# Appendix — Rosebud Sioux Tribe v. Kneip > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2124%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 430 U.S. 584 ## Text ee ee, 4 Te Qs. -—> us | 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 o> ee eee Tt * OFOQCr———— = ~~ « TR tr rrr tree eee ! (i) Page TABLE OF CONTENTS Drnchnet Gatehes . wc cc ccc ccc ccccecsssesececces l RBG onc ccc cesceeseseccecceveses 3 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 _ f fy PPV TETETEOT TTT ee 32 Entry #1 H.R. 4740 56th Cong. Ist Sess. (1899) ........ 33 GAA FD Comm, Bes. FED CITTP) once ccccccccccces 40 rf & & SePrPrrrrrrrerrerriTeT ieee 40 jf SS 5 BPPrrrrerrverir errr 40 | & ©. BPrPrererrrrrerrrreree 40 #1B H.R. Rep. No. 486, 56th Cong. Ist Sess. (1900) .. 42 ae fe PPT TTT 47 BP A BD occ ct rece ccenecosssceaes 47 i: 2 SS Brrr rrrrrrrrvererer Tree 47 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 Entry #5A #5B #6A #7A 35 Cong. Rec. 2717 35 Cong. Rec. 2882 PG EE UO vb ce rec eeesensess 35 Cong. Rec. 3450 35 Cong. Rec. 3541 Se warRrewese £eee €e ea ses Se & De GOR, GG. DEGSSE oct ccccccsccevess 35 Cong. Rec. 44244425 ............05055. 35 Cong. Rec. 4569 35 Cong. Rec. 4608 35 Cong. Rec. 4715 35 Cong. Rec. 4750 oO eo 6 2 2S eee 2. Os S.e. 8. ee 8. ee 35 Cong. Rec. 48004807 ..............4.. 35 Cong. Rec. 48554862 ...........50000- 3S Came, TG. GOUNGPIS nce reece sseccs 35 Cong. Rec. 49634971 35 Cong. Rec. 5013 33 Come, Gee. SRIP SERS ow ccc ccc eeeens 35 Cong. Rec. 5198 eoeronuneeepmwrweweetwteeeaertiwt« | ee oe 3S Come. Rec. SEIDSGIS on ccc ccc ccccens S. Rep. No. 662, 57th Cong. Ist Sess. 1-6 (1902). . H.R. Rep. No. 2099, 57th Cong. Ist Sess. 14 (i ae 35 Cong. Rec. 377 (1901-1902) ............. 35 Cong. Rec. 412 35 Cong. Rec. 680 35 Cong. Rec. 2814 Se epee 8 26 06.08 6 Oe @ @ ee €¢ a € ie. a8 6 2 OC 8 2 8.8.8 2 6. 2 8. Ss 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 enreeoescsn8eeteewrteetee @& 8 8 82 8 2 ee 2s 6 6 8 2 6's Se. 6 e808 2 8.6 .F S. Doc. No. 31, 57th Cong. Ist Sess. 1-43 (1901) 35 Cong. Rec. 377 (1901-1902) ............. 35 Cong. Rec. 747 Ss. 2 we 6. ae ee 2 2. 2 2.2 ae Se ee ee (iii) Entry #9 =. 335 Cong. Rec. 377 (1901-1902) 3. lM 8 Pe ee er ee #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 a ee re ee ey eee ee eee #11 36 Cong. Rec. 148 (1902-1903) re ee eee er ee ee 36 Cong. Rec. 2434 36 Cong. Rec. 2498 LE | 665s os een ese ee on eee 36 Cong. Rec. 2747-2748 PE EE 6 he 3 604046 be ee ca weeks #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 Pease eek «wae wt Swe es eh eS Se ae eS OF 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 ee Gs Son oe oe eas oheseeneees #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.) eeeeneewsewenseeee34bgc§_5@eesesvsns se 461 467 523 $25 525 $27 528 Entry #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. 38 Cong. 38 Cong. 38 Cong. 38 Cong. 38 Cong. 38 Cong. 38 Cong. 38 Cong. 38 Cong. 38 Cong. 38 Cong. 38 Cong. 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. #16 ~~ -— ee 6a @ 6 62 8 2 8S 2 2.4 8.9 98.9 8 >. 268 (1904) “at nenku kt eee we eA em Ke OM >. 1292-1293 >. 1421-1429 yf a ex aw A eS eS fe ee oe a ae i ae & Be & @ O_O. fe 2-2..9 ~~ -_ ct neem nrkeenwweask 2 ww eR RO a ae - Bee ie Se eee Oe 2 eS. a as =. a aa’ * OS 84 6. 8 tt 8 VS 9 ee 4 ea eva ae a Rial eae Bo oe 2S ee ee a er a ee a ae ee a oa ae eS is @ bee 6 & Oe a e.g © 8.42 2s ee ee aS ee ee oe Se ek ee ee oe ~ nie & oe aoe eo a6 2 46 2 2 8.99.39 ~~ eo tia nhe we ak se oe ke h he mh ee Oe a ff & & 6 4'o BO C6 e862 8 Beat. Sse. 9.28 2d Sess. 1-12 (1904) . 2d Sess. 1-7 (1904) 268 (1904) Sea eaeae @ ea. 2 Oh O80 8 2.8.0 2 4 2827-2832 (1904) History of the Chicago & North Western Railway System Act of Feb. 7, 41 Cong. Rec. 41 Cong. Rec. 41 Cong. Rec. » -» & @ & 8 6 6 6.6466 688 82 BEER e TS CAS _ - . & S&S 2 eo @ Oe 6 OB een 6 2 eS 2 e.4 (v) Entry #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) ..........-... 41 Come. Rec. 2GB 2. ww ccc cere eee ccens 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 41 Cong. Rec. 3264 2... cece eee 4) Game, Bec. FIZS www cece es cccnces 41 Cong. Rec. 3552 .. 1... eee cere ee enees 41 Comm. Rec. SIIB 2 ccc ccc eer cncens 41 Cong. Rec. 41204121 ........2- eee eees 41 Comg. Rec. 4312 2. cece ewe ee eees 41 Cong. Rec. 4316 .. 1... ccc eee eee cece. 41 Cong. Rec. 4402 .. ww cece cece erences 41 Cong. Rec. 4630 2... ccc cette ees #22B H.R. Rep. No. 7613, 59th Cong. 2d Sess. 1-8 Nee ee ee myer #22C S. Rep. No. 6838, 59th Cong. 2d Sess. 1-7 (1907) . #22D H.R. Rep. No. 8109, 59th Cong. 2d Sess. 1-2 PD cc en hb ees eee e bee CEH N O88 #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) .........-.+--- Oi Comm, Bec. SB ww cc ccc ccc reece nseces 41 Come. Rec. 1S 2... wcrc ccc cence secccns (vi) Entry Page #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 OS Come, Bet. 2 wc ccc cece cc cccccscccees 1052 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 rr ee 1326 OP Come, Mine. 2575. ww ccc cece wcccseces 1326 es (ix) Entry Page #47 49 Cong. Rec. 109 (1913) ..........--.-4-5- 1327 i | ee 1327 GD Comm, Bee. SIGS 0 ccc ccc cer sccnne 1327 #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 >» © 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 149 Indians and to feed them and to clothe them, and, really, in many instances, to pauperize them. We had better, by far, give them the implements of agriculture and horses and cattle for breeding purposes and let them work out a living for themselves. So I take it that the money which will be expended in the relinquishment of the titles to these Indian lands will be held in trust, or will be expended under the direction of the Secretary of the Interior for the benefit of the Indians, and it is not a parallel to a case where the Government would go outside and purchase lands for the purpose of throwing them open to free settlement. Having once acquired the title to these lands, whether by purchase or by any other means, I believe it to be the duty of the Government to throw them open to settlement as free as any other portion of the public domain. Why should they discriminate as to the manner of entry? If it is thought wise to buy these lands at a reasonable price, let them be thrown open and let the law be uniform as to all the holdings of the United States. In this respect the constituents of the distinguished Senator from South Carolina have as fair and equal opportunity as those who live in the immediate vicinity of the lands to obtain homes for themselves, where they may rear and educate their children. I believe in the policy of throwing open these lands for free entry to the struggling yeomen of the country, where they may establish happy homes, enjoy the fruits of their own industry, and thereby contribute to the advancement of civilization to the great empire of the West and likewise to the wealth of the nation and of the world. Mr. HANSBROUGH. Mr. President— Mr. PLATT of Connecticut. It is very evident that this discussion can not be completed this morning. Mr. COCKRELL. It is nearly 2 o’clock. 150 Mr. PLATT of Connecticut. I simply rose for the purpose of asking that the same order with reference to the bill might continue to-morrow morning that existed this morning. The PRESIDENT pro tempore. The Senator from Connecticut asks unanimous consent that after the routine business of the morning hour to-morrow the Senate shall proceed to the consideration of this bill. Mr. PLATT of Connecticut. I think it can be disposed of in another morning. Mr. TELLER. I wish to give notice of an amendment which I shall offer at the proper time. The PRESIDENT pro tempore. Is there objection to the request of the Senator from Connecticut? The Chair hears none. Mr. TELLER. I think the Senator from Wisconsin who addressed the Senate can avoid all danger of appropria- tion by these traveling settlers he talks about, which I suppose exists somewhere, but I have never seen any of them in my experience in the West, by not allowing any homestead commutation at all on these lands. If the settlers are required to live five years, the people who ought to have the lands are sure to get them. I wish to move an amendment to the amendment of the Senator from Connecticut by striking out, on page 6, all of the twenty-fifth line after “entry,” and lines 1, 2, and 3 on page 7, and then inserting: No person taking a homestead under the provi- sions of this act shall be allowed to commute under the provisions of section 2289 or section 2301 of the Revised Statutes. I ask that the amendment be printed. The PRESIDENT pro tempore. The amendment will be printed and lie on the table. 151 Mr. TELLER. I will have something to say on the subject to-morrow morning. The PRESIDENT pro tempore. The Chair lays before the Senate the unfinished business, which will be stated. 152 [35 Cong. Rec. 4911-4918 (1902)] AMENDMENT WITH INDIANS OF ROSEBUD RESERVATION. The PRESIDENT pro tempore. The Chair lays before the Senate Senate bill 2992. The Senate, as in Committee of the Whole, resumed the consideration of 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. The PRESIDENT pro tempore. The question before the Senate is on the amendment offered by the Senator from Connecticut [Mr. PLATT]. Mr. PLATT of Connecticut. Mr. President, I know the Senator from Missouri [Mr. COCKRELL] desires to submit some observations upon this matter. Mr. HANSBROUGH. Mr. President— Mr. PLATT of Connecticut. The Senator from North Dakota, I understand, desires to address the Senate. Mr. HANSBROUGH. Mr. President, I listened with a great deal of interest yesterday and the day before to the discussion of this measure. The debate took a very wide range, altogether too wide, I think, because some of the Senators undertook to criticise the action of the Interior Department in disposing of the lands in Oklahoma and others seemed to assume that quite all of the people who go into the Western country in search of homes are speculators and men of bad character. I was particularly interested in what the Senator from Wisconsin [Mr. QUARLES] had to say on this latter subject. It is true, doubtless, that the great army of home seekers who have gone out on the Western plains have, from time to time, been followed by a class of people who might be denominated as speculators. The fact is 153 that no army ever moves in any enterprise that is without its camp followers. But as to the intimation that most of these people, or any considerable number of them, are speculators, I desire here and now to make my protest. I do not know how it was in the State of Wisconsin or in the State of Michigan or any other State where the principal interest is pine lands. I do not know if the speculator dominated the disposition of the pine lands in Wisconsin. Perhaps I ought not to refer to the methods under which those pine lands were disposed of or compare the class of men who go into the country west of the Mississippi River to seek homes upon the prairies with the class of men who have remained in the State of Wisconsin and other pine-land States and taken pos- session of the pine lands. But I imagine that if an investigation was had it would develop that there were quite as many speculators in the pineries as there are to be found upon the prairies of the West. Now, a word with respect to the methods under which these Indian lands are disposed of. The Senav.or from South Carolina [Mr. TILLMAN] yesterday criticised the methods employed by the Interior Department in dispos- ing of the lands in Oklahoma and found fault with the plan known as the lottery plan. Mr. President. I do not favor lotteries as a general thing. Indeed, while | was a member of the House of Representatives I introduced and had passed in that body vhat is known as the anti-lottery bill. That bill became a law, and under that law the Louisiana lottery has practically gone out of business. So that I am not, generally speaking, in favor of lotteries. But I submit that under the circumstances, with the great pressure that exists on the part of the masses of the people who are seeking for homes whenever there is vacant land, it was utterly impossible for the Interior Department to dispose 154 of the lands in Oklahoma in any other way than by the method which was adopted; in other words, by the lottery plan. Mr. TILLMAN. Mr. President— The PRESIDENT pro tempore. Does the Senator from North Dakota yield to the Senator from South Carolina? Mr. HANSBROUGH. I yield. Mr. TILLMAN. The point I tried to make was not so much against the lottery as against the condition which resulted from the lottery, and that was that the specula- tors or persons who really had no intention or purpose of settling on the lands and making homes rushed in to get advantage of the benefaction or largess of the Govern- ment in opening the land to settlement by homesteaders. If the Senator can devise any scheme by which no one but bona fide home seekers, men who have no homes and want to get homes, will be alone allowed to receive the benefits and to make application for homesteads. I can see that such a scheme, if it can be devised, would largely reduce the danger of any future lottery. The condition which I brought up here was that we ought not to subject ourselves to the charge of injustice to the taxpayers by buying land for which we pay two, three, five, or ten dollars an acre, whatever amount it may cost, and then turn around and give it to a lot of people who do not need it and who are better off than some of us, who rush in and seize upon the opportunity to make a homestead entry. If they draw a prize, they will go and locate, and then they will hire somebody to go in and do whatever is necessary to preserve their homestead rights, and as soon as they get a chance they turn in and sell their claim and get the profit and go about their business, so that the taxpayers are fleeced and the home seekers are robbed of the opportunity to obtain homes. That is the idea which, if the Senator will 155 elucidate, will benefit us a great deal more, I think, than to discuss the question of lotteries. Mr. HANSBROUGH. Mr. President, | hope to reach that phase of the case before I have concluded, but | desire to say a further word with respect to the lottery system. I think it would have been utterly impossible for the Secretary of the Interior to have disposed of the lands in Oklahoma and on other reservations in any other method than by the lottery method, because there were probably 50 people on the ground for every 160 acres of land to be disposed of in that country. Now, I ask the Senator from South Carolina and other Senators, How are you going to select from that number of people the particular individual who shall have the right to take and occupy 160 acres, if not by the lottery system? Mr. TILLMAN. If the Senator will permit me, I can see the difficulty of the Government officials undertaking to differentiate or to pick out from among the applicants for homesteads those who are bona fide and those who are not, but if the land has a price fixed does it not at once eliminate to a great degree the speculative appli- cants? Will any gambler be there seeking a homestead if he has got to pay some money? Is it not the gambler who expects to get something for nothing, who is on hand in these large numbers seeking to elbow away and to shove aside the actual bona fide applicant for a homestead, who is poor and wants to get some mother earth under this feet and get a title to it? Mr. HANSBROUGH. Well, Mr. President, I do not believe— Mr. TILLMAN. Will not putting a price on the land have a tendency to eliminate the speculator? Mr. HANSBROUGH. I think not. Wherever the land is valuable there is going to be a very large number of people who are ready to buy it. Then comes the question 156 as to who shall be entitled to make the purchase. Suppose again, that if there are fifty men on the ground— Mr. TILLMAN rose. Mr. HANSBROUGH. I do not want to yield just now. We will suppose that if there are fifty men on the ground to each 160 acres of land, and all of them will have to pay $2.50 or $3.50 or $5 an acre for the land, to which individual will you give the right to enter upon that land and make payment if not by the lottery system? Mr. TILLMAN. Will the Senator allow me now? Mr. HANSBROUGH. Certainly. Mr. TILLMAN. In competition for any given land the easiest way and the only sure way to settle it is to put it up to the highest bidder, and if instead of a lottery to determine who shall by chance have the privilege of getting a homestead, if these lands are valuable, you simply say, “Well, here, lot No. 7 is for sale. Bid up for it.” If John Smith wants it at $2 and nobody else wants to give any more, let John Smith have it: and so on through the line. You can eliminate the injustice which now obtains by the lottery system by letting the land bring what it is worth and letting the money come back to the United States which has bought it or have bought it. I do not know how to get that noun down to a singular verb, but I believe the courts have decided that the United States are to be considered as is, or in the singular, We can determine that question very readily and easily and without any friction by simply saying that the lands on a given reservation, having been purchased by the United States and there being more applicants than there are homestead entries, we will, instead of having a fixed rate for all of it, put up each lot separately and “‘let the longest pole get the persimmon.” Mr. HANSBROUGH. I am afraid that under that system the Senator from South Carolina and myself 157 would fare very poorly as against the class of gentlemen who have more money than we have. I think they would outbid us and we would come away without having procured any land, especially in the case of Oklahoma where I understand the lands are to-day worth from $30 to $50 per acre. I call the attention of the Senator from South Carolina to the further fact that right here in this body we decide who shall have seats, sometimes, by the lottery system. Mr. TILLMAN. I have never known it to be done since I have been here. Mr. HANSBROUGH. We are obliged to do it. : Mr. TILLMAN. I have never known it since I have been ere. Mr. HANSBROUGH. We are obliged to do it. : Mr. TILLMAN. I have never known it since I have been ere. Mr. HANSBROUGH. It has taken place. Mr. SPOONER. That is because it has not been done since the Senator came here. Mr. TILLMAN. Was it ever done? Mr. SPOONER. Yes. Mr. TILLMAN. When? Mr. SPOONER. When two Senators— Mr. TILLMAN. It is done in the House, but this body being a continuing body, without ever dying, and there always being old Senators here who have gotten the best seats, the new ones have to take what is left. It is “first come first served.” Mr. HANSBROUGH. When the State of North Dakota came into the Union, and two Senators were sent here, there was a question who should occupy the two years’ term and who should fill the four years’ term. Mr. TILLMAN. That is the term and not the seat. Mr. HANSBROUGH. And that was decided by lot. 158 Mr. TILLMAN. I say, Mr. President, if I may be permitted— The PRESIDENT pro tempore. Does the Senator from North Dakota yield to the Senator from South Carolina? Mr. HANSBROUGH. I shall be obliged to do so. Mr. TILLMAN. That was a question of the tenure of the two Senators elected at the same time, as to which should have the short and which should have the long term. I thought the Senator was referring to our chairs here. Mr. HANSBROUGH. I do not care to prolong the discussion on the lottery aspect of this case, and I will now refer to the bill under consideration. I think that each of these cases should be allowed to stand upon its own merit. In the case of the Rosebud Reservation I understand that the lands perhaps are not worth $2.50 an acre, the price specified in the bill, and if this bill is passed with that provision in it there is grave doubt whether the lands would be in such demand by settlers as to cause them to be taken by those who are seeking homes in the Western country at the present time If there is any such doubt, Mr. President; if there is a probability that there would not be sufficient demand for these lands to cause their occupation by settlers for the purpose of cultivating them and making farms of them, and with the additional purpose of putting white people among the Indians, with a view to their further civiliza- tion, then I believe it would be well to eliminate the provision under which it is proposed that $2.50 an acre shall be charged, and allow them to be taken under the free-homestead clause. I am inclined to think that the amendment offered by the Senator from Colorado [Mr. TELLER] on yesterday should be adopted, eliminating the commutation clause 159 of the homestead act so as to require the settler who goes upon the land to live there five years, and thus eliminating the possibility, to a great extent anyway, of speculation. Of course, after a settler has lived there five years and has acquired title you can not prevent him from selling the land to some man who may want to buy a whole township, but if you have required him to live there five years, the Government has done its uttermost to prevent speculation. For that reason I think a provision should go into the bill eliminating the com- mutation clause of the homestead law. I think that each one of these cases should stand upon its own merits, because in the different reservations there are no two cases alike. The land in the Rosebud Reservation is not of a quality which attracts settlers, whereas in my own State, in the Devils Lake Reservation, where we are proposing to throw open about 101,000 acres of land, the lands are worth to-day at least $15 per acre. I think it is no more than fair that the settler upon those lands should pay the price that the Government pays the Indians, and for that reason I yielded to the amendment offered by the Senator from Connecticut when that bill was up for consideration and allowed the free-homestead clause to be stricken from the bill, although the bill had been drawn by the Interior Department and the free-homestead clause inserted. To-day, Mr. President, there are at least 1,000 people in the vicinity of that reservation anxiously awaiting the passage of the bill so that they may go upon those lands. When the time comes for them to go upon the lands it will be found that there is room for about 650 entrymen, and there are fully a thousand people on the ground now waiting to take advantage of the opportunity of securing a home there. So it would be absolutely necessary, if | may be allowed again to refer to the lottery phase of this 160 case, for the Secretary of the Interior to provide some method whereby these people may decide by lot as to who shall take advantage of the opportunity. Mr. President, there was a time in the history of this Government, when the homestead law was enacted, when the preemption law was enacted, and when the timber culture law was enacted, when the Government of the United! States was looking in every direction for settlers with whom to populate the public domain of the country. But that time has gone by. At the present moment the settlér is soliciting the Government to secure a home for him. The arable public domain of this country is about exhausted. There is but very little of it left at the present time. It was for that reason that the Senators and Represen- tatives from the arid and semiarid States at the beginning of the present session of Congress got together and formulated the bill known as the irrigation bill, which passed this body some months ago unanimously and which now reposes in the sacred keeping of the leaders of the other branch of Congress. The purpose of the framers of that bill was to provide homes for the home seekers of the United States. My attention was called recently to a most peculiar situation. Owing to the scarcity of lands in the Western States at the present time thousands of people are now going into Manitoba and the Saskatehewan country, in Canada, to secure homes—leaving the United States and going to a foreign country to secure lands. Could there be any better argument in favor of a: _igation bill, so that we might provide homes for these people and keep them here, keeping our own citizens in the United States? A prominent official of one of the leading railroads of the country told me the other day that 7,000 people from the State of lowa had gone to Manitoba in the past 16] sixty days to find homes, which they could not find on this side of the line. I would be surprised if anyone should tell me that any man from the State of lowa should stand in the way of the passage of the irrigation bill, so that the people who are now going from the State of Iowa to Manitoba and elsewhere in Canada might remain here as citizens of the United States. So, Mr. President, without prolonging this debate, I want to say in a word that I think in the case of these Rosebud lands, if the Senators from South Dakota think the lands could not be readily sold for $2.50 an acre, perhaps an amendment might be put into the bill providing that they shall be sold for $1.25 an acre. If the Senators from South Dakota think that settlers would not be attracted by fixing the price at $1.25, then I think the land should be purchased and thrown open and settlers should be allowed to go in and live there five years, without paying anything whatever for the land. Mr. TILLMAN. Mr. President— The PRESIDENT pro tempore. Does the Senator from North Dakota yield to the Senator from South Carolina? Mr. HANSBROUGH. I was about through, Mr. Presi- dent, but I yield. Mr. TILLMAN. I would ask the Senator, if he supposes there is any doubt about the bona fide settlers being willing to buy these lands at the upset price, what need is there to open up this reservation? Why should we be paying this million dollars or whatever the amount is that we are going to pay to the Rosebud Indians to get land that nobody wants? Why should we pass a bill here at all? Why not let the Indians alone in the peaceful enjoyment of their reservation, and wait until the demand for homes or for more land by the Caucasians makes it desirable to open the reservation? 162 Mr. HANSBROUGH. Right on that point, Mr. Presi- dent, I desire to say that the purpose of throwing open the Indian reservations and allowing white settlers to come in and take the lands is that the Indians may have the opportunity of mixing with the white people and learning something of our methods. I think their civiliza- tion will be thereby greatly hastened. That is the object of opening the reservation. Mr. TILLMAN. The Senator does not, of course, expect me to believe that, though he says it undoubtedly in good faith. Mr. HANSBROUGH. Certainly. Mr. TILLMAN. Any man who has been in the West and who has run up against this Indian problem and the condition of those Indians, with their gradual pauperiza- tion and the absorption of their lands by the whites, knows that love of the Indian is about the smallest quality or quantity in the minds of men in the West. Mr. HANSBROUGH. The Senator from South Carolina is constantly looking for fraud somewhere. He has always got the tail of his eye on some one whom he regards as a suspicious character, and if we come in here with any measure, no matter what the measure may be, the Senator is going to pick flaws in it. Mr. TILLMAN. I picked no flaws in the irrigation bill; on the contrary. I got up here and advocated the passage of the irrigation bill. Mr. HANSBROUGH. That is true. Mr. TILLMAN. Then the Senator ought to apologize for the accusation he has just made. Mr. HANSBROUGH. I apologize to the Senator so far as the irrigation bill is concerned. The PRESIDENT pro tempore. The question is on the amendment offered by the Senator from Connecticut —{Mr. PLATT]. 163 Mr. PLATT of Connecticut. Mr. President, I think the Senator from Missouri [Mr. COCKRELL] desires to be heard on this matter. I have sent for him, and I hope he will soon be here. Mr. TELLER. Whilst waiting for the Senator from Missouri, I want to call attention to the amendment | proposed yesterday, which will be found by looking at page 6, beginning in line 25, striking out the words “except that homestead settlers who commute their entries under section 2301, Revised Statutes, shall pay for the land entered the price fixed therein.” The price fixed is $2.50. I propose to strike that out; and, not going any further, that would undoubtedly leave the settlers entitled to enter their homesteads at a dollar and a quarter an acre. What I desire to accomplish by this amendment is not to allow the homesteaders on this land to commute it. I want to avoid what the Senator from Wisconsin [Mr. QUARLES] and some other Senators seem to be disturbed about. I want to avoid speculators going in there and getting the land, and I think the amendment I have offered will accomplish that purpose, because no speculator will go in if he has got to live on the land for five years; but it will enable the poorer class of people to go in and make homesteads on this land. Mr. President, | want to say a word or two about the complaint which has been made here that we are buying land from the Indians, paying money out of the Treasury to the Indians for the land, and then giving the land to settlers. The policy of the Government of the United States from its very organization has been that the Government was the trustee of the land for the benefit of the people; and when there did not appear to be in this country any speculative disposition the Government allowed, under the preemption act of 1842, entries under 164 some limitatins. Before that there had been very little limitation. The settlers had been privileged to go upon the public land, pay a dollar and a quarter an acre for the land, and obtain title to any quantity they saw fit. After 1842, and perhaps before that time, the practice was this: The settler could go upon land, live upon it about two years and a half, and then pay for it: or if he had enough ready money he could find plenty of land that had been offered for sale. The Government having offered the land for sale and not finding a bidder, it was returned and then was opened to preemption, as we called it, without any occupation of it. The settler could go and buy 160 acres of land, or any other number of acres of land which he had the money to pay for, at $1.25 an acre. There was not under that system, which was an open system, any considerable aggregation of public land in the hands of individuals. I have seen thousands and tens of thousands of acres of good land that could be bought for $1.25 an acre stand in the market year after year with nobody offering to purchase it. That was true in all the States of the West. That land is worth now a great deal of money, or at least some of it is. Of late years, within the last fifteen or twenty years, or probably twenty-five years, there has been a good deal of a disposition on the part of capitalists to buy lands in large quantities. Mr. PLATT of Connecticut. Will the Senator allow me to ask him a question? Mr. TELLER. Certainly. Mr. PLATT of Connecticut. I understand that orig: inally the law was that a person could go and locate land anywhere and pay $1.25 an acre for it. Mr. TELLER. Yes. Mr. PLATT of Connecticut. And he could also locate land under military bounty land warrants. But there came 165 a time— and I should like the Senator to explain how it was~—when large tracts of land were obtained for small sums per acre. I remember in 1863, when I was out in Omaha, I was told that a man who had been a Senator of the United States had acquired under the land laws, in some way or other, several thousand acres of land which had not cost him more than 10 cents an acre. Mr. TELLER. Where had he bought the land? Mr. PLATT of Connecticut. In Nebraska, which was then a Territory. There had been some law in existence under which he had been able to get that land at a low price. Mr. TELLER. I think that is a mistake as to Nebraska; but this has been the rule for many years: After public land had been offered in the market a certain length of time, the price was changed from a dollar and a quarter an acre to something less, and so on down until the price had got as low us 12% cents an acre. Mr. PLATT of Connecticut. Where there was no demand for the land, and it was open for entry and not taken, was it not put up at auction and sold? Mr. TELLER. In the first place the land was put up and offered at $1.25 an acre to the amount of many thousands of acres. After the land was put up no one would go there, because a man could go the next day and take it at $1.25 an acre, just what he would have to bid, and after the land had been returned unsold, then it was open to any person who wanted it in any quantity. The longer settlers stayed off the land the lower the price went, until sometimes good land was sold in the State of Missouri for 12% cents an acre. That was under what was called the graduated land act. There was another method by which land could be acquired, and that was by military bounty land warrants, representing $1.25 an acre in locating lands, which sold in | | | 4a 166 the West sometimes as low as 25 cents an acre. Yet, with all these opportunities, there was no considerable amount of land taken except by actual settlers. In 1861 the Government of the United States changed its policy by the adoption of the homestead law, and allowed public land to be taken without any payment whatever, provided the settler would go upon the land and stay there for five years. Under that law there has been an immense quantity of land taken, thousands and tens of thousands of acres, and thousands and tens of thousands of homes have been made all over the West. Of course that to some extent reduced the income of the Government. These homesteaders, after they had lived on the land for the given period of time, could go and pay $1.25 an acre and get a good title. A great many homesteaders, after they had lived the required time on the land, so that they could do so, went and paid $1.25 an acre for the sake of having an absolute title and knowing that the property was their own. I think of all the things of which the Republican party can boast the most beneficial act of civil policy they have ever performed was when they freely donated to the people the public lands. The result was an increased settlement in the West and Northwest. Mr. President, I have seen something of the settlement of the West in at least four or five States. I have been going back and forth through them for the last thirty-odd years—now pretty nearly forth years—and I want to say to the Senator from Connecticut |Mr. PLATT], who seems to think that these people ought to pay $2.50 an acre for this land, that any man who goes upon one of those quarter-sections of land and makes a home there is entitled to the land without paying a single cent for it, and the Government of the United States ought to be delighted to have him do so. There is not an acre of 167 public land left to the United States Government, nor is there an acre inside of any Indian reservation, that the Government ought not to be glad to buy of the Indians and see some settler go on it. Senators who live in the Atlantic States, and who were born so late in the history of this country that they have not seen that new country developed, do not know anything about what it costs to settle up a country: they do not know what it meant for a man to pioneer in the Dakotas, or in lowa, or in Nebraska, or in Kansas, or in Colorada, or in Montana, or in any of those Western States. It is true, Mr. President, now that the lands which early settlers got for nothing may be worth $50 or a $100 an acre, but they have made them so. But for their presence those lands would not be worth any more than they were fifty years ago. For myself, I have not any fear of the Government of the United States being robbed by taking in all the reservations at any price that we are likely to pay for them, and shearing them of all the land which is not needed and giving it to the settlers. Mr. President, we have some new possessions now. We have ten or twelve million people under our control, whom we declare to be under our protection, who have had no opportunity of receiving the benefit of free homes from the Government. There are supposed to be 500,000 acres of land now owned by a religious order in the Philippines called the friars. | find in a bill pending here a proposition that we shall condemn that land, make it public land, and sell it to the people. I do not know how we are going to condemn it; but, leaving that question out of view, if we condemn it we have got to pay for it, and we probably shall pay twice what that land is really worth—twice what the Government ought to pay. My own judgment is that it would be well for us to pay 168 almost any price that is demanded of us rather than not get the land. Mr. PLATT of Connecticut. What is that? Mr. TELLER. I am referring to what are called the friars’ lands in the Philippines. That subject, of course, is not touched in this bill, but I was referring to the principle of this bill, which I think ought to be applied to those lands. What we shall pay for those lands | do not know, but I should think, from the information I have, that we are likely to pay twice the amount the land is worth. I would very much prefer to see the Government buy it for twice what it is worth than not buy it at all. When the Government buys the lands at twice what it is worth, I do not want to see it sold to the people who are going to live on it at the price we buy it for. On the contrary, Mr. President, I do not want to see it sold to them at all. Many of the occupants of this land are men who have lived upon it during all their lifetime and the lifetime of their parents before them. I believe it would be good policy for the Government of the United States to buy that four or five hundred thousand acres of land, divide it into holdings not to exceed 40 acres, and then give it to the people who are living on it. I think we could never invest a few million dollars with half the benefit and profit to us that that would be. I believe it would go far to compose the difficulties which exist there, and that it might create a friendship for the Government which can not be secured by all the armies that may march over that country with all the pomp of war. As it has been the policy of the Government for a good many years to make the land free, or so free that every man, no matter how poor he may be, can get a home upon it, | hope that principle will be applied when we succeed in securing that land. I have simply taken advantage of the pendency of this bill to say this because 169 I have felt like saying it for some time. Mr. President, I do not know how much land is involved in this bill, but the more land there is involved in it, the more anxious I am that the land shall be made free—the more anxious I am that the people who go upon it shall not be asked to pay a single dollar to the Government of the United States for the title they can get by living on it. I do not believe that the United States ever in its history invested any money that has been so valuable to it and has returned such great rewards as the money invested in these and other lands, and the money that they might have collected, but did not collect, out of settlers in the West and Northwest. My friend from South Carolina [Mr. TILLMAN], who sits near me, says that he does not want to see the taxpayers burdened by the passage of this bill. Mr. President, I have myself some little interest in the taxpayers, but I lose some of that interest in trifling things of that character from a financial point of view when I see the Government of the United States spending two or three hundred million dollars a year— $200,000,000, at least—on the Army and the Navy, and doing so without embarrassment, when we have a great overflowing Treasury, with $180,000,000 at the com- mand of the financial department of the Government and $150,000,000 more which is locked up in the banks of the country and might, so far as the Government is concerned, as well be in the sea, and that money being kept there for the supposed purpose of the redemption of some obligations of the Government, never to be used. The Government of the United States can not plead poverty; it can not plead distress, with all these great expenditures. I think I shall be safe in saying that there is not any country in the world where the people feel so little the burdens of taxation of a national character as in this country. 170 I hope. Mr. President, that we shall economize; but I hope that we shall not commence economizing with the settlers. I know that 8400 may not appear to be very much to members of this body; but $100 is a great deal of money to a settler. It is more money than a great many farmers in the West ever had together at one time; and there are thousands and tens of thousands of men who have good homes and who have valuable holdings who never could have had them because they never could have raised money enough to buy them if the Govern- ment had not said, “That is free land and you may go and take it.” I do not see how anybody, when he looks over the growth of the Northwest and the character of its population, which compares most favorably with any population on the face of the earth, can think we have made a mistake in giving to these people free lands, and I can not see why anybody should be disturbed now that we are going to remit to the settler the payment of $400 if he goes upon a quarter section of land and makes his home there for five years, as he must do under the terms of my amendment if it be adopted. As suggested to me, the Government is paying less than 25 cents an acre for this land when it buys it from the Indians. Mr. PLATT of Connecticut. What is that? Mr. COCKRELL. The Government pays $2.50 per acre. Mr. PLATT of Connecticut. Certainly; the Government pays $2.50 an acre for the land. Mr. TELLER. The statement I made was based on a suggestion made to me by a Senator sitting near me. Mr. JONES of Arkansas. More than 4,600,000 acres. Mr. PLATT of Connecticut. Four hundred and sixteen thousand acres, I believe. Mr. TELLER. I have not looked into the details to ascertain as to that. 171 Mr. GAMBLE. The number of acres purchased is 416,000. Mr. JONES of Arkansas. I thought it was 4,600,000. Mr. GAMBLE. No; 416,000 acres. Mr. TELLER. Suppose it is. The property belongs to the people of the United States; they are entitled to it, and they are entitled to have it in such a way as will do the most good to all of them. Of course there are tens of thousands of people who can not go and take home- steads, but they will be benefited to every homestead that is taken. There is not a man, woman or child in the United States who is not benefited when homesteads on those 116,000 acres are occupied by intelligent American citizens and farmers. Senators who have lived in the West have seen committees built up there; they know what the settlers have had to do, taking the raw, uncultivated earth, with not a buiding of any kind in existence, but every building having to be erected, every road and every bridge to be constructed and to be paid for out of the hard earnings of that class of settlers. Mr. President, the very development of the country comes out of those people; and where you go over that country you see fine homes, fine farms, and fine roads, all of which have been built by the toil and the labor of the settlers; and inasmuch as a settled country is better than a desert so it is better that we should let the people go there and occupy the land, and we ought to let them go upon terms that will cover the country with population as speedily as possible. I do not know whether this land is distributed amongst the Indians or not, but I judge it is from a remark made by one of the Senators who spoke yesterday. If, however, it is not distributed around amongst them, it is the fact that the Government in giving to these Indians their allotments withholds the lands from the operation of the EE 172 tax laws of the States. Within the last three years in the State of Colorado the Government has allotted lands to a large number of Indians, throwing open a portion of a reservation to settlement, which the people have taken. This land is to be reserved from the operation of the tax laws, according to my recollection of the treaty, for twenty-five years, during which time they will pay no taxes whatever upon personal property or upon the lands. That means an additional tax and an additional burden upon every settler who is upon those lands. The interventing sections have been taken up, and a quantity of land on one side has been taken. They are all in the same municipal community or county, and the Indian who has thousands and thousands of acres contributes nothing in any shape or form to the development of the country. What he fails to contribute or what he would have to contribute if he were a white man living on that land, must be contributed by the white man who lives on the other land. When all these things are taken into consideration, there is absolute justification for giving these lands to the people without compensation. Nay, more than that, Mr. President, it is an absolute injustice to demand that they shall pay any price whatever for that land; it is contradictory to the policy we have been pursuing, which is to open the public lands to the settlement of an independent farming people just as rapidly as possible. I do hope that this bill will become a law with that provision left out of it, and that settlers may be allowed to take the land and not buy it, under the homestead law, with the exception that they shall not commute, but shall live on the land for five years. Mr. TILLMAN. Mr. President, there is one phase of this matter to which I will briefly refer before we come to any vote, and that is to direct the attention of ah we 173 Senators to the fact that we have fixed charges on the Treasury amounting to some $1,890,000 or something like that, for the land-grant colleges. Under various acts of Congress the several States and Territories have had endowed, out of the fund received from the sale of public lands experimental stations and schools of agriculture. I want to direct attention to the fact that if we continue to give away the arable land, and if we shall have the act which was passed by this body become a law by being passed by the other body, donating all the proceeds of the public lands tobe sold hereafter the irrigation scheme, unless we get some fund from the sale of the Indian reservations that are thus opened to settlement the source of endowment of the land-grant colleges will disappear and we shall be called on to take money that will be derived from taxation to support these colleges. That is well worth the consideration of Senators whose States are not interested in this matter. Mr. GAMBLE. Mr. President— The PRESIDING OFFICER (Mr. BLACKBURN in the chair.) Does the Senator from South Carolina yield to the Senator from South Dakota? Mr. TILLMAN. With pleasure. Mr. GAMBLE. It is my understanding that during the discussion of the bill passed two years ago it was directly stated that the proceeds from the sales of public lands were insufficient to support the agricultural colleges and experimental stations, and they would come directly from the Federal Treasury; and it is our understanding that for some years it has been paid directly from the Federal Treasury without any regard to the amount received from the sale of public lands. I think it has been so returned in the estimates of the Department. Mr. PLATT of Connecticut. There has been enough received up to this time to make it good. 174 Mr. TILLMAN. There has always been more than enough from the sale of public lands to furnish the source of supply to keep the obligations or the implied pledge of the Government to the land grant schools. But the demand will come sometime or other, when the condi- tion of the country is not so prosperous and taxation bears heavily upon the people, that we shall economize. If we now by legislation dispose of all the public domain the condition will be this: There will be nothing left of the arid region, because all the lands in that region are to go for irrigation, and the only remaining arable land will be Indian reservations; and if we give that away, after buying it at these prices. I want to know where the money is to come from to meet the obligations to the agricultural and mechanical colleges. We have to meet it after we get rid of all of the land, and we should not, like a spendthrift, inaugurate a policy which will bring us face to face with a donation from the Treasury. Mr. STEWART. I call the attention of the Senator from South Carolina to a paper which I desire to present out of order. It is the memorial of Charles Polkinghorne and sundry other citizens of Nevada, remonstrating against the enactment of legislation to provide for the leasing for grazing purposes of vacant public lands and reserving all rights of homestead and mineral entry, the rental to be a special fund for irrigation. I would suggest to the Senator that the proposition now before Congress will be worked up to a considerable extent to lease them all to cattlemen. That will dispose of irrigation and dispose of any proceeds to carry on these schools. My constituents all protest against it and hope no such measure will be passed. The PRESIDING OFFICER. If there be no objection, the petition will be received and referred to the Commit- tee on Public Lands. 175 Mr. TILLMAN. I merely call attention to this phase of the question. The present endowment of these land-grant colleges and experimental stations, amov iting to $40,000 to each—and as there are some 48 States and Territories, I believe, making something like $2,000,000, or in the neighborhood of it—is now derived from the proceeds of the sale of public lands. As soon as we have reached that point where the few remaining patches of arable land which people are willing to purchase and undertake to use in farming operations or in any other other than grazing are disposed of, and if this irrigation scheme shall go through the House, we are going to be face to face with the loss of the endowment fund to the agricultural and mechanical colleges throughout the United States, and I am opposed to any policy which shall handicap us or handicuff us and injure those schools by destroying the fund from which they now receive their endowment and thereby jeopardize those great institutions of learn- ing. Mr. LODGE. I should like to ask the Senator a question before he takes his seat. He alluded, in closing, to the irrigation bill. Is it not true that the whole of that system, in the bill which we passed, rests on the proceeds of the sale of public lands? Mr. TILLMAN. Absolutely. The proceeds of the sale of every acre of the public land in a certain list of States west of the Mississippi, and that embraces all the public land practically, will go to the irrigation scheme. Mr. LODGE. Then the policy of this bill would, in the first place, throw the agricultural colleges and the experimental stations onto the Treasury, and then would throw onto the Treasury the entire system of irrigation that we .proposed in the Senate bill; and either the irrigat [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2124%3A09. Public record. Not legal advice.