that whether the lot-owners take by virtue of their conveyance to the middle of the street, or their rights are to be determined by the abutting line of the street, will depend largely upon whether or not the common law or its statutory re-enactment is in force in that particular state, or the rules of the common law have been abrogated by legislative action.

At common law the public has a mere easement in highways to use them for passage to and fro and for other purely public purposes appropriate to their nature as such. The fee of the soil and mineral therein belongs to the abutting owners, whose titles, presumptively at least, extend to the middle of the highway.1

This presumption may, of course, be overcome where it clearly appears from the instrument of conveyance that the parties intended that the side line of the street should form the boundary.

We are not here concerned, however, with the interpretation of conveyances, but deal with the subject from the standpoint of general law.

In some states the common law is operative by general legislative adoption. In others the common-law rule on the particular subject under discussion has received express legislative sanction. This is the case in California.2 In still others the modified as to provide that a dedication of streets and alleys shall vest a fee simple in the municipality or the public. This seems to be the rule in Colorado.1

common law has been so

'Barclay v. Howell's Lessee, 6 Pet. 498, 513; Harris v. Elliott, 10 Pet. 25, 55; Dubuque v. Maloney, 9 Iowa, 450.

2 Cal. Civ. Code, § 831.

Des Moines v. Hall, 24 Iowa, 234; Trustees v. Haven, 11 Ill. 554; Chaliss v. Atchison Union Depot, 45 Kan. 398, 25 Pac. 894; Lindsay v. Omaha, 30 Neb. 512, 46 N. W. 627, 27 Am. St. Rep. 415. Compare Thomas v. Hunt, 134 Mo. 392, 35 S. W. 581.

Mills' Annot. Stats. 1891, § 4360; City of Leadville v. Coronado M. Co. (Colo.), 67 Pac. 289; City of Leadville v. St. Louis S. and R. Co. (Colo.), Id. 1126.

ARTICLE VI. INDIAN RESERVATIONS.

8181. Nature of Indian title.

§ 182. Manner of creating and abolishing Indian reservations.

§ 183. Lands within Indian reservations are not open to settlement or purchase under the public land laws.

§ 184. Status of mining claims located within limits of an Indian reservation prior to the extinguishment of the Indian title.

§ 185. Effect of creating an Indian reservation embracing prior valid and subsisting mining claims.

§ 186. Conclusions.

181. Nature of Indian title.-The scope of this treatise neither calls for nor permits elaborate discussion of the legal or ethical relationship existing between the government of the United States and the "wards of "the nation," as the Indian tribes within our borders are popularly styled. The government legislates upon the conduct of strangers or citizens within the limits of their reservations, and for many years innumerable treaties formed with them acknowledged them to be independent people.1

But by the act of congress passed March 3, 1871,2 it was declared that no Indian nation or tribe within the territory of the United States should thereafter be recognized as an independent nation, tribe, or power with whom the United States might contract by treaty.3

It was determined in the early history of our country that the absolute, ultimate title tò lands in the possession of the Indians was acquired by the discoverers of the country, subject only to the Indian title of occupancy,

3

Fletcher v. Peck, 6 Cranch, 87, 147.

2 16 Stats. at Large, p. 566.

Public Domain, p. 244; Stephens v. Cherokee Nation, 174 U. S. 445, 483, 19 Sup. Ct. Rep. 722.

and that the discoverers possessed the exclusive right of acquiring this title; or, in other words, the exclusive right of pre-emption. As was said by Chief Justice Marshall,

"It has never been contended that the Indian title "amounted to nothing. Their right of possession has never been questioned. The claim of the government "extends to the complete ultimate title, charged with "this right of possession, and to the exclusive power of acquiring that right.”1

66

Indians have a right to the lands they occupy until that right is extinguished by voluntary cession to the government.2

The courts have said of the interest of the Indians:"For all practical purposes they owned it; as the “actual right of possession, the only thing they deemed "of value, was secured to them by treaty until they "should elect to surrender it to the United States." 3

But they do not hold a fee in the land of their original occupation, but only a usufruct, the fee being in the United States, if within the public land states or territories, or in some of the several states, if the national government acquired no lands therein.*

Lands conveyed by the government to an Indian nation in lieu of original territory surrendered by them

'Johnson & Graham's Lessees v. McIntosh, 8 Wheat. 543, 603. -Cherokee Nation v. Georgia, 5 Peters, 1; Godfrey v. Beardsley, 2 McLean, 412, Fed. Cas. No. 5497; Holden & Warner v. Joy, 17 Wall. 211. 3 Leavenworth L. and G. R. Co. v. United States, 92 U. S. 743; Bardon v. Northern Pac. R. R. Co., 145 U. S. 535, 543, 12 Sup. Ct. Rep. 856; King v. McAndrews, 111 Fed. 860, 870.

4 United States v. Cook, 19 Wall. 591; Marsh v. Brooks, 8 How. 223; Mann v. Wilson, 23 How. 457; Minter v. Crommelin, 18 How. 87; Beecher v. Wetherby, 95 U. S. 517; Worcester v. State of Georgia, 6 Peters, 515; United States v. Cook, 19 Wall. 591; State v. Kennard (on rehearing), 57 Neb. 711, 78 N. W. 282; S. C., 56 Neb. 254, 76 N. W. 545. And see Buttz v. Railroad Co., 119 U. S. 55, 7 Sup. Ct. Rep. 100; and Leavenworth L. and G. R. Co. v. United States, 92 U. S. 753..

under treaties, for the purpose of inducing a change of habitat, are alike subject to the preferred right of the government to extinguish or acquire the Indian title.

182. Manner of creating and abolishing Indian reservations.-Mr. Donaldson thus explains the manner of creating and abolishing Indian reservations:

66

66

"The method of making an Indian reservation is by an executive order withdrawing certain lands from "sale or entry and setting them apart for the use and occupancy of the Indians, such reservation previously having been selected by officers acting under the direc"tion of the commissioner of Indian affairs or that of "the secretary of the interior, and recommended by the "secretary of the interior to the president. The exec"utive order is sent to the office of Indian affairs, and "copy thereof is furnished by that office to the general "land office, upon receipt of which the reservation is "noted upon the land-office records, and local land "officers are furnished with a copy of the order, and are directed to protect the reservation from inter"ference.

66

"When such reservation is no longer required, and "the president is so informed by the secretary of the interior, an executive order is issued restoring the "lands to the public domain, and the order being "received by the commissioner of Indian affairs, a copy "thereof is furnished to the general land office, where "it is noted, and information is communicated to the "United States land officers, after which the lands are disposed of as other public lands."'1

66

Indian reservations existing by virtue of treaty stipulations are usually abolished, and the Indian title extinguished, by compact between chiefs of the tribes and agents of the government, the agreement being subject to approval by congress and the president.2

'Public Domain, p. 243.

* Id., p. 244.

183. Lands within Indian reservations are not opon to settlement or purchase under the public land laws. It has been the policy of the government from the beginning to prohibit the settlement of lands in the occupation of the Indians.1

As was said by the supreme court of the United States,

66

"That lands dedicated to the use of the Indians "should upon every principle of natural right be carefully guarded by the government and saved from a possible grant, is a proposition which will command "universal assent.

3

12

While the government may dispose of the fee of the land, it remains burdened with the right of occupancy in the Indians. This right of occupancy can not be interfered with nor determined, except by the United States. No private individual can invade it, and the manner, time, and conditions of its extinguishment are matters solely for the consideration of the government, and are open to contestation in the judicial tribunals. Where land is reserved for the use of an Indian tribe by treaty, the treaty is notice that the land will be retained for the use of the Indians, and this purpose cannot be defeated by the action of any officers of the land department.5 The lands embraced therein are no longer public lands."

'Hot Springs Cases, Rector & Hale v. United States, 92 U. S. 698. 'Leavenworth L. and G. R. Co. v. United States, 92 U. S. 733; Missouri, K. and T. Ry. Co. v. United States, Id. 760.

Beecher v. Wetherby, 95 U. S. 517; Buttz v. N. P. R. R., 119 U. S. 55, 7 Sup. Ct. Rep. 100.

'Id.

'United States v. Carpenter, 111 U. S. 347, 4 Sup. Ct. Rep. 435.

Missouri, K. and T. Ry. Co. v. Roberts, 152 U. S. 114, 14 Sup. Ct. Rep. 114; Spalding v. Chandler, 160 U. S. 394, 405, 16 Sup. Ct. Rep. 394; King v. McAndrews, 111 Fed. 860, 870; McFadden v. Mountain View M. and M. Co., 97 Fed. 670.

Lindley on M.--21