Page:Federal Reporter, 1st Series, Volume 8.djvu/907

CNITED STATES V. PAYNE. 893 �thereon," the Indians cohvey, etc. There is an expression of all that could be done by the most formai instrument, to-wit, the desire or purpose of the government. The government for 15 years, judging from its action, thought it had given expression to its desire suffi- ciently plain to reserve these laiids. The Indians have thought so too, and 80 I think, I am of the opinion that it is suffieient to set aside the land now in controversy for the purpose expressed in this third article of the treaty. But it is claimed in this case that this land is open to settlement by virtue of the sixth section of an act of congress, approved July 27, 1866, entitled "An act granting lands to aid in the construction of a raiiroad and telegraph line from the states of Missouri and Arkansas." That section is as follows : �"That the president of the United States shall cause the lands to be sur- veyed for 40 miles in width, on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construc- tion of said raiiroad, and the odd sections of land hereby granted shall not be liable to sale or entry or pre-emption, before or after they are surveyed, except by said company, as provided in this act; but the provisions of the act of September, 1841, granting pre-emption rights, and the acts amendatory thereof, and the act entitled 'An act to secure homesteads to aetual settlers on the pub- lic domain,' approved May 20, 1862, shall be and the same are hereby extended to all other lands on the line of said road when surveyed^ excepting those hereby granted to said company." �It is further claimed that this grant of lands to this raiiroad com- pany applies to lands in the Indian country. The executive depart- ment of the government decided through the commissioner of the general land-ofiQce, October 13, 1877, in the following language, that it did not: �" But in addition [he says] I think the demand cannot be coniplied with, for thereason that the company has no grant of lands in the Indian Territoiy; that without entering upon the question of the intent of congress to make a present grant of such lands, which I do not understand the company to claim, an ultimate grant, even, was not contemplated by the act, except such grant might be aciuired from the Indians by the company." �Whether this is so or not I do not decide, because it is not neces- sary in this case. It must be remembered that this treaty with the Semiiioles was prior to the act of congress just cited. The first was adopted March 21, 1866, and the latter July 25, 1866. ' �It is a principle of the law, declared by the supreme court of the United States in Wilcox v. Jackson, 13 Pet. 498, that — �"Whenever a tract of land has been appropriated to the public- use it is sev- ered from the mass of the public domain, and subsequent laws of sale are not construed to embrace it, though they do not in terms except it." ��� �