INDIAN AFFAIRS: LAWS AND TREATIES

Vol. III, Laws     (Compiled to December 1, 1913)

Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1913.


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PART III.—EXECUTIVE ORDERS RELATING TO INDIAN RESERVES FROM JULY 1, 1902, TO SEPTEMBER 4, 1913.

ARIZONA | CALIFORNIA | FLORIDA | IDAHO | MONTANA | NEVADA | NEW MEXICO | OKLAHOMA | SOUTH DAKOTA | UTAH | WASHINGTON | POWER OF PRESIDENT—MEMORANDUM

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MEMORANDUM REGARDING THE POWER OF THE PRESIDENT TO SET ASIDE BY PROCLAMATION OR EXECUTIVE ORDER PUBLIC LANDS FOR INDIAN RESERVATIONS AND OTHER PUBLIC PURPOSES, AND THE RIGHT OF THE PRESIDENT TO REVOKE SUCH ORDER.

PROVISIONS OF LAW.

1. The power of the Executive is vested in the President by the first section of the second article of the Constitution of the United States.

2. By the fourth section of the act of Congress of April 24, 1820 (3 Stat. L., 567), making further provision for the sale of the public lands, commonly known as the law establishing the “cash land system,” authority is conferred on the President to offer the public lands for sale by proclamation “at such time or times as the President shall by his proclamation designate for the purpose,” etc.

3. Under this delegated authority proclamations have been issued and sales held from time to time, and in those proclamations terms were inserted to the effect that “lands appropriated by law for the use of schools, military, or other purposes be excluded from sale.”

It appears that these laws have in practice been regarded as designed to exclude all interests that have an inception under law or pursuant to law, and excluding from such sales reservations for military, naval, or other public uses.

4. The earliest provision of law found authorizing the President to set aside lands for a public purpose is that contained in the act of April 12, 1792 (1 Stat L., 252, footnote), wherein the President was authorized to set aside lands at Fort Washington for the accommodation of a garrison.

There follow immediately afterwards the several acts of the Congress regarded as recognizing the authority of the President to make reservations of the public lands for such public purposes as are contained in his authority as the Executive expressed in section 1, Article II, of the Constitution.

5. Act of March 26, 1804, section 6 (2 Stat. L., 280), authorizing the President to reserve for the future disposal of the United States certain salt springs in Indian Territory.

6. Act of April 21, 1806, section 11 (2 Stat. L., 394), authorizing the President to reserve in each township in the western district of the Territory of Orleans for the support of schools within the same all sections of land “number sixteen,” and to reserve also certain salt springs and lands contiguous thereto for future disposal by the United States.

7. Act of March 31, 1807, section 5 (2 Stat. L., 449), authorizing the President to reserve for the future disposal of the United States certain lead mines in the then Indian Territory.

8. Act of February 10, 1811, section 10 (2 Stat. L., 621), authorizing the President to reserve from sale sections numbered 16 in the Territory of Louisiana for the support of schools within the same, and to reserve also certain salt springs and lead mines and land contiguous thereto for the future disposal of the United States.

9. Act of March 3, 1811, section 10 (2 Stat. L., 665), authorizing the President to reserve in the Territory of Louisiana sections numbered 16 for the support of schools within the same, and to reserve also certain salt springs and lead mines and lands contiguous thereto for the future disposal of the United States.

10. Act of March 3, 1815, section 5 (3 Stat. L., 229), authorizing the President to reserve sections numbered 16 on the public lands of the United States south of the State of Tennessee, for the support of schools within the same, etc.

11. Act of March 5, 1816, section 1 (3 Stat. L., 256), authorizing the President to reserve from sale sections numbered 16 and certain salt springs and lead mines within the then Indian Territory.

12. Act of May 29, 1830, section 4 (4 Stat. L., 421), commonly known as the “preemption law,” in which the following language is used:

Nor shall the right of preemption, contemplated by this act, extend to any land which is reserved from sale by act of Congress, or by order of the President, or which may have been appropriated for any purpose whatsoever.

In this act is found the first express exclusion used in the acts of the Congress from interference with lands reserved by order of the President.

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13. Act of June 28, 1832, section 1 (4 Stat. L., 550), authorizing the President to reserve certain lots and buildings in St. Augustine and Pensacola for public purposes.

14. Act of June 26, 1834, section 4 (4 Stat. L., 687), authorizing the sale of public lands in Illinois, Missouri, and Wisconsin, and authorizing the President to reserve school and other reservations as he may desire to retain for military posts, any law of Congress heretofore existing to the contrary notwithstanding.

15. Act of September 4, 1841 (5 Stat. L., 456), wherein it is said that the right of preemption is expressly excluded from “lands included in any reservation by any treaty, law, or proclamation of the President of the United States or reserved for salines or other purposes.

16. Act of March 3, 1853 (10 Stat. L., 246), declaring that all public lands in California shall be subject to preemption and to be offered at public sale with certain specified exceptions, and with the general exception, to wit, “reserved by competent authority.

It would appear that the stipulations in the aforementioned acts of 1830 and 1841 (4 Stat. L., 421, and 5 Stat. L., 456) expressly indicate that competent authority is by the President.

17. Act of March 3, 1853 (10 Stat. L., 258), wherein there are excluded from disposal certain lands, to wit, mineral, “or lands reserved for any public purpose whatsoever.”

18. Act of March 3, 1863 (12 Stat L., 754), wherein it is made the duty of the President to reserve town sites from the public lands, either surveyed or unsurveyed town sites on the shores of harbors, at the juncture of rivers, important portages, or any natural or productive centers of population.

19. Act of March 3, 1863 (12 Stat. L., 819), authorizing reservation for Indians.

20. Act of April 8, 1864 (13 Stat. L., 39), authorizing Indian reservation in California.

21. Act of October 21, 1869 (18 Stat. L., 689), authorizing the President to reserve military posts and set aside permanent reservations.

Discussion of and recognition by the courts of the authority of the President to make reservations of the public lands.

Perhaps the most conspicuous case in which this authority is recognized is that of Crisar v. McDowell (6 Wall., 381).

In this case it was contended by the plaintiff that the lands involved could only be reserved from sale and set apart for public purposes under the direct sanction of an act of the Congress.

The Supreme Court of the United States, in considering this recited objection to the authority of the President, said:

From an early period in the history of the Government it has been the practice of the President to order from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses.

The authority of the President in this respect has been recognized in numerous acts of the Congress as heretofore cited, particularly in the preemption act of May 29, 1830, supra.

As Article IV, section 3, of the Constitution, provides that—

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. the authority of the President can not be interpreted to be anything more than an assumed or delegated power which by long and uninterrupted usage has never been denied either legislatively or judicially, but on the contrary has been legislatively and judicially repeatedly recognized.

The theory of the courts passing upon this question appears to have been that the President in the exercise of his executive powers stands in a position to protect and administer the public domain until Congress can act. It has proceeded to such an extent that it constitutes in fact a part of the land laws of the United States, exists ex necessitate rei, as indispensable to the public welfare, and, viewed in that light, by different laws of the Congress and decisions of the courts, has been regarded and referred to as an existing, undisputed, and well-settled power of the Executive.

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Not only may the President set aside and reserve parts of the public domain, but the heads of the executive departments may do so, and such acts will be presumed to be the acts of the Executive. (United States v. Briggs, 9 Howard; Wasely v. Chapman, 101 U. S., 755; Wilcox v. Jackson, 13 Peters, 498.)

In the case of the United States v. Briggs, supra, the Supreme Court of the United States considered the statute of March 1, 1817 (3 Stat. L., 347), conferring authority on the Secretary of the Navy, under direction of the President, to reserve live oak and cedar lands, with penalty for destroying trees, as authorizing the protection of all timber on public lands.

Authority of the President to restore to the public domain reservations created by Executive order.

Having thus considered the power of the President to set aside lands and parcels of lands of the public domain under his authority as the Executive of his delegated authority, consideration will next be given to whether he may restore such lands when the exigency which required them to be set aside has passed, or the public exigency requires that they should be restored.

This question was considered by the General Land Office in the decision given in 14 Land Decisions, 209, wherein it was said that a reservation of forest lands created by the President under section 24 of the act of March 3, 1891 (26 Stat. L., 1095), may be restored by him to the public domain, and that no act of Congress is required.

The reasoning shown in the decision cited is to the effect that section 24 of the act of March 3, 1891, supra, is in the nature of a discretionary statute; that the location and extent and time of creating the reservations are left wholly within the discretion of the President, and that to await action by the Congress for the restoration of the land would result in a loss to the public. Acting on what was believed to be the intent of the Congress, it was held that Congress recognized the principle that the President has the power to withdraw public lands and to restore them to the public domain as the public good may demand.

Associate Justice McLean rendered a decision in 1855 in the case of the United States v. Railroad Bridge Co. (6 McLean, 517), wherein was cited the act of March 3, 1819 (3 Stat. L., 520), which provided—

That the Secretary of War be, and he is hereby, authorized, under the discretion of the President of the United States, to cause to be sold such military sites, belonging to the United States, as may have been found, or become useless for military purposes.

Commenting upon the case, the court, after considering the contentions of the Attorney General and referring to the act of the Congress of April 28, 1828, said:

Now from this act it does not follow that where the Government reserves its own land from sale, for any public purpose, that a special act of Congress, after its abandonment, is necessary for the sale of it. The President, under a general power given him by the act of 1809, selected a part of the land on Rock Island for a military site, on which Fort Armstrong was built. And when he finds the place no longer useful as a military post or for any other public purpose, he has a right to abandon it and notify the land offices where the reservation was entered. The entry on the books of the land offices within which the reserved site is situated, and the occupancy of the place by the Government, are the only evidence of the reservation. And when this evidence is withdrawn, and the site is abandoned, the reserve falls back into the mass of the public lands subject to be sold under the general law.

The language of the court is plain and unequivocal, and seems to recognize the power of the Executive, through his subordinates, to restore public land which has been withdrawn for military or other purposes under the acts of the Congress to the public domain.

Attention is called to the fact that this decision was rendered prior to the passage of the act of June 12, 1858, supra, which did not embrace lands reserved under law for public purposes other than military.

In the case of Grisar v. McDowell, supra, the court (p. 371 of decision), in discussing the action of the President, who, on November 5, 1850, made a reservation of certain lands on the bay of San Francisco, and on December 31, 1851, modified the order creating the reservation, said:

Nor is it of any consequence that the modification was made, as asserted, to avoid a possible contest with an adverse claimant to a portion of the original reservation. The reason which may have governed the President can not affect the validity of his action. He possessed the same authority in 1851 to modify the reservation of 1850, by enlarging or reducing it, that he possessed to make the reservation in the first instance.

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The underscoring is not contained in the opinion of the court, but is herein made as indicating the logical conclusion that the authority to reduce the area of a reservation implied the authority to restore the land thus released to the status it occupied prior to the reservation, unless that power is restricted by law.

Secretary Lamar, in restoring to entry lands which had been withdrawn as the indemnity limits of the Atlantic & Pacific Railroad Co., used this language:

On a full consideration of the whole subject, I conclude that the withdrawal for indemnity purposes, if permissible under the law, was solely by virtue of Executive authority, and may be revoked by the same authority; that such revocation would not be a violation of either law or equity. (6 L. D., 91.)

It was decided in regard to certain lands in the Holy Cross Forest Reserve, in an opinion of October 24, 1906, approved by the then Secretary of the Interior (35 L. D., 262), that lands within a forest reserve not known to contain valuable mineral deposits, may be appropriated to such uses as may be necessary to carry out the aims and to accomplish the ends contemplated in the establishment of the reserve.

In the case of forest reservations, the Congress has not only empowered the President to set aside “public land bearing forests,” but has given him the power to revoke, amend, and restore tracts once set aside for forest purposes to the public domain. (Act of June 4, 1897, 30 Stat. L., 34.)

There appears never to have been a general law authorizing the President to set aside lands by Executive order for the use of Indians. It has simply been a practice and method of administration which has long been recognized both legislatively and judicially.

It has been decided that the President has power to make a reservation for occupation by Indians from public domain lying within the limits of a State, and that a reservation for the use of Indians is a public use. (17 A. G. Ops. 259, and cases therein cited.)

Said the Attorney General in the opinion just cited:

The regulation of the relations of the Government with Indian tribes is a great public interest, and their settlement upon reservations has been considered a matter of great importance. A reservation from the public lands, therefore, for Indian occupation may well be regarded as a public use.

In the opinion of Judge Hillver, United States District Court for the District of Nevada, in the case of the United States v. Leathers (6 Sawyer, 17), is given a thorough review of the legislation relating to the “Indian country,” and it is decided that the Pyramid Lake Indian Reservation in the State of Nevada, created by Executive order, is Indian country.

Having thus considered historically, both by the acts of the Executive, the acts of the Congress, and the decisions of several courts of last resort, the question of the power of the President over the public lands, in conclusion attention is called to what Endlich says in his treatise on the interpretation of statutes (sec. 161, p. 223):

It is presumed that the legislature does not intend to deprive the Crown of any prerogative or right of property, unless it expresses its intention to do so in explicit terms or makes the inference irresistible.

From the foregoing the conclusion is reached that the Executive has by prerogative or delegated authority the power to set aside public lands for public purposes under his control by proclamation or Executive order.1


1Donnelly v. U. S., 228 U. S., 243.

Having the power to set aside the public lands for purposes indicated, the Executive possesses the same power to withdraw, modify, revoke, or extend, by proclamation or Executive order, unless prohibited by statute, reservations similarly created by him.

The Congress and the courts have from the early days of the Republic recognized, sustained, and upheld this power, until the practice has grown to be recognized as a part of the public land laws of the United States.


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