Reporter's Statement of the Case

"Prior to and in the year 1849 the several tribes of Indians mentioned in the last preceding paragraph were located in the following territory:

"The territory of the Medawakanton Band of Indians was entirely west of the Mississippi River and extended from the Iowa line, including the half-breed reservation, north to some 10 or 20 miles above the St. Peters. The Wapekoota Band of Indians occupied country below and west of the Medawakantons, to the south of the St. Peters, and around the heads of the Cannon and Blue Earth Rivers. The Wahpeton Band of Indians lived north and west of the Wapekootas and their villages extended far up the St. Peters River toward its sources. To the west and southwest of the two last-mentioned bands was the Sisseton Tribe, which claimed all the country west of the Blue Earth River to the Jacques (James). The Teton Band of Indians lived entirely beyond the Missouri River, their territory extending about Cannonball River and south to the Niobrara River. The territory of the Yankton Band of Indians was next beyond that of the Sisseton Tribe, commencing on the western side of Lake Traverse, and extending west of the River Jacques to the Missouri above old Fort Lookout, and to the borders of the land of the Yanktonais. The Yanktonais Band of Indians lived on all that range of country at the heads of the Sioux, Jacques, and Red Rivers, north and west of the Yankton Tribe, nearly to the White Earth River.

"The Red Pipestone Quarry was located on the lands occupied by the Sisseton Band of the Sioux. From time immemorial the Indians of all the surrounding nations have claimed the right to visit and have visited annually said Red Pipestone Quarry for the purpose of procuring material for their pipes for smoking as well as for use in Indian ceremonial affairs. Speaking of the Sisseton Band of Sioux, it is recorded in the Indian Commissioner's report for the year 1849 (p. 1021):

"This band claims the custody of the famous wakan, the Red Pipestone Quarry, near the Coteau des Prairies, toward the River Jacques.'

"V. By the treaty of July 23, 1851, 10 Stat. 949, commonly known as the treaty of Traverse des Sioux, the Sisseton and Wahpeton Bands of Mississippi Sioux ceded all their lands in the State of Iowa and in the then Territory of Minnesota east of a stated line, which embraced the land on which the pipestone quarry was located, to the United States, and the Medawakanton and Wahpekoota Bands of Sioux by the treaty of August 5, 1851, 10 Stat. 954, known as

Reporter's Statement of the Case

the treaty of Mendota, ceded all their right, title, and claim to any lands whatever in the State of Iowa or said Territory of Minnesota. The consideration for these treaties, after the payment of certain sums for specified purposes, was to be placed to their credit in the Treasury of the United States at 5 per cent, to be paid to the said bands in 50 annual installments, thereby wiping out the entire consideration, principal and interest.

"Subsequent to the treaty of 1851 the Yanktonais Indians visited the upper agencies at nearly every payment of annuities to the Mississippi Sioux, and attempted to procure a share of the annuities of the Sisseton and Wahpeton Indians upon the claim that the Mississippi Sioux by the treaties of 1851 had disposed of land in which they had an interest, particularly the pipestone quarry, and the Yankton and Teton Tribes also made complaint that the Mississippi Sioux had disposed of lands in which they had an interest, and the Yanktons expressed a desire to enter into a treaty with the Government by which they would receive annuities. For the purpose of settling the trouble the Government entered into a treaty with the Yankton Indians in 1853, and also offered to enter into a treaty with the Yanktonais Indians, but they absolutely refused to discuss the matter because the Tetons and other bands residing west of the Missouri could not be present.

"VI. The Yankton Sioux by the treaty of April 19, 1858, 11 Stat. 743, ceded all of the lands owned, possessed, or claimed by them, wherever situated, for the sum of $1,650,000, payable in 50 years, and reserved for their occupation 400,000 acres on the Missouri River. The eastern line of their cession was therein defined as the Big Sioux River from Lake Kampeska to its junction with the Missouri River.

"The last sentence of Article I thereof reads as follows: "They also hereby relinquish and abandon all claims and complaints about or growing out of any and all treaties heretofore made by them or other Indians, except their annuity rights, under the treaty of Laramie of September 17, A. D. 1851."

"Article VIII thereof reads as follows:

"The said Yankton Indians shall be secured in the free and unrestricted use of the Red Pipestone Quarry or so much thereof as they have been accustomed to frequent and use for the purpose of procuring stone for pipes; and the United States hereby stipulate and agree to cause to be surveyed and marked so much thereof as shall be necessary and proper for that purpose, and retain the same and keep

Reporter's Statement of the Case

it open and free to the Indians, to visit and procure stone for pipes so long as they shall desire.'

"The Yanktonais Tribe also strenuously objected to the sale of the Yankton lands, claiming it belonged to the Sioux Nation, and not to the Yanktons exclusively, and requested their agent at Fort Union in September, 1858, to write their Great Father to stop the treaty. This band of Yanktonais was composed of a proud and haughty people, and rejecting all overtures to placate them continued their opposition as late as 1861, or until the terrible affair of New Ulm in 1862.

“VII. At the instigation of one of their chiefs, Struckby-the-Ree, the Yankton Indians refused to enter into any treaty unless some provision was inserted therein recognizing their right to take stone from the Pipestone Quarry for their pipes, and accordingly, in order to effect a treaty, Article VIII was added.

"VIII. In the execution of its agreement under Article VIII of said treaty the United States caused so much of the quarry as appeared to be necessary and proper for the purposes of the reservation to be surveyed and marked. A diagram and the field notes were duly returned and recorded in the General Land Office, and in the office of the surveyor general of Minnesota, and in February, 1860, copies were transmitted to the surveyor general of the United States for that State, with instructions to respect them when the public surveys reached that locality. Afterwards, for some unexplained reason and in violation of the instructions, the reservation was surveyed with other public lands in the vicinity, whereupon the commissioner directed the surveyor general to locate the reservation on the official plats in his office from the field notes and plat of the original survey, or, if impossible, to direct a resurvey so that the reservation might be located and described upon the official plats and its boundaries respected in accordance with the treaty. In pursuance of these instructions the surveyor general caused a resurvey of the quarry, and its boundaries as resurveyed correspond and are substantially coincident with the lines of the original survey.

"IX. A patent issued May 15, 1874, to a settler upon the reservation was held invalid by the Supreme Court of the United States.

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"X. In 1887 the agent of the Yankton Agency recommended that certain intruders on the Pipestone Reservation be removed, and under date of March 3, 1887, the Acting Secretary of the Interior directed the removal of such intruders upon the lands in question, with all their property and effects, and a detachment of the United States Army,

Reporter's Statement of the Case

acting under orders of April 26 and October 3, 1887, from the War Department, proceeded to the Pipestone Reservation in company with the Indian agent and with an escort of troops, and on October 11, 1887, effected the removal of trespassers thereon.

"XI. In 1891 there was received by the United States from the Cedar Rapids & Northern Railway Co. for its right of way through the Pipestone Reservation, Minn., the sum of $1,740 as damages, and under date of January 9, 1891, the Secretary of the Interior granted authority for the Indian agent in charge of the Yankton Agency to pay per capita to the Yankton Indians the said sum of $1,740, less the expense of appraising the damages to the lands of the Indians ($40), and the Indian agent at Yankton Agency disbursed the sum of $1,657.25 to 1,674 Indians, as shown on the roll dated May 9, 1891, and the further sum of $25.74 to 26 Yankton Indians as per supplemental roll of June 30, 1892.

"XII. The commission, which negotiated the treaty of December 31, 1892, ratified by section 12 of the act of August 15, 1894, 28 Stat. 286, 314, 317-319, heard speeches made by certain members of the Yankton Tribe, in which they claimed that the Government, by Article VIII of the treaty of April 19, 1858, gave to the said tribe the fee-simple title and possession of the Red Pipestone Quarry.

"Bearing upon this disputed question, Article XVI was inserted, which reads as follows:

"If the Government of the United States questions the ownership of the Pipestone Reservation by the Yankton Tribe of Sioux Indians under the treaty of April 19, 1858, including the fee to the land as well as the right to work the quarries, the Secretary of the Interior shall as speedily as possible refer the matter to the Supreme Court of the United States to be decided by that tribunal. And the United States shall furnish, without cost to the Yankton Indians, at least one competent attorney to represent the interest of the tribe before the court. If the Secretary of the Interior shall not, within one year after the ratification of this agreement by Congress, refer the question of ownership of the said Pipestone Reservation to the Supreme Court as provided for above, such failure upon his part shall be construed as and shall be waiver by the United States of all its rights to the ownership of the said Pipestone Reservation, and the same shall thereafter be solely the property of the Yankton Tribe of Sioux Indians, including the fee to the land.'

Reporter's Statement of the Case "XIII. The Secretary of the Interior did not within one year from August 15, 1894, the date of the ratification of said treaty by Congress, refer the question of the ownership of the said Pipestone Reservation to the Supreme Court, as provided by Article XVI of said treaty. The Secretary of the Interior had presented the matter to the Department of Justice for an opinion and had been advised that it was impracticable to comply with said Article XVI. No further action was taken by the Government with reference to the Pipestone Reservation until, by the Indian appropriation act of June 7, 1897, 30 Stat. 62, 87, the Secretary of the Interior was directed to negotiate, through an Indian inspector for the Yankton Tribe of Indians of South Dakota, for the purchase of a parcel of land near Pipestone, Minn., on which is now located an Indian industrial school.'

"XIV. Under the act mentioned in the last preceding finding Inspector James McLaughlin negotiated an agreement with the Yankton Indians on October 2, 1899, for the transfer of their interests in the Pipestone Quarry to the United States for the sum of $100,000 and transmitted the same to the Department of the Interior on October 9, 1899. That agreement was transmitted to Congress by the department on March 24, 1900, and the report of said inspector, the agreement, and the council proceedings were printed in full as House Document No. 535, Fifty-sixth Congress, first session. On March 3, 1903, Senator Quarles, from the Senate Committee on Indian Affairs, submitted an adverse report on the bill to ratify the agreement, which, after quoting Article VIII of the treaty of April 19, 1858, stated that the only title the Yanktons had was in the nature of an easement, and that it was a legal and practical impossibility for the Secretary of the Interior to have referred the question of title under Article XVI of the agreement of December 31, 1892, to the Supreme Court for construction. Senator Gamble, for himself and two others, submitted a minority report with an argument in favor of the Yanktons' contention and expressed an opinion that the agreement should be ratified. No action appears to have been taken on the bill. On April 4, 1906, Senator Gamble, from the Senate Committee on Indian Affairs, submitted a favorable report (S. Rep. 2369, 59th Cong., 1st sess.) on S. 2993 for the ratification of said agreement of 1892. No action appears to have been taken upon this bill."

III. The Yankton Sioux Indians are still permitted to visit and procure stone for pipes from the said quarries at such times and in such quantities as they may desire, and