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vate land, which was entered and located in available for building-lots, but is covered with pursuance of law more than thirty years ago, evergreen and other trees of beautiful foliage. and held in quiet and peaceable possession un At the north end of the valley is the Novacuder title adverse to the Government for all that late Mountain, containing 200 acres, unavailperiod. But a few years ago the Government able for bui ding-lots. In their first report the laid claim to all the land on which the town is Commissioners recommended to the Governlocated, and contiguous territory to the annount ment the reservation of all these mountains as of four sections; and the question of title be- general parks, and the donation of four lots ing carried to the Supreme Court of the United for public-school houses. The Commissioners States, that tribunal decided in favor of the asked that their time for finishing up the work Government, and by that act disseized 5,000 be continued until June 30, 1879. By act of people of the homes they had paid for, and in- Congress, April 20, 1832, Congress reserved proved and beautified with the toil of years. from.entry the lIot Springs, together with four But Congress, in consideration of the circum- sections of land. At that time the surveys stances, enacted a law on March 3, 1877, pro were not complete, nor for six years thereafter. viding for the appointment of three Commis- Several settlers attempted to enter the lands sioners, whose duty it should be to survey and by preëmption prior to Congress surveying lay off in convenient tracts, parcels, and lots them. Litigation continued among the claimall the land embraced in said four sections, hav- ants for thirty years. In 1870 Congress authoring due regard to the boundaries of existing ized the claimants to institute suits in the Court claims; and, after laying aside as a special res of Claims to settle the titles. The decisions ervation all the lands covering the llot Springs, were adverse to them. They then appealed to to adjudicate the possessory or preëmption rights the Supreme Court, April 26, 1877, which also of rival claimants to each individual tract, par- decided against the claimants. A receiver was cel, or lot so surveyed and laid out by the Com- then appointed to take charge of the property missioners, who were then to fix a price on and collect rents, and he paid to the Governeach tract or lot, which the party adjudged the ment $5,000 in a few months. preëmption right by the Commissioners inight The Commissioners continued at work takpurchase. The term of the Commissioners' ing testimony in respect to claims, etc., until office was limited to one year.
their terın of office expired, when they suspendOn April 28, 1877, the Commissioners organ- ed operations. A few months more would have ized by the election of Hon. Aaron Cragin as been sufficient to complete the whole business. chairman of the Board. John Anderson was At once petitions, signed by nearly every man appointed stenographer and clerk. They ex- and woman in the place, were sent to Congress, amined the reserve to be laid off into lots, besceching it to pass a supplemental act extendblocks, squares, streets, and alleys, and deter- ing the time of the Commission long enongh mined to retain control of all the medicinal wa to enable it to complete the work assigned to ters for the general public, and directed that it by the original bill. The Senate responded all the thermal springs should be reserved from to their appeals by passing the necessary act, sale. For the purpose of properly performing but the House of Representatives neglected it. the work, the engineer was authorized to make Finally, in the sundry civil appropriation bill, a thorough topographical survey of the en an amendment was made which provided for tire reservation. Claimants were allowed six the continuance of the Commission. This passed months in which to file their claims, the ma both Houses of Congress; but in the enrolljority of whom filed them within the last month ment of the bill, the section was left out in allotted to them. Rules were made to assist some unexplained manner.
It did not appear the claimants in filing their claims, and the of- in the bill as signed by the President, and befice was kept open until 12 o'clock on the night came a failure. Immediately on the commenceof the 27th of October, 1877, being the last ment of the subsequent session of Congress in hour that could be allowed tho claimants for December, 1878, a committee was appointed in filing petitions. During the six inonths 950 the Senate to investigate the change in the bill petitions were filed. The Ilot Springs Moun- above mentioned. A new bill was also introtaip, embracing the thermal springs, have been duced to provide for the same object as menlaid off and reserved from sale. The boundary tioned in the defective bill. line follows the base of the mountains, and is A conflict of authority between the Federal laid out as a carriage-drive, inclosing an area and State courts became very important during of 245 acres in the reserve. The Commission- the year. Subsequent to the war many couners are of the opinion, from the nature and ties of the State issued bonds or scrip for incharacter of the country, and the great impor- ternal purposes. These have been bought up tance of this place as a health and pleasure re- by citizens of other States at nominal prices, sort, that a much larger tract should be re and the holders brought suits in the Federal served from sale. The thermal springs all make courts for their face value. More than thirty their appearance on the west side of the Ilot counties were thus sued. In such cases the Springs Mountain, and west of the springs Federal Court, after judgment for the plaintiff, across the valley is Whippoor will Mountain, issued a mandamus ordering the taxes to be the area of which is about 500 acres. It is un levied and collected for the payment of the
judgment. The grounds of the decision of the cably the commands contained in the writ we issued Federal Court are set forth by Judge Dillon of have been of no avail.
In the State of Iowa, some years since, we bad the U. S. Circuit Court, Hewitt & Cooper 28.
an important conflict between the State and Federal Judge and Justices of Jefferson County. In judicial tribunals concerning the validity of bonds re Silverman, Judge of said County, Hewitt issued by municipalities to aid in the construction recovered judgment in the Federal Court of railroads. The Supreme Court of that State held against Jefferson County. The county did not
that those bonds were unconstitutional, having, howappeal from that judgment. Hewitt assigned first decision a large number of such bonds had been
ever, previously decided otherwise; and under the part of the judgment to Cooper. The Court issued. The State Supreme Court afterward changed awarded a peremptory writ of mandamus to their judgment, and held the bonds to be invalid, compel the county authorities to levy a tax to and proceediugs were begun by tax-payers in the pay the judgment. The tax was levied and
courts of that State to enjoin the counties from levya afterward set aside. A rule was issued by the ing any tax to pay judgments rendered in the Federal
Courts on municipal bonds. The leading case in the Court against the County Judge of Jefferson Supreme Court of the United States upon this subCounty, Frank Silverman, to show cause why ject, which is well known to the profession, is the he should not be punished for contempt in not
case of Riggs vs. Johnson County, 6 Wallace Reobeying the writ of mandamus directed to him ports. The case is a stronger one than the cause
now at the bar, because in that case the injunction by the Court. He set up in defense that he from the State Court against the officers of Johnson obeyed certain orders of the State Court. Judge County was issued before the writ of mandamus was Dillon said:
issued by the Federal Court. Here is a very correct
synopsis of the point ruled in that case: The county officers on the alternative writ which · After a return unsatisfied of an execution on a issued had full opportunity to be heard against the judgment in a Circuit Court of the United States demands that were made against them. No sufficient against a county for interest on railroad bonds, isreason was shown by the county or its officers why sued under a State statute in force prior to the issue the peremptory writ of mandamus should not issue, of the bonds, and which made the levy of a tax to and the Court'adjudged that it ought to be awarded. pay such interest obligatory on the county, a manThe peremptory writ was directed to Frank Silver- damus from the Circuit Court of the Unitid States man, County Judge, and Craig and others, Justices will lie against the county otficers to levy a tax, even of the Peace, composing the County Court of Jef- although prior to the application for the inandamus ferson County. It commanded them to meet and a State Court has perpetually enjoined the same officonvene together at the courthouse in the town of cers against making such levy; the mandamus, Pine Bluff, in said county, upon the day fixed by law when so issued, being to be regarded as a writ necesfor levying taxes for county purposes for the year sary to the jurisdiction of the Federal Court which 1877, then and there to organize, open, and hold a had previously attached, and to enforce its judgCounty Court of said connty, and to levy the tax of ments, and the State Court, therefore, not being refive mills upon the dollar of all the taxable property garded as in prior possession of the case.". of said county, provided for by the Constitution of Now the State Officers in the State of Iowa were the State of Arkansas, for the payment of indebted- between two fires. First, the State Court enjoined ness contracted and created before and existing at them from levying the tax, and a subsequent manthe time of the ratification of this Constitution, pay- damus from the Federal ('ourt con manded them to able only in United States currency, and cause the levy precisely the same tax which the writ of the same to be collected at the same time and in the State Court forbade. If they obeyed the mandamus same manner that other county taxes are directed by of the Federal Court, and levied the tax, the State law to be collected, and to cause the proceeds of the Court would, they said, arrest them for contempt of said tax, as soon as collected, to be paid into the its writ and punish them. If they disregarded the registry of our said Circuit ('ourt for the payment command of the writ of mandamus the Federal and satisfaction of the said judgment, interest, and Court would attach them for contempt and punish
them. Now, what was to be done? It was this diIt appears that this writ was duly served, and that lemma the County Judge, in the case at bar, said he in pursuance of this command thiey did meet, and supposed he was in: "I am subject to two.comlevied the tax which the writ commanded them to mands; the Federal Court commands the levying of cause to be levied. Afterward, at the instance of cer this tax, and the Circuit Court for the county has tain tax-payers of that county, a proceeding upou cer commanded me to annul the levy." IIe obeyed the tiorari was instituted to have the order of the County orchers of the local court, and in so doing he simply Court made in obedience to this writ reviewed by obeyed the wrong tribunal. the Circuit Court of the county; and that proceed The subject is very fully considered by the Suing was begun and carried on in the local court with- preme Court of the United States in the above-menout any notice being given to the relators or parties tioned case of Riggs rs. Johnson County. It would interested in the judgment; and in that proceeding consume too much time to repeat it at length; but the State Cirenit Court undertook to annul the order the effect of it is, that in judgments rendered in this of the County Court, made in obedience to the com class of cases the writ of mandamus is a writ necesmands of this Court, and certified its action to the sary to enforce the judgment, and that judgmert County Court in that regard. When that action was can no more be interfered with by the State Courts certified to the County Court commanding that Court than they can undertake to interfere with an ordito enter an order annulling its prior levy of taxes, the nary writ of execution in the hands of the Marshal County Court obeyed and caused that order to be of this Court; nor can the State ('ourt any more inmade. The tax had been extended on the tax-books terfere than the Federal ('ourt could interfere with of the county, and the warrant for collection was in their judgments or process. It is a rule that one the hands of the sheriff, who by the statutes of this court shall not intertere with the processes of the State is ex officio collector. When it was known in other; and when this rule is observed harmony the community that the Circuit Court of the county exists in both, ard there can be no conflict. had made such rder, the collector made return (in In the case first cited the Supreme Court of the obedience to a rule issued upon him) that, although United States uses this language: “State Courts are he demanded the tax, he was unable to collect it; exempt from all interference by the Federal tributhat the tax-payers refused to pay it, and so practi- nals, but they are destitute of all power to restrain
either the process or proceeding in the national been had, and the judgment orders of the Circuit Courts, Circuit Courts of the United States and Court and, of the County Court setting aside said State Courts act separately and independently of levy had not been made. each other, and in their respective spheres of action the process issued by the one is as far beyond the
Against Pulaski County a judgment was renreach of the other as if the line of division between dered for a very large amount, and an order them was traced by landmarks and monuments issued cominanding the County Court to levy visible to the eye.' Appellate relations exist in a
a tax in United States currency sufficient to class of cases between the State Courts and this Court, but there are no such relations between the pay it. The County Court answered that the State Courts and the Circuit Courts of the United State Constitution, which it was sworn to States. Tested by these considerations, our con- obey, allowed only a certain amount of tax to clusion is,” says the United States Supreme Court, be levied; and if it levied the amount the “that the propositions of the defendants can not be sustained, and that the Circuit Courts of the limit and violate the Constitution of the Stato.
Federal Court required, it would exceed the United States in the several States may issue the writ of mandamus in a proper case, where it is ne
The Judge and Justices were then summoned cessary to the exercise of their respective jurisdia before the Federal Court and commanded tions, agrecably to the principles and usages of law: peremptorily to levy the tax, under penalties Where such exigencies arise they may issue it, but when so employed it is neither a prerogative Writ unwilling to encounter fines and imprison,
of contempt of Court. Being powerless and contrary, it is a proceeding ancillary to the judy- ment, they obeyed. The tax was levied and ment which gives the jurisdiction; and, when is- collected, despite the State Constitution. sued, becomes a substitute for the ordinary process Subsequently in June, in the case of Graham of execution to enforce the payment of the same, as provided in the contract.
28. Purham, Chief Justice English of the State "The next suggestion of the defendants is,” con- Supreme Court delivered an opinion in which tinues the United States Supreme Court, " that if the jurisdiction of the Federal Courts is rethe writ is issued and they should obey its com- viewed, and many questions in connection mands, they may be exposed to a suit for damages with their powers are discussed. The opinion or to attachment for contempt, and imprisonment is a dignified protest against encroachments of by the State Courts. entertained by this Court, as all experience shows the Federal judiciary upon the reserved rights that the State Courts at all times have readily acqui- of the States; and, though conceding to the esced in the judginents of this Court, in all cases Federal Courts the right to entertain suits confided to its determination under the Constitution and laws of Congress. Guided by the experience of against counties, and to enforce their judgthe past, our just expectations of the future are that
ments by mandamus compelling the proper the same just views will provail. Should it be officials to levy and collect taxes to satisfy otherwise, however, the defendants will find the such judgments, yet maintains that this jurismost ample means of protection at hand. The diction can be exercised only in plirsuance of proper course for them to pursue in case they are sued for damages is to plead the commands of the and accordance with the Constitution and laws writ in bar of the suit; and if their defense is over of the State; and that the Supreme Court of ruled and judgment is rendered against them, a writ the State is the proper tribunal to interpret of error from their Court will lie to the judgment the Constitution and exponnd the laws markunder the twenty-fifth section of the judiciary act. " The remedy in case of imprisonment is a very, Federal as well as State Courts shall exercise
ing and limiting the boundaries in which the plain one, under the seventh section of the act of the second day of March, 1833, entitled 'An act
their jurisdiction. further to provide for the collection of the duties on In respect to the right of the Federal Courts imports.' 'Prisoners in jail or confinement for any to entertain suits against counties, the Supremno act done or omitted to be done, in pursuance of a law of the United States, or any order, process, or
Court say that this right is derived solely (in decree of any Judge or Court thereof, may apply to
connection with their constitutional jurisdiceither of the Justices of the Supreme, or any Judge tion) from the statutes of the State, which give of any District Court of the United States, for the the counties the right “ to sue and be sued”; writ of habeas corpus, and they are severally author and that without such a law a county coull ized to grant, in addition to the authority otherwiso not be sued at all in either the Federal or State conferred by law."
Such is the law of the land, as declared by the Courts. highest tribunal of the country, and all Courts, Fed In respect to the powers of the Federal cral and Stato, must accopt it and yield obedience to Courts to compel by mandamus County Courts it. The effect of this is, that the action of the Cir- to levy taxes to pay their judgments, the Sucuit Court of Jefferson County and the action of the County Court in pursuance hereof were nullities. preme Court say that this jurisdiction has The County Judge has been examinod on oath, and been claimed by virtue of a decision of the ho disclaims any intention to disregard the mandato Supreme Court of the United States, although of this Court; but he has inade å mistake which the Court was divided on the question; but may result to the prejudice of the relator's interests. affirms that no case can be found in which the We will reserve any further action against the County Judge, in order to see whether his action shall Supreme Court has decided that a United States in the end result injuriously to the parties.
Circuit or District Court can compel by manIt is now orilere: that the said rule against said damus a County Court to levy a tax, or clo (my Silverman be reserved for the further action of the other act which it is not empowered by the Court, and that John M. Clayton, sheriff and ex offio collector of said county, do proceed to collect Constitution and laws of the State to do. the taxes levied to pay the relator's judgment, the
In respect to the constitutional provision sume as if the said certiorari proceedings bad not that no county sball levy a tax to exceed one
half of one per cent. for all purposes, but may when it may be held up as a solemn declaration levy an additional tax of one half of one per by Congress and the Supreme Court of the cent. to pay existing indebtedness at the time subjugation of all tribes and the nullity of all of the adoption of the Constitution, the Court treaties now or hereafter made; as the estabuses this strong and emphatic language: lishment by the President, the Congress, and
This section furnishes the measure and limitation the courts, of a far-reaching principle, on upon the taxing power of the counties, and neither which must follow the policy of settling all the Legislature, nor the State Courts, nor the Federal Indian questions hereafter. Since the decision Courts can direct or force a county to make a valid levy of the Supreme Court referred to, it has bein excess of these limitations.
come a question propounded openly in ConThe Court say, however, that there may be gress“whether it is not time that the Governan exceptional case arising under the Constitu- ment should cease longer to attempt by force tion of the United States, forbidding any State of treaties to govern and civilize the Indians.” to pass laws impairing the obligation of con The Indian appropriation bill passed in May, tracts.
1878, contained a clause to remove all the wild One of the most important subjects to the Nez Percés tribes into their territory. In the State of Arkansas relates to the establishment Senate, General Maxey, of Texas, moved to of a territorial government by Congress over
Etrike out this clause. llis motion was rethe Indian Territory. The five Indian tribes jected. Mr. Edmunds proposed to remove occupying the Territory west of Arkansas have these wild tribes to such part of the Indian until recently been almost unanimously op- Territory as the Government had a right to posed to breaking up their tribal relations, and use, and it was agreed to. Mr. Teller, of Colhave been bitterly hostile to all measures for orado, offered a proviso that tiie removal should their future development. These views have be dependent upon the consent of the civilized changed among the Choctaws and Chickasaws, tribes, and forth with his motion was rejected. whose recently elected rulers were chosen to These indications bring the question home to support a change. Arkansas has within her the five tribes whether they shall at some limits about fifty thousand square miles. Im- future day be crowded with all the savage mediately west of the State lies the Indian tribes, involved in wars, and driven out at Territory, with sixty-five or seventy thousand last, or whether Congress shall, after giving square miles, which was set apart and ceded each Indian of them a fee simple in land by solemn treaty, about fifty years ago, as a enough to live on, and paying them the price country and a future home for the Southern of the balance, open their country to settleIndians. This cession was made to be per- ment by the whites, and establish a territorial petual; the lands were granted in fee simple, government, giving the Indians equal rights and the tribes were guaranteed independent with the whites, and enabling them to live in self-government and freedom from taxation. peace and perfect their civilization. But Congress, some ten years ago, without ARMY OF THE UNITED STATES. The notice or hearing, extended the revenue lurcs army on October 15, 1878, consisted of 24,and taxation orer all countrics lying within 761 enlisted men, which is a reduction of “the bounds of the United States." Treaties about five thousand since the previous year. with the tribes hitherto had always been held The desertions during the year ending June 30, to be sacred, being made with independent and 1878, were 1,678; during the previous year not subject nations; and they had been so 2,516. In the expenditures for the army there recognized always by the political power, and was a reduction over the previous year of repeatedly by the Supreme Court of the United $1,323,731.54, which arose in part from the States. All this has now been reversed. The diminution of the force. The appropriation Congress in effect destroyed all treaties when by ('ongress was $25,712,500. it destroyed the sovereignty of one of the par The only active service of the army during ties by extending over the Indian country, the year was caused by some Indian disturbwithout its consent, the revenue laws of the ances which were confined to a comparativeUnited States. In the noted case of E. ('ly small number of Indians. The discontent Boudinot vs. the United States, Mr. Boudinot among the Bannocks, which led first to acts resisted the right of the United States to do of violence on the part of some members of this thing, quoting in vain the treaties with the tribe, and finally to the outbreak, appears the tribes and the repeated decisions of the to have been caused by an insufficiency of food Supreme Court sustaining their inviolability. on the reservation, and this insufficency to The Cherokee authorities, in maintaining the have been owing to the inadequacy of the aprights of the Cherokee Nation, employed coun- propriations made by Congress to the wants sel to aid them. But the Supreme Court sus of the Indians at a time when they were tained the action of Congress, and Mr. Bondi- prevented from supplying the deficiency by not was ruined, and with him the cause of his hunting. After an arduous pursuit by the people.
troops of the l'nited States, and several enThis is regarded as a precedent for the abro- gagements, the hostile Indians were reduced gation of all treaties with the Indians by simple to subjection, and the larger part of them surlegislation, and the tiine will perhaps be short rendered themselves as prisoners. The other
case of disturbance was that of a band of north- been recently inaugurated in taking fifty Indian ern Cheyennes, who suddenly left their res- children, boys and girls, from different tribes, ervation in the Indian Territory and marched to the Hampton Normal Agricultural Institute rapidly throngh the States of Kansas and Ne- in Virginia, where they are to receive an elebraska in the direction of their old hunting- mentary English education and training in agrigrounds, committing murders and other crimes culture and other useful work, to be returned on their way. From documents accompanying to their tribes, after the completed course, as the report of the Secretary of the Interior it interpreters, instructors, and examples. It is appears that this disorderly band was as fully reported that the officer charged with the selecsupplied with the necessaries of life as the tion of those children might have had thou4.700 other Indians who remained quietly on sands of young Indians sent with him had it the reservation, and that the disturbance was been possible to make provision for them. caused by men of a restless and mischievous In the opinion of the Secretary of War, the disposition among the Indians themselves. Al- policy of the Government toward the Indians most the whole of this band have surrendered should be designed to enforce these two propoto the military authorities, and when some of sitions, viz. : them had taken refuge in the camp of the Red 1. Fair and just treatment of the Indians, including Oloud Sioux, with whom they had been in the faithful performance on our part of every promfriendly relations, the Sioux held them as pris- ise; andoners and readily gave them up to the officers of war on their part, and to this end the employment
2. The prompt and effectual punishment of all acts of the United States, thus giving new proof of of a sufficient military force in the Indian country to the loyal spirit which they have uniformly act with vigor and success when occasion requires, shown ever since the wishes they expressed and prevent the possibility of the defeat or massacre at the council of September, 1877, were com
of small detachments of our troops, by which Indian plied with.
wars have been so often in the past encouraged and
prolonged. Both the Secretary of War and the Secretary of the Interior unite in the recommendation
The army appropriation bill passed at the that provision be made by Congress for the close of the session of Congress in June, 1878, organization of a corps of mounted "Indian contained a provision for a joint committee to auxiliaries,” to be under the control of the investigate the propriety of a transfer of the army, and to be used for the purpose of keep- care of the Indians from the Interior Departing the Indians on their reservations, and pre- ment to the War Department. The first meetventing or repressing disturbance on their part. ing of the committee was on December 6th,
It is believed that the organization of such and the first witness called was the Secretary a body of Indian cavalry, receiving a moderate of the Interior, Carl Schurz. The following pay from the Government, would considerably extract from his testimony will show some of weaken the restless element among the Indians the points of the question: by withdrawing from it a number of young Permit me to state that there are two methods of men and giving them congenial employment Indian management possible-either to herd and under the Government, it being a matter of
corral the Indians under the walls or guns of a miliexperience that Indians in service, almost with- tary force, so to speak, so as to watch them and pre
vent outbreaks, or to start them at work upon their out exceptions, are faithful in the performance lands, to educate them and to civilize them. of the duties assigned to them. Such an or Now, in the nature of things, the first method ganization would materially aid the army in the would be the only method adopted by the military accomplishment of a task for which its numeri- branch of the Government, for the simple reason cal strength is sometimes found insufficient. It that it is their business to kcep the peace and pre
vent troublesome tribes from getting into mischief. may be very difficult and require much patient The second is the policy which we have followed effort to curb the unruly spirit of the savage and carried out, with at least a partial success; a Indian to the restraints of civilized life, but policy certainly the most humane and enlightened, experience shows that it is not impossible.
and more in the interest of pence in the long run, Many of the tribes which are now quiet and without any settled interests or property, we may
for as long as the Indinns remaiu roaming tribes, orderly and self-supporting were once as sav- always look for complications. It is also the most age as any that at present roam over the plains economical policy, for the sooner the Indians are or in the mountains of the Far West, and were civilized the sooner they will be able to provide for then considered inaccessible to civilizing influ- themselves; . I think also that in the morals and in
dustrial habits of civilized life the military branch ences. It may be impossible to raise them fully of the Government is not the best calculated to inup to the level of the white population of the struct thom. This question of a transfer has been United States, but they are aborigines of the discussed before, and in a report which has attained country, and called the soil their own on which
some celebrity it is stated that under the plan which our people have grown rich, powerful, and hap- to educate and instruct in the peaceful arts; in other
is suggested the chief duties of the Bureau will be py. It is also a well-authenticated fact that words, to civilize the Indians. The military arm of Indians are apt to be peaceable and quiet when the Government is not the most admirably adapted their children are at school; and there is a to discharge duties of this character. We are satissteadily increasing desire, even among Indians
fied that not one army officer in a thousand would
like to teach Indian children to read and write or belonging to comparatively wild tribes, to have Indian men to sow and rear. These are emphatitheir children educated. An experiment has cally civil and not military occupations. The re