Page:Federal Reporter, 1st Series, Volume 8.djvu/901

UNITED STATES V, PAYNE. 887 �■which were, by the treaty of the fourteenth of February, 1833, made with the Creeks, set apart to them. By the treaty of the seventh of August, 1856, made between the United States and the Creeks, they conveyed these lands to the Seminoleo ; ■ provided, however, that the same should not be sold or otherwise disposed of without the consent of both tribes legally given. The Seminoles, by the third article of thte treaty made between them and the United States, March 21, 1866, provided as follows : �"In compliance wUh a desire of the United States to Ipcate otJier Indians and freedmen thereon, the Seminote cede and convey to the United States their entire domain, being the tract of land ceded to the Semlnole Indians by the Creek nation under the provisions of. article 1, treaty of the United States, vrith the Creeks and Seminoles, made and conceded at Washington, D. C, August 7, 1856." This conveyance was made by the Seminoles, as is recited iii the preamble to this treaty, "in vieiBr of the urgent neoessity of the United States for more land in the Indian Territory." �The Creeks, by the seventh ' article of the treaty of Juae, 1866, consented to this session by^the Seminoles. To my mind, this lan- guage, used in the third article of the Seniinole treaty, amounts to a conveyance of the title of the land described to the United States. But the fact that the title of the land is in the United States does not necessarily make it that part of the public domain which is sub- ject to seulement by citizens of the United States under the home- stead and pre-emption laws, because those laws are explicit that any lands which have been reserved by any trealiy, law. Or proclamation of the president are no part of the publie lands of the United States subject to those laws, so long as such reservation continues, and when any part of the public lands have been- once lawfully reserved that reservation eannot be set iaside except by a clear and explicit act of thelawful authority, showing thereby clearly a purpose to open to Bettlement,by the citizen," the larid reserved. �If the language of this third article of the Seminole treaty aimounts to a reservation, then the lands sbld by the terms of said treaty to the United States by the Seminoles, and lying in the Indian country between the Canadian and the North Fork of the Canadian river, and between the ninety-seventh atfd ninety-eighthdegtees of west longi- tude, and a part of which this defendant was expelled froin and to which lie returned a second time, and upon whicH' he was a second time arrested, are not such landa as persons have a right to treat as piiblic lands and settle upon uiider the homestead and pre-emption laws. Did the power which made -thio treaty have a tightito reserve this land? Mosteertain'y. The treaty rtaakin g power. has a dght to ��� �