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By ALBERT WATKINS Though Nebraska's parturition was
prolific beyond that of any other territory,1 her
state area has been increased only by the small tract above
the Keyapaha and Niobrara rivers transferred from Dakota by
the act of congress passed March 28, 1882, and accepted by
an act of the legislature passed May 23, 1882.2
How Nebraska came by this quite important territorial
acquisition and at the expense of Dakota, is an interesting
and original inquiry. 1See "Nebraska, The Mother of States," ante. 2U. S. Statutes at Large, v. 22, p. 35; Laws of Nebraska 1882, p. 56. In the year 1867 the Missouri river cut directly across a projection of Union county, Dakota, containing about three sections which, according to the law of avulsion--abrupt cut-off--inconveniently remained a part of Dakota until it was detached and added to Nebraska by an act of congress passed April 28, 1870. By the act of February 9, 1871, the legislature of Nebraska accepted this gift of the freakish Missouri and attached it to Dakota county (United States Statutes at Large, v. 16, p. 93; Laws of Nebraska 1871, p. 131). For a further account of this incident see my footnote 3, Nebraska Constitutional conventions, v. 3, p. 195. |
of the Missouri River, shall be extinguished, the jurisdiction over such lands shall be, and hereby is, ceded to the State of Nebraska, and the northern boundary of the State shall be extended to said forty-third parallel, reserving to the United States the original right of soil in said lands, and disposing of the same. Provided, That this act shall not take effect until the President shall by proclamation declare that the Indian title to said lands has been extinguished; nor shall it take effect until the State of Nebraska shall have assented to the provisions of this act.3 On the 20th of January, 1880, the bill was further considered as follows: Mr. Saunders. I have the consent of the Senator who has the special order of the day in charge to call up the bill (S. No. 550) to extend the northern boundary of the State of Nebraska. Mr. Davis, of West Virginia. I ask for the regular order. I do not like to antagonize any gentleman. Mr. Saunders. This probably will not take three minutes; certainly not five. If it takes more than that time, I shall withdraw it. Mr. Davis, of West Virginia. Well, I give notice that I shall call for the regular order after the bill of the Senator from Nebraska is disposed of. Mr. McMillan [Minnesota]. I should like to ask the Senator from Nebraska to permit this bill to lie over until I have an opportunity of looking at it. Mr. Saunders. If the Senator is not satisfied, I will state that the bill was unanimously recommended by the Committee on Territories, with the amendment now proposed. There is no objection to it by any one. It was a unanimous report. The bill merely changes the line. Mr. McMillan. I reserve the right to object. Mr. Saunders It merely extends the line between the Territory of Dakota and the State of Nebraska, a thing which would probably have been done when the State was admitted, only they did not know at the time where the rivers ran. 3Congressional Record, v. 9, pt. 1, p. 1043. This copy was made from the original bill, on file in the Capitol at Washington. |
The amendment reported by the Committee on Territones was read, being to strike out all after the enacting clause of the bill, and in lieu thereof to insert: That the northern boundary of the State of Nebraska shall be, and hereby is, extended so as to include all that portion of the Territory of Dakota lying south of the forty-third parallel of north latitude, and east of the Keyapaha River and west of the main channel of the Missouri River; and when the Indian title to the lands thus described shall be extinguished, the jurisdiction over said lands shall be, and hereby is, ceded to the State of Nebraska, and the northern boundary of the state shall be, and hereby is, extended to said forty-third parallel, as fully and effectually as if said lands had been included in the boundaries of said state at the time of its admission to the Union; reserving to the United States the original right of soil in said lands and of disposing of the same: Provided, That this act, so far as jurisdiction is concerned, shall not take effect until the President shall, by proclamation, declare that the Indian title to said lands has been extinguished; nor shall it take effect until the State of Nebraska shall have assented to the provisions of this act. Mr: McMillan. I shall be compelled to ask the Senator from Nebraska to permit this bill to lie over that I may have an opportunity to examine it. It is a matter of too much importance to be acted on hastily. Mr. McPherson [New Jersey]. Then I call for the unfinished business.4 On the 3d of May the amendment or substitute was considered at length. Many of the most noted senators participated in the discussion, and gave Senator Saunders a severe grilling. The bill was reported from the Committee on Territories with an amendment, to strike out all after the enacting clause and insert: That the northern boundary of the State of Nebraska shall be, and hereby is, extended so as to include all that 4Ibid., v. 10, pt. 1, p. 410. |
portion of the Territory of Dakota lying south of the forty-third parallel of north latitude, and east of the Keyapaha River and west of the main channel of the Missouri River; and when the Indian title to the lands thus described shall be extinguished, the jurisdiction over said lands shall be, and hereby is, ceded to the State of Nebraska, and the northern boundary of the state shall be, and hereby is, extended to said forty-third parallel, as fully and effectually as if said lands had been included in the boundaries of said state at the time of its admission to the Union; reserving to the United States the original right of soil in said lands and of disposing of the same: Provided, That this act so far as jurisdiction is concerned, shall not take effect until the President shall, by proclamation, declare that the Indian title to said lands has been extinguished; nor shall it take effect until the State of Nebraska shall have assented to the provisions of this act. Mr. Cockrell [Missouri]. I offer the following amendment-- Mr. Saunders. Let me put in one from the committee first. The committee have authorized me to make another amendment, which I wish to move first. Mr. Cockrell. Very well. Mr. Saunders. I move to strike out the words "and hereby is" where they occur in lines 9 and 10, and where they occur in line 11, so as to read: The jurisdiction over said lands shall be ceded to the State of Nebraska, and the northern boundary of the state shall be extended to said forty-third parallel. The amendment to the amendment was agreed to. Mr. Cockrell. I desire to insert in line 9, immediately after the word "extinguished", the words "if it shall ever be extinguished"; that is, if the Indian title shall ever be extinguished. Mr. Saunders. I have no objection to that amendment. The amendment to the amendment was agreed to. Mr. Cockrell. At the close I move to add: Nor shall this act create any liability or obligation of any kind whatever on the part of the United States to extinguish said Indian title. |
Mr. Dawes [Massachusetts]. I ask the Senator to add "or in any way affect the Indian title thereto." Mr. Cockrell. I have no objection to that. Mr. Teller [Colorado]. Would that do any good? Mr. Dawes. I do not know that it would, but I do not think it would do any harm. Mr. Cockrell. There can be no objection to that, as a matter of course. Mr. Teller. It is well enough for Senators to look after the interests of these Indian reservations, but it does seem to me a remarkable thing that in the Senate we should put words into a bill that everybody admits will have no meaning whatever. Does anybody suppose that because we put this piece of land in the State of Nebraska the Government loses its title to the land or that the Indians lose any title they may have under any stipulation of a treaty? Then why put in these unmeaning and needless words? The amendment to the amendment was agreed to. Mr. Ingalls [Kansas]. I wish to know whether the words "and hereby is," after the amendment offered by the Senator from Nebraska, remain in any portion of the bill. I was not able to learn from the reporting of his amendment at the Clerk's desk. Mr. Cockrell. They remain in the fourth line. Mr. Ingalls. Those words, in my judgment, should also be stricken from that line. After the word "be", in line 4, I move to strike out the words "and hereby is." The amendment to the amendment was agreed to. Mr. Thurman [Ohio]. I have never read this bill, but I have just heard it read at the desk, and it strikes me as something anomalous that requires explanation. Are we going to extend the line of a State to embrace territory within it, and at the same time say the State shall have no jurisdiction over the Indian territory thus acquired? Mr. Saunders. No jurisdiction until the Indian title shall have been extinguished. Mr. Thurman. But it is a mere promise to give the lands to the State in future. How can you extend the line of a State so as to include new territory and at the same |
time say the State shall have no jurisdiction over it. That passes my comprehension. Mr. Saunders. Probably as good an answer as could give to the Senator from Ohio would be to say that the very same words were used in the act attaching the Platte district to the State of Missouri. That was done with the same provision exactly used in this bill, that the jurisdiction should not extend over the territory until the Indian title had been extinguished. Mr. Thurman. If it meant to say that the act should not take effect until that happened, and the President should make a proclamation to that effect, then I could understand it; but how you can include by words of present significance a territory in a State and at the same time say that the State shall have no jurisdiction at all, is what I cannot understand. While I am, as I know nothing about it, I wish to inquire of the Senator how much new territory does this embrace? Mr. Saunders. It will make somewhere probably about eighteen townships. The territory is about sixty miles long, a sort of irregular triangle. It is on an average about eight or nine miles wide and runs a length of sixty miles. It is one mile wide at the west end. The purpose is simply to straighten the line. I have a map of it here if any one wishes to look at it. Mr. Thurman. It is eight miles wide at one end and one mile at the other and sixty miles long? Mr. Saunders. Yes. There are about eighteen townships of land all told. Mr. Kirkwood [Iowa]. It runs up to the Niobrara River? Mr. Saunders. As the line of the State of Nebraska now stands it runs up the Missouri River to the mouth of the Niobrara River, and then up that stream until it comes to the mouth of the Keyapaha, then up the Keyapaha until it strikes the forty-third parallel of north latitude, then running west to the western boundary of the State. What we are asking is to extend that line east of [to] the Missouri so as to get on the forty-third parallel as the north line of Nebraska and the south line of Dakota. |
Mr. Allison. May I ask the Senator from Nebraska what the character of this land is that is to be transferred? Mr. Paddock. About the average character of the whole Sioux reservation. It is a part of that. Mr. Saunders. There are two or three large streams running through it, furnishing bottom land. Mr. Allison. Good agricultural or pasture land? Mr. Saunders. Yes, sir. Mr. Teller. Good land? Mr. Saunders. I should like to read for the information of Senators the act to extend the western boundary of the State of Missouri to the Missouri River, which has been adapted to this case: Be it enacted, &c., That when the Indian title to all the lands lying between the State of Missouri and the Missouri River shall be extinguished, the jurisdiction over said lands shall be hereby ceded to the State of Missouri, and the western boundary of said State shall be then extended to the Missouri River, reserving to the United States the original right of soil in said lands, and of disposing of the same: Provided, That this act shall not take effect until the President shall, by proclamation, declare that the Indian title to said lands has been extinguished; nor shall it take effect until the State of Missouri shall have assented to the provisions of this act. Approved June 7, 1836. Mr. Thurman. That is just as I suggested. The act itself was not to take effect until the Indian title was extinguished and the President should have issued his proclamation; but if I understood this bill aright--perhaps I did not understand it correctly, as I have never seen it--it takes effect in presenti. Mr. Saunders. It is the same act. Mr. Thurman. I do not wish to interfere with the bill at all. The State of Nebraska is a very small State, and no doubt needs these two hundred and seventy square miles! Mr. Paddock [Nebraska]. I desire to state to the Senator from Ohio that the acquisition of the territory is a matter of very little account to the State of Nebraska; but a part of the boundary is on a dry creek a portion of |
the year, and it is not a proper boundary. The Keyapaha is a very small, insignificant stream, and a dry creek is a very poor boundary for a State. The desire is that the established parallel, the forty-third parallel, shall be the boundary. That is the object sought to be accomplished, and not the acquisition of the territory, which is a matter of very small importance. Mr. Williams [Kentucky]. I want to say just one word. The proposition is merely to include this strip of land within the territorial limits of the State without bringing it under the lawful jurisdiction of the State until the Indian title shall be extinguished. That is the proposition. Mr. Paddock. Of course there will be no jurisdiction on the part of the State until the title is extinguished anyway. This is a defined permanent reservation, and of course the State would have no jurisdiction over it, even if it had been originally within its limits. Mr. Williams. I am not urging that as an objection to the bill, but as a reason why we should dispose of it. Mr. Dawes. I should like to inquire of the Senator from Nebraska whether this bill includes within the State of Nebraska the entire old Ponca reservation, so that no part of it is left out? Mr. Paddock. It does not interfere with the Ponca reservation at all. Mr. Dawes. It does not cut it in two? Mr. Saunders. Oh, no. Mr. Paddock. Not at all. The Presiding Officer. The question is on agreeing to the amendment of the committee as amended. The amendment, as amended, was agreed to. Mr. Teller. Let the bill be read as amended. The Chief Clerk read the bill as amended. The bill was reported to the Senate as amended, and the amendment was concurred in. Mr. Hoar [Massachusetts]. I should like to inquire of the Senator from Nebraska, is there not a jurisdiction in the United States, so far as offenses committed by white men are concerned, over the Indian reservation? Mr. Saunders. If so, it belongs to the Territory of Dakota. We are not interfering at all with the title. |
Mr. Hoar. Then the difficulty suggested by the Senator from Ohio is not answered to my mind. I should like to know whether this becomes a part of the State of Nebraska; and if the State of Nebraska at once accepts, so far as jurisdiction is concerned, when the Indian title may not be extinguished for twenty years, under what authority can the United States punish one white man for an offense upon another in a State? If it is a part of the State, the United States cannot deal with this offense merely because it is on an Indian reservation. Mr. Saunders. How do they do with the Indians residing in the State of New York? Mr. Hoar. The United States does not punish white men who commit offenses one on another on an Indian reservation in the State of New York. I do not understand that it does. Mr. Saunders. I ask the question for information. Mr. Hoar. I suggest why not strike out in the sixteenth and seventeenth lines the words "so far as jurisdiction is concerned," the entire act to take effect when the President shall make his proclamation? That answers all the Senator's purpose. The Presiding Officer. Does the Senator from Massachusetts offer an amendment? Mr. Hoar. Yes, sir; although I confess I do not understand the subject as well as the Senators in charge. Mr. Saunders. I think that this subject was thoroughly discussed at the time the Platte purchase was added to the State of Missouri. Mr. Blaine [Maine]. Then why not employ the same language? Mr. Saunders. We have. Mr. Blaine. The exact language? Mr. Thurman. If the Senator will pardon me, he does not follow the language. The words "so far as jurisdiction is concerned" are not in the Missouri act. That is just what makes the distinction. Mr. Saunders. The Missouri act reads: Provided, That this act shall not take effect until. the President shall by proclamation declare that the Indian title to said lands has been extinguished; nor shall it take |
effect until the State of Missouri shall have assented to the provisions of this act. Mr. Hoar. My amendment makes this bill conform to that act. Mr. Paddock. There can be no objection to the amendment. Mr. Hoar. The Senator from Nebraska will observe that in his bill the words are not that the act shall have no effect but only that it shall not take effect so far as the jurisdiction is concerned. Those words are not in the old Missouri act, not in the statute. Therefore the operation of this bill is to attempt to make the territory a part of a State and to provide that the State shall have no jurisdiction over it. If it be a part of the State, certainly the United States can have no jurisdiction over it except as it has over all State territory. Mr. Saunders. What is the proposition of the Senator from Massachusetts? Mr. Hoar. The proposition is to strike out the words "so far as jurisdiction is concerned" from the bill, which makes it exactly correspond to the act to which the Senator says it does correspond. Mr. Saunders. I have no objection to that amendment. Mr. Blaine. The Senator from Nebraska will observe that the committee undoubtedly, when framing the bill, referred to that act. One of the most elaborately discussed propositions of that day was the Platte purchase. The wording of that act by Colonel Benton was done with great care and to avoid the very points which have come up in this discussion; and as it is a precedent of such great moment it seems to me it would be wise in our legislation to follow it. Mr. Saunders. The bill was intended to follow it exactly. Mr. Paddock. There can be no objection to the amendment of the Senator from Massachusetts. Mr. Saunders. There is no objection to the amendment. Mr. Teller. It seems to me that we shall get into trouble with this bill in the shape we are putting it in, at |
all events. This is well known to be on the southern line of a portion of the Territory of Dakota. From the present indications Dakota will be a State probably in the next two or three years. I have no doubt that Dakota has a population at this time sufficient to entitle her to a Representative in Congress, and I know they will be here at the next Congress asking to be admitted, and undoubtedly will be admitted. When the State of Dakota is admitted the Indian title will remain unextinguished. The Government will probably admit Dakota when it demands admission, with some provision with reference to the Indian lands and Indian title, and here will be a little strip of land a mile wide at one end and eight miles wide at the other which will be neither in a State nor in a Territory, which will neither be subject to the laws of Dakota nor to the laws of Nebraska. I should like to inquire in what kind of a condition the people who are living there, whether they be white or red, would be placed. Mr. Paddock. I do not think there is a single person living in the district of territory involved in this bill. So far as the intercourse laws are concerned, I should like to inquire of the Senator if he thinks a change of that district from the Territory to State limitations changes the state of the intercourse laws. Mr. Teller. That has not anything to do with the question. It will neither be in a State nor in a Territory, but will be between two States subject to the jurisdiction of neither. Mr. Paddock. I think the Senator's conclusion is a wrong one. Mr. Teller. It may be that it is wrong. Mr. Paddock. It certainly is wrong, because until the act itself takes effect the State does not obtain jurisdiction; it is not a part of the State until the law takes effect; it is still within the limits of the Territory. Mr. Teller. If the honorable Senator from Nebraska will wait until I get through he will understand more about it, or less, I do not know which. Mr. Paddock. Less. Mr. Saunders. I cannot hear what the Senator says. |
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