Page:Federal Reporter, 1st Series, Volume 8.djvu/908

«94 FEDBBAL BBPOETBB. �Again, the supreme court, in the Leavenworih, Lawrence d Galves- Um Road v. U. S. 92 U. S. 733, affirm the doctrine, in Wilcox v. Jack- son, that a tract lawfully appropriated to any purpose becomes there- after severed from the mass of public lands, and that no subsequent law or proclamation will be construed to embrace it, or to operate upon it, although no exception is made of it. "This doctrine," says the court, "applies "with more force to Indian than to military reser- vations." And, again, it says: "Congress cannot be supposed to include them by a subsequent law general in terms." If this land in •controversy was, by the third article of the Seminole treaty, reserved for Indian settlement by competent authority, then it was an Indiall reservation as much as if it was actually occupied by Indians by authority of the govemment. It having been reserved prior to the passage of the railroad grant and charter, and this law being general in its terms, not making any special reference to these lands cannot be held to embrace them, although it declares that all other lands exeept those granted to the railroad are open to settlement. I think these cases are conclusive on this point. �But, again, suppose we take the language of the section and under- take to apply the pre-emptiom law of 1841, and the homestead law of 1862, "to all other lands," and to what conclusion must we come. If we apply these laws, we must apply the whole of them, and in such application we find that these laws did not apply to any lands reserved by treaty, law of congress, or proclamation of the president. These lands being reserved, they did not apply to them any more than the homestead and pre-emption laws now in force apply to them, and the words "all other lands on the line of said road" must, under the law, be construed to mean all other lands not reserved by treaty, law of congress, or proclamation of the president. I think, therefore, from the authorities I have cited, and from the language of this sec- tion, that there is no doubt that this act of congress bas not changed the lands in controversy from the condition of a reservation. They being in that condition, they can only be taken out of it by clear and epecific language, expressive of the will of the power which under the law can restore them to the public domain, subject to homestead and pre-emption settlement by the citizen, �One other point is neeessary to be decided in this case, and that is whether these lands, although they may be reserved, are a part of the Indian country, because lands may be reserved and yet not be a part of the Indian country. The government can and does reserve lands for a variety of purposes other than Indian reservations, — for ��� �