of the Congress of the United States, as
follows:
1904—Homesteading in disputed area in Gregory County;
1907—Homesteading in Tripp County and disputed area
in Lyman County;
1910—Homesteading in Mellette County.
That since the opening of such disputed area for
homesteading, at the time hereinafter set forth, for more
than fifty years the white settlers and their successor in
interest, people of Indian descent, whether enrolled or
not enrolled as members of the Rosebud Sioux Tribe, and
the Plaintiff itself, until the commencement of this
action, had considered such Congressional authorization
to homestead, removed such disputed area from the
boundaries of the Rosebud Sioux Indian Reservation, and
returned such land to the United States of America, who,
upon the granting of homestead rights and the issuance of
u patent to such land to a white settler relinquished
exclusive jurisdiction over such patented land and author-
16
ized the same to become an integral part of the State of
South Dakota and the United States of America.
That no white person would have settled within,
homesteaded, and applied and accepted a patent to land
in the disputed area, were he to believe, or were he told
at the time of so acting that his patented land remained
within the boundaries of the Rosebud Sioux Indian
Reservation, under the control of the Congress of the
United States, any of its authorized agents, and any
authorized tribal council or other governing body of the
Rosebud Sioux Tribe.
That Congress of the United States itself at the time of
the enactment of such Acts authorizing settlement by
whites, and at this time, has recignized that upon the
issuance of patents to such land to white settlers that
such land was removed from the exterior boundaries of
the Rosebud Sioux Indian Reservation, the exclusive
jurisdiction of the United States of America, and became
a part and parcel of the state of South Dakota.
This Congressional recognition is patent. Under the
Enabling Act which permitted South Dakota to be
organized as a State of the United States of America, and
the Compact between the State of South Dakota and the
United States of America, as contained in the Constitu-
tion of the State of Suuth Dakota, it was recognized by
both parties that the lands of any Indian tribe within the
State of South Dakota remained under the exclusive
jurisdiction and control of the Congress of the United
States, and that such territory was no part of the State of
South Dakota, and was not subject to any jurisdiction
and control of the State of South Dakota. That until the
enactment of the Acts authorizing white settlement,
hereinbefore set forth, Congress of the United States
furnished money and other guidance over such disputed
17
territory. Since the enactment of such Acts, authorizing
white settlemen:. and the issuance by the United States
Government of patents to such land, the Congress of the
United States, in recognition of the transfer of jurisdic-
tion and control over the lands in such disputed areas to
white persons, from the United States to the State of
South Dakota has exercised no jurisdiction or control
over such white settlers and their successors in interest,
nor has it performed any duties, exercised no authority,
or developed the economic facilities of such area, as it
formerly had performed over such territory prior to
authorizing its homesteading by the whites, and as it
continues to perform at the present, over the territory
which it is undisputed lies within the boundaries of the
Rosebud Sioux Indian Reservation.
As a result of such uniform and universal recognition
that the disputed territory, settled by the whites, is a part
of the State of South Dakota, and is excluded from the
territorial boundaries of the Rosebud Sioux Indian
Reservation, subsequent to homesteading and patenting,
such disputed territory has been developed substantially
through the energy, efforts, and moneys of such white
settlers, their successors in interest, and the State of
South Dakota and its political subdivisions, unaided by
any effort of the Plaintiff.
As evidence of such universal recognition of the status
of such disputed area, as not being within the territorial
boundaries of the Rosebud Sioux Indian Reservation, the
latest available statistics relative to several important
areas is set forth.
18
POPULATION AND NATIONALITY OF
DISPUTED AREA
The first count of the latest Federal Census of 1970
has been subject to exhaustive analysis. As a result of the
following statistics relative to the WHOLE of the counties
in such disputed area are set forth. For brevity, the name
of each affected county will be set forth, followed by six
separate categories. Most of these categories are self-
explanatory. They are as follows: TOTAL POPULA-
TION~—showing the total population in such county.
WHITE designating the number of persons in such county
of white discent. NEGRO, the number of Negro descent;
INDIAN, the number of persons classified as Indian
descent. SPECIFIED—this includes those inhabitants of
the Japanese, Chinese, Filipino, Hawaiian or Korean
races. REPORTED-—these persons reported of being of an
unspecified race other than white.
It is admitted that such computations are for the
complete counties in dispute. It is alleged, however, that
for the purposes of this defense it can be assumed that
the same ratios between whites and Indians should hold
insofar as the disputed territory is concerned to the
whole county. The Table of Population for such disputed
areas is as follows:
MELLETTE COUNTY
Total Population 2420
White 1591
Negro |
Indian 822
Specified |
Reported 5
This analysis shows that sixty-six percent (66%) of the
residents of Mellette County are whites, while thirty-four
percent (34%) are Indians.
19
TRIPP COUNTY
Total Population 8171
Whites 7668
Negro l
Indian 501
Specified l
Reported 0
This analysis reveals that the population of Tripp County
consists of ninety-four percent (94%) whites and six
percent (6%) Indians.
GREGORY COUNTY
Total population 6710
White 6383
Negro 3
Indian 318
Specified 2
Reported +
This analysis shows that the population of all of Gregory
County consisted of ninety-five percent (95%) whites,
and five percent (5%) Indian.
LYMAN COUNTY
Total population 4060
White 3469
Negro l
Indian 588
Specified |
Reported |
Such analysis shows that the entire population of Lyman
County consisted of eighty-five (85%) whites and fifteen
percent (15%) Indian.
It is apparent that a majority of the persons residing
within such disputed counties are white. Such persons did
20
not become residents in such areas with the under-
standing that they were residing without the State of
South Dakota, and within the territorial boundaries of
the Rosebud Sioux Indian Reservation. Until the com-
mencement of this action, such white inhabitants were
not told by the Plaintiff that such was the case.
ASSESSED VALUATION OF PORTIONS OF THE
DISPUTED TERRITORY
All of the territory within that area now claimed as a
portion of the Rosebud Sioux Indian Reservation, herein-
after for convenience designated as “disputed” territory,
is subject to taxation, levied in pursuance to laws enacted
by the South Dakota Legislature. At all times since the
opening of such disputed territory to settlement, and
after the grant of a United States Patent, such taxation
have been assessed and collected, or land sold for
nonpayment of the taxes. At no time has such tax
payments inured to the benefit of the Plaintiff. At no
time, to these Defendants’ knowledge, has the Plaintiff
sought to gain control of such taxes.
The total valuation of real estate and personal property
assessments, excluding the utility property, in all of the
disputed counties has been certified by the Commissioner
of Revenue as of August 28, 1972. Because of the limited
amount of territory of Lyman County Lying in such
disputed area, Lyman County is omitted. All of such
valuation figures are for the total assessments in the
entire county. Such certification shows the following
Valuation as of the date mentioned.
MELLETTE COUNTY
Real Estate $10,011,714.00
Personal property 5 070,278.00
21
TRIPP COUNTY
Real Estate 39,048,820.00
Personal property 13,725,386.00
GREGORY COUNTY
Real Estate 24,443,690.00
Personal property 10,752,705.00
Such valuation of property, both real estate and personal
property, has resulted from many factors, including the
labor and dilligence on the part of white inhabitants of
such disputed areas. Such shows a tremendous growth in
the development of such disputed area since home-
steading. Such economic growth has resulted from the
recognition by everyone, including the Plaintiff, that this
disputed territory, in fact, is a part of the State of South
Dakota and is not a portion of the Rosebud Sioux Indian
Reservation.
SCHOOL DISTRICT EXPENDITURES
The State of South Dakota, mainly through the
establishment of local school districts, operates the public
schools in the disputed territory.
All of such school districts were developed mainly by
the contribution of funds from either the State, the
county or local school districts. None of such educational
system was developed by the cooperation or initiative of
the Plaintiff. Rather, for fifty years the Plaintiff, along
with the State of South Dakota and the counties wherein
the disputed territory lies, treated such areas as within
the State of South Dakota, for educational purposes, and
as being without the boundaries of the Rosebud Sioux
Indian Reservation. This allegation must be true, for if
not, the obligation to furnish such educational opportun-
ity to youths would have been on the Plaintiff or the
OO
22
Federal Government, with no obligation of any kind
upon the State of South Dakota or any subdivision
thereof.
Each of the school districts embraced in the disputed
area have reported their total receipts for the fiscal year
of 1971-71, and have broken such receipts down into the
agencies contributing thereto. Such contributions will be
shown for each of the school districts, under the
following classifications: (1) TOTAL RECEIPTS—
monetary receipts from all sources; (2) LOCAL RE-
CEIPTS—payment mainly from the assessment and taxa-
tion of the residents in the school district; (3) COUNTY
PAYMENTS—payments mainly from educational funds
collected dat the county level; (4) STATE PAYMENT—
the total of payments made from the state treasury; (5)
STATE AID—the amount of the state payment resulting
from payments to such school district during the stated
fiscal year as distributed in pursuance to the minimum
foundation program; (6) STATE APPORTIONMENT—
the amount of moneys apportioned to such school
district from the interest of the South Dakota School
Fund: (7) FEDERAL AID—the complete receipts from
all federal aid; (8) 815 FUNDS-—distributions from
Federal Government from “815” Funds; (9) 874
FUNDS~—distributions by Federal agencies under Public
Law 874 (impacted areas); (10) INDIAN EDUCATION—
Federal funds to educate Indians; (11) EDUCATION
ACT —federal distributions in compliance with Titles I, I
and III of the Federal Elementary Education Act.
GREGORY IND. SCHOOL DIST. #111 (in disputed area
of Gregory County)
1. Total receipts $672,316.21
490,557.82
2,008.42
2. Local receipts
3. County payments
23
4. State Payments
5. State aid
6. State apportionment
7. Federal aid
8. 815 Funds
9. 874 Funds
10. Indian education funds
11. Education Act
BURKE IND. SCHOOL DIST #114
Gregory County)
1. Total receipts
2. Local receipts
3. County payment
4. State payment
5. State aid
6. State apportionment
7. Federal aid
8. 815 Funds
9. 874 Funds
10. Indian education funds
Education Act
75,451.54
55,937.50
16,680.00
50,379.39
0
0
0
42,000.00
in disputed area of
460,536.70
350,872.97
1,382.55
57,917.94
44,925.80
11,456.33
30,024.31
0
0
0
25,104.00
WOOD IND. SCHOOL DIST #30 (Mellette County)
_— —
PPP r Ss Pr Sr Srr>
Total receipts
Local receipts
County payment
State payment
State aid
State apportionment
Federal aid
815 Funds
874 Funds
Indian education
Education Act
$278,053.34
193,629.75
7,019.54
31,872.55
23,104.58
1,299.27
35,414.41
0
16,518.00
0
17,000.60
24
WHITE RIVER IND. SCHOOL DIST. #29 (Mellette
County)
l. Total receipts 510,141.39
2. Local receipts 254,828.44
3. County payment 7,213.44
4. State payment 68,101.94
5. State aid 53,318.62
6. State apportionment 11,180.46
7. Federal aid 178,508.91
8. 815 Funds 0
9. 874 Funds 77,247.00
10. Indian education 60,832.40
11. Education Act 30,309.42
NEW COLOME IND. SCHOOL DIST. #120 (Tripp
County)
1. Total Receipts 314,483.94
2. Local receipts 224,028.85
3. County payment 1,654.81
4. State payment 56,124.77
5. State aid 40,629.49
6. State apportionment 7,833.28
7. Federal aid 12,874.27
8. 815 Funds 0
9. 874 Funds 0
10. Indian Education 0
11. Education Act 11,834.19
WINNER IND. SCHOOL DIST. #110 (Tripp County)
1. Total receipts 1 354,267.08
2. Local receipts | ,035,093.70
3. County payment 13,412.05
4. State payment 181,484.77
5. State aid 136,180.17
6. State apportionment 41,831.82
7. Federal aid 117,908.98
25
8. 815 Funds 0
9. 874 Funds 18,472.00
10. Indian Education 21,010.00
11. Education Act 52,845.65
The disputed area in Lyman County lies within several
independent school districts, and no adequate or accurate
computation of the school receipts in such area may be
made.
A recapitulation of the total receipts for school
purposes, in the disputed area, as above outlined, reveals
that during school year fiscal 1971-71 such school
districts received total receipts of $3,589,798.66. Of this
amount, local school district contributed $2,572,827.38,
the counties contributed $32,690.81, and the Siate,
through state aid and apportionment contributed
$470,953.51. The total contribution from State or its
subdivisions being $3,078,471.70 or some 85.7% of such
total receipts.
HIGHWAY DEVELOPMENT IN DISPUTED AREA
Over the years the State of South Dakota and its
political subdivisions developed a highway system in the
disputed area. The Plaintiff at no time assisted in either
the construction, development or maintenance of such
system. It must be admitted that on the “State Trunk Sys-
tem” federal funds have implemented (sic) the state funds,
but such federal funds as utilized have been grants to the
State of South Dakota, and not grants for the aid and
benefit of the Plaintiff.
All of such highway development has occurred, with
the acquiescence and consent of the Plaintiff, as a
development of the State of South Dakota, and its
subdivisions, and not as development within the interior
boundaries of the Rosebud Sioux Indian Reservation.
26
As of December 31, 1971, the mileage of highways
existing in the disputed area, together with the designa-
tion of the type of highway that has been developed, is
shown on the following table:
ey ~ 2) ™ a)
fon 00 ~ ee) on
~) Te) Vo) + co 1|wo
al oS. 9 ao 156
< Oo ™N ae
| ©
2s 19 oe) a | o
Un “ le ie
ou. op) |
oun N HD |
4 * gS = 45
= EOS $$ gis
rn 2 + “7 9) N _
_ °o . § -
° a m= IN
_ '
ae
> >» © os
ae oh}— 7 N ong Se)
= tba ~ N Qi +
So 58663 om os “|e
—
° a“
1 a —N — N
= 2eE & N +t © wo +
v a Ss 2 «€¢atieée
Sf sua mn © Te) — ie)
2 O 2s oe
>
ya & on Oo = wo | +
s&s = og) a ~ ,- oO
os -= = — ee
re + _ N Vo) N
“. ms -_ —_— | +
>» $F |
_ y» &
me BS CES
Z ~& 225
— o oyv> ~ =
9 §= 82355 5 ai
oS) oo Es ~ ¥ — Qa &
a efe8 Ff F |
Os — Enon a. _— —
27
SIXTH DEFENSE
(Estoppel)
Plaintiff ought not be admitted to say that any of the
disputed area herein in controversy is within the terri-
torial boundaries of the Rosebud Sioux Indian Reserva-
tion, because the history of the development of such
disputed area, subsequent to the opening of such area for
homesteading by white settlers works an estoppel of such
an allegation, by the Plaintiff.
The factual matters set forth in Fifth Defense, raising
the issue of laches, is made a part of this defense, by
reference, as if fully set forth herein.
WHEREFORE, the above named Defendants, and each
of them, pray that the Court declare:
That all of the territory heretofore put into contro-
versy by the Amended Complaint of the Plaintiff be
declared to not be within the boundaries of the Rosebud
Sioux Indian Reservation, nor within that area designated
as “Indian Country” but, rather is and remains territory
within the jurisdiction of the State of South Dakota.
That the Amended Complaint of the Plaintiff be
dismissed, with costs and disbursements to the Defen-
dants, and for such other and further relief to the
Defendants as to the Court may seem just and equitable.
DATED this 12th day of October, 1972.
ORDER ADDING PARTIES DEFENDANT (1/11/73)
Upon Plaintiff's motion and good cause appearing and
pursuant to Rule 21, Federal Rules of Civil Procedure,
therefore it is ORDERED:
28
(1) That Gordon Mydland is hereby dismissed as a
party defendant herein upon him leaving the office of the
Attorney General for the State of South Dakota;
(2) That Kermit A. Sande, upon his assumption of the
office of the Attorney General for the State of South
Dakota, shall become a party defendant herein and unless
he chooses to file an additional answer within 20 days of
his taking office, he shall be bound by the answer of his
successor, Gordon Mydland;
(3) That the United States of America is made a party
defendant hereto and that upon service on the required
federal officers of this order and a copy of the complaint
therein, they shall have 60 days to make such answer as
they may deem required.
Dated this 10th day of December, 1972.
BY THE COURT:
/s|/ ANDREW W. BOGUE
Andrew W. Bogue
U.S. District Court
ANSWER OF DEFENDANT UNITED STATES
(3/21/73)
Comes now the defendant United States of America
and for its Answer to plaintiff's Complaint, states and
alleges as follows:
I.
Denies each and every material and allegation of the
Complaint except those Paragraphs specifically admitted.
Oe ee eee a ee en |
3 ee PTY they
29
II.
Admits Paragraph I of plaintiff's Complaint.
III
Denies that Paragraph II waives the sovereign immun-
ity of the United States.
IV.
Admits Paragraph IV through Paragraph XVIII.
V.
Denies the allegations in Paragraph XIX as they relate
to 18 U.S.C. §1151, however, defendant United States of
America would admit this Paragraph if 18 U.S.C. 81155
were used.
Vi.
Denies Paragraph XX insomuch as it is the position of
the defendant United States of America that the Federal
Court has jurisdiction by virtue of various provisions
found in Title 28 of the United States Code.
Vil.
Defendant United States of America lacks information
sufficient to admit Paragraph XXI and therefore denies
the same.
VII.
Defendant United States of America admits Paragraph
XXII of plaintiff's Complaint.
Dated this 20th day of March, 1975.
i
30 | 31
[Opinion reported in 375 F. Supp. 1965 printed in Appen- | dressed to the question of the applicability and effect of
dix to Petition for Writ of Certiorari, pp. 63-113] the recent Supreme Court decision contained in De-
Coteau v. District Court, No. 73-1148, and Erickson v.
Feather, No. 73-1500, which cases were consolidated for
lludgment — Printed in Appendix to Petition for Writ of decision of the Supreme Court of the United States,
Certiorari, p. 114] PP on reported in 43 U.S.L.W. 4321 under date of March 3,
1975. The simultaneous briefs are to be in typewritten
form, on letter-size paper, fastened in the left margin and
are to be filed within thirty days from the date of this
NOTICE OF APPEAL (3/13/74) order. An original and four copies are to be filed with the
clerk of this court and copies served on opposing counsel.
No further argument will be required after the filing of
simultaneous, supplemental briefs.
The Plaintiff hereby appeals to the United States Court
of Appeals for the Eighth Circuit from the final judgment
entered in this action of February 15, 1074.
March 12, 1975
[Subscription Omitted in Printing] arc 7
[Opinion reported in 521 F.2d 87 — Printed in Appendix
UNITED STATES COURT OF APPEALS to Petition for a Writ of Certiorari, pp. 1-61]
FOR THE EIGHTH CIRCUIT
74-1211 September Term, 1974 [Judgment — Printed in Appendix to Petition for Writ
Rosebud Sioux Tribe, of Certiorari, p. 61]
)
)
Appellant, ) Appeal from the
) United States
VS. ) District Court
) for the District
) of South Da-
)
)
)
kota.
Hon. Richard Kneip, Governor of
the State of South Dakota, et al.,
Appellees.
Counsel for the parties to this appeal are directed to
file simultaneous supplemental briefs in this cause ad-
32
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 74-1211 September Term, 1974
Rosebud Sioux Tribe, )
Appellant, ) Appeal from the
) United States
vs. ) District Court
) for the District
Hon. Richard Kneip, Governor of ) of South Da-
the State of S.D., and Gordon ) kota.
Mydland, Attorney General of the )
State of S.D. and the County of )
Melette and the County of Lyman _)
and the County of Tripp and the )
County of Gregory, )
Appellees.
~——
On motion of appellant, it is now here ordered that the
issuance of the mandate herein be, and the same is
hereby, stayed until to and including October 14, 1975.
If within that time there is filed with the Clerk of this
Court a certificate of the Clerk of the Supreme Court of
the United States that a petition for writ of certiorari has
been filed, the stay hereby granted shall continue until
the final disposition of the case by the Supreme Court.
August 25, 1975
74-1211 September Term, 1975
Appellant’s motion for leave to file enlarged petition
for rehearing en banc out of time has been considered by
the Court and is denied.
September 16, 1975
33
[#1]
(Text of H.R. 4740 plus letters—involves treating
with Sioux Indians for cession of certain lands of the
Rosebud Reservation) |
[H.R. 4740, 56th Cong., Ist Sess. (1899)]
IN THE HOUSE OF REPRESENTATIVES.
December 19, 1899.
Mr. Gamble introduced the following bill; which was
referred to the Committee on Indian Affairs and ordered
to be printed.
A BILL
Authorizing the cession of certain Sioux Indian land.
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress
assembled,
3 That the Secretary of the Interior be, and he is hereby,
au-
4 thorized and directed to appoint a commission of three
mem-
5 bers to treat with the Sioux Indians within the Rosebud
6 Reservation, in the Senate of South Dakota, for the
cession to
7 the United States Government of all Indian land in
Gregory
8 County, South Dakota.
oe
34
Land. DEPARTMENT OF THE INTERIOR,
4450-1900 OFFICE OF INDIAN AFFAIRS
Washington, February 8, 1900.
The Honorable
The Secretary of the Interior.
Sir:
I have the honor to be in receipt, by reference from
the Acting Secretary of the Interior, for consideration,
report and recommendation, of a letter dated January 17,
1900, from Hon. Robert J. Gamble enclosing a copy of
H.R. 4740, 56th Congress, 1st Session, which provides as
follows:
“Be it enacted, &c: Thai the Secretary of the
Interior be, and he is hereby, authorized and
directed to appoint a commission of three members
to treat with the Sioux Indians within the Rosebud
Reservation, in the State of South Dakota, for the
cession to the United States government of all
Indian land in Gregory County, South Dakota”.
In submitting the aforesaid bill Mr. Gamble states that
Gregory County was organized by the Governor of South
Dakota about two years ago; that a large part of the
county is covered by the Rosebud reservation, the
portion open to settlement being so limited that it is
difficult to maintain the county organization; that the
part of the county open to settlement is largely occupied
by settlers who are very anxious to have the government
take action looking to the cession of that portion of the
county within the limits of the Rosebud reservation; that
he does not understand any particular number of
35
allotments have been made to the Indians within the
limits of the county; and that inasmuch as it would be a
great benefit to that portion of the State and to its
people he would Le glad to have the measure meet with
the approval of the Department.
Respecting this bill, I have the honor to stuie that the
portion of the Rosebud reservation the cession of which
it is proposed to secure constitutes the eastern portion of
the reserve. It comprises about 21 townships or in the
neighborhood of 480,000 acres of land. The office is
informed that there are about 350 Indians residing on
Ponca Creek within the limits of the proposed cession
and that these Indians have made their selections for
allotments.
Any agreement negotiated with the Indians of the
Rosebud reservation for the cession of any of their lands
would require the signatures of at least three-fourths of
the male adult Indians residing or belonging thereon
(Article 12 of the treaty with the Sioux Indians dated
April 29, 1868—15 Stats., page 639). If the consent of
three-fourths of the male adult Indians can be obtained
to an agreement ceding that portion of their reservation
proposed by the aforesaid bill, the office would not be
disposed to oppose its ratification.
It is suggested, however, that in the event of legislation
authorizing such negotiations as proposed by this bill the
same be amended by providing for conducting such
negotiations through a United States Indian Inspector
instead of having a commission appointed consisting of
three members to negotiate such agreement. It is believed
that more satisfactory results would be obtained by
having an Inspector conduct such negotiations and the
expense incurred in connection therewith in the latter
case would only be nominal.
36
I would therefore recommend that if such legislation is
had as the aforesaid bill proposes, the same be amended
so as to provide for negotiations through an Indian
Inspector.
The letter of Mr. Gamble, with the enclosed bill, is
returned herewith, and I enclose a copy of this report.
Very respectfully,
Your obedient servant,
W.A. Jones,
Commissioner.
(J.R.W.)
P.
Land DEPARTMENT OF THE INTERIOR,
7210-1900. OFFICE OF INDIAN AFFAIRS,
Washington, February 9, 1900.
The Honorable,
The Secretary of the Interior.
Sir:-
Referring to the reference on the 7th instant to this
office by the Acting Secretary of the Interior of a letter
by Hon. J. S. Sherman dated February 5, 1900, enclosing
certain H.R. Bills for reports thereon, among which is
included No. 4740, 56th Congress, Ist. Session, authoriz-
ing negotiations with the Indians of the Rosebud Reserva-
tion, South Dakota, for that portion of their reservation
situated in Gregory County, I have the honor to invite
attention to office report of the 7th instant upon said
37
bill, the same having been referred to this office by the
Department for that purpose, with a letter dated January
17, 1900, by Hon. R. J. Gamble, who introduced the
same. A copy of said report is enclosed herewith.
The said bill is returned herewith. I also enclose copy
of this letter.
Very respectfully,
Your obedient servant,
J.R.W. W. A. Jones,
C Commissioner.
DEPARTMENT OF THE INTERIOR,
Washington, February 13, 1900.
COPY.
Hon. Robert J. Gamble,
House of Representatives.
Sir:-
I have the honor to acknowledge the receipt of your
letter of the 17th ultimo, and accompanying H.R. 4740,
“A Bill authorizing the cession of certain Sioux Indian
lands.”
This bill authorizes the Secretary of the Interior to
appoint a Commission of three members to treat with the
Rosebud Sioux Indians for cession to the United States
Government of all lands in Gregory County, South
Dakota.
In response thereto I transmit, herewith a copy of a
communication of the 8th instant, from the Commis-
38
sioner of Indian Affairs, in which recommendation is
made that if such legislation is had as this bill proposes,
that the same be amended so as to provide for negotia-
tions through an Indian Inspector.
I approve of the recommendation of the Commis-
sioner.
Very respectfully,
Secretary.
421, Ind. Div. 1900.
1004, “ “ “
1 inclosure.
M.E.W.
DEPARTMENT OF THE INTERIOR,
Washington, February 13, 1900.
The Chairman of the
Committee on Indian Affairs,
House of Representatives,
Sir:-
I have the honor to acknowledge the receipt of your
letter of the 5th instant, and accompanying H.R. 4740,
“A Bill authorizing the cession of certain Sioux Indian
land.”
In response thereto, you are advised that under date of
the 17th ultimo, H.R. 4740 was transmitted to the
Department for favorable consideration by Mr. Gamble,
House of Representatives, and your attention is respect-
ae
39
fully invited to the correspondence had with him in the
matter, copies herewith.
Very respectfully,
/s/E. A. Hitchcock
Secretary.
819, Ind. Div. 1900.
Se
3 inclosures.
M.E.W.
40
[#1A]
(Legislative History of H.R. 4740)
[33 Cong. Rec. 380 (1899)]
Stoux:
* * *
bills to provide for cession to United States of
certain lands of (see bills S. 1767; H.R. 4740)
[33 Cong. Rec. 291 (1899)]
H.R. 4740—
Authorizing the cession of certain Sioux Indian land.
Introduced by Mr. Gamble and referred to Commit-
tee on Indian Affairs 594.—Reported back with
amendment (H.R. Report 486) 2520.
[33 Cong. Rec. 594 (1899)]
By Mr. GAMBLE: A bill (H.R. 4740) authorizing the
cession of certaion Sioux Indian land—to the Committee
on Indian Affairs.
[33 Cong. Rec. 2521 (1900)}
REPORTS OF COMMITTEES ON PUBLIC BILLS AND
RESOLUTIONS.
Under clause 2 of Rule XIII, Mr. GAMBLE, from the
Committee on Indian Affairs, to which was referred the
41
bill of the House (H.R. 4740) authorizing the cession of
certain Sioux Indian land, reported the same with
amendment, accompanied by a report (No. 486); which
said bill and report were referred to the House Calendar.
|
42
[#1B]
(House of Representatives Report to accompany
H.R. 4740)
[H.R. Rep. No. 486, 56th Cong., Ist Sess. (1900)}
CESSION OF CERTAIN SIOUX INDIAN LAND.
March 3, 1900.—Referred to the House Calendar and
ordered to be printed.
Mr. GAMBLE, from the Committee on Indian Affairs,
submitted the following
REPORT.
[To accompany H.R. 4740.]
The Committee on Indian Affairs, to whom was
referred the bill (H.R. 4740) authorizing the cession of
certain Sioux Indian land, having had the same under
advisement, make the following report, and recommend
that the bill do pass with the following amendments:
Strike out the following words where the same appear
in lines 4 and 5, “commission of three members to,” and
insert in lieu thereof the following: “United States Indian
inspector to negotiate and.”
Strike out the word “cession,” where the same appears
in line 6, and insert in lieu thereof the following words:
“purchase and release.”
Insert after the word “all,” where the same appears in
line 7, the following word: “unallotted.”
Insert after the word “land,” where the same appears
in line 7, the following words: “belonging to said tribe.”
Ss
=
thea. mid tad mene
? teen ]
RE
43
The measure has the indorsement of the Interior
Department, and letters to that effect are herewith
submitted from the Secretary and Commissioner of
Indian Affairs and made a part of this report.
The lands now open to settlement within the limits of
Gregory County are limited in area. In the year 1898 the
county government was organized. Although most of the
lands open to settlement are occupied, the territory is so
limited and the population so few in number the burdens
of local government are too onerous to be borne with
advantage to the community. The people are anxious that
this particular part of the reservation be opened and
opportunity given for settlement and development of
that region of the State. It would add a larger population,
increase the wealth and production, and relieve the
burdens of necessary and legitimate taxation.
The committee is informed the Indians are willing to
treat for a cession of the lan's in question. To do so
would be carrying out the policy of the Government in
this particular and in harmony with treaty stipulations
and the provisions of the law of 1889, in the opening to
settlement of the ceded portions of the Great Sioux
Reservation. Those Indians have made their selection for
allotments, and this bill only relates to the surplus lands
of the reservation which are not used and unnecessary to
the support and maintenance of the tribe. The Indians
have their full allotments, and they are ample for their
use. By opening the lands to occupation and development
it would inure to the benefit of the people, the
community, the State, and to the Indians themselves.
44
DEPARTMENT OF THE INTERIOR
Washington, February 13, 1900.
SIR: I have the honor to acknowledge the receipt of
your letter of the 17th ultimo, and accompanying H.R.
4740, “A bill authorizing the cession of certain Sioux
Indian lands.”
This bill authorizes the Secretary of the Interior to
appoint a commission of three members to treat with the
Rosebud Sioux Indians for cession to the United States
Government of all lands in Gregory County, S. Dak.
In response thereto I transmit herewith a copy of a
communication of the 8th instant from the Commis-
sioner of Indian Affairs, in which recommendation is
made that if such legislation is had as this bill proposes,
that the same be amended so as to provide for negotia-
tions through an Indian inspector.
I approve of the recommendation of the Commis-
sioner.
Very respectfully,
E. A. HITCHCOCK, Secretary.
Hon. Robert J. Gamble,
House of Representatives.
DEPARTMENT OF THE INTERIOR,
Office of Indian Affairs,
Washington, Feb. 8, 1900.
SIR: I have the honor to be in receipt, by reference
from the Acting Secretary of the Interior, for considera-
tion, report, and recommendation, of a letter, dated
January 17, 1900, from Hon. Robert J. Gamble, inclosing
a copy of House bill No. 4740, Fifty-sixth Congress, first
session, which provides as follows:
45
“Be it enacted, etc., That the Secretary of the Interior
be, and he is hereby, authorized and directed to appoint a
commission of three members to treat with the Sioux
Indians within the Rosebud Reservation, in the State of
South Dakota, for the cession to the United States
Government of all Indian land in Gregory County, South
Dakota.”
In submitting the aforesaid bill Mr. Gamble states that
Gregory County was organized by the governor of South
Dakota about two years ago; that a large part of the
county is covered by the Rosebud Reservation, the
portion open to settlement being so limited that it is
difficult to maintain the county organization; that the
part of the county open to settlement is largely occupied
by settlers who are very anxious to have the Government
take action looking to the cession of that portion ef the
county within the limits of the Rosebud Reservation;
that he does not understand any particular number of
allotments have been made to the Indians within the
limits of the county; and that, inasmuch as it would be a
great benefit to that portion of the State and to its
people, he would be glad to have the measure meet with
the approval of the Department.
Respecting this bill, I have the honor to state that the
portion of the Rosebud Reservation, the cession of which
it is proposed to secure, constitutes the eastern portion of
the reserve. It comprises about 21 townships, or in the
neighborhood of 480,000 acres of land. The office is
informed that there are about 350 Indians residing on
Ponca Creek within the limits of the proposed cession,
and that these Indians have made their selections for
allotments.
Any agreement negotiated with the Indians of the
Rosebud Reservation for the cession of any of their lands
would require the signatures of at least three-fourths of
46
the male adult Indians residing or belonging thereon
(article 12 of the treaty with the Sioux Indians, dated
April 29, 1868, 15 Stats., p. 639). If the consent of
three-fourths of the male adult Indians can be obtained
to an agreement ceding that portion of their reservation
proposed by the aforesaid bill, the office would not be
disposed to oppose its ratification.
It is suggested, however, that in the event of legislation
authorizing such negotiations as proposed by this bill the
same be amended by providing for conducting such
negotiations through a United States Indian inspector
instead of having a commission appointed, consisting of
three members, to negotiate such agreement. It is
believed that more satisfactory results would be obtained
by having an inspector conduct such negotiations, and
the expense incurred in connection therewith in the latter
case would only be nominal.
I would therefore recommend that if such legislation is
had as the aforesaid bill proposes, the same be amended
so as to provide for negotiations through an Indian
inspector.
The letter of Mr. Gamble, with the inclosed bill, is
returned herewith, and I inclose a copy of this report.
Very respectfully, your obedient servant,
W. A. JONES, Commissioner.
The Secretary of the Interior.
47
[#2]
(Legislative history of S. 1767, 56th Cong., Ist.
Sess. (1899); the Senate companion bill of H.R.4740
involving treating with Sioux Indians for cession of
certain lands of the Rosebud Reservation.)
[33 Cong. Rec. 380 (1899)]
Stoux:
* * *
___pills to provide for cession to United States of
certain lands of (see bills S. 1767; H.R. 4740).
[33 Cong. Rec. 54 (1899)]
S. 1767—
Authorizing the cession of certain Sioux Indian land.
Introduced by Mr. Pettigrew and referred to Com-
mittee on Indian Affairs 561.
{33 Cong. Rec. 561 (1899)|
Mr. PETTIGREW
* * *
He also introduced a bill (S. 1767) authorizing the
cession of certain Sioux Indian land; which was read
twice by its title, and referred to the Committee on
Indian Affairs.
48
[#3]
(Memorial of South Dakota legislature petitioning
Congress to treat with Indians for cession of portion of
Rosebud Reservation.)
[34 Cong. Rec. 152 (1901)]
Rosebud Reservation: memorial of legislature of South
Dakota to restore to public domain portion of 3556.
[34 Cong. Rec. 3556 (1901)]
MEMORIAL.
Mr. KYLE presented the following joint resolution of
the legislature of South Dakota; which was ordered to lie
on the table, and to be printed in the Record:
STATE OF SOUTH DAKOTA, DEPARTMENT OF STATE.
UNITED STATES OF AMERICA,
State of South Dakota, Secretary’s Office:
_I, O.C. Berg, secretary of state of the State of
South Dakota, do hereby certify that the attached
instrument of writing is a true and correct copy of
joint resolution No.6, as passed by the seventh
legislative assembly of South Dakota, as the same
appears of record in this office and of the whole
thereof.
In testimony whereof I have hereunto set my
hand and affixed the great seal of the State of South
Dakota. Done at the city of Pierre this 27th day of
February, 1901.
[SEAL. ] O. C. BERG, Secretary of State.
House joint resolution No. 6.—A joint resolution
and memorial requesting the Congress of the
United States to treat with the Indians for the
cession and opening for white settlement and free
homestead entry all that portion of the Rosebud
<
SEE
49
Indian Reservation lying within the boundaries of
Gregory County, S. Dak.
Be it resolved by the house of representatives of
the legislature of South Dakota (the Senate concur-
ring):
Whereas there is in the organized portion of
Gregory County, S. Dak., about six Congressional
townships, said tract being too small in area,
population, and assessed valuation to successfully
maintain a county government without causing such
government to become unduly burdensome; and
Whereas there is also within the boundaries of
said Gregory County, S. Dak., about 23 Congres-
sional townships of agricultural land which forms a
part of the Rosebud Indian Reservation, and upon
which are living a few Indians who have all taken
their allotments in severalty; and
Whereas it is understood that the Indians are
willing for a reasonable compensation to cede all
that portion of the reservation herein mentioned to
the Government; and
Whereas the ceding of said portion of the reserva-
tion to the Government would still leave a
sufficiently large and suitable territory to meet all
the requirements of an Indian reservation, while at
the same time the ceding and opening to white
settlers of all that portion of said reservation above
referred to would add to the productive farming
land of the State, enlarge the area of Gregory
County to a proper and desirable size, and greatly
lessen the expense of maintaining the government of
said county: Therefore, be it
Resolved, That we respectfully petition and mem-
orialize the Congress of the United States to treat
with the Indians at the earliest practicable date for
the cession of all that portion of the Rosebud Indian
Reservation lying within the boundaries of Gregory
County, S. Dak., and that said tract be open to free
50
homestead entry by white settlers; and be it further
Resolved, That we hereby request our Senators and
Representatives in Congress to use their best efforts
to effect the object prayed for in this memorial; and
the secretary of state is hereby instructed to forward
copies of this memorial to our Senators and Repre-
sentatives in Congress.
51
[#4]
(March 19, 1901, letters to Secretary of Interior
and Indian Inspector J. McLaughlin from W. A. Jones,
Commissioner of Indian Affairs concerning negotiations
with Sioux for cession of portion of the Rosebud
Reservation.) |
Land DEPARTMENT OF THE INTERIOR
14,319-1901, OFFICE OF INDIAN AFFAIRS
Washington, March 19, 1901,
The Honorable
The Secretary of the Interior,
Sir:
The office has the honor to acknowledge the receipt,
by your reference of March 14, 1901, of a letter dated
March 8, 1901, from Hon. R.J. Gamble, requesting that
prompt action be taken in the matter of negotiating with
the Indians of the Rosebud reservation for the cession of
that portion of their lands in Gregory County, South
Dakota. Senator Gamble invites attention to the provi-
sion contained in the Indian Appropriation Act for the
coming fiscal year, approved on the third instant,
authorizing such negotiations with any Indian tribe
through a United States Indian Inspector, and encloses a
copy of a Joint Resolution by the 7th Legislative
Assembly of South Dakota, memoralizing the Congress of
the United States to treat with the Indians named for the
cession of the lands indicated, to the United States.
In accordance with your directions the office has
prepared and transmits, herewith, a draught of instructins
for the guidance of the U.S. Indian Inspector in conduct-
ing the proposed negotiations. Attention is invited to the
fact that the provision of law authorizing these negotia-
52
tions makes no appropriation for the purpose of paying
any proper expenses incurred in connection therewith. It
therefore becomes necessary to call upon the U.S. Indian
Agent for said Indians to afford the Inspector such
assistance as he may require in the conduct of the work.
If, therefore, you will advise the office what Inspector is
designated for this duty and when he will be likely to
reach the Rosebud reservation, the office will give Agent
McChesney proper instructions in the premises.
Very respectfully,
Your obedient servant,
/s/ W. A. Jones
Commissioner.
(J.R.W.)
OFFICE OF INDIAN AFFAIRS,
DEPARTMENT OF THE INTERIOR,
WASHINGTON,
March 19, 1901.
U.S. Indian Inspector
Sir:
The Indian Appropriation Act for the next fiscal year,
approved March 3, 1901, (Public No. 137), contains the
following provision respecting negotiations with Indian
tribes for the cession of lands:
“That the Secretary of the Interior be, and he is
hereby, authorized, in his discretion, to negotiate,
through any United States Indian Inspector, agree-
53
ments with any Indians for the cession to the United
States of portions of their respective reservations or
surplus unallotted lands, any agreements thus nego-
tiated to be subject to subsequent ratification by
Congress”.
In connection with the foregoing provision the Depart-
ment has concluded to authorize negotiations with the
Indians of the Rosebud reservation, in South Dakota, for
the cession of the unallotted eastern portion of their
reserve, as hereinafter indicated. There are, it is under-
stood, some desirable agricultural lands in that portion of
the reserve and the proposition to secure the cession of
the unallotted portion thereof was first suggested during
the first session of the .56th Congress, when bills
providing for authority to negotiate for the cession of
that portion of the reserve embraced in Gregory County
were introduced in Congress. The particular reason put
forward for such action was that the larger portion of
said county was embraced in the Indian reservation and
that the remainder of the county supported so small a
population it was difficult to maintain the county
organization.
The bills referred to were not, however, enacted into
law.
Since the enactment of the provision above quoted
Hon. R. J. Gamble has invited the attention of the
Department thereto, and has requested that negotiations
for the cession of that portion of the Rosebud reserve
included in Gregory County be had at an early day in
order that an agreement may be secured and presented to
Congress for its action at the opening of its next session.
The western boundary of Gregory County, as shown
by the maps of South Dakota, is the range line between
ranges 73 and 74. The portion of the reserve embraced in
said county is as nearly as can be estimated about 21
54
townships or 480,000 acres. The north line of Gregory
County is the township line between townships 99 and
100 north. A further examination of the map will show
that in order to preserve the regularity of the reservation
boundary in the event that a cession is made the
townships east of the west boundary line of Gregory
County in township 100, to wit., fractional township,
range 71 and townships, ranges 72 and 73 lying in Lyman
County, should also be ceded. The last named townships
embrace an additional area of nearly 50,000 acres, thus
making the total area of the tract proposed to be ceded
about 530,000 acres—including allotted lands.
The records of the Indian Office at the present time
show that 423 allotments in severalty have been made to
the Indians within the portion of the reservation in
question. The larger portion of these are along Ponca
Creek and especially in township 95 north, ranges 69, 70
and 71 west. Whether allotments have been made to all of
the Indians in the Ponca Creek district the Department is
not informed, but it is presumed that nearly all of the
Indians have been so allotted. Heretofore where cessions
of portions of Indian reservations have been made by
Indians who had not yet received their allotments in
severalty, it has been the practice to insert in the
agreement a provision to the effect that any Indians
having homes and improvements within the ceded por-
tion might elect to remove to the diminished reserva-
tion—the improvements to be sold for their benefit, or
removed as they might choose. In the present instance
however allotments in severalty to the Indians residing
within the district under consideration have been form-
ally made in accordance with the general plan or policy
of the Department, and for this reason a general removal
of the allotted Indians in that district would not be
favored. It is understood that most of the lands allotted
55
in that district are of excellent quality—better no doubt
than could now be procured for the purpose on the
diminished reservation. Another consideration is that
such removal, if permitted, would, as shown by former
experiences of the Indian Department in similar cases
tend to keep the Indians affected in an unsettled state for
some time to come.
This feature of the matter and the views of the
Department in regard to it should be fully explained to
the Indians assembled in council and especially to those
immediately concerned. It should be made perfectly clear
to them that in the event of the cession of their surplus
lands the same will be opened up to public settlement
and they will be brought into immediate contact with the
whites.
The consideration to be paid the Indians for the
surplus lands in question should be a fixed, definite, lump
sum. It is impossible for the Department to indicate the
price to be paid. It should however be just and fair both
to the Indians and to the United States. In fixing upon
the price you should not lose sight of the fact that no
doubt a great deal of the choicest land within the district
named has been allotted, leaving the less desirable
portions. In the agreement made with the Rosebud
Indians on March 10, 1898, providing for the location of
certain Lower Brule Indians upon the Rosebud reserva-
tion the consideration was fixed at $1.25 per acre for
lands actually required as allotments for such Lower
Brules. This of course contemplated the selection of the
choicer lands and cannot, it is thought, be taken as an
index in determining the price to be paid for the surplus
lands now under consideration.
The total area of the allotments in the Ponca Creek
district, so far as the records of the Indian Office show is
approximately 97,600 acres. Deducting this-from the
56
estimated total area of 530,000 acres leaves a surplus of
432,400 acres. In this connection it is suggested that
Special Allotting Agent Winder be called upon for
information as to any additional allotments within said
district not yet reported to the Indian Office and the area
of the same in order that proper deduction may be made.
In the agreement concluded, if any, provision should be
made for allotments to any other Indians within said
district who may request the same, and for these proper
deduction should also be made.
Respecting the disposition to be made of the proceeds
arising from the proposed cession, if any be effected, the
Department feels that this is a subject requiring most
careful and earnest consideration on your part. From
ample experience the Department is convinced that cash
annuities and the issuance of rations for any extended
period of years to Indians is most detrimental to their
present and future welfare. Idleness and lack of self
dependence are fostered by the ration and annuity
systems, and it is believed that they are one of the great
drawbacks to the progress of Indian tribes toward
civilization. Any provisions, therefore, in the agreement
with the Rosebuds which would enable them to live
without putting forth at least as great effort as at present
to gain a livelihood, would be regarded, necessarily, as a
backward step. The Sioux Indians, as a tribe, especially,
have the lesson of industry and self dependence yet to
learn. The Rosebud Indians in the completion of their
allotments in severalty are now entering upon a new era
in their tribal history, and it is most important that their
future needs under the changed conditions likely to ensue
from their having received such allotments, should be
most carefully considered.
The special needs of the Rosebuds should therefore be
inquired into. Their Indian Agent should also be con-
57
sulted. A plan for the disposition of the proceeds should
be formulated that will tend to promote the welfare of
the Indians and start them on the road to civilization and
self support. Stock cattle, it is suggested, should be
purchased with a portion of the proceeds. The question
of irrigation should also be inquired into and if irrigation
be practicable on the reservation provision therefor
should be made. The educational needs of the Indians
should receive attention, and if any additional facilities
are required they should be provided for. The question of
providing for the construction of houses and the purchase
oi «de riional farm implements, wagons, harness, etc.,
shoud also be looked into, and if needed, provision
therefor should be made. But the agreement should not
provide for the payment of any large sum or sums to the
Indians in cash.
As above indicated, the proposition for the cession of
the surplus lands in question did not come from the
Indians themselves. No undue pressure should therefore
be brought to bear upon them to enter into an
agreement. If, after assembling them in council, and after
fully explaining to them the purpose of the same, they
should refuse to cede the lands referred to, you should
report the fact fully to the Department. If, however, an
agreement is concluded, the same must be executed in
proper form for acceptance and ratification by Congress,
and it should contain a provision to the effect that it
must be so ratified in order to make it valid. In this
connection attention is invited to Article 12 of the Sioux
treaty of April 29, 1868, (15 Stats., 635), which provides
that no treaty for the cession of lands with said Indians
shall be valid unless executed and signed by at least
three-fourths of all the adult male Indians occupying or
interested in the same. Should the signatures of three-
fourths of the adult male Indians be procured, a
58
certificate by the U.S. Indian Agent should be attached
giving the total number of Indians of the reservation
entitled to sign and stating that those who have signed
constitute at least three-fourths or more.
The minutes of all the council proceedings should
accompany the report of your actions to the Department
under these instructions, whether an agreement is exe-
cuted or not.
The act under which these negotiations are to be
conducted, it will be observed, carries with it no
appropriation out of which to defray expenses and the
Department has no general fund available out of which it
can pay any such expenses. Proper instructins will be
given to the Indian Agent, therefore, to co-operate with
and assist you so far as he is able in conducting the
proposed negotiations and to afford you such help as you
may require.
Should there be any points upon which you desire
further information or instructions you should promptly
advise the Department of the fact and request the same.
Very respectfully
/s/W. A. Jones
Commissioner
(J.R.W.)
P.
Approyed
Secretary.
ae
59
[#5]
(Legislative history of S. 2992, 57th Cong., Ist
Sess. (1902)—a bill to ratify an agreement with Sioux
Indians for cession of certain lands of the Rosebud
Reservation.)
[35 Cong. Rec. 377 (1901-1902)|
Rosebud Reservation bills to ratify agreement with
Indians on (see bills S. 2992, H.R. 9057)
— amendment in Senate to bill (S. 2992) to ratify agree-
ment with Sioux Indians on 4855.
— letter of Secretary of Interior transmitting agreement
with Indians on (S. Doc. 31) 206, 245, 1279.
{35 Cong. Rec. 81 (1901)]
S. 2992—
To ratify an agreement with the Sioux tribe of Indians
of the Rosebud Reservation in South Dakota, and
making appropriation to carry the same into effect.
Mr. Gamble: Committee on Indian Affairs 751.—
Reported back with amendments (S. REPORT
662) 2477.—Passed over in Senate 2717, 2882,
3187, 3450, 3541, 3756, 4424.—Debated 4569,
4608, 4715, 4750, 4800, 4801, 4855, 4911,
4963, 4965, 5013, 5019.--Passed Senate
5024.—Referred to House Committee on Indian
Affairs 5198.—Reported back with amendment
(H.R. REPORT 2099) 5613.
60
[35 Cong. Rec. 751 (1902)]
Mr. GAMBLE introduced the following bills; which
were severally read twice by their titles, and referred to
the Committee on Indian Affairs:
***
A bill (S. 2992) to ratify an agreement with the Sioux
tribe of Indians of the Rosebud Reservation in South
Dakota, and making appropriation to carry the same into
effect.
[35 Cong. Rec. 2477 (1902)]
Mr. GAMBLE, from the Committee on Indian Affairs,
to whom was referred the bill (S. 2992) to ratify an
agreement with the Sioux tribes of Indians of the
Rosebud Reservation in South Dakota, and making
appropriations to carry the same into effect, reported it
with amendments, and submitted a report thereon.
[35 Cong. Rec. 2717 (1902)}
AGREEMENT WITH SIOUX TRIBE.
The bill (S. 2992) to ratify an agreement with the
Sioux tribe of Indians of the Rosebud Reservation in
South Dakota, and making appropriation to carry the
same into effect, was announced as the next business in
order.
Mr. PLATT of Connecticut. I shall desire to discuss
this bill at a greater length than is allowed under the rule.
61
It is not a unanimous report of the Indian Affairs
Committee. It involves the whole question of public
policy cbout what we are going to do with these Indian
reservations, and I shall desire to take some time in its
discussion. I think the bill had better stand over, retaining
its place on the Calendar. .
The PRESIDENT pro tempore. The bill will be passed
over, retaining its place on the Calendar.
[35 Cong. Rec. 2882 (1902)]
SIOUX TRIBE OF THE ROSEBUD RESERVATION.
The bill (S. 2992) to ratify an agreement with the
Sioux tribe of Indians of the Rosebud Reservation, in
South Dakota, and making appropriati@m to carry the
same into effect, was announced as next in order.
Mr. KEAN. I think the Senator from Connecticut |Mr.
PLATT] is interested in the bill, and I suggest that it go
over.
The PRESIDENT pro tempore. The bill will go over
without prejudice.
{35 Cong. Rec. 3187-3188 (1902)|
AGREEMENT WITH INDIANS OF ROSEBUD
RESERVATION
The bill (S. 2992) to ratify an agreement with the
Sioux tribe of Indians of the Rosebud Reservation, in
South Dakota, and making appropriation to carry the
same into effect, was considered as in Committee of the
Whole.
62 63
The bill was reported from the Committee on Indian State, with the approval of the Secretary of the
Affairs with amendments. The first amendment was, in Interior, is hereby authorized, in the tract herein
section 3, on page 5, line 18, after the word “missions,” ceded, to locate other lands not occupied, a
to insert” and lands reserved for common schools as quantity equal to the loss, and such co ag ae
provided in section 4 of this act;” so as to read: be made prior to the opening of such lands to
settlement.
That the lands ceded to the United States under
said agreement, excepting such tracts as may be
reserved by the President, not exceeding 398 67/100
acres in all, for subissue station, Indian day school, |
Catholic mission, and 2 Congregational missions,
and lands reserved for common schools as provided
in section 4 of this act, shall be disposed of under
the general provisions of the homestead and town-
site laws of the United States, and shall be opened
to settlement and entry by proclamation of the
President, which proclamation shall prescribe the
manner in which these lands may be settled upon,
occupied, and entered by persons entitled to make
entry thereof; and no person shall be permitted to
settle upon, occupy, or enter any of said lands,
except as prescribed in such proclamation, until
after the expiration of sixty days from the time
when the same are opened to settlement and entry.
The amendment was agreed to.
The next amendment was, at the end of the bill, to
insert the following as a new section:
SEC. 4. That sections 16 and 36 of the lands
hereby acquired in each township shall not be
subject to entry, but shall be reserved for the use of
the common schools, and the same are hereby
granted to the State of South Dakota for such
purpose, and in case either of said sections, or parts
thereof, of the lands in sai’ unty of Gregory is
lost to said State of South —ukota by reason of
allotments thereof to any Indian or Indians now
holding the same, or otherwise, the governor of said
The amendment was agreed to.
Mr. PLATT of Connecticut. I move to amend the bill
in section 3, on page 6, line 18, by striking out after the
word “acre,” down to and including the word “that”
before the word “homestead,” in line 25, and inserting
the word “and” before the word “homestead.”
The PRESIDENT pro tempore. The amendment pro-
posed by the Senator from Connecticut will be stated.
The SECRETARY. In section 3, on page 6, line 18,
after the word “acre,” it is proposed to strike out:
But settlers under the homestead law, who shall
reside upon and cultivate the land entered in good
faith for the period required by existing law, shall be
entitled to a patent for the lands so entered upon
the payment to the local land officers of the usual
and customary fee and commissions, and no other
or further charge of any kind whatsoever shall be
required from such settler to entitle him to a patent
for the land covered by his entry, except that.
And insert “‘and,”’ so as to read:
And provided further, That the price of said lands
shall be $2.50 per acre, and homestead settlers who
commute their entries under section 2301, Revised
Statutes, shall pay for the land entered the price
fixed herein.
Mr. GAMBLE: Mr. President, the bill submitted to the
Senate for consideration was prepared by the Interior
Department, and has its approval and indorsement. Two
amendments were suggested to the bill by the Committce
64
on Indian Affairs, and they have already been adopted by
the Senate. The amendment proposed by the Senator
from Connecticut [Mr. PLATT] eliminates that provision
in the bill in regard to the opening of the lands to free
homes. These lands are situated in the southern part of
South Dakota, west of the Missouri River, and adjoining
the great Sioux Reservation. The Government agrees to
pay the Indians $2.50 per acre for the land proposed to
be ceded. The lands affected by this agreement involve
about 521,000 acres. Of that amount 105,000 acres have
been allotted to 452 Indians, leaving, practically, 416,000
acres unallotted and to be thrown open to settlement
under this agreement.
Under the provisions of the enabling act authorizing
the admission of the State of South Dakota into the
Union, sections 16 and 36 in every township were
reserved for school purposes. This provision did not apply
to permanent Indian reservations, but became operative
when the Indian title was extinguished and the land
restored to and became a part of the public domain, this
would withdraw about 29,000 acres of these lands and
would save 387,000 acres to be opened to settlement,
and which would be affected by the proposed amend-
ment.
Mr. President, we believe that the bill as reported by
the committee should pass without the amendment
submitted by the Senator from Connecticut. It has long
been the policy of the Government to open the Western
reservations to free homes. The homestead law enacted so
many years ago certainly proved of inestimable value, not
only to the West, but to the country at large. A different
policy was inaugurated some ten or twelve years ago,
under which, when reservations were opened, the settler
was obliged to pay the same price for the land that the
Government paid the Indians for the relinquishment of
their title.
65
Two years since a free-homes bill was passed by
Congress after having been discussed at great length,
especially in this body. It occurs to us that by that act
the homestead policy has been reestablished by the
Government. We do not believe it is wise now to reopen
that question.
When the bill to open the Crow Reservation in
Montana was recently under consideration in this body it
passed without any opposition on the part of Senators;
and it opened those lands to free homesteads, involving, I
think, something like 1,000,000 acres. We believe that
the same rule should be applied to the lands in South
Dakota, and that this reservation should be opened in like
manner.
Settlers who go upon these new lands to open and
develop them necessarily meet severe and trying condi-
tions. They are inaccessible and far removed from railway
or other facilities of communication. The settlers are
obliged to bear all the burdens incident to organizing and
developing the local community. They are compelled to
build highways and bridges, to erect schoolhouses, and
maintain schools, the courts, and jails, and all the
expenses of local government. Within the limits of the
lands proposed to be opened to settlement there are
upward of 450 Indian allottees, and the settlers who take
these lands will be obliged to assume the responsibilities
of the local community practically unaided by the
Indians, and to bear largely all the responsibilities that
heretofore have been borne by the General Government.
The Indians have selected the choicest and best lands
along the streams, and the settlers who move in will be
obliged to take the more undesirable lands.
I believe the men who settle upon this reservation and
bear these responsibilities and who build up these new
communities Ought to have their lands at the same price
ee 0
66
that was paid by other settlers upon adjacent lands of like
character. I believe it is nothing more than an act of
simple justice, considering the hardships they must
endure and the responsibilities they must necessarily
assume.
It is a question of policy, and I do not believe we
should depart from the one heretofore adopted by the
enactment of the free-homes law two years ago.
The PRESIDENT pro tempore. The Senator’s time has
expired.
Mr. STEWART. Mr. President, this question ought to
be understood by the Senate.
Mr. PLATT of Connecticut. Will the Senator from
Nevada permit me a moment, as I moved the amendment
which is pending?
Mr. STEWART. I want to speak to that amendment.
Mr. PLATT of Connecticut. I wish to make a single
suggestion.
Mr. STEWART. All right. I yield to the Senator.
Mr. PLATT of Connecticut. | had hoped that the
Senator from South Dakota [Mr. GAMBLE] would
accept the amendment, as the Senator from North
Dakota [Mr. HANSBROUGH] accepted the amendment
in relation to the bill opening up the Devils Lake
Reservation, and I want to say now that if this
amendment is to be opposed the bill can not be disposed
of this morning.
Mr. STEWART. Mr. President, I wish to make merely a
remark or two in order to call the attention of the Senate
to the situation we are in. Although the Indians have no
title, except the title of occupancy, the Government is
bound to take care of them, and to see that justice is
done them. For the most part we have submitted to the
Indians the fixing of the price of the lands which we have
purchased. As the land is settled, the Indians put up the
OO eM ey te .
67
price according to the price of adjoining lands that are
cultivated by white people. In this very case the
committee had much doubt whether the land was worth
$2.50 an acre; but they finally consented to report the
bill, because the Senator from South Dakota insisted that
it would be detrimental and ruinous to the State of South
Dakota to have settlement there tied up in this way, and
that these lands ought to be opened.
If Congress should exercise the power to fix a
reasonable price on the land we open, and pay the
Indians for it, there would be no serious objection to free
homesteads; but if the Indians are to fix an exorbitant
price, the Government pay it, and then open the land to
free homes, there would be great friction before we
disposed of these millions of acres of land. This raises a
very serious question. I was in hopes the Senators from
South Dakota would avoid the question by adopting the
same course which was adopted by the Senators from
North Dakota as to the Devils Lake Reservation. They
accepted a similar amendment to that bill, and the bill
was passed. The Crow Reservation was also opened, and
there was probably paid not more than half as much as it
was worth in the market, and the Government will be
fully reimbursed in that case.
A large portion of this particular reservation will not
be worth very much, because it is not arable land. If the
Government pays $1.25 an acre for the land, and that is
all the Indians ought to demand, then I should be in favor
of opening it to free homesteads, but I am not in favor of
paying the Indians a price which is fixed by the value of
adjoining land held by white men, and then opening it to
free homes, because before we get through with it we
shall find that it will involve a vast amount of money.
I make these observations so that the situation may be
understood by the Senate. If Congress adopts the policy
68
of fixing the price of land to be opened and not leave it
to the Indians, then we can open it to free homesteads
for such price as will be reasonable; but if we leave it to
the Indians to fix the price, under the advice of white
men around there, then it will become so extravagant
that the scheme can not be carried out.
Mr. PLATT of Connecticut. Mr. President, as I
remarked a moment ago, I did hope that the Senator
from South Dakota [Mr. GAMBLE] would accept the
amendment I have offered, which is the same as that
placed in the bill opening the Devils Lake Indian
Reservation a few days ago, which was accepted by the
Senator from North Dakota [Mr. HANSBROUGH}], who
was interested in opening that reservation, and it was
adopted by the Senate.
Manifestly we must have some policy with reference to
the opening of these reservations. If the Senator from
South Dakota insists on opposing this amendment, we
can not discuss this question under the five-minute rule,
and I shall be compelled to object to the further
consideration of the bill this morning.
I want to say right here and now, however, that the
State of South Dakota, as it seems to me, ought to be
pretty well satisfied when we pay to the Indians $2.50 an
acre for this land and then give to the State of South
Dakota two sections, amounting in value to something
over $75,000, which is a clean gift of so much money
from the Government to the State of South Dakota,
without any obligation whatever on the part of the
Government to do so.
The Senator from South Dakota said that when the
State of South Dakota was admitted to the Union there
was a provision in the enabling act that two sections in
each township should be reserved for school purposes.
That is true, Mr. President; but there was also an express
ee
NO a eat
te
One! ats eA Be mg
69
proviso in that act that that reservation should not apply
to any land which was then within an Indian reservation.
So the amendment which has been already adopted is a
clean gift to the State of South Dakota of $2.50 an acre
for all the lands embraced in those two sections in each
township, which would amount, I think, to something
about $75,000, without pretending to be accurate about
it.
Mr. President, this is a question which is very much
larger and more far-reaching in its importance than the
mere question of whether this bill is to pass in the form
in which it was reported by the committee, or whether
the amendment I have proposed shall be adopted. It is
true that several years ago—more than ten years ago, I
think—in opening Indian reservations, we paid large and
extravagant prices for land to the Indians, upon the
theory that the Government was going to be reimbursed
for its expenditures by the settlers paying for the land
which they settled upon a sufficient sum to reimburse the
Government. That went on for years, and everybody
supposed that that was acceptable to the settlers. Then
the settlers began to agitate that the Government should
remit to them the obligation which they had incurred to
pay for the land, and thereby reimburse the Government;
and the history of that agitation of course is well known.
The Government remitted about $35,000,000 which it
had paid to the Indians and which the settlers had agreed
to repay to the Government by the passage of that
free-homes bill.
I well remember the argument here on that question. It
started as to Oklahoma. The ground upon which it was
put was not so much that the free-homes policy should
be continued where we bought the lands from the
Indians, but that this land was in the semi-arid region and
it was impossible for the settlers to make the money on
70
the farms in that semiarid region to pay what they had
agreed to pay. The argument was extended beyond
Oklahoma to all the lands which had been thus opened to
settlement. I do not wish to say, Mr. President, that the
Government was imposed upon by that argument, but I
do wish to say that since that free-homes bill passed you
can not get any person in Oklahoma who will deny that
the lands which were thus affected are worth $20, $25,
and $30 an acre. The school fund commissioners of
Oklahoma, immediately after the passage of that act,
reported to the Government that the lands belonging to
the school fund in Oklahoma were worth, on an average,
$30 an acre.
The PRESIDENT pro tempore. The Senator’s time has
expired.
Mr. COCKRELL. It is manifest that we can not dispose
of this bill under the five-minute rule or under the
half-hour rule. So I think it will have to go to the other
Calendar.
The PRESIDENT pro tempore. The Senator from
Missouri objects to the further consideration of the bill.
Mr. GAMBLE. Will the bill go over without prejudice?
Mr. COCKRELL. It can not be discussed under the
five-minute rule, and it is not worth while to keep it on
the Calendar under the five-minute rule.
Mr. GAMBLE. Perhaps it might be passed without
prejudice this morning.
Mr. COCKRELL. I have no objection to its being
passed over without prejudice once.
The PRESIDENT pro tempore. The bill will be passed
over without prejudice.
es ~—
71
[35 Cong. Rec. 3450 (1902)|
The PRESIDENT pro tempore. * * *
The bill (S. 2992) to ratify an agreement with the
Sioux tribe of Indians of the Rosebud Reservation, in
South Dakota, and making appropriation to carry the
same into effect, was announced as next in order.
The PRESIDENT pro tempore. The bill has been read
in full.
Mr. PLATT of Connecticut. This bill can not be
disposed of under the five-minute rule. I am willing that
it shall go over for to-day, keeping its place on the
Calendar, but unless the amendment which I proposed is
assented to it will have eventually to go over under Rule
IX, when we can have a full discussion of it.
The PRESIDENT pro tempore. The bill will go over
this morning, retaining its place.
Mr. PLATT of Connecticut. Yes.
[35 Cong. Rec. 3541 (1902)]
BILLS PASSED OVER.
The bill (S. 2992) to ratify an agreement with the
Sioux tribe of Indians of the Rosebud Reservation, in
South Dakota, and making appropriation to carry the
same into effect, was announced as next in order on the
Calendar.
Mr. GAMBLE. | suggest that the bill be passed over
without prejudice, retaining its place on the Calendar.
The PRESIDENT pro tempore. It will be passed over,
retaining its place.
72
[35 Cong. Rec. 3756-3757 (1902)]
BILLS PASSED OVER.
Mr. HALE. Now, let us go on with the Calendar.
The PRESIDENT pro tempore. The Calendar under
Rule VIII is in order. The firsi case on the Calendar will
be announced.
The bill (S. 2992) to ratify an agreement with the
Sioux tribe of Indians of the Rosebud Reservation, in
South Dakota, and making appropriation to carry the
same into effect, was announced as next in order on the
Calendar.
Mr. HALE. I object to the bill. Let it go to the
Calendar under Rule IX.
The PRESIDENT pro tempore. The bill goes over and
takes its place on the Calendar under Rule IX.
[35 Cong. Rec. 4424-4425 (1902)]
The PRESIDENT pro tempore. * * *
The bill (S. 2992) to ratify an agreement with the
Sioux tribe of Indians of the Rosebud Reservation, in
South Dakota, and making appropriation to carry the
same into effect was announced as next in order.
Mr. PLATT of Connecticut. That is a bill which will
create a good deal of discussion. I am quite anxious to
accommodate the friends of the bill by having it taken up
at some time when there can be more than a discussion
under the five-minute rule. I think we shall be able to
arrange such a time very soon, and it is agreed, I believe,
that it may be passed over this morning.
Mr. McCUMBER. Retaining its place on the Calendar?
Mr. PLATT of Connecticut. Yes.
- ee me ee teeta 6 ate we te ee Se.
Res 8
73
The PRESIDENT pro tempore. The bill will be passed
over, retaining its place on the Calendar.
[35 Cong. Rec. 4569 (1902)|
AGREEMENT WITH INDIANS OF ROSEBUD
RESERVATION.
Mr. PLATT of Connecticut. Before 2 o’clock arrives, I
desire to ask for a unanimous-consent agreement, if I may
do so at this time.
The PRESIDENT pro tempore. The Chair recognizes
the Senator.
Mr. PLATT of Connecticut. The friends of the bill for
opening the Rosebud Reservation are very anxious to
have consideration of that bill. It has been objected to
because it could not be discussed under the five-minute
rule. I desire to move an amendment and to discuss the
bill. I therefore ask unanimous consent that after the
matter which was under consideration this morning shall
be disposed of, that bill may be taken up after the
routine business in the morning hour, and discussed
without limitation as to time.
Mr. WARREN. Does the Senator from Connecticut ask
that it be considered to-morrow, or at some later time
than to-morrow?
Mr. PLATT of Connecticut. Whenever the matter
which is now under discussion in the morning hour shall
have been concluded.
Mr. WARREN. I merely call the Senator’s attention to
the fact that there is an agreement to go into executive
session tomorrow immediately after the morning busi-
ness.
74
Mr. PLATT of Connecticut. Well, whenever the oppor-
tunity shall occur after the consideration of the matter
which has been under discussion this morning.
The PRESIDENT pro tempore. The Senator from
Connecticut asks unanimous consent that the bill to
which he refers may be taken up for consideration in the
morning hour after the final disposition of the bill now
under consideration in the morning hour, and that there
shall be no limitation of the five-minute rule in the
debate. Is there objection? The Chair hears none, and the
order is made.
Mr. JONES of Arkansas. What is the bill?
Mr. PLATT of Connecticut. It is the bill relative to the
opening of the Rosebud Reservation.
The PRESIDENT pro tempore. The number and title
of the bill will be stated.
The SECRETARY. Order of Business 675, a bill
(S. 2992) to ratify an agreement with the Sioux tribe of
Indians of the Rosebud Reservation, in South Dakota,
and making appropriation to carry the same into effect.
[35 Cong. Rec. 4608 (1902)]
AGREEMENT WITH INDIANS OF ROSEBUD
RESERVATION.
The bill (S. 2992) to ratify an agreement with the
Sioux tribe of Indians of the Rosebud Reservation, in
South Dakota, and making appropriation to carry the
same into effect was announced as first in order on the
Calendar.
The PRESIDENT pro tempore. There has been an
arrangement made in relation to this bill. It goes over
without prejudice.
—— ee
eee ee
75
[35 Cong. Rec. 4715 (1902)}
BILLS PASSED OVER.
The PRESIDENT pro tempore. The Secretary will
state the first case on the Calendar.
The bill (S. 2992) to ratify an agreement with the
Sioux tribe of Indians of the Rosebud Reservation, in
South Dakota, and making appropriation to carry the
same into effect, was announced as the first business in
order on the Calendar.
Mr. PLATT of Connecticut. That has been made the
subject of an agreement. It will therefore go over.
The PRESIDENT pro tempore. The bill goes over,
retaining its place.
[35 Cong. Rec. 4750 (1902)}
INDIANS ON ROSEBUD RESERVATION, S. DAK.
Mr. PLATT of Connecticut. I have been anxious to
accommodate my friend, the Senator from South Dakota
{Mr. GAMBLE], by taking up a bill which stands first on
the Calendar under Rule VIII. I do not think there is time
to dispose of it this morning. I give notice that to-morrow
morning, immediately after the routine business, | will
ask the Senate to consider the bill.
Mr. CULLOM. What is the bill?
Mr. PLATT of Connecticut. It is the bill (S. 2992) to
ratify an agreement with the Sioux tribe of Indians of the
Rosebud Reservation, in South Dakota, and making
appropriation to carry the same into effect.
76
[35 Cong. Rec. 4800-4807 (1902)]
AGREEMENT WITH INDIANS OF ROSEBUD
RESERVATION.
Mr. PLATT of Connecticut. I ask that we may take up
Senate bill 2992, the first bill on the Calendar under Rule
VIII, and that the discussion may proceed without the
five minutes’ limitation.
The PRESIDENT pro tempore. The Senator from
Connecticut asks that the Senate proceed to the consider-
ation of the bill (S. 2292) to ratify an agreement with the
Sioux tribe of Indians of the Rosebud Reservation in
South Dakota, and making appropriation to carry the
same into effect, and that the debate upon the bill shall
not be subject to the limitations of Rule VIII. Is there
objection? The Chair hears none.
The Senate, as in Committee of the Whole, resumed
the consideration of the bill.
The PRESIDENT pro tempore. The bill has been read
in length as in Committee of the Whole.
Mr. GAMBLE. The amendment offered by the Senator
from Connecticut [Mr. PLATT] is pending.
Mr. PLATT of Connecticut. When the bill was up
before I proposed an amendment, which does not appear
on the bill. I have not the amendment with me. If I could
find the Record I would turn to it.
The PRESIDENT pro tempore. The amendment will
be stated.
The SECRETARY. In section 3, page 6, line 18, after
the word “acre,” strike out down to and including the
word “that,” is line 25, and insert the word “and;”’ so
that the additional proviso, if amended, would read:
And provided further, That the price of said lands
shall be $2.50 per acre and homestead settlers,
——— =
;
77
who commute their entries under section 23 of the
Revised Statutes, shall pay for the land entered the
price fixed herein.
Mr. PLATT of Connecticut. At the rec iest of the
Senator from North Dakota [Mr. McCCUMBER], I yield
to him for a few moments.
** *
AGREEMENT WITH INDIANS OF ROSEBUD
RESERVATION.
The Senate, as in Committee of the Whole, resumed
the consideration of the bill (S. 2992) to ratify an
agreement wita the Sioux tribe of Indians of the Rosebud
Reservation in South Dakota, and making appropriation
to carry the same into effect.
Mr. PLATT of Connecticut. Mr. President, this bill and
the amendment which I have proposed to it present a
very serious question of our public policy. I regret that
other matters have so engrossed my attention that I am
not particularly prepared to present the question which is
thus raised. I may say in the outset that the question
involved here means a great many millions of Govern-
ment expenditure if it should be decided in one way, and
it incidentally affects our whole Indian policy.
This is a bill for the opening of the Rosebud
Reservation in South Dakota. I do not remember at this
time the exact number of acres which are thus to be
opened by the bill, but the price to be paid to the Indians
is something over a million dollars. The question is
whether the Government, in opening the lands to
settlement, shall give the lands thus purchased from the
Indians to the settlers under the homestead law, or
whether it shall require the settlers who take up these
arrears
78
lands under the homestead law to pay for them a sum per
acre equivalent to what the Government pays the Indians
for them. In other words, in opening the Indian reserva-
tions which already remain, what is to be the policy of
the Government? Are we to pay the Indians a high price
for the lands which we obtain a cession of, and then give
those lands to settlers free of cost, or shall we require the
settlers to pay as much for the lands as will make up
wholly for the amount which we have paid for them?
That is the question, and Senators will see that it is a
far-reaching question.
I do not know how many million acres still remain in
Indian reservations which must in the future be opened
to public settlement, but there are many millions, and, at
the rate we have been paying the Indians under the
agreements made with them for such lands, the amount
to be expended in the not very distant future will run up
into the millions. At a rough calculation I would say that
probably the Government in opening the reservations
already existing and paying the Indians for the lands at
the rate which we have been paying under the agreements
negotiated with them will expend somewhere in the
neighborhood of $50,000,000. That may be over or
under the mark, but approximately and for the purpose
of presenting this question it may be assumed as a fair
statement.
Now, shall the Government pay these millions of
dollars to acquire the Indian title and give away the lands
to the settlers, or is it but just that if settlers require these
lands they shall pay for them per acre the same which the
Government pays to the Indians?
It has seemed to me, Mr. President, that there is no
injustice whatever in asking a settler who may go upon
the lands thus acquired from the Indians to pay for them
what the Government pays the Indians. I am not satisfied
ee ee eee een ee ee ee a
+ cl
a ee oe a
aire vt Cee
ON ee ee
79
that the Government has been doing the right thing in
paying to the Indians the high prices which it has agreed
to pay for the lands thus acquired. Of course, the Indian
title is an occupancy title; it is not a title in fee. The title
to these lands is in the Government of the United States,
subject to whatever rights the Indians have, whether by
treaty or otherwise, to hold the lands so long as they
remain a tribe and occupy them. There is no question
about the nature of the title. If the Indian tribe became
extinguished or ceased to occupy the lands they would be
Government lands and belong to the public domain.
Now, it seems to me that in negotiating with the
Indians for the cession of their reservations the Govern-
ment ought not to pay them what those lands are worth
in fee, or indeed anything approaching it, but that they
should be negotiated with upon the theory that their title
is worth what the lands are worth for their occupation
and without reference to the enhanced value which has
come to be put upon the lands in fee on account of the
settlement of the country surrounding the Indian reserva-
tions. But another policy seems to have prevailed.
Of course it goes without saying that where there is an
Indian reservation all the settlers upon the public lands in
the vicinity of that reservation are anxious to acquire the
lands which are not needed by the Indians, and so there is
a pressure that each Indian should have an allotment of
lands of 160 acres, or as the case may be, and that then
the remaining lands should be open for settlement. That
pressure is very great. It presses upon every Indian
reservation. The reservations are now within the States
largely. The State of South Dakota has, | think, some-
thing like 8,000,000 acres of land still contained in
Indian reservations, and in other States and in the
Territories there are other quantities of land in reserva-
tions.
80
Now, the pressure for the opening of this land is great.
I do not think anyone who does not live in the vicinity of
those reservations understands how great it is. Therefore,
it is insisted that the Interior Department shall negotiate
with “‘e Indians for the opening of the reservations, and
a bill passes here without any consideration at all
directing that the Secretary of the Interior shall negotiate
with this or that tribe of Indians for an agreement for the
allotment of their lands and the ceding of their surplus
lands to the United States, and a commission goes there
for that purpose.
Indeed, we have a general bill which has been passed
without much consideration providing that the Interior
Department may send an inspector to negotiate with the
Indians for the opening of the surplus lands of the
reservations to settlement, and then the settlers and
Senators representing the inhabitants of the States press
the Interior Department to hurry up the negotiations,
and a commission or an inspector is sent out to negotiate
with the Indians, the result of which is that the Indians
say, “Why, these lands are worth five, ten, fifteen, twenty
dollars an acre. Look over there, just on the other side of
our reservation, you can not buy any lands for less than
that sum, and we must have what the lands are worth.”
Then the inspector or the commisssion feeling that an
agreement must be made, negotiate as well as they can
with the Indians, and when they get them down to the
lowest price it is accepted, and an agreement is sent here
to be ratified.
Now, this particular agreement comes here to be
ratified upon a payment to the Indians of about $2.50 an
acre for the surplus lands within their reservation which
are under the agreement to be ceded to the United States
and become part of the public domain. The Indians in
negotiating said that was not a fair price for the lands and
Le ll EI let Ah te
~~ tes Ah ie pinii aii
tlie
81
they were worth a great deal more, but finally the
negotiation was concluded. The agreement comes here.
So far as the Senate considers it, it is an agreement to
open a reservation—to pass ordinarily without any parti-
cular examination or any thought of the consequences to
the Government in the matter of expense. I will not go
into the history of the negotiations as to these lands, but
the price paid or agreed to be paid to the Indians is $2.50
an acre for the entire acreage which is to be brought
under the public domain by cession to the United States.
The bill proposes that the land thus acquired shall be
open to homestead settlement without requiring any
payment for the land settled upon from the settler. My
amendment proposes that the settler shall pay $2.50 an
acre, being the same which the Government has agreed to
pay to the Indians, and that thus the Government shall be
reimbursed for the amount expended for the purchase.
Mr. President, this is said to be in opposition to a
policy of the Government supposed to have been
declared when we passed last year what was known as the
free-homes bill, and that opens a large question. Before I
come to that, however, I wish to say that we have already
passed two bills in the Senate in which there was
incorporated a provision that the settlers should pay to
the Government for the land settled upon a sum
equivalent to that which had been paid by the Govern-
ment to the Indians for opening the reservations. The
Devils Lake Reservation was one of them, at $3.50 an
acre, and the other, which was passed on the motion of
the Senator from Minnesota |Mr. CLAPP] the other day,
was the Red Lake Reservation, at $3.90 an acre.
The Senate has, then, in the passage of those two bills
adopted the principle which I ask to have adopted on this
amendment. It is but fair to say that it has passed one
bill, for the opening of the Crow Creek Reservation, in
82
which no such provision has been made. If Senators ever
remember what other Senators have said they would
remember that when that bill was under consideration I
called attention to it, but under the circumstances, I did
not at that time propose such an amendment as I have
proposed to the pending bill.
Now, coming to the question whether by the passage
originally of the homestead act and by what has been
more recently known as the free-homes bill we are bound
to buy lands from the Indians for settlement and then
give those lands to the settlers or not, I have some
observations to make upon that subject. I can not see
what obligation there is upon the Government on
account either of the homestead act or the free-homes
bill to continue the policy of buying lands from the
Indians to give to settlers any more than to buy them
from citizens of the United States to give to settlers.
I can not see why we should spend a million dollars to
buy Indian land and then give it as a free gift to anybody
who chose to settle upon it any more than we should
spend a million dollars to buy the farms of citizens in
Connecticut and South Dakota or in any other State and
give those lands to people who desire to settle upon
them. I can not see how in South Dakota we should buy
lands from Indians on a reservation, paying a million
dollars for them, and then give away those lands to
settlers any more than we should pay a million dollars to
people residing just off the reservation for the purchase
of their farms and give the land they acquired to people
who desire to settle upon it. Neither the homestead law
nor the free-homes bill commits the Government to any
such policy as that.
Now, we go back to the homestead law. At the time
the homestead law was passed we certainly had not been
buying lands for the purpose of giving them away to
—
83
settlers. Certainly that had not been the policy of the
Government up to that time. We had been extinguishing
Indian titles in the West at a very moderate price,
sometimes as low as 5 cents an acre and even less. We had
been extinguishing the Indian title until we had acquired
a vast domain of public land which was then being sold.
I do not know that I can state exactly what the old
laws were, but up to the time of the passage of the
homestead act the Government had been selling lands or
offering them for sale at a specified price, and if the price
was not obtained opening them under what is called the
premption laws, allowing people to enter upon them. Up
to the time of the passage of the homestead act we had
certainly not been buying lands to give away. Neither did
we do it under the homestead act. We had the lands.
They had been acquired, not for the purpose of imme-
diate settlement, but for the purpose of extinguishing the
Indian title and holding the lands as a part of the public
domain.
Then came the agitation of the proposed homestead
law, and it passed. It dealt with and had reference to a
great bulk of public land which we had thus acquired,
which under our policy of sale had not netted the
Government as much as it ought to have done, and in
regard to which there had been great frauds and
speculators had acquired large portions of the public
domain without paying any very adequate price for them.
Then the homestead act was passed, and the lands were
taken up under the homestead laws, which required a
settler in order to obtain final title to his land to live
upon it and cultivate it for five years or to commute it at
a specified rate. That policy was continued from 1862 up
to 1880. I do not think that during all that time it can be
said that any lands were bought of the Indians for the
purpose of immediate settlement.
84
But in 1880 there were a large number of Indians
roaming over the State of Colorado. The bands of the
Confederated Ute Indians were occupying very large
portions of the State and negotiations were had with
those Indians by which they agreed, without going into
particulars, to surrender their claim—their title to lands in
the State of Colorado—and to remove southward into
Utah and elsewhere, under an act of Congress, by the
terms of which the lands thus surrendered by the Indians
should be sold and the Indians paid for them at the rate
of $1.25 an acre, and that the settlers, when they took
the lands, should pay $1.25 an acre to the Government.
That, to my mind, changed the policy of the Govern-
ment, and we adopted a new policy; that is, that when we
bought lands from the Indians and opened them to
settlement, we would require the settlers to pay the
Government for them as much as the Government had
paid to the Indians. Colorado has been settled under that
act, and the settlers have paid $1.25 an acre for the land,
and that money has been passed over to the Confederated
bands of Ute Indians. That policy continued up to the
time of the opening of public lands in Oklahoma and in
South Dakota. We were forward, and we paid the Indians
large prices for their lands.
It will be remembered that as to the Cherokee Strip,
we paid, I think, an average of $6 an acre for those lands;
and for lands occupied by Indian tribes in Oklahoma we
paid all the way from $1.25 to $2.50 and even $3 an
acre.
In the act which opened those lands to settlement
there was a provision that the settlers should pay to the
Government a certain price per acre, which was enough
to reimburse the Government. That went on in South
Dakota and in other places, and wherever land was
purchased from the Indians it was required in the act
ea
85
which opened the land for settlement that the settlers
should pay enough to reimburse the Government.
Senators will remember the agitation which arose for
the remission to the settlers of the money which they had
agreed to pay in settling upon these lands in Oklahoma.
The question arose first in Oklahoma. It was put upon
the ground, not so much that the Government ought to
buy lands from the Indians, and then give them away, as
upon the ground that these lands belonged to the subarid
region, and that it was impossible for the settlers upon
them to make off of the farms, upon which they had thus
settled, money enough to meet their obligations to the
Government. Senators will remember the maps which
were brought in here, on which the arid and subarid
regions were pictured, to show where the settlers had
gone. The demand that the obligation should be released
in Oklahoma was taken up in South Dakota, so as to
embrace all the lands as to which this policy had
prevailed, of requiring payments from the settlers to
reimburse the Government. As in various other cases
where great pressure is raised, that bill was passed. The
people interested im ic got it into the platforms of both
political parties, where, of course, very little was known
as to the effect of it, and the bill finally went through the
Senate. |
Shortly after the bill passed the Senecve there came a
change in the estimate of the value which was placed on
these lands. I think I am not mistaken in saying that
within a year after the free-honies biil passed the
school-fund commissioner of Oklahoma made a report in
which he said the average value of the land belonging to
the school fund in Oklahoma was $30 an acre.
We have been told that on account of the subarid
conditions it was impossible for the farmers or settlers
upon these lands ever to discharge their debt to the
86
Government, and the time of payment has been extended
and extended year after year because they could not
meet their payments. But immediately after we passed
the bill they began to boast of the value of their lands.
Very soon after the passage of the free homes bill,
indeed, at the time of its passage, there was an act
providing for the opening of the Wichita Reservation, and
in that act, as in the other acts we have passed, there was
a provision that the settler should pay for the lands he
took, so as to reimburse the Government. Those lands
had not been opened at the time of the passage of the
free-homes bill, and so that bill did not apply to them;
the settlers were not released from the obligation to pay a
dollar and a quarter an acre for these lands, and that law
stands. Those lands in the Wichita Reservation have not
been taken up under the act requiring the settlers to pay
$1.25 an acre for the lands settled upon.
I think, Mr. President, that is true with regard to the
opening of the Kiowa and Comanche Reservation. It will
be remembered that there was such a rush for those lands
that the question had to be determined by lottery, and
that, I imagine, will be the case with reference to the
lands referred to in this bill. There will have to be some
method to determine as to how the settlers shall take the
lands.
When we opened the Colville Reservation, if I am not
mistaken, we required the same policy to be pursued;
that is, that the settlers should pay for the lands.
So, since the passage of the free-homes bill up to the
time of the passage through the Senate of the Crow Creek
Reservation bill, we have been insisting that the settler
should pay a sum sufficient to reimburse the Government
for the land he takes. As I said before, I see nothing
inconsistent with either the policy of the homestead law
or the policy of the free-home act in that respect. It is
ee ee ee ee ee ee
87
true that the question of free homes was talked about at
the time of the passage of that bill; but that was not a bill
to buy land of the Indians at full prices and then give the
lands away to settlers. It was to release the settlers from
their obligation to pay the Government what they had
agreed to pay in taking up the lands. It was put, in the
first instance, upon the ground of their inability to pay
the amount. So that this comes up as a new question. It
has got to be settled now, and as it is settled now it will
probably remain the policy of the country.
We gave away to the people who had settled upon
Government lands, under an understanding and agree-
ment that they were to pay for them, a good many
million dollars—say $20,000,000—and it has been stated
to be a larger sum than that. I put it within bounds when
I say that we released to them $20,000,000. If that was
right—if the settlers were entitled to free homes without
paying the Government for the land what the Govern-
ment had paid to the Indians—we ought not to stop
there, but we ought to refund to the people who have
settled Colorado a dollar and a quarter an acre; we ought
to refund to the people who have settled the Wichita
Reservation their dollar and a quarter an acre, and
wherever at any time we have required that settlers
should pay for the lands thus opened we ought to refund
to them the price paid. It is just as much our duty to do
that as it was our duty to release from their obligations
those who had made agreements with the Government.
We should make no distinction, as it seems to me. But
that is neither here nor there. The question is, What are
we going to do in the future?
Mr. SPOONER. Will the Senator allow me to ask him a
question?
Mr. PLATT of Connecticut. Certainly.
88
Mr. SPOONER. I came into the Senate Chamber while
the Senator was speaking, and he may have referred
earlier in his remarks to the point concerning which |
should ask him a question. I ask the Senator if there has
been any estimate of the number of acres in the
reservations yet to be acquired from the Indians in this
country which will probably call for a determination of
this question of policy, whether we shall continue to do
what we have done, or stop?
Mr. PLATT of Connecticut. I said in the opening that I
had not any accurate figures, but I thought it was safe to
say that we had still remaining Indian reservations, which
were in the near future to be opened to settlement, which
would cost the Government in the neighborhood of
$50,000,000.
Mr. COCKRELL. How much did the Senator say?
Mr. PLATT of Connecticut. Fifty million dollars. I
should like the opinion of the Senator from Missouri on
that. I am not speaking accurately.
Mr. COCKRELL. I have been looking for the exact
data, but I have not been able to arrive at the precise
sum. It is, however, a large sum—many millions.
Mr. PLATT of Connecticut. Take the State of South
Dakota. We are paying her $2.50 an acre for these lands
and they have remaining something like 8,000,000 acres.
That is $20,000,000 by itself. If we continue to open up
lands at the same rate and we continue paying to the
Indians for these lands, it is a question of $20,000,000
for the State of South Dakota; and I think that, running
through my mind other reservations, I am entirely within
the limits when I say that if we go on paying the Indians
at the rate we have been paying them for their title, the
Government will expend in the very near future at least
850,000,000.
89
Mr. President, there is really no necessity for this. It
will be observed that the taking up of these lands, thus
purchased from the Indians and thrown open to settle-
ment, has become very much of a lottery. There is a rush
for them, with the “devil take the hindmost.” The
opening of the Oklahoma Reservation, the Cherokee
Reservation, was not so long ago but that the circum-
stances attending it are in the recollection of Senators.
People camped for months on the borders of that
reservation, and we were required to send troops down
there to prevent the people going in until the time came
for the President’s proclamation, when they could go in,
and then there was a mad rush to get the best lands, with
the usual result of a whole crop of claims of fraud in
getting upon those lands. Then came the opening of the
Kiowa and Comanche Reservation only last year, where
similar scenes would have been enacted if it had not been
that the Government established a kind of lottery there,
and the applicants drew lots as to who should have the
first opportunity to make settlement.
So the settlement upon those lands, thus acquired
from the Indians, has come to be largely professional.
The first push for them is by people who think they are
going to make something and get something for nothing.
So that in the settlement of these lands it has come to be
well known that there are three classes of settlers upon
the public lands, first, the professionals, who rush in and
through their smartness acquire valuable holdings, with
the intention of disposing of them just as soon as they
can; second, the people who remain behind, who do not
get in at the first rush, and who buy from the speculators
and the professional settlers who get in in the first rush.
They may be called the middlemen. Finally the land is
sold to the real settler, who goes there to make a home
and get a living off the farm. Am I not right about
that?
90
Mr. President, why should this be? Why should we buy
land from the Indian, giving him practically the value of
his land, as if he held it in fee simple, then open it to
settlement under the homestead law, and give it to the
man who can first get onto it any more than we should
buy land from the citizen adjoining the reservation for
the same purpose? I do not know but that I have said all I
desire or need to say upon this subject. I wished to place
the matter clearly before the Senate as it seemed to me.
Certainly we have got to do one of two things. We either
must, I think, having the interest of the Government in
view, stop paying these high prices to the Indians for
their land, or we must require the settlers to reimburse
the Government.
In regard to that subject, there is a sentiment in the
country which holds amongst philanthropists and hu-
manitarians that we ought to pay the Indians what their
land is worth at the present time, upon the idea that it
belongs to them. I do not share in that idea. I think that
when we make an Indian tribe rich we delay its
civilization. The easiest Indians in the country to civilize
are the blanket Indians, and they have no money, no
funds, no lands, no annuities. The Indians in this country
who make the most rapid advance toward civilization and
citizenship are the Indians who have not any great funds
to their credit in the Treasury. The hardest Indians to
civilize or to start on the road to advancement to
civilization are those who have the largest funds in the
Treasury to their credit.
I might illustrate by the Osages, whose fund is the
largest per capita of any Indian fund—indeed, the Osage
nation is per capita the richest community in the world if
their lands and their funds were to be divided among
them per capita. It is and has always been utterly
impossible to break up their tribal customs or to change
9]
their tribal habits or to get them to cultivate the land to
any extent. They simply regard themselves as rich people
who are under no obligation to work. I remember, when
visiting their reservation at one time, | said to one of
them, through an interpreter—a very inteiligent Indian, I
thought— “Why do not you Indians take up these lands
in small holdings, cultivate them, raise wheat, corn, and
vegetables, have some stock, and farm the lands as men in
my country farm?” ‘‘Why,” he replied to me through the
interpreter, with an air of superiority, “sir, do your rich
men work?”
So, if not impossible, it is almost impossible, to change
the habits and customs of the Indians if they have large
funds from which they can draw annuities.
I do not want to extend these remarks on the Indian
policy in the discussion of this bill; but, as I said, either
one or the other policy I have indicated ought to be
pursued. We ought not to recognize the fact in dealing
with the Indian for the opening of his reservation that he
can claim that the land which he cedes to the Govern-
ment should be paid for at its full value, or we ought to
require that, if we are obliged to pay, and do pay, full
value or what approximates full value for the land, the
Government should be reimbursed.
There is another feature of this case which I wish to
present, and which | think should commend itself to the
Senators from South Dakota. We have passed here an
irrigation bill, and passed it unanimously in the Senate.
Its friends—and I think we are all its friends—desire that it
shall prevail in the other House; but whether it does or
not at this session of Congress, it is apparent that in the
near future the Government is to take the money derived
from the sale of public lands and apply it to irrigation
purposes. But the Government lands from which money
can be derived to be applied to irrigation purposes are
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pretty much gone. It is the lands which are to be acquired
by the opening of these Indian reservations upon which
our irrigation friends must rest for their hope that they
will acquire any large money from the Government lands
for irrigation purposes.
If we make the settlers reimburse the Government for
what it has paid the Indians for their lands, what is the
result? The Government is going to get back the money,
to be sure, but it is going to take it immediately and hand
it over for the purposes of irrigation. I do not know how
it is in South Dakota, but I think South Dakota is one of
the irrigation States in which it is proposed to take the
money which is derived from the sale of the public lands
and apply it to that purpose. I think this view of the
subject should commend itself to those Senators who
wish to commence and to extend the irrigation of the
arid lands. I think the necessity of enriching those arid
lands by irrigation is just as great, to say the least, as the
necessity of opening lands not needed to be irrigated to
free settlement.
Mr. DUBOIS. Mr. President, it seems to me there is
only one thing to do in this case. When the free-homes
bill was passed, it set a precedent which I think we are
almost bound in honor to follow. I had the honor to be
the chairman of the Committee on Public Lands when
the free-homes bill was being pressed. I was opposed to it,
and I was opposed to it to such an extent that ihe
Senators interested took it out of the charge of the
Committee on Public Lands and passed the bill through
the Committee on Indian Affairs, where it did not
belong. Some Senators, as you know, were very much
interested in it.
I was opposed to the free-homes bill unless it should be
applied to future reservations as much as to those which
had already been opened; and that was, I think, a
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perfectly logical and sound position. Now we are again
confronted with the question, and we shall be confronted
with it every time we open an Indian reservation. The
argument in favor of the free-homes bill seemed to be
sufficiently sound. At any rate, it convinced both
branches of Congress, and the bill was passed.
The Senator from Connecticut [Mr. PLATT] speaks
about the settlers reimbursing the Government. The
reason the free-homes bill was passed was that the settlers
could not reimburse the Government. A commission is
sent out, for instance, to conduct negotiations with a
tribe of Indians for the relinquishment of certain of their
lands on the reservation. All the settlers nearby, and more
especially if there is a town adjacent, are exceedingly
anxious that a treaty shall be made. The Indians
understand this perfectly well, and they put a price on
their land which is far beyond what it is worth to
anybody. Here is this pressure from all sides, from the
settlers, naturally enough, to have these lands opened,
thinking that it is going to build up the country at once,
and they urge the commissioners to make any trade they
can. After four or five conferences the commissioners
make an agreement with the Indians and bind the
Government to pay them more for the land than it is
worth. In the past the settlers have gone in and taken all
these lands and found out that they could not pay for
them. Every Senator here from the middle West is old
enough to know that when a man goes upon public land
and reclaims it it costs him sufficient money without
paying anything in addition for the land. It is a very hard
matter to reclaim wild lands, whether they are timber
lands or sagebrush lands. It requires a sufficient expendi-
ture without anything added.
We have an illustration in my State, and I thought the
Senator from Connecticut was going to mention it. When
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the free-homes bill was passed, at the same session, but a
little later, we opened up a reservation in Idaho—the Fort
Hall Reservation—a large section adjacent to a town of
five or six thousand people. I recollect going down and
addressing the Indians myself.
Mr. SPOONER. In what language?
Mr. DUBOIS. In their native language—through an
reter. [Laughter
ewe were ce to have these lands opened up
adjacent to this town of five or six thousand people. The
town is the center of the Indian reservation. The
commissioners made an agreement with those Indians by
which they were to pay $15.75 an acre for some of their
lands. They were to pay $10 an acre for land lying along
a water course, $5 an acre for perpetual water rights, and
75 cents annually for maintenance charges. The people
will not take up that land. The proclamation opening the
reservation will be issued in a month probably, and I
know very well what will happen. The people, just as
soon as they have taken the land, will appeal to Senators
and Representatives in Congress to have the free-homes
act applied to them; and that will be the case in almost all
of these reservations.
Mr. PLATT of Connecticut. May | ask the Senator a
question?
Mr. DUBOIS. Certainly. |
Mr. PLATT of Connecticut. Does the Senator think we
ought to go so far as that—when we open up irrigable
land and require the settlers to pay for the improvement
and irrigating the land we ought then to refund that
money to the settlers? —
Mr. DUBOIS. No; I do not go so far as that, I think in
that case a fair price should be fixed or the land sold to
the highest bidder. For the other lands in this reservation,
which are entirely outside of it, we have to pay $3.75 an
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acre; but the Government had already built this canal; it
is Government property, and the Government owns it. In
the States of Wisconsin, Indiana, Illinois, and lowa the
public lands were given to the settlers.
Mr. SPOONER. The Government owned those lands.
Mr. DUBOIS. The Government owned those lands, and
they were given to the settlers under the then existing
land laws. You put the Indians on large tracts of lands in
the Western States, and in our country, which we are now
trying to settle up, you segregated large sections of land
and put Indians on them. They got about as good land as
there were out there. And there is no reason—and this
point was thrashed over and was the cause of the passage
of the free-homes bill-why our people should not have
these lands from the Government the same as the older
States had their public lands.
Mr. PLATT of Connecticut. | do not wish to interrupt
the Senator, but I think he will agree with me that lands
in Illinois and Indiana and Ohio—
Mr. COCKRELL. And Missouri.
Mr. PLATT of Connecticut. Were not taken up under
the homestead law. They were taken up under the
preemption laws and paid for.
Mr. DUBOIS. I do not care how they were taken up.
This proposition is to have the lands taken up under the
homestead law, which is one of our public land laws. The
lands in Missouri, Illinois, and so on, were taken up under
the then existing land laws. I thoroughly agree with the
Senator from Connecticut that we are paying too much
for these Indian lands, and I am willing to go with him
and adopt a policy of paying for the Indian lands what
they are worth on a fair appraisement and paying no
more for them, and not pay a fictitious price set by the
Indians on account of the pressure from white men on
the outside, and then turning these lands over to
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settlement under the homestead act. But I am very much
opposed to making the settlers reimburse the Govern-
ment for what it pays for the Indian lands, knowing as
well as the Senator from Connecticit does that in every
instance almost the commissiners appointed by the
Government have fixed too large a price, and knowing, as
we from the West do know from experience, that our
settlers can not reclaim these lands and pay this price for
them.
Mr. STEWART. Mr. President, there are many embar-
rassments arising from the unfortunate policy adopted in
the early days in the treatment of the Indians. It was
assumed that they were different from other human
beings and that they would not work. That was not
assumed in Mexico or South America, and the result
there has been that the Indians constitute probably
four-fifths at least, and perhaps nine-tenths, of the
population; and they are good, honest, working people,
and they have improved. It has not been assumed, either,
in British Columbia. I was there a few years ago, and in
Victoria I found the Indians of the same tribe that I had
found on this side taking contracts, etc. It is a mistake to
believe that they will not do under like circumstances as
other human beings will do. We commenced with the
system of buying them off, of feeding them, of nursing
them, of assuming that they would continue to be the
wards of the country.
One early day Chief Justice Marshall held that it was
the point of all European countries to disregard the title
of the natives, and that discovery gave title to the
country which made the discovery. It was said that the
governments of Europe had title to the land and were not
under the obligation of recognizing the native title, and it
was not recognized in Spanish-American countries. It was
disregarded, and the Indians were treated like other
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human beings who were poor and dependent and had to
work for a living.
Wherever they have been thus treated the Indians have
developed a great capacity for improvement. In my State
I saw something of them before I came here, and I
opposed reservations. I opposed the feeding of them. I
claimed that the Indians were better off if let alone, and
we find that is true. They are scattered all over the State
in little camps. We find them at work and improving, and
they are superior to other Indians. They are different
Indians. Of course they are. They are very much superior.
You can distinguish them at once from Indians who have
been on a reservation. The reservation Indian has not
developed at all. Go to the school at Carson, and you can
very readily pick out the Indians who come from
reservations from those who have been on farms and at
work and let alone.
If we had adopted that policy in the beginning we
would have had three or four or perhaps ten or fifteen
million good Indians. Take human beings, particularly
before they have been developed by civilization, and teed
them, supply their wants, and they will not exert
themselves to supply their needs. I remarked once of the
people of this city that if they were surrounded by an
army and could not go out of Washington for a couple of
generations and were fed and nursed and cared for they
would come pretty nearly down to the level of the
ordinary Indian; that they would degenerate very rapidly.
That is the way we have been treating the Indians.
Now, by Executive order a very large portion of the
West has been reserved. We are attempting to open those
reservations. Let me tell the Senate some of the difficul-
ties we meet with. There are a lot of leases out. The men
who want land for that purpose stand between us and
negotiations—ranchers and such. They are men putting up
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a fancy price on the Government. They are speculators
with the Indians. The Indians see the price of land
adjoining theirs, where farms are, selling at a certain
price, and they ask the same price, and they will always
demand that price. Why should they not? They are fed
anyhow; they are independent they do not have to work
for a living; they are in comfortable circumstances, and
they can wait.
If the lands can be leased and they get the proceeds,
while the Government is feeding and educating them,
they are not under the common necessity to become
civilized. If we continue the policy of letting the Indians
fix a fancy price on these lands and we buy them and give
them away we shall involve the Government not in
$50,000,000, but in more than $100,000,000.
The question is whether that is wise policy. The
Committee on Indian Affairs have been discussing it
during the whole session. They have been discussing the
question—what could be done under those circumstances;
how far we are bound by the possessory title of the
Indian to submit to his terms; whether the Government,
having agreed to take care of the Indians, having some
right to regulate the contributions it makes and the price
it shall pay for the land—
Mr. SPOONER. Will the Senator from Nevada allow
me?
Mr. STEWART. Certainly.
Mr. SPOONER. I desire to ask the Senator from
Nevada if it be not true that the Indians have possessory
title?
Mr. STEWART. No; not in the sense in which that
term is used by the Senator from Wisconsin —possessory
title which would give him affirmative rights. If a white
man was in his position, going on and off the reservation
when he pleases, would he get possessory title to 160
acres of land? The Indian is simply a wanderer.
Aa
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Mr. SPOONER. Will the Senator allow me?
Mr. STEWART. Certainly.
Mr. SPOONER. If the Indian has not possessory title
or the right of occupancy, which is the same thing, he has
nothing to sell to the Government, has he?
Mr. STEWART. Oh, a sentimental right.
Mr. SPOONER. A sentimental right?
Mr. STEWART. Yes; and we pay a large amount of
money. He has no other right but a sentimental right. He
does not occupy the land. He goes off of it. He will not
stay on the reservation. He does not occupy it at all. He
does not have a possessory right in the sense of getting a
possessory right to, land by occupying it. He has not
fenced it in. He has made no improvements. He goes
there occasionally when he wants to and when he does
not he stays away. That does not give a possessory right
to the land in any legitimate sense. He has a sentimental
right. It has been decided that the Indians have no title to
the land.
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