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point here presented. The grant to plaintiff was of “public lands." The meaning of these terms is very important in considering this question. Have they a defined meaning in the legislation of congress concerning the public domain? In that decision, upon this point, the supreme court said:

"But only public lands owned absolutely by the United States are subject to survey and division into sections, and to them alone this grant is applicable. It embraces such as could be sold and enjoyed, and not those which the Indians, pursuant to treaty stipulations, were left free to occupy."

The court here was considering a railroad grant, which contained the term "public lands," and those transferred to the railroad company. Again:

"Since the land system was inaugurated it has been the settled policy of the government to sell the public lands at a small cost to individuals, and for the last 25 years to grant them to states in large tracts, to aid in work of internal improvement. But these grants have always been recognized as attaching only to so much of the public domain as was subject to sale or other dis. posal, although the roads of many subsidized companies passed through Indian reservations."

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In the case of Bardon v. Railroad Co., 145 U. S. 535, 12 Sup. Ct. Rep. 856, the supreme court again reviewed this question. In the opinion, Justice Field, speaking for the court, said in relation of the very grant under consideration:

"The grant is of alternate sections of public land, and by 'public land,' as it has been long settled, is nieant such land as is open to sale or other dis position, under general laws. All land to which any claims or rights of others have attached does not fall within the designation of public lands."

Again, that distinguished justice, referring to the fact that he, with other members of the supreme court, had dissented from the decision in the Leavenworth Case, supra, said:

"And this writer, after a much larger experience in the consideration of public land grants since that time, now readily conceded that the rule of construction adopted, that, in the absence of any express provision indicating otherwise, a grant of public lands only applies to lands which are at the time free from existing claims, is better and safer, both for the government and to private parties, than the rule which would pass property subject to the liens and claims of others. The latter construction would open a wide field of litigation between the grantees and third parties."

In the case of Newhall v. Sanger, 92 U. S. 761, the supreme court said the words “public lands” are habitually used in our legislation to describe such as are subject to sale or other disposal, under gen. eral laws. The conclusion reached by these decisions is that only such lands as are public lands at the date of the grant, the same being one in praesenti, pass to the company; and that all lands which are not subject to disposal, under the general laws of congress, are not public lands; and that lands to which any claim or right has attached are not subject to such disposal as long as it exists.

In this case the lands of the Bitter Root valley were, by treaty with the Flathead Indians, reserved from settlement, and conse quently from sale or disposal, under the general pre-cinption or homestead laws. If they could not be settled upon, they would not come within such laws. Then the Flathead Indians were allowed to

occupy such lands until the president should determine whether or not they were better adapted than the general reservation provided for in the treaty for a reservation for such particular Indians. It should be stated, perhaps, that the treaty here referred to was not one entered into alone by the Flathead Indians, but by them and two other tribes. The general reservation was one for all these tribes. It is evident, and I may say a matter of public knowl. edge or history, that the Flathead Indians desired a separate reservation for themselves in the Bitter Root valley, and whether they should have this was left to the determination of the president by the terms of the treaty. What would be the fate of this section was left in suspension, awaiting this action of the president, under the treaty, and it was in this condition when the grant to plaintiff was made in 1864. It was not until 1871 that the president made his decision, and these lands thrown open to general settlement. In the light of these decisions, it can hardly be maintained, under the facts presented, that these lands in the Bitter Root valley were what is termed "public lands” at the date of the grant to the plaintiff. They did not, therefore, pass to plaintiff thereby. It is claimed that the decision of the supreme court in Buttz v. Railroad Co., 119 U. S. 55, 7 Sup. Ct. Rep. 100, is against this view. In the case of Bardon v. Railroad Co., supra, the supreme court distinguishes that case from one like this. In that the land was a part of what is termed, generally, "Indian Country." The Indians had the general right of occupancy upon the same, not by virtue of any treaty with them, or on account of any legal obligation entered into by the United States, but in accordance with a general rule or usage, which las for years been acquiesced in or conceded. And then the law itself, making the grant, contemplated that these lands should pass, as it entered into a stipulation or agreement therein to extinguisli this right of occupancy for the benefit of plaintiff. When this was done, the land would become subject to sale and pre-emption and entry, under the general laws of congress. In this case, however, the land had been placed in a condition in which an Indian reservation might be created out of them by the action of the president. If a reservation should be created out of them, the Indians would not occupy them by virtue of the general right of occupancy, conceded to be in them, but by virtue of a treaty with the United States, which would have the force and effect of a law. It is evident the above stipulation did not apply to lands incumbered as these were by this treaty. If so, the law would, in effect, abrogate that provision of the treaty which left it in the power of the president to establish a reservation out of these lands. How could both stand? By one, the president would have the right to establish a reservation which, according to the decision in the Leavenworth Case, supra, would exclude the land froin plaintiff's grant; by the other, the government was pledged to cancel this right to have a reservation established, and bring the lands within the terms of the plaintiff's grant.

There is, however, another point presented in this case for consideration, which leads me to as satisfactory a conclusion, and, per


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haps, a more satisfactory one, in regard to this case, than the one just considered. On the 5th day of June, 1872, congress enacted a statute in relation to the Bitter Root lands, a part of which is as follows:

"Sec. 2. That, as soon as practicable after the passage of this act, the suurveyor general of Montana territory shall «ause to be surveyed, as other public lands of the United States are surveyed, the lands in the Bitter Rooi valley lying above the Lo Lo Fork of the Bitter Root river, and said lands shall be opened to settleinent, and shall be sold in legal subdivisions to actual settlers only,--the same being citizens of tlie United States, or having declared their intention to become such citizens, said citizens being heads of families over twenty-one years of age,-in quantities not exceeding one hundred and sixty acres to each settler, at the price of one dollar and twenty-five cents per acre, payment to be made in cash within twenty-one months of date of settlement or of the passage of this act. The sixteenth and thirtysixth sections of said lands shall be reserved for school purposes, in the manner provided by law. Townsites in said valley may be reserved and entered as provided by law: provided, that no more than fifteen townships of the lands so surveyed shall be deemed to be subject to the provisions of this act: aud provided, further, that none of the launds in said valley, above the Lo Lo Fork, shall be open to settlement under the homestead and pre-emption laws of the United States. An account shall be kept by the secretary of the interior of the proceeds of said lands, and out of the first moneys arising therefrom there shall be reserved and set apart for the use of said Indians the sum of fifty thousand dollars, to be by the president expended in annual installments, in such manner is, in his juilgment, shall be for the best good of said Indians, but no more than five thousand dollars shall be expended in any one year.”

The third section of said act provides that any of said Indians who shall, at the passage of the act, be actually living upon and cultivating any portion of said lands, could pre-empt the same, without cost, to the extent of 160 acres. 17 St. U. S. p. 226. This law, as we have seen, excluded these lands from the operation of the preemption and homestead laws. All the lands, odd and even sections, are to be sold to actual settlers. The improvements required under the provisions of section 2259 of the Revised Statutes are not necessary. The oath prescribed in section 2262 of said statutes is not necessary. The time for the payment of the purchase price is different from that made under the pre-emption law. Many differences between this and the pre-emption laws oight be noted. The Indians actually living upon any piece of land, not exceeeding 160 acres, might purchase the same without payment of the price of $1.25 per acre. This right was not confined to even sections. The sale of these lands was to be a matter of a special account to be kept by the secretary of the interior, and the money derived from these sales, to the amount of $50,000, was to be paid to the Indians. In view of all these matters, it is apparent that by this statute these lands were appropriated to a particular purpose, and one which was inconsistent with any grant of the same to the Northern Pacific Railroad Company. The Indians, it is agreed, availed themselves of the provisions of this act, and claimed land under the same, and land upon odd sections, to the amount of 3,240 acres, and patents have been issued to them therefor, under and by virtue of an act of congress, entitled “An act to provide for the sale of lands patented to certain members of the Flathead band of Indians, in Montana territory, and for other purposes," approved March 2, 1889, (25 St. L. S. p. 871.) It has been

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