Gibson v. Anderson

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 131 F. 39
• Parties: GIBSON v. ANDERSON.
• Decision Date: 03 May 1904

131 F. 39

GIBSON
v.
ANDERSON.

United States Court of Appeals, Ninth Circuit.

May 3, 1904

The appellant, M. F. Gibson, was the complainant in a suit in equity brought to enjoin A. M. Anderson, the appellee, who is the Indian agent in charge of the Spokane Indian reservation in Stevens county, in the state of Washington, from interfering with certain mining locations situate within the Indian reservation, and located on May 27, 1902. The bill alleges that the locations were made in due compliance with the laws of Congress and the statutes of the state of Washington, but that the appellee claims and maintains that the land whereon they are located was created an Indian reservation by virtue of [131 F. 40] an executive order of the President of the United States made on January 18, 1881, ordering that the said land be, 'and the same is hereby, set aside and reserved for the use and occupation of the Spokane Indians. ' The bill alleges: That the executive order does not have the effect, as claimed by the appellee, to withdraw the mineral lands within the territory therein described from mineral locations, but that the same remained subject to the provisions of and locations under section 2319 of the Revised Statutes, and that if, by said executive order, any such rights as are contended for by the appellee were established, the same were surrendered by virtue of a treaty stipulation entered into between the United States and the Spokane Indians on March 18, 1887, and ratified by Congress on July 13, 1892, whereby the said Indians, in consideration of the sum of $95,000, agreed to remove to the Coeur d'Alene reservation there to take allotments in severalty. That, after the making of said treaty and the ratification of the same, the further and continued occupancy of said territory by the Spokane Indians was merely as tenants or occupants at sufferance or at will. That afterwards, in May, 1902, Congress passed an act entitled 'An act making appropriations for the current and contingent expenses of the Indian Department and for fulfilling treaty stipulations with various Indian tribes for the fiscal year ending June 30, 1903, and for other purposes' (Act May 27, 1902, c. 888, 32 Stat. 245), which act was signed by the President of the United States, and on May 27, 1902, became a law. That said act contains the following provision: 'That the mineral lands only in the Spokane Indian reservation in the state of Washington shall be subject to entry under the laws of the United States in relation to the entry of mineral lands: provided, that lands allotted to the Indians, or used by the government for any purpose, or by any school, shall not be subject to entry under this provision. ' That subsequently Congress passed joint resolution No. 24 (32 Stat.pt. 1, 742), fixing July 1, 1902, as the time when said act should take effect, except as otherwise specially provided therein, and passed also joint resolution No. 25 (32 Stat.pt. 1, 742), fixing December 31, 1902, as the time when that provision in said act which relates to the subjecting to entry under the mining laws of the United States lands in said Indian reservation, should take effect and be operative, and passed also Joint Resolution No. 31 (32 Stat.pt. 1, 744), which contains the following provision: 'The Secretary of the Interior is directed to make allotments in severalty to the Indians of the Spokane Indian reservation in the state of Washington, and upon the completion of such allotments, the President shall by proclamation give public notice thereof, whereupon the lands in said reservation not allotted to Indians, or used and reserved by the government or occupied for school purposes, shall be opened to exploration, location, occupation and purchase under the mining laws. ' That said last-mentioned resolution purports to have been approved on June 19, 1902. That while joint resolutions 24 and 25 purport to have been approved on May 27, 1902, they were not, nor was either of them, actually approved by the President of the United States until after June...