James Clark McReynolds

“ Ct. 780, 56 L. Ed. 1216, lands in the Delaware Diminished Indian Reservation-east of the Pottawatomies-were declared 'public lands' within the intendment of the right of way clause, act of 1862, although then actually occupied by individual members of the Tribe under assignments executed as provided by treaty. That case renders clear the definite purpose of Congress to treat Indian Reservations, subject to its control, as public lands within the right of way provision. This provision is not to be regarded as bestowing bounty on the railroad ”

“ The grant of the right of way in 1862, was present and absolute and upon identification of the route, took effect as of the date of the act. All who thereafter acquired public lands took subject to such granted right. ”

“ It seems plain that, at least, until actually allotted in severalty (1864) the lands were but part of the domain held by the tribe under the ordinary Indian claim-the right of possession and occupancy-with fee in the United States. Beecher v. Wetherby, 95 U.S. 517, 525, 24 L. Ed. 440. The power of Congress, as guardian for the Indians, to legislate in respect of such lands is settled. ”