The nature of this use requires the absolute reservation and withdrawal of every foot of land within the defined limits, and no portion of it is disposable to settlers or to purchasers so as to enable them to invade the Indian occupancy. In this respect Indian reservations differ from that class of Mexican grants called floats," within the exterior boundaries of which the government may grant lands to others than the claimants, so long as sufficient land remains to satisfy the grant.1

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In most of the compacts entered into between the government and Indian tribes, the United States has agreed that only such persons as were specified in the treaty should ever be permitted to pass over, settle upon, or reside in the territory so set apart for the use of the Indians. The treaty with the Sioux Indians, proclaimed February 24, 1869, embracing within its limits the famous Black Hills, in Dakota, and with the confederated band of Ute Indians, in Colorado, contained these stipulations.2

But in the absence of such specific stipulations, the policy of the government has been to preserve the reservation from invasion by those seeking to establish settlement within the boundaries.

184.

Status of mining claims located within limits of an Indian reservation prior to the extinguishment of the Indian title.-It logically follows from the nature and object of a reservation of land for the use and occupancy of the Indians that no rights can be lawfully initiated to mineral lands within the limits of such reservation. It would be a violation of public faith to permit

United States v. McLaughlin, 127 U. S. 428, 8 Carr v. Quigley, 149 U. S. 652, 13 Sup. Ct. Rep. 961.

Sup. Ct. Rep. 1177;
See, ante, § 124.

Uhlig v. Garrison, 2 Dak. 71-95, 2 N. W. 253; Kendall v. San Juan

S. M. Co., 9 Colo. 349, 12 Pac. 198.

these lands, so long as the Indian title remains unextinguished, to be invaded with a view to their exploration and appropriation for mining purposes. Such invasion, although peaceful in its inception, would invariably end in conflicts. The government could not lend its sanction to such intrusion without being charged with a violation of its solemn obligations.1

The supreme court of Colorado, in a case which involved a mining claim within the limits of what was at the time of its discovery and location the Ute Indian reservation in that state, clearly announced the rule:

"The effect of the treaty was to withdraw the whole "of the land embraced within the reservation from private entry or appropriation, and during its exist"ence the government could not have authorized the

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plaintiffs to enter upon the ground in controversy for "the purpose of discovering and locating a mining "claim. On the contrary, the government stood pledged "to prevent its citizens from entering upon the reserva"tion for any such purposes. The right to locate "mineral lands of the United States is declared to be

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a privilege granted by congress. No such grant "including the premises in controversy existed at the "time of the plaintiff's location. It is also held that a "location to be effective must be good at the time it "was made, and that it can not be good when made if "there is then an outstanding grant of the exclusive right of possession to another. The possession of the 66 plaintiffs at the time of their location of the Bear lode was tortious. Such being the character of their possession, and assuming to locate a claim, not only with"out legal authority, but in violation of law, the "attempted location was a nullity. It was just as if it "has never been made." 2

1 See the interesting account of the settlement of Deadwood and the Black Hills region, in 8 Copp's L. O. 153.

Kendall v. San Juan S. M. Co., 9 Colo. 349, 357, 12 Pac. 198, (citing United States v. Carpenter, 111 U. S. 347, 4 Sup. Ct. Rep. 435; Belk v. Meagher, 104 U. S. 279).

The supreme court of the United States affirmed the rule thus announced. Said that court:

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"The effect of the treaty was to exclude all intrusion "for mining or other private pursuits upon the territory thus reserved for the Indians. It prohibited any entry of the kind upon the premises, and no interest "could be claimed or enforced in disregard of this pro"vision. Not until the withdrawal of the land from this "reservation of the treaty by a new convention with "the Indians, and one which would throw the lands open, could a mining location therein be initiated by "the plaintiffs. The location of the Bear lode, having "been made whilst the treaty was in force, was inoper"ative to confer any rights upon the plaintiffs."1

The supreme court of Dakota set its seal of condemnation upon the attempted assertion of rights to occupy lands within the Black Hills region prior to the extinguishment of the title of the Sioux Indians;2 and with reference to attempted mining locations it established the rule that a party can not acquire a mining claim by acts performed within an Indian reservation. But it was also held that a party in possession on the day the Indian title became extinguished, with the requisite discovery, with surface boundaries marked and notice posted, could adopt these antecedent steps, and manifest their adoption by then recording his notice of location in the proper office, and by so doing and performing the amount of labor and making improvements could date his rights from that day; and this doctrine also met with the approval of the supreme court of the United States.1

1 Kendall v. San Juan S. M. Co., 144 U. S. 658, 663, 12 Sup. Ct. Rep. 779. Followed in McFadden v. Mountain View M. and M. Co., 97 Fed. 670.

8 Uhlig v. Garrison, 2 Dak. 71, 95.

3 Caledonia G. M. Co. v. Noonan, 3 Dak. 189, 14 N. W. 426.

4

◄ Noonan v. Caledonia G. M. Co., 121 U. S. 393, 7 Sup. Ct. Rep. 911.

The general rule with reference to mining claims within Indian reservations was first announced by the supreme court of Dakota in the case of French v. Lancaster; but no written opinion was filed. In this case it seems that both parties litigant, being rival mineral claimants in pari delictu, stipulated to waive all objections that might have been raised to evidence of acts of location and appropriation performed prior to the extinguishment of the Indian title. The trial court acted upon the stipulation, and determined the case regardless of the existence of the reservation.2

The appellate court, however, held that public policy required that notice should be taken of the facts, and held the attempted locations invalid.

The general doctrine announced in this case was followed by the same court in a later case.3

The land department has uniformly adhered to the doctrine that the occupancy and location of a mining claim within an Indian reservation prior to the extinguishment of the Indian title is an open violation of solemn treaty obligations, and without even a shadow of right.*

In the case of the Colville reservation in Washington, created by an executive order, the circuit court of appeals for the ninth circuit held that an act of congress providing for the restoration of the lands included within the reservation did not operate of itself, in advance of a proclamation by the president, to give a

12 Dak. 346, 47 N. W. 395.

'See Golden Terra M. Co. v. Mahler, 4 Morr. Min. Rep. 390, 405. 3 Golden Terra M. Co. v. Smith, 2 Dak. 374, 462, 11 N. W. 97.

* Townsite of Deadwood v. Mineral Claimants, 8 Copp's L. O. 153; Rattlesnake Jack Placer, 10 Copp's L. O. 87; Crow Indian Reservation, Copp's Min. Lands, p. 236; Circ. Instructions, 3 L. D. 371, 6 L. D. 341; In re Meeks, 29 L. D. 456. And see King v. McAndrews, 111 Fed. 860, reversing 104 Fed. 430; Acme Cement and Placer Co., 31 L. D. 125.

right to locate mining claims therein.' Judge Hanford, sitting in the circuit, had reached an opposite conclusion. Subsequently, by act of congress, the mineral land laws were expressly extended to the north half of this reservation.3

Manifestly, the precise time when the Indian title becomes effectually extinguished, and the reserved lands become open to entry and occupation for any purpose, depends upon the facts of each particular case.*

The land department has held, that under an act passed June 6, 1900, extending the mining laws over the Fort Hall reservation in Idaho, and providing that lands allotted to Indians should be subject to exploration for mining purposes, after an allotment had been made to an Indian the land embraced therein could not be explored for minerals and was not subject to exploration; but prior to such allotment mineral location might be made. This ruling seems to us to be correct and in accordance with the spirit of the act."

185. Effect of creating an Indian reservation embracing prior valid and subsisting mining claims.The land department, following the opinion of the attorney-general with reference to military reserva

'McFadden v. Mountain View M. and M. Co., 97 Fed. 670.

735.

McFadden v. Mountain View, 87 Fed. 154; Collins v. Bubb, 73 Fed.

329 Stats. at Large, p. 9.

See McFadden v. Mountain View M. and M. Co., 97 Fed. 670. Congress has passed several special acts opening lands within Indian reservations to occupation, location, and purchase, under the provisions of the mineral laws only, with a preference right of purchase to those who had located prior to the opening of the reservation-for example, the Blackfeet, Fort Belknap, (Eureka, and Try Again Lodes, 29 L. D. 158,) and San Carlos reservations. (1st Sess. 54th Cong.)

531 Stats. at Large, pp. 672, 680.

Acme Cement and Plaster Co., 31 L. D. 125. 'See, to same effect, instructions, Id. 154.