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Smith to Secretary of the Interior, 1 November 1872, in United States, Office of Indian Affairs, Annual Report of the Commissioner of Indian Affairs to the Secretary for the Year 1872 (Washington: Government Printing Office, 1872), 72-90, NADP Document R872001E.
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      The aggregate number of employes of all grades connected with the eight superintendencies of Indian affairs is 24, whose annual compensation is $25,230. They are distributed as follows: Northern, 2 clerks, 1 messenger, total compensation $2,630; Central, 2 clerks, total compensation $2,600; New Mexico, 2 clerks, 1 interpreter, 1 porter, 1 teamster, total compensation $3,680; Washington, 2 clerks, 1 interpreter, 1 messenger, total compensation $4,500; Oregon, 2 clerks, total compensation $3,000; California, 2 clerks, 1 porter, total compensation $3,780; Arizona, 1 clerk, 1 interpreter, 1 teamster, total compensation $3,300, and Montana, 1 clerk, 1 porter, total compensation $1,740.

THE INDIAN SERVICE AND THE RELIGIOUS SOCIETIES.

      For the year preceding the passage of the act of July 15, 1870, all superintendents of Indian affairs and Indian agents, with the exception of those for the States of Kansas and Nebraska, were officers of the Army assigned to duty under the orders of the Indian Office. In the two States named, however, the superintendents of Indian affairs and Indian agents had been for somewhat more than a year appointed by the Executive upon the recommendation of the two Societies of Friends, the appointees being in all cases recognized members of one or the other of those religious bodies, and, while duly subordinate and responsible in all official respects to the Indian Office, maintaining close correspondence with committees of their respective societies appointed for that purpose. So fortunate were the results of this system of appointment in Kansas and Nebraska considered, that when, under the provisions of the 18th section of the act of July 15, 1870, it became necessary to relieve officers of the Army from this service, it was decided by the Executive that all the agencies thus vacated in the remaining States and the Territories should be filled by appointment upon the recommendation of some religious body; and to this end the agencies were, so to speak, apportioned among the prominent denominational associations of the country, or the missionary societies representing such denominational views; and these associations or societies were thereupon requested to place themselves in communication with the Department of the Interior, to make nominations to the position of agent whenever a vacancy should occur within the list of the agencies assigned them respectively, and in and through this extra-orificial relationship to assume charge of the intellectual and moral education of the Indians thus brought within the reach of their influence. The reason formally announced for this somewhat anomalous order of appointment was the desirableness of securing harmony between agents and missionaries, complaints having become general that, in the frequent change of agents, no missionary efforts could 1ong be carried on at any specified agency without encountering, sooner or later, from some agent of different religious views or of no religious views, a degree of opposition or persecution which would necessarily extinguish such missionary enterprise and even destroy the fruits of past labors. When it is remembered that efforts of this kind must, to achieve valuable results, be continued for many years, confidence being a plant of slow growth in savage breasts, and the hope of the missionary being almost universally rounded on the education of the rising generation, while, in fact, Indian agents were under the old poliiical regime changed every few months, or every two or three years at the 1ongest, it will readily be seen that the chances of missionary enterprises being cut off in the flower were far greater than the chances of continuance and success. Such indeed had been the general history


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of these efforts among the Indians of North America, and it may fairly be said that almost the only enterprises of this kind which have secured a permanent footing are those which preceded the Goverpmeut control of the Indians, and which had rounded themselves on the confidence and sympathies of the natives too strongly to be shaken by official hostility or neglect.
      While, however, the importance of securing harmony of feeling and concert of action between the agents of the Government and the missionaries at the several agencies, in the matter of the moral and religious advancement of the Indians, was the single reason formally given for placing the nominations to Indian agencies in the hands of the denominational societies, it is, perhaps, not improper to say that the Executive was also influenced by the consideration that the general character of the Indian service might be distinctly improved by taking the nomination to the office of agent out of the domain of politics and placing it where no motives but those of disinterested benevolence could be presumed to prevail.
      The following schedule exhibits the present apportionment of Indian agencies among the several religious associations and missionary societies. The figures refer to the number of Indians embraced in the several agencies:
      Friends, (Hicksite,) the Northern superintendency and the agencies therein, viz: Great Nemaha, 313; Omaha, 969; Winnebago, 1,440; Pawnee, 2,447; Otoe, 464; and Santee Sioux, 965; all located within the State of Nebraska.
      Friends, (Orthodox,) the Central superintendency and the agencies therein, viz: Pottawatomie, 400; Kaw, 290; Kickapoo, 598; all located in Kansas; and Quapaw, 1,070; Osage, 4,000; Sac and Fox, 463; Shawnee 663; Wichita, 1,250; Kiowa, 5,490; and Upper Arkansas, 3,500; a11 located in the Indian Territory.
      Baptist, the Cherokee, 18,000; Creek, 12,300, in the Indian Territory; Walker River, 6,000; and Pi-Ute, 2,500 in Nevada; and Special, 3,000, in Utah.
      Presbyterian, the Choctaw, 16,000; and Seminoles, 2,398, in the Indian Territory; Abiquiu or Tierra Amarilla, 1,920; Navajo, 9,114; Mescalero Apache, 830; Tularosa, or Southern Apache, 1,200, in New Mexico Territory; Moquis Pueblo, 3,000, in Arizona Territory; Nez Perce, 2,807, in Idaho Territory; and Uintah Valley, 800, in Utah Territory.
      Christian, the Pueblo, 7,683, in New Mexico; Neeah Bay, 604, in Washington Territory.
      Methodist, Hoopa Valley, 725; Round Valley, 1,700; and Tule River, 374, in California; Yakama, 3,000; Skokomish, 919; Quinaielt, 520, in Washington Territory; Warm Springs, 626; Siletz, 2,500; and Klamath, 4,000, in Oregon; Blackfeet, 7,500; Crow, 2,700; and Milk River, 19,755 in Montana Territory; Fort Hall, 1,037, in Idaho Territory; and Michigan, 9,117, in Michigan.
      Catholic, Tulalip, 3,600; and Colville, 3,349, in Washington Territory; Grand Ronde, 870; Umatilla, 837, in Oregon; Flathead, 1,780, in Montana Territory; Grand River, 6,700; and Devil's Lake, 720, in Dakota Territory. Reformed Dutch, Colorado River, 828; Pima and Maricopa, 4,342; Camp Grant, 900; Camp Verde, 748; and White Mountain, or Camp Apache, 1,300, in Arizona Territory.
      Congregational, Green Bay, 2,871; and Chippewas of Lake Superior, 5,150, in Wisconsin; and Chippewas of the Mississippi, 6,455, in Minnesota.


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      Protestant Episcopal, Whetstone, 5,000; Ponca, 735; Upper Missouri, 2,547; Fort Berthold, 2,700; Cheyenne River, 6,000; Yankton, 1,947; and Red Cloud, 7,000, in Dakota Territory; and Shoshone, 1,000, in Wyoming Territory.
      American Board of Commissioners for Foreign Missions, Sisseton, 1,496, in Dakota Territory.
Unitarian, Los Pinos, 3,000; and White River, 800, in Colorado Territory.
      Lutheran, Sac and Fox, 273, in Iowa.

Recapitulation.

      The Hicksite Friends have in their charge 6 agencies, with 6,598 Indians; Orthodox Friends, 10 agencies, with 17,724 Indians; Baptists, 5 agencies, with 40,800 Indians; Presbyterians, 9 agencies, with 38,069 Indians; Christians, 2 agencies, with 8,287 Indians; Methodists, 14 agencies, with 54,473 Indians; Catholics, 7 agencies, with 17,856 Indians; Reformed Dutch, 5 agencies, with 8,118 Indians; Congregationalist, 3 agencies, with 14,476 Indians; Episcopalians, 8 agencies, with 26,929 Indians; the American Board of Commissioners for Foreign Missions, 1 agency, with 1,496 Indians; Unitarians, 2 agencies, with 3,800 Indians; Lutherans, 1 agency, with 273 Indians.


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THE INDIANS AND THE RAILROADS.


      The following are the railroads which pass through Indian reservations, and by which the interests of the Indians are, or may be affected.

THE NORTHERN PACIFIC RAILROAD.

      By act of July 2, 1864, entitled "An act granting lands to aid in the construction of a railroad and telegraph-line from Lake Superior to Puget Sound, on the Pacific coast, by the northern route," this corporation was authorized to construct a railroad between the points named, and it was provided in the second section of this act that "the United States shall extinguish, as rapidly as may be consistent with public policy and the welfare of said Indians, the Indian titles to all lands falling under the operation of this act, and acquired in the donation to the [road] named in this bill." The first tract of country through which the line of this road passes to which the Indians have claim is thit lying between the Red River of the North on the east and the James River on the West. The claim of the Sisseton and Wahpeton bands of Sioux Indians to this territory is recognized by the treaty of 1867. By act of June 1872, it was made the duty of the Secretary of the Interior to examine and report to Congress whtt title or interest the said bands of Sioux Indians have to this territory, and what compensation should be paid them therefor. The proceedings Of the commission appointed in pursuance of this act, and the recommendations of the Office thereon, will be found under the appropriate titles of this report.
      To the lands upon the line of this road between the James River and the Missouri, no Indian tribe is known to have title. This whole tract is, however, "Indian country" within the meaning of the intercourse act of 1834, and the same is true of the lands upon this road from the western bank of the Missouri to the eastern border of the Territory of Idaho, except as the road (as its line is at present understood at this Office) is to pass through the Jocko reservation in Western Montana, established by the provisions of the treaty of July 16, 1855, for the Flatheads and other Indians. Between the same two points the line of road also passes through the reservation of the Arickarees, Mandans, and Gros Ventres, which, however, has only the authority of an Executive order, (April 12, 1870.) Further on, the line of the road passes north of and near to the reservation established for the Mountain Crow Indians, by the treaky of May 7, 1868. West of Idaho to the Pacific coast the line of the road does not intersect any Indian reservation.
      So far as operations in construction of this road have been carried on, no serious difficultv has yet been encountered with any of the Indians. The Sisseton and Wahpeton bands, by the treaty of 1867, ceded to the United States the right to construct railroads through their country, and these Indians have manifested no opposition to the construction of the Northern Pacific Railroad. West of the Missouri River objections have been made by various Sioux Indians, members of the Ogallala., Brulé, and other bands, and by the Northern Cheyennes and Arapahoes, and


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surveying and working parties have been loudly threatened by these Indians. The proceedings of the commission, of which the Assistant Secretary of the Interior, Hon. B. R. Cowen, was chairman, and which visited this section of the country during the past summer for the especial purpose of removing the objections of the Indians to the progress of the road, will be found elsewhere. The most unfortunate feature of the situation is the premature withdrawal of the surveying party and its military escort from the headwaters of the Yellowstone River, in October last, in the face of threatening demonstrations from some small but noisy bands of Sioux from the Grand River and Lower agencies. The agent for the Crows, who are the true allies of the Government in this matter, desiring the construction of the railroad as a barrier against their inveterate enemies, the Sioux, reports that this has caused a great depression among that people, being taken as an indication of the weakness of the Goverment. It is tlso known from other quarters that the more turbulent of the Sioux are proportionately elated and encouraged in their opposition. But, notwithstanding the naturally critical character of this enterprise, and the misadventure accompanying its first step across the Missouri, it is believed that the road will be enabled to proceed to completion as rapidly as its finances will permit, with nothing worse than threats on the part of the Indians, the stampeding and running off of loose stock belonging to engineering and construction parties, and occasional firing into camps at night by small parties of Indians wishing to be thought particularly heroic.
      As previously stated, the number of Indians between the projected line of this road and the British possessions, is approximately 36,000, and the number between the same line and the Union and Central Pacific Railroads, on the south, 92,000.

      In each of the treaties concluded severally with the Cherokees, the Creeks, and the Choctaws and Chickasaws, in 1866, the right of way is granted to one railroad, authorized by Congress, running north and south, and to one running east and west. By decision of the Secretary of the Interior, of May 21, 1870, the road to run from north to south through the countries of the tribes named was determined to be what is now known as the

MISSOURI, KANSAS AND TEXAS RAILWAY.

      This railroad enters the Indian Territory on the west side of the Neosho River, and near to the same, extends southward through the Cherokee country, crossing the Arkansas River a few miles west of Fort Gibson, passes through the Creek country, crossing the forks of the Canadian River a few miles above their junction, and passes still south through the Choctaw and Chickasaw country, crossing the Red River a few miles below Preston. Its course after its emergence in Texas is not of consequence in this connection. This road is finished to within a few miles of the Red River, and is being rapidly completed. Its construction has been attended with little or no difficulty in its relations with the Indians; but at some of the towns springing up on the line of the road, desperate white characters have congregated in large numbers, causing great excitement and alarm to the Indians as well as inflicting much actual mischief. As is elsewhere narrated, it was in one instance found necessary to invoke the aid of the military forces of the Department of the Missouri, and with their assistance to deal summarily, under the act of 1834, with gangs of desperadoes, who threatened the


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peace of the Territory, and even defied the authority of the United States Government.
      So far, only one road running east and west in this Territory has been recognized by the Department. This is the

ATLANTIC AND PACIFIC RAILROAD,

which enters the Territory at the northeast part, running through the corner of the Shawnee reserve, thence southwesterly through the Wyandott reservation, crossing the Neosho River just below the junction of Spring River, thence west in the Cherokee country to a junction with the Missouri, Kansas and Texas Railway at Venita. The road has been completed only to or a little beyond the latter point, but the location of its route thence to the Canadian River, as well as of a branch easterly from that point to the western boundary-line of Arkansas, at or near the town of Van Buren, (the latter being authorized by the act of incorporation of July 27, 1866,) has been recognized and confirmed by the Department.
      In addition to the inevitable influx and congregation of desperadoes and outlaws at the successive termini of these two roads through the Indian Country, and at all principal points along their completed routes, (in which respect the history of the progress of the Union and the Central Pacific Railroads is only repeated,) the result of their construction has been to attract new attention to the Indian Territory; and not only has it required persistent action on the part of this Department to prevent the reservations of the several tribes from being lawlessly overrun by trespassers from the adjoining States, but it has been felt to be the duty of the Coimmissioner to take a position strongly, promptly, and aggressively against the propositions made, and seeking the aid of Congress for their consummation, to break down the barriers raised in solemn treaties, and to open up this last home of the Indian to indiscriminate white settlement. In this position it is my sincere hope that the incumbent of this Office may ever stand, until it shall be shown that the treaties with these tribes have heretofore been wrongly read, or that national honor and conscience do not require faith to be kept with the feeble and the defenseless.

      The tenth article of the treaty of 1859 with the Kansas tribe of Indians contains the provision that "railroad companies, when the lines pass through the lands of said Indians, shall have right of way, on the payment of a just compensation therefor in money." In accordance with these provisions, the contract was authorized by this Department June 12, 1869, with

THE UNION PACIFIC RAILROAD SOUTHERN BRANCH,

now Missouri, Kansas and Texas Railway, for right of way across the lands of said Indians in Kansas, and the purchase of ties therefrom.

      On the 3d day of June, 1870, the President approved a permit given by the chiefs of the Oneida tribe of Indians to the

GREEN BAY AND LAKE PEPIN RAILWAY COMPANY,

authorizing them to construct and complete its road across their reservation in the State of Wisconsin.


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      The ninth article of the treaty of 1854 with the Sac and Fox Indians of the Missouri, and the tenth article of the treaty of the same year with the Iowas, contain a provision that when the lines of railroads necessarily pass through the lands of these Indians, they shall have right of way on the payment of a just compensation therefor in money. These provisions are continued in force by the treaty of 1861 with these Indians. In accordance with these provisions a contract with the

ATCHISON AND NEBRASKA RAILROAD COMPANY

was concluded October 14, 1870, with authority from this Office for the right of way across that portion of the reservation of the Iowas which lies in Kansas, and, on April 10, 1871, for right of way across that part of the same reservation which lies in Nebraska.

      It is provided, in the eleventh article of the treaty of 1854 with the Otoes and Missourias, "that all the necessary roads and highways and railroads which may be constructed as the country improves, and the lines of which may run through their land west of the Big Blue River, shall have the right of way through the reservation, a just compensation being paid therefor in money."
      Under authority from this Bureau, a contract was concluded May 28, 1872, with the

OMAHA AND SOUTHWESTERN RAILWAY COMPANY,

for the right of way through that part of the reservation in Nebraska, and on the same date with the

MANHATTON AND NORTHWESTERN RAILROAD COMPANY

for right of way through that portion of the same reservation which lies in Kansas.

THE UNION PACIFIC RAILROAD.

authorized by act of Congress approved July 2, 1864, has been completed from Omaha, in Nebraska, to Ogden, in Utah Territory, where it connects with the Central Pacific, which has been completed from that point to Sacramento, California.
      The Indians located or ranging on or near the line of these roads are as follows: The Omahas and the Winnebagoes have reservations on the west bank of the Missouri River, some seventy-five miles north of the eastern terminus of the Union Pacific Railroad. It is not probable that these Indians ever come in close proximity with this road, unless it is when engaged in their annual autumn buffalo-hunt, upon the plains west and southwest of their reservation. They are, however, peaceable and well-disposed, and there is no danger that, should they at any time during such hunts cross the line of the railroad, they would interfere in any way with stations, trains, or passengers.
      About one hundred miles west of the Missouri River, near the railroad, is the, Pawnee reservation, embracing 288,000 acres, occupied by about 2,400 Indians, who, though at war with certain other Indian tribes, are of the same character and disposition with the Omahas as respects the whites.
      Between this point and Ogden the railroad passes through no Indian


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reserve, but between the Pawnee reserve and the Rocky Mountains, particularly in the country near the North Fork of the Platte, Spotted Tail's band and other Sioux Indians range in their hunting expeditions across the line of the road, but have never done any injury.
      About one hundred and twent miles to the north of the road from Cheyenne is the temporary agency for the Ogallala Sioux, under Red Cloud. These Indians, though frequently insolent and mutinous, have shown no such disposition as would make them dangerous to the railroad, even though a large military force were not lying between them and it. The reservation for the eastern band of the Shoshones and Bannocks in Wyoming, established under the provisions of the treaty of July 3, 1868, is within one hundred miles of the line of the railroad, as is also the reservation known as the Fort Hall reservation, for the Shoshones and Bannocks, in Idaho. The Uintah reservation, south of the line of the road, about fifty miles from the road, and probably one hundred and fifty miles east of Salt Lake City, is the only Indian reservation in Utah Territory. None of the occupants of any of these reservations interfere in any manner with the railroad, nor is it probable that many of them ever visit its line. At some distance from the line of the Central Pacific there are, in Nevada, two Indian reservations, one north of the road, known as the Pyramid Lake reservation. and one south of it, known as the Walker River reservation, both of which reservations are occupied by Pah-Utes, who do not interfere with the operations of this road.
      In general it may be said of this, the central transcontinental line, that no Indians have seriously interfered with its operations at any time since its completion. As already stated, the number of Indians located or ranging between the road and the proposed route of the Northern Pacific is approximately 92,000, and the number between the road and the proposed southern route, 61,000.

THE KANSAS PACIFIC RAILWAY

has been completed and under operation for several years past, between Kansas City, Missouri, and Denver, Colorado. No serious trouble with Indians has occurred at any time in the operations of this road. It runs through no Indian reservation, but passes near a reservation for the Prairie band of Pottawatomies, about seventy-five miles west of the Missouri River. This reservation embraces 77,357 acres, and is occupied by about four hundred Indians, who are entirely peaceable. No other Indians visit the line of this road, except as bands of Sioux or Northern or Southern Cheyennes and Arapahoes occasionally cross the track in passing from one part of the country to another, while upon their hunting expeditions.

THE ATCHISON, TOPEKA AND SANTA FE RAILROAD COMPANY

have constructed a railroad from Atchison, in Kansas, extending southwest, crossing the Kansas River at Topeka to the Arkansas River near the mouth of the Little Axkausis River; thence along the north bank of the Arkansas River to Fort Dodge. It is proposed to complete this road to Sante Fe, New Mexico. It passes through no Indian reservation, and is visited by no Indians except the Southern Cheyennes and Arapahoes, who range at times across the track in the vicinity of Fort Dodge.


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THE ATLANTIC AND PACIFIC RAILROAD,

which has been before referred to as having right of way through the Indian Territory, and as having been completed to Venita, in the Cherokee country, was further authorized, by the act of July 27, 1866, to construct its line from a point on the Canadian River to the town of "Albuquerque, on the River Del Norte, and thence, by the way of the Agua Frio, or other suitable pass, to the headwaters of the Colorado Chiquito, and thence along the thirty-fifth parallel of latitude, as near as may be found most suitable for a railway route, to the Colorado River, at such point as may be selected by said company for crossing; thence by the most practicable and eligible route, to the Pacific." By the eighteenth section of said act of 1866,

THE SOUTHERN PACIFIC RAILROAD

of California is authorized to connect with this road near the boundaryline of said State. In passing from the point on the Canadian River determined by this company, to Albuquerque, the former railroad would pass through the reservation of the Kiowas and Comanches, established for these Indians under the provisions of the treaty of October 21, 1867, and, in passing from Albuquerque to California, would pass near the reservation of the Navajoes, which is in Arizona and New Mexico, established by the provisions of the treaty of June 1, 1868, and would probably pass through Camp Verde reservation, for the Apaches in Arizona. It is not known whether the immediate construction of this road is being proceeded with or not. The present attitude of some of the Indians on the proposed line of the same is not very favorable for peaceable operations. At the same time the Government can in no way better strengthen itself in its attitude toward the Indians than by favoring and forwarding the railroad by all reasonable and proper means, certainly, at the least, by strong and sufficient escorts and garrisons to enable the road to go on as rapidly as its finances will allow. The position of the Government toward the Kiowas and Comanches and the Apaches, and the steps proposed to be taken with them in case of further hostilities, have been elsewhere freely spoken of. As previously stated, the number of Indians between this proposed route and the Union and Central Pacific Railroads on the north is 61,000, and the number between the road and Mexico on the south, 85,000.

      What is now known as the

TEXAS AND PACIFIC RAILWAY COMPANY

is authorized, by the act of March 3, 1871, to construct a road "from a point at or near Marshall, county of Harrison, State of Texas; thence, by the most direct and eligible route, to be determined by said company, near the thirty-second parallel of north latitude to a point at or near El Paso, thence, by the most direct and eligible route, to be selected by said company, through New Mexico and Arizona, to a point on the Rio Colorado, at or near the southeastern boundary of the State of California; thence, by the most direct and eligible route, to San Diego, California, to Ship's Channel, in the Bay of San Diego, in the State of Califoriiia." It is understood that this railroad is being rapidly constructed. The line, as defined by the act of incorporation, does not pass through any Indian reservation as at present


established, but will probably cut in two the reservation proposed bv General Howard for the Apaches in Southeastern Arizona. How this will immediately affect our relations with the Indians can only be conjectured; but it will, as all railroads entering the Indian Country eventually must, settle the Indian question in that quarter. Indians cannot fight near a railroad. Their paltry, flabby, grass-fed ponies cannot long keep ahead of American horses, fed liberally with grain and the latter point, upon which all Indian fighting at last turns, is secured by the proximity of a railroad.
      This Office is advised that there has been constructed, under territorial sanction, a "narrow-gauge" railroad from Denver to Pueblo, in Colorado Territory, and that the proposed termination of said road is Santa Fe, New Mexico. This line passes through no Indian reservation – that for the various bands of Ute Indians in Colorado, (treaty of March 2, 1868,) lying west of the one hundred and seventh meridian of longitude (west from Greenwich,) while the line of this road is east of 105°. Occasionally parties of these Indians may pass across the line of this road, in Colorado, but such as are likely to do so are peaceable and well-disposed, and will do no injury to track or trains. As the road enters New Mexico, roving bands of the Cimmarron, Jicarilla, and Muache Apaches will be found to range in the vicinity, and to cross the track at many points. These Indians are not wholly well-disposed, but the railroad is more likely to be the means of taming them, than they the agents of obstructing or harming the road.
      In closing this chapter of the report, it, may be said generally that while transcontinental railroads are of the first importance in the solution of the lndian problem, the immediate proximity of a railroad to a reservation, where the experiment of civilizing a peaceful tribe or band of Indians is being carried on is certainly unfortunate. But, while regretting every such occasion when the progress of industrial enterprise interrupts an experiment which requires care and time, and seclusion, this Oftice has in no case felt itself at liberty to oppose the granting of a right of way to any railroad, naturally and legitimately directing its course toward an Indian reservation. On the contrary, every facility has been afforded to the officers of such companies to secure the requisite permission of the tribes concerned. But, while making this concession freely to any enterprise, this Office holds that such a company must be content to take its right of way, with land enough for track, sidings and stations, and no more; that when the company puts in a further claim, that, because it passes through an Indian reservation, (having perhaps aimed at it for the purpose,) it must therefore be allowed to take alternate sections of land for its own benefit, or, at least, be permitted to introduce a rift of white settlement to furnish business for the road, the claim must be denied. The true principle of dealing with this difficult question is, as this Office apprehends it, that whenever railways find it for their interest to go through Indian reservations as desert country they shall be free so to do. When thei. request for a right of way is merely the cover to a demand for the disruption of a reservation, the treaty-rights of the Indian are paramount, and must in all honor and conscience be preserved inviolate.

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INDIAN LANDS.


      The Indian title to lands within the limits of the states and territories of the United States is well settled to be the right of occupancy alone, except in special instances where, perhaps, a title of a higher nature has been vested by statute or treaty provision.
      In the early history of the Western World the principle was established as between European nations, that discovery conferred sovereignty upon the Government underwhose authority the discovery was made; and to the discoverers was accorded the exclusive right of acquiring the soil from the natives. The Indians in possession were conceded to be the rightful occupants, with a just and perfect claim to retain possession and enjoy the use until they should be disposed to part with it; but it was also well established that they could only part with the soil to those who claimed sovereignty by right of discovery. Thus far were the rights of the natives, as original owners of the soil, restricted; they could not sell or convey to any other power, or to the citizens of another power.
      By the treaty of peace with Great Britain in 1783, the United States acquired all the rights in respect to the soil which had previously been in that nation. By treaty with France in 1803, known as the treaty, of Paris, by which France ceded to the United States territory previously ceded to France by Spain, it was stipulated in the sixth article thereof:

      The United States promise to execute such treaties and articles as may have been agreed between Spain and the tribes and nations of Indians until, bv mutual consent of the United States and the said tribes or nations, other suitable articles shall have been agreed upon.

      The attitude of the Mexican government toward the Indians was, however, unlike that of the European powers. This government at no time recognized an Indian title to soil within its jurisdiction except where title had been specially granted, but treated the Indians merely as a peculiar class of citizens. In this view of the old Mexican law, it has been decided by the United States court for the Territory of New Mexico that the Indians within the territory acquired by the United States from Mexico are, by virtue of the provisions of the eighth article of the treaty of Guadalupe Hidalgo of 1848, citizens of the United States.
      The executive and legislative departments of the Government, however, have never recognized any distinction between the Indians living on territory ceded by Mexico and those upon territory ceded by Great Britain, France, or Spain. These Indians have been provided with reservations, placed under control of government agents, and negotiated with in treaties, like the other Indians within the limits of the United States.
      Such being the right of the Indians to the soil, the United States for more than eighty-five years pursued a uniform course of extinguishing the Indian title only with the consent of those Indian tribes which were recognized as having claim by reason of occupancy: such consent being expressed in treaties, to the formation of which both parties approached as having equal rights of initiative, and equal rights in negotiation. These treaties were made from time to time (not less than 372


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being embraced in the General Statutes of the United States) as the pressure of white settlements or the fear or the experience of Indian hostilities made the demand for the removal of one tribe after another urgent or imperative. Except only in the case of the Indians in Minnesota after the outbreak of 1862, the United States Government has never extinguished an Indian title as by right of conquest; and in this latter case the Government provided the Indians another reservations besides giving them the proceeds of the sales of the lands vacated by them in Minnesota. So scrupulously up to that time had the right of the Indians to the soil been respected at least in form. It is not to be denied that wrong was often done in fact to tribes in the negotiation of treaties of cession. The Indians were not infrequently overborne or deceived by the agents of the Government in these transactions; sometimes, too, unquestionably, powerful tribes were permitted to cede lands to which weaker tribes had a better claim, but, formally at least, the United States accepted the cession successively of all lands to which Indian tribes could show color of title, which are embraced in the limits of any of the present States of the Union, except California and Nevada. Up to 1868, moreover, the greater portion of the lands embraced within the present Territories of the United States, to which Indians could establish a reasonable claim on account of occupancy, had also been ceded to the United States in treaties formally complete and ratified by the Senate. In 1867 and 1868, however, many treaties, not more exceptionable, on any account known to this Office, than the average of Indian treaties for the eighty-five years preceding, were either rejected by the Senate, or allowed to stand over without action; and since the latter year no Indian treaty whatever has been ratified. It was not until 1871, however, that Coungress formally pronounced the doom of the Indian-treaty system. By act of March 3 of that year, it was declared "that hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may contract by tredty."
      It is not for an instant to be thought or spoken that Congress, by such a declaration, intended to pave the way for a repudiation of treaties already made and ratified. This action of Congress does, however, present questions of considerable interest and of much difficulty, viz: What is to become of the rights of the Indians to the soil, over portions of territory which had not been covered by treaties at the time Congress put an end to the treaty system? What substitute is to be provided for that system, with all its absurdities and abuses? How are Indians, never yet treated with but having every way as good and as complete rights to portions of our territory as had the Cherokees, Creeks, Choctaws, and Chickasaws, for instance, to the soil of Georgia, Alabama, and Mississippi, to establish their rights? How is the Government to proceed to secure their relinquishment of their lands, or to determine the amount of compensation which should be paid therefor? Confiscation, of course would afford a very easy solution for all difficulties of title; but it may fairly be assumed that the United States Government will scarcely be disposed to proceed so summarily in the face of the unbroken practice of eighty-five years, witnessed in nearly four hundred treaties solemnly ratified by the Senate, not to speak of the two centuries and a half during which the principal nations of Europe, through all their wars and conquests, gave sanction to the rights of the aborigines.
      The limits of the present report will not allow these questions to be


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discussed; but it is evident that Congress must soon, if it would prevent complications and unfortunate precedents, the mischiefs of which will not be easily repaired, take up the whole subject together, and decide upon what principles and by what methods the claims of Indians who have not treaty relations with the Government, on account of their original interest to the soil, shall be determined and adjusted; and also by what initiative and according to what forms, treaties now in force may be modified, (as proposed, only at the last session of Congress, in respect to three important treaties, the Wahpeton and Sisseton treaty of 1867, and the Ute and the Shoshone treaties of 1868,) for the advantage and with the consent of both parties.
      The present number of Indians embraced in treaties made with the Government, by which all lands belonging to tbe several tribes are ceded, except such portions as by treaty were set apart for permanent reservations, is approximately 180,000. The number of reservations thus secured to these Indians is 92, ranging in size from 288 acres to 40,570 square miles, and aggregating 167,619 square miles.
      Of these reservations 31, aggregating 2,693 square miles, are east of the Mississippi River; 42, aggregating 144,838 square miles, are between the Mississippi River and the Rocky Mountains; and 19, aggregating 20,088 square miles, are upon the Pacific slope.
      In addition to the above, 40,000 Indians having no reservations secured to them bv treaty have had reservations set apart for them by Executive order out of the public lands of the United States. The number of reservations thus set apart is 15, aggregating 59,544 square miles. The Indians thus located, however, have, in the nature of the case, no assurance for their occupation of these lands beyond the pleasure of the Executive.


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THE INDIAN LEGISLATION OF THE LAST SESSION AND THE ACTION OF THIS OFFICE THEREON.


FLATHEADS.

      The attention of this Office having been called by the officials of Montana Territory to the importance of the removal of the Flatheads and other Indians reinaining by sufferance in the Bitter Root Valley, in Montana, to the reservation in the same Territory known as the "Jocko," established for the confederated Flatheads, Kootenays, and Pend d'Oreilles by the provisions of the treaty of 1855, it was recommended to the Department that Congress be asked to make the appropriation to pay for the improvements of these Indians in the Bitter Root Valley, and to provide for the removal to the "Jocko" reservation. Congress, agreeably to this recommendation, provided by act approved June 5, 1872, for the removal of the Indians, and for the survey and sale of the lands in Bitter Root Valley: the sum of $50,000 to be set apart out of the proceeds of the sale, to be by the President expended in annual installments in such manner as he may deem for the good of the Indians thus removed. The privilege is extended by said act to any one of said Indians, being the head of a family or twenty-one years of age, to receive a patent for the land occupied or cultivated by him to the extent of 160 acres, provided he shall thereupon abandon his tribal relations. Under date of June 15, 1872, a special commissioner was appointed by the Department to carry out the provisions of this act. The report of the cominissioner contains the text of an agreement entered into by him with the chiefs for the self-removal of the Flatheads to thr "Jocko," and their comfortable establishment thereon out of the appropriation provided by act of June 5. For further particulars reference is made to the report of the special commissioner. An Office note attached states the progress made in the execution of the work, at the latest advices from the superintendent of Indian affairs for Montana.

TRIBES IN THE NORTHERN SUPERINTENDENCY.

      The Omahas, the Pawnees, the Sacs and Foxes of the Missouri, and the Otoe and Missouria tribes of Indians, having through their chiefs or tribal councils expressed a desire to have portions of their respective reservations sold, this Office recommended to the Department that Congress be requested to give the necessary authority for such action. This was done by act approved June 10, 1872, entitled "An act for the relief of certain Indians in the northern superintendency," which provides:

     That, in respect to each of the tribes mentioned, with the consent of the tribe expressed in open council, the Secretary of the Interior shall cause to be surveyed the whole or a part of its reservation, as follows: Of the reservation for the Omahas, not to exceed 50,000 acres; of the Pawnee reservation, the same amount; of the reservation for the Otoes and Missourias, not to exceed 80,000 acres; of the reservation for the Sacs and Foxes of the Missouri, the whole, being in the neighborhood of 16,000 acres; the lands after such survey to be first appraised and then sold by the Secretary of the Interior, upon sealed proposals, in tracts not exceeding 160 acres, or the entire body of lands offered within any reservation may be sold to one purchaser, should it be declared for the best interest of the Indians interested.

All of these tribes have asserted to the provisions of this act, ex-


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cepting only the Otoes and Missourias. The portion of the Omaha reserve to be sold under the act had been surveyed prior to the passage of the act cited, and commissioners are already engaged in making an appraisal of the same. The lands of the Pawnees and of the Sacs and Foxes of the Missouri to be sold, are now being surveyed.

KANSAS OR KAW INDIANS.

      The Kansas Indian lands in Kansas, embracing 137,685.13 acres of unsold trust lands, and 80,409.6 acres of what is known as the "diminished reserve," having been offered for sale, under the provisions of the treaty of 1859, and all bids having been rejected by the Department, and the whole subject again referred to Congress in order that the interests of the Indians might be better protected, an act, the provisions of which were in the main those which had been recommended by this Office, passed Congress and was approved May 8, 1872. This act provides for the appraisement, by a commission, of both the "trust lands" and the "diminished reserve." It gives to actual settlers on the "trust lands" the privilege of purchasing 160 acres each within one year from the date of appraisal. The unoccupied "trust lands" are to be sold at public sale after due advertisement to the highest bidder for cash in tracts not exceeding 160 acres, under such rules and regulations as the Secretary of the Interior may prescribe. The "diminished reserve" may be sold in tracts of 160 acres, on sealed bids, after due advertisement.
      A commission has been appointed and is at present engaged in making an appraisement of these lands, in compliance with the provisions of said act. This appraisement will soon be completed, and the sale of the land will be effected at the first convenient season.

SISSETON AND WAHPETON SIOUX.

      The title of the Sisseton and Wahpetan bands of Sioux Indians appearing to be recognized, by the treaty of 1867, to a large tract of land in Eastern Dakota, it was recommended that Congress authorize negotiatiODS to extinguish the same, which was done, by the act of June 7, 1872, entitled "An act to quiet the title to certain lands in Dakota Territory." By this act it is made the duty of the Secretary of the Interior to examine and report to Congress what title or interest these bands have to any portion of the lands described in the second article of the treaty of 1867, and, if any, what compensation ought, in justice and equity,t o be made to said bands of Indians respectively for the extinguishment thereof. In the execution of this act the Secretary of the Interior appointed a commission with instructions to proceed to the reservation of said Indians, and there, and from the record, make a full investigation of the Indian title, and, if they found such title to be valid and complete, to negotiate for a relinquishment of the same upon terms at once favorable to the Government and just to the Indians. The report of the commission is published among the accompanying documents and a recommendation for the ratification of contract entered into between the commissioners and the Indians concerned will be found under the head of "Legislation Recommended."

CHIPPEWAS.

      There are several reservations for the Chippewa Indians of Lake Superior in the States of Wisconsin and Minnesota, which are sur-


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rounded and interpenetrated by white settlements, large portions, indeed, being wholly unoccupied by the Indians. Legislation was therefore recommended, authorizing the abandonment and sale of the Lac de Flambeau, the Lac Court d'Oreilles, and the Fond du Lac reservations, (the two first named being in Wisconsin, and the latter in Minnesota,) and the location of the Indians entitled to the same upon the reservation known as the Bad River reservation, set apart for the La Point band, under the second clause of the second article of the treaty of 1854. In accordance with this recommendation the Indian appropriation act, approved May 29, 1872, provided, in its eighth section, that with their consent and concurrence expressed in open council, in the usual manner, the Secretary of the Interior should be authorized to remove these bands to the Bad River reservation; the lands vacated by such removal to be appraised by commissioners, and sold at public sale to the highest bidder; the proceeds to be expended or invested for the benefit of the Indians, under the direction of the Secretary of the Interior. After considerable delay, too great to allow of anything being accomplished during the present year, the Fond du'Lac Indians have given their consent to the proposed sale, and measures will be taken early in the spring to carry out the intentions of the law in respect to them. The Lac de Flambeau Indians have as yet given no final or decisive answer to the proposition. The Lac Court d'Oreilles have refused their consent, and the provisions of the act of May 29 have therefore failed as respects this band.

OTTAWAS OF BLANCHARD'S FORK, ETC.

      By the treaty of June 24, 1862, the Ottawa Indians of Blanchard's Fork and Roche de Bœuf, then residing in Franklin County, Kansas, set apart, for the purpose of educating their children, 20,640 acres of land, and provided that this property should be managed by seven trustees, four of whom should be Indians and three white men. The Indians having removed to the Indian Territory, and the trust having come to be managed wholly for the benefit of a white school, and being therefore of no assistance or advantage whatever to the Indians, legislation was recommended which should authorize the appraisement and sale of this school property, and the payment of the proceeds to the Indians. An act was passed, approved June 10, 1872, entitled "An act for the relief of certain Indians in the Central superintendency," by which the Secretary of the Interior is directed and requireed to have this school property inventoried and appraised by commissioners to be appointed by the Secretary. The commissioners are authorized by said act to examine persons under oath touching this school property or the action of the trustees in relation thereto; moreover, the trust created by the treaty of 1862 is "discharged, vacated, and declared at an end;" and it is provided that after the inventory and appraisement of the lands, premises, appurtenances, bonds, notes, mortgages, money, credits, assets, and other property constituting this school property, "the Secretary of the Interior shall be and hereby is authorized and required forthwith to take possession for the United States, and advertise and sell the same upon such terms and conditions as he may prescrib." The manner of advertisement is prescribed in the act, and provision is also made therein "that no bid shall be accepted which may be less than the appraised value of such premises and other property; and provided further, that said bonds, notes, mortgages, credits, personal property, and assets shall be sold in separate parcels


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and the lands shall be sold in parcels of not more than one hundred and sixty -tcres each, and no pnrchaser shall be permitted to purchase more than one quarter-section thereof."
      The inventory contemplated by this act was duly made bv commissioners appointed by the Secretary of the Interior for that purpose, who also reported, in compliance with the instructions of the Secretary in regard to the "legal or equitable interest which any person, association, or corporation may have in any part of said lands and premises, or in any of the buildings or appurtenances thereto, together with the value thereof." The property so appraised is, however, held in possession by the treasurer of the board of trustees, Robert Atkinson, in defiance of the provisions of the act referred to and of the demand for possession formally made by the commissioners, who were instructed to that effect by the Secretary of the Interior, and presented the order of the Department, duly authenticated and addressed to said Atkinson, directing him to surrender possession. Possession being refused, the proceedings of the commission under their instructions terminated at this point. For a detailed account of the action taken by the commission, reference is made to their report, which is published herewith. If the act of Congress referred to is not sufficient in its provisions to insure the obtaining possession and the speedy sale of said property, it is of vital importance, in order to prevent destruction and waste, and the unauthorized diversion of the same, and to secure the contemplated advantages of the trust to the needy beneficiaries, that additional legislation be had without delay.

OSAGES.

      It being necessary for the Osage Indians to change the location of their reserve, as selected by them in the Indian Territory, for the reason that a portion of it was found, upon survey, to be east of the 96th degree of west longitude, and consequently wititin the limits of the lands retained bv the Cherokees under the provisions of the treaty of 1866, made with that tribe, a new selection was made by them last spring, of a reservation embracing a part of their former selection. Inasmuch as the tract selected contained more land than was authorized by the act of July 15, 1870, providing for their removal to the Indian Territory, it became necessary to secure authority of law for securing the Osages in possession of the same. This authorization was given by an act approved June 5, 1872, which confirms to that tribe a reservation, bounded on the east by the ninety-sixth meridian, upon the south and west by the north line of the Creek country and the main channel of the Arkansas River, and on the north by the south line of the State of Kansas. This act also further provides, "That said Great and Little Osage tribe of Indians shall permit the settlement within the limits of said tract of land, [of] the Kansas tribe of Indians, the lands so settled and occupied by said Kansas Indians, not exceeding 160 acres for each member of said tribe, to be paid for by said Kansas tribe of Indians out of the proceeds of the sales of their lands in Kansas, at a price not exceeding that paid by the Great and Little Osage Indians to the Cherokee nation of Indians." The location of the Osages is being rapidly effected in accordance with the provisions of this act.
      With a view to the settlement of the Kansas Indians, or Kaws, in accordance with the proviso cited, a commission authorized by this Office visited the Indian Territory with a delegation of said Indians in August and September last, and made a selection satisfactory to the Indians, in the western part of the Osage reserve, having the Arkansas River for


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its western boundary, the same being also the western boundary of the Osage reserve. These Indians number 627. The selection made for them embraces one hundred and sixty square miles, or about 102,400 acres.

"ABSENTEE SHAWNEES" AND CITIZEN POTTAWATOMIES.

      Certain Indians, formerly members of the Shawnee tribe in Kansas, but for many years separated from the tribe and known as "Absentee Shawnees," have been for twenty years or more residing on lands between the main Canadian and the north fork of that river, west of the Seminole reservation, in the Indian Territory. Moreover, many Pottawatomies having become citizens under the provisions of the Pottawatomie treaties of 1861, 1866, and 1867,* have within three years removed to the saide locality; so that a body of Indians to the number of 2,263 were, in fact, residing upon what is known as "the thirty miles square tract west of the Seminole reserve," without any authority of law for such residence, or any color of title to the soil. It being on all accounts desirable that they should be assigned permanent homes, legislation was recommended at the last session of Congress, by which these "absentee Shawnees" and "citizen Pottawatomies" should be allowed to secure individual homesteads within the tract thus occupied by them in common. Provision was accordingly made, by act approved May 23, 1872. for certificates of allotment to the members of either tribe as follows, viz: "To each head of a family, and to each other member twenty-one years of age, not less than one quarter-section and to each member of the tribe not less than eighty acres," the lands thus certified to be "set apart for the exclusive and perpetual use and benefit of such assignees and their heirs." The entire thirty miles square tract is now being surveyed, preparatory to making the authorized allotment to the Indians.

UTES.

      By the treaty of of March 2, 1868, with the various bands of Ute Indians, a reservation was set apart for them within the Territory of Colorado, extending from the southern boundary of said Territory to fifteen miles north of the fortieth parallel north latitude, and from the one hundred and seventh meridian west from Greenwich to the west boundary of the Territory, embracing 14,784,000 acres. This reservation containing an area far beyond what is required by the Indians entitled thereto, who number less than 4,000, and discoveries of gold and silver being credibly reported in the southern portions of the same, and miners entering and preparing to enter thereon in considerable numbers, it was deemed expedient that negotiations be entered into with these Indians for the relinguishment of the portion of their reservation thus rendered undesirable for Indian occupation. Upon Office recommendation to this effect, Congress, by act approved April 23, 1872, authorized the Secretary of the Interior to enter into negotiations with these Indians for the extinguishment of their rights to the south part of the reservation referred
__________
*The Pottawatomie treaty of 1867 made provision for a reservation, not exceeding thirty miles square, for the Pottawatomie tribe in the Indian Territory. The selection of such reservation was made in the part of the territory just described in the text, but the Pottawatomies having all become citizens, the provisions for such a reservation to the tribe failed as a mttter of course.


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to, and required him to report his proceedings thereon to Congress for its consideration.
      For the execution of this act a connission was constituted, an account of whose proceedings accompanies this report. Reference is respectfully made thereto for the details of this negotiation.

EASTERN BANDS – SHOSHONES AND BANNOCKS.

      In accordance with the provisions of the second article of the treaty of July 3, 1868, with the eastern bands of the Shoshone and Bannock tribes of Indians, a reservation in Wyoming Territory, comprising 4,200 square miles, or 2,688,000 acres, was set apart for the Shoshone tribe, numbering about 2,000. Valuable mineral discoveries having been made in the southern part of this reservation, and many persons having gone thereon for the purpose of mining, and it being deemed best for the interests of the Indians that the portion of this reserve embracing these mineral discoveries should be relinquished by them, an act was passed June 1, 1872, by which the President was authorized to negotiate with these Indians for the relinquishment of that portion of the reserve of said tribe which is situate "south of the central dividing ridge, between the Big Popoagie and Little Wind Rivers, and south of the forty-third parallel, and to cede to said tribe lands lying north of, and adjacent to, their present reservation, equal in area to any lands by them ceded." The said act makes it the duty of the President to report all proceedings the thereunder to Congress for ratification. The chairman of the board of Indian commissioners was requested by the Department to conduct the negotiations contemplated by this act. The commissioner was successful in securing an agreement for the relinquishment to the United States of all of that part of their reservation embracing the mineral discoveries, "which is situated south of a line beginning at a point on the eastern boundary of the Shoshone and Bannock reservation due east of the mouth of the Little Popoagie at its junction with the Popoagie, and running from said point west to the mouth of the Little Popoagie, thence up the Popoagie to the North Fork, and up the North Fork to the mouth of the Cañon, thence west to the western boundary of the reservation." The Indians declined to accept other land in consideration of this cession, claiming that the land lying north of and adjacent to the reservation, which by the terms of the act was authorized to be ceded to them, is poor and mountainous, and subject to incursions from the Sioux and the Northern Cheyennes and Arapahoes, and, moreover, that they already had the right to hunt over it by the terms of the treaty of 1868. In consequence of this refusal by the Indians to accept other lands in lieu of that relinquished, the commissioner felt authorized to introduce a money consideration into the agreement, by which it is stipulated that the sum of $25,000 shall be expended, under the direction of the President, for the benefit of these Indians, and that a salary of $500 per annum shall, for the term of five years, be paid to Wash-a-Kie, their chief. This agreement was made subject to the approval of the President, and the ratification or rejection of the Congress of the United States. The report of the commissioner will be found among the accompanying documents.
      Regarding the terms of relinquishment obtained as remarkably favorable to the Government, without doing injustice to the Indians, I have elsewhere submitted a recommendation for favorable legislation by Congress upon the subject-matter of this agreement.
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