87 F. 532 | U.S. Circuit Court for the District of Oregon | 1898
In the petition for a rehearing filed in this case the position heretofore taken by complainant that by the treaty with the Indians the lands in controversy were ceded to the United States, that the right of occupancy now held by the Indians is a new right acquired by the treaty, and that, the treaty being subsequent to the road grant, such right is subject thereto, is restated with great clearness, and the argument in its support is strongly re-enforced. Particular attention is called to the language of the proviso in the treaty by which the residence of the Indians therein provided for is to continue “until otherwise directed by the president,” and the contention is made that this langauge shows that the rights now held by the Indians are not the same rights originally held by them, but are new rights bottomed on the treaty, and therefore subsequent in time to the road grant. My conclusion is that it is not material whether the rights in question are equal in extent with those originally held by the Indians. It may be conceded that these rights are not the same with reference to their extent, but it does not follow that they are new. When there is a cession with a reservation, the right reserved may be a less right than that originally held, but it is not for that fact a new right. There is nothing to shake the conclusion that the right of occupancy enjoyed by the Indians has never as to these lands been surrendered by them. If, having an unlimited right of occupancy in all the lands