| Summary: | 636 36 NORTH DAKOTA REPORTS can only be opened upon paying to the owner of the land his proper dam ages, which would include the value of the strip taken. In this we believe he is in error. The Devils Lake Reservation was not set apart until June 22, 1874, when a treaty was made with the Indian tribes in relation thereto. The grant was made by Con gress in 1866, and accepted by the territory in 1871, for we have held that the Territorial Act of 1871, before referred to, constituted an ac ceptance of the congressional grant. See Wenberg v. Gibbs Twp. 31 N. D. 49, 153 N. W. 440; Walcott Twp. v. Skauge, 6 N. D. 386, 71 N. W. 544; Wells v. Pennington County, 2 S. D. 1, 39 Am. St. Rep. 753, 48 N. W. 305. This and other courts have also held that the Federal Act of July 26, 1866, from its clear wording conveys a pres ent grant; when, therefore, the provision was acted upon and accepted by the territory, such acceptance related back and became effective from the date of the grant. Walcott Twp. v. Skauge, 6 N. D. 388, 71 N. W. 544; Wells v. Pennington Twp. 2 S. D. 6, 39 Am. St. Rep. 758, 48 N. W. 305; Leavenworth, L. & G. R. Co. v. United States, 92 U. S. ' 733, 23 L. ed. 642; St. Joseph & D. C. R. Co. v. Baldwin, 103 U. S. 426, 26 L. ed. 578; Wright v. Roseberry, 121 U. S. 506, 30 L. ed. 1044, 7 Sup. Ct. Rep. 985; French v. Fyan, 93 U. S. 169, 23 L. ed. 812; Northern P. R. Co. v. Barlow, 26 N. D. 159, 143 N. W. 903, 240 U. S. 484, 60 L. ed. 760, 36 Sup. Ct. Rep. 456. If, therefore, at the time of the grant the land belonged to the United States, the highway was created in 1871, and the plaintiff has no right therein, unless, perhaps, the subsequent setting apart of the territory as an Indian reservation in 1874 reserved the land for a public use, and repealed the prior grant. - We are satisfied that the reservation in question was never at any time property which belonged to the Indians. Whether rightfully or wrongfully, the courts have never recognized any title in the Indians to the lands of the United States, except as we have chosen to specifically grant it. - The history of the territory is as follows: In 1609 Henry Hudson discovered the bay which was named after him. In 1669 the Hudson Bay Company was charactered by Charles the Second, and to it was given the basin of Hudson bay including the valleys of the Red River of the North, the Sheyenne and Devils lake. The French owned the
|
|---|