Introduction

The creation of Indian reservations largely coincided with and was facilitated by the development of presidential authority to withdraw public lands for Indian purposes. Of the roughly 42.8 million acres of total tribal trust lands in 1951, slightly over 23 million were set aside through executive order. That number far dwarfs any other method by which Indian lands were designated; the next highest was the roughly 9.5 million acres set aside by treaty. 1Open this footnote Close this footnote 1 .H.R. Rep. No. 82-2503, at 60 (1953). …Open this footnote Close

Those numbers flow from the historical context of changing federal Indian policy and law in the latter part of the nineteenth century. During the so-called Reservation Era, policymakers in Washington shifted the focus of federal policy from pushing Native peoples westward to confining them onto lands set aside for them. 2Open this footnote Close this footnote 2 .Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier 228 (1st paperback ed. 2007). …Open this footnote Close The reservation was to be an “island of Indian territory within a sea of white settlement,” 3Open this footnote Close this footnote 3 Id. To contextualize these numbers, the United States gave away more than a billion acres of land in total. See George Cameron Coggins & Doris K. Nagel, “Nothing Beside Remains”: The Legal Legacy of James G. Watt’s Tenure as a Secretary of the Interior on Federal Land and Law Policy, 17 B.C. Env’t Affs. L. Rev. 473, 480 n.24 (1990). …Open this footnote Close a guarantee of “measured separatism” for tribal nations. 4Open this footnote Close this footnote 4 .Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy 14-20 (1987). …Open this footnote Close

Accompanying the shift in policy was a shift in legal form: In 1871, Congress purported to end treatymaking with tribes, subjecting Native peoples directly to Congress’s “legislative power” rather than requiring tribal consent. 5Open this footnote Close this footnote 5 Cherokee Nation v. Hitchcock, 187 U.S. 294, 305 (1902); see generally Act of Mar. 3, 1871, ch. 120, 16 Stat. 544, 566; Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 50-51 (2002) (tracing the rise of Congress’s authority “to legislate unilaterally for Indian tribes without either enumerated constitutional authority or tribal consent” to the 1871 act and caselaw developing in its wake). …Open this footnote Close Legal historians generally have treated this change as effectuating only a cosmetic change in the transactions between the federal government and tribal nations. 6Open this footnote Close this footnote 6 .Banner, supra note 2, at 252-53. …Open this footnote Close Charles Wilkinson, for example, famously described the post-1871 procedures for establishing reservations as “treaty substitutes.” 7Open this footnote Close this footnote 7 .Wilkinson, supra note 4, at 8; see also Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly 313 (1994). …Open this footnote Close Soon after, the executive order became the predominant legal mechanism for establishing reservations: As early as 1880, legal authorities described the default method of establishing Indian reservations as an executive order “withdrawing certain lands from sale or entry and setting them apart for the use and occupancy of the Indians.” 8Open this footnote Close this footnote 8 .Public Land Comm’n Comm. on Codification, The Public Domain: Its History, with Statistics 243 (1880) [hereinafter The Public Domain]; see also George Herriott, 10 L.D. 513, 519 (Sec’y of the Interior Apr. 30, 1890) (describing the “usual method of making an Indian reservation” as by executive order); Note, Tribal Property Interests in Executive-Order Reservations: A Compensable Indian Right, 69 Yale L.J. 627, 628 (1960). …Open this footnote Close

Doctrinally, the practice of establishing Indian reservations by executive order should give us pause. Scholars of federal Indian law have long thought of this historical era in terms of the development of the plenary power doctrine, which affirms expansive congressional power over Indian affairs. 9Open this footnote Close this footnote 9 See, e.g., Haaland v. Brackeen, 143 S. Ct. 1609, 1627 (2023) (“In a long line of cases, we have characterized Congress’s power to legislate with respect to the Indian tribes as ‘plenary and exclusive.’” (quoting United States v. Lara, 541 U.S. 193, 200 (2004))). …Open this footnote Close Moreover, as the Court recognized in 1875, “rights are vested” in the creation of an Indian reservation, such that land reserved for Indian purposes could no longer be said to be “the absolute property of the government.” 10Open this footnote Close this footnote 10 Leavenworth, Lawrence & Galveston R.R. Co. v. United States, 92 U.S. 733, 745 (1875). …Open this footnote Close From a formal perspective on the separation of powers, it is far from obvious why the President should have authority to establish reservations if Congress has primacy over Indian affairs and if Congress alone may vest rights 11Open this footnote Close this footnote 11 See, e.g., Gundy v. United States, 139 S. Ct. 2116, 2133 (2019) (Gorsuch, J., dissenting) (describing “legislative power” as the power “to prescrib[e] the rules by which the duties and rights of every citizen are to be regulated” (alteration in original) (quoting The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961))). …Open this footnote Close —not to mention the oddity of vesting the metes and bounds of Indian country, with all its jurisdictional consequences, to executive unilateralism. 12Open this footnote Close this footnote 12 The stakes of such determinations are apparent. As the Court explained in 1877, “a large body of laws has been in existence, whose operation was confined to the Indian country,” and “men have been punished by death, by fine, and by imprisonment, of which the courts who so punished them had no jurisdiction, if the offenses were not committed in the Indian country as established by law.” Bates v. Clark, 95 U.S. 204, 207 (1877). And beyond the question of federal criminal jurisdiction, state jurisdiction (depending on the victim and perpetrator’s identity) will also follow from whether the land is Indian country. Cf. Upstate Citizens for Equal., Inc. v. United States, 140 S. Ct. 2587, 2588 (2017) (Thomas, J., dissenting from the denials of certiorari) (questioning the constitutionality of the Indian Reorganization Act’s land-into-trust provisions in part on the theory that it is “highly implausible that the Founders understood the Indian Commerce Clause, which was virtually unopposed at the founding, as giving Congress the power to destroy the States’ territorial integrity”). …Open this footnote Close

Today, scholars of federal Indian law regard the propriety of different legal instruments establishing reservations to be a vestigial question. We are used to a federal Indian law where we may safely treat reservations as a “unitary group,” 13Open this footnote Close this footnote 13 .Wilkinson, supra note 4, at 68. …Open this footnote Close with equivalent legal effect notwithstanding their source. That result traces to the Dawes Act, which put on equal footing reservations created by treaty, legislation, and executive order 14Open this footnote Close this footnote 14 See Dawes Act, ch. 119, §§ 1, 4, 24 Stat. 388, 388, 389 (1887) (opening up “any reservation created . . . by treaty stipulation or by virtue of an act of Congress or executive order setting apart the same for their use” to allotment and authorizing homesteads for Native persons either not residing on a reservation or whose tribe was not given a reservation “by treaty, act of Congress, or executive order”). …Open this footnote Close and thereby ratified executive order reservations as “permanent.” 15Open this footnote Close this footnote 15 E. Richard Hart, The Dawes Act and the Permanency of Executive Order Reservations, 12 W. Legal Hist. 11, 42 n.75 (1999); see also Ex parte Wilson, 140 U.S. 575, 576-77 (1891) (“Whatever doubts there might have been, if any, as to the validity of such executive order [establishing an Indian reservation], are put at rest by” the Dawes Act). …Open this footnote Close Thus, scholars have largely left untouched the pre-Dawes Act law on whether the President could establish such reservations; the primary scholarly analysis on this question focused on congressional debates, particularly during the 1870s and 1880s up to the Dawes Act. 16Open this footnote Close this footnote 16 See, e.g., Hart, supra note 15. …Open this footnote Close

This Comment adds to the literature by historicizing the development of the President’s power to establish Indian reservations in the late nineteenth century. My central contention is that the President’s power to establish Indian reservations by executive order was understood through ordinary constitutional principles and extant public lands law. Lawyers justified the practice by reference to congressional delegations, and they analogized to executive withdrawals in the public lands context. Indeed, Indian reservations were treated as a species of public lands reservations—a fact that would result in a kind of judicial boomerang in 1915 when the Supreme Court relied on the history of executive order Indian reservations to justify an executive conservation withdrawal. 17Open this footnote Close this footnote 17 See United States v. Midwest Oil Co., 236 U.S. 459, 470, 472-74 (1915). …Open this footnote Close Thus, while we tend to view Indian law today as exceptional, even sui generis, within public law, 18Open this footnote Close this footnote 18 See, e.g., Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431, 435-36 (2005) (detailing allegations of federal Indian law’s incoherence and deviation from general public law principles); Maggie Blackhawk, Federal Indian Law as a Paradigm Within Public Law, 132 Harv. L. Rev. 1787, 1797 (2019) (noting that federal Indian law “does not comport with general public law principles”). …Open this footnote Close what is striking about this history is the apparent banality of executive order reservations. Lawyers treated the creation of a reservation as an ordinary exercise of presidential power over public lands, as if it did not matter that setting aside lands for Indian purposes had consequences on jurisdiction and vested rights unique from other kinds of reservations of public lands.

In making this argument, I primarily rely on a source that has been overlooked in the scholarly discussions of this era’s law: the Land Decisions of the Department of the Interior and the General Land Office (GLO). Published in excerpts in Copp’s Land-Owner 19Open this footnote Close this footnote 19 Copp’s Land-Owner was “the leading paper on land affairs” at the time. Harold Hathaway Dunham, Government Handout: A Study of in the Administration of the Public Lands, 1875-1891, at 21 (Da Capo Press ed. 1970) (1941). …Open this footnote Close starting in 1874 20Open this footnote Close this footnote 20 See generally 1 Copp’s Land-Owner 1 (1874). …Open this footnote Close  and then in a series of volumes between 1881 and 1929, 21Open this footnote Close this footnote 21 The unwieldy title of the reporters is: Decisions of the Department of the Interior and General Land Offices in Cases Relating to the Public Lands. These collections “almost exclusively” pertained to the General Land Office. See U.S. Department of the Interior Administrative Decisions and Policies, U.S. Dep’t of the Interior, https://perma.cc/‌2MTL-HFSL (archived May 6, 2025). Starting in 1930, these decisions were published in the Decisions of the Department of the Interior (I.D.) reporter. Id. …Open this footnote Close the Land Decisions record Interior’s adjudications of land patents to the public domain. 22Open this footnote Close this footnote 22 Charles R. Pierce, The Land Department as an Administrative Tribunal, 10 Am. Pol. Sci. Rev. 271, 275 (1916). …Open this footnote Close The GLO acted as a kind of judiciary with respect to public lands laws by finding facts and applying the law in the first instance; 23Open this footnote Close this footnote 23 See The Public Domain, supra note 8, at 166-67. …Open this footnote Close through an administrative appeals process, the Secretary of the Interior essentially served as “the supreme court of land appeals.” 24Open this footnote Close this footnote 24 Pierce, supra note 22, at 280. In 1913, Congress provided for a board of appeals to advise the Secretary; before that, the review process was from the initial decision by a local office’s register and receiver to the Commissioner of the GLO and then to the Secretary of the Interior. See Edward C. Finney, The Board of Appeals, Department of the Interior, 10 Am. Pol. Sci. Rev. 290, 291-93 (1916). …Open this footnote Close Because of Interior’s central role in administering federal public land laws and its superintendent role over the federal government’s relationship to tribes, its “internal law” 25Open this footnote Close this footnote 25 See Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law 7 (2012). …Open this footnote Close is a fruitful vantage point from which to study this transitional period in federal Indian law.

I. “Reservations” and Public Land Laws

By the 1850s, the legality of presidential withdrawals of public lands available for private settlement was well-established. 26Open this footnote Close this footnote 26 See, e.g., Wilcox v. Jackson, 38 U.S. (1 Pet.) 498, 512-13 (1839) (discussing early history of presidential “appropriation[s]” of public lands); Walcott v. Des Moines Co., 72 U.S. (5 Wall.) 681, 688 (1866) (describing the power to reserve land from sale as “competent . . . ever since the establishment of the Land Department” and having been “exercised down to the present time”); Grisar v. McDowell, 73 U.S. (6 Wall.) 363, 381 (1867) (“[F]rom an early period in the history of the government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses.”); Donnelly v. United States, 228 U.S. 243, 256 (1913) (“[F]rom an early period Congress has customarily accorded to the Executive a large discretion about setting apart and reserving portions of the public domain in aid of particular public purposes.”). See generally Harold H. Bruff, Executive Power and the Public Lands, 76 U. Colo. L. Rev. 503, 506-08 (2005) (tracing the history of presidential withdrawals). …Open this footnote Close The Supreme Court’s cases in the earlier part of that century adjudicated questions of title to land under federal laws providing for “preemption” rights, 27Open this footnote Close this footnote 27 On the early history of preemption rights, see, for example, Gregory Ablavsky, The Rise of Federal Title, 106 Cal. L. Rev. 631, 651-55 (2018); and Benjamin Horace Hibbard, A History of the Public Land Policies 144-70 (1924). The key statutes are the 1830 and 1841 preemption laws. See An Act to Grant Pre-emption Rights to Settlers on the Public Lands, 4 Stat. 420 (May 29, 1830); An Act to Appropriate the Proceeds of the Sales of the Public Lands, and to Grant Pre-emption Rights, 5 Stat. 453 (Sept. 4, 1841). …Open this footnote Close essentially a first-dibs preference to squatters eligible to purchase the fee title to public lands they occupied and improved. 28Open this footnote Close this footnote 28 See, e.g., Wilcox, 38 U.S. (13 Pet.) at 513 (holding reservation of a fort from sale exempts the land against a preemption claim); United States v. Fitzgerald, 40 U.S. (15 Pet.) 407, 420-21 (1841) (affirming preemption right where government could show neither lawful reservation nor appropriation of land); United States v. Stone, 69 U.S. (2 Wall.) 525, 537 (1864) (finding land patent void because it was public lands reserved for military purposes); cf. United States v. Chicago, 48 U.S. (7 How.) 185, 192, 194-95 (1849) (holding Chicago has no right to open roads on federal public lands reserved for military purposes). …Open this footnote Close As the Court explained in an early case, certain lands were ineligible for claiming preemption rights—namely, those that were “legally appropriated to any purpose” and thereby “sever[ed]” from “the mass of public lands.” 29Open this footnote Close this footnote 29 Wilcox, 38 U.S. (13 Pet.) at 513. …Open this footnote Close The effect of such an “appropriation of the land” was to “reserve[]” the land “from the operation of any land, grant or sale, until it is restored to the mass of the public domain, by due process of law.” 30Open this footnote Close this footnote 30 Thomas v. St. Joseph & Denver City R.R. Co., 3 Copp’s Land-Owner 197, 198 (Sec’y of the Interior Feb. 7, 1877), reaff’d, 4 Copp’s Land-Owner 119 (Sec’y of the Interior Sept. 24, 1877). …Open this footnote Close

The term “reservation” thus connoted a formal designation of land for a specific purpose that set it apart from the public domain. 31Open this footnote Close this footnote 31 See, e.g., W. Pac. R.R. Co. v. H.E. Dillingham, 2 Copp’s Land-Owner 37, 37 (Sec’y of the Interior May 14, 1875) (“[T]he reservation referred to was one made by the United States for some such purpose as the Government usually creates reservations. Such is the natural meaning of the words in the connection in which they are found.”); Hot Springs Reservation, 2 Copp’s Land-Owner 100, 100 (Acting Sec’y of the Interior Sept. 23, 1875) (land was “appropriat[ed]” and thus “reserved and not public land” where a law’s “manifest purpose” was to “preserv[e] these hot springs to the government”); Charles Norager et al., 10 Copp’s Land-Owner 54, 54 (Gen. Land Off. Comm’r Mar. 2, 1881) (describing a statutory reservation for common schools as “a reservation made, a setting apart of certain lands from the rest of the public domain,” but not a “grant”). …Open this footnote Close Mid-to-late nineteenth century lawyers talked about “reservations” in a wide variety of restrictions on public land: a thirty-day preference right given to people seeking to cancel a timber culture entry and to make their own entry, 32Open this footnote Close this footnote 32 See, e.g., William Ehmen, 9 Copp’s Land-Owner 36, 36 (Sec’y of the Interior Mar. 13, 1882) (“During said thirty days this land was in a state of reservation, subject only to his entry; and as the statute authorizes a timber culture entry for but a quarter of a section, no entry upon another portion of the same section could intervene to defeat his right.”); Preference Rights, 10 Copp’s Land-Owner 42, 42 (Gen. Land Off. Comm’r Apr. 16, 1883) (similarly noting the “thirty days of reservation” providing a “preference right of a contestant” to make an entry); Alonzo Phillips, 10 Copp’s Land-Owner 107, 107 (Sec’y of the Interior June 12, 1883) (contest renders the land “in a state of reservation to the extent that the contestant can not be deprived of his preference right if he applies to enter it within the required time” but the tract “may be entered by another subject to the right of the contestant”); Theodore M. Phelps, 11 Copp’s Land-Owner 87, 87 (Sec’y of the Interior May 17, 1884) (“Gorham’s entry appropriated the tract for timber-culture purposes, and reserves it until it is shown that Phelp’s homestead right is superior.”). …Open this footnote Close a preemptor’s right after the filing of a declaratory statement, 33Open this footnote Close this footnote 33 See, e.g., Alice Gillespie, 11 Copp’s Land-Owner 73, 73 (Acting Sec’y of the Interior Apr. 8, 1884) (after a declaratory filing’s expiration, “there was no legal settlement by any one, because there was no application for it,” such that the pre-emptor’s “right to reserve the land . . . was forfeited to the first legal applicant by the failure to pay for it”). …Open this footnote Close or a homestead entry that was subsequently forfeited, 34Open this footnote Close this footnote 34 S. Minn. Railway Extension Co. v. Gallipean, 11 Copp’s Land-Owner 264, 265 (Acting Sec’y of the Interior Oct. 30, 1884) (“[A]n entry of record reserves the land covered thereby from the operation of any subsequent law, grant, or sale, until a forfeiture is declared, and the land is restored to the public domain in the manner prescribed by law.”). …Open this footnote Close to take a few examples. Two propositions followed from understanding a “reservation” as an appropriation of public land: Placing land in reservation could divest an individual’s “inchoate” rights to that land; 35Open this footnote Close this footnote 35 Rees v. Churchill, 12 Copp’s Land-Owner 7, 8 (Gen. Land Off. Comm’r Jan. 4, 1882) (“This office holds that all inchoate claims or mere pre-emption rights are extinguished by the exercise of the Presidential power, in reserving for public uses the land to which they relate.”); William Cuer, 25 L.D. 95, 97 (Acting Sec’y of the Interior Aug. 5, 1897) (the “uniform ruling” of Interior was that “an application to enter land in reservation for any purpose confers no right upon the applicant”); cf. United States v. Johnson, 5 L.D. 442, 443 (Acting Sec’y of the Interior Feb. 28, 1887) (“[U]ntil all of the preliminary acts required by law have been performed by the pre-emptor he has acquired no right as against the government.”). …Open this footnote Close but where an individual’s rights have “attached” to land, 36Open this footnote Close this footnote 36 Fort Maginnis, 8 Copp’s Land-Owner 137, 137 (Att’y Gen. Oct. 21, 1881). …Open this footnote Close a reservation could not interfere with such “vested” rights. 37Open this footnote Close this footnote 37 See, e.g., Claims of Meek and Luelling (Acting Gen. Land Off. Comm’r Apr. 22, 1874), Copp’s Land-Owner Vol. 1, No. 2, at 3–4 (1874); Thomas v. St. Joseph & Denver City R.R. Co., 3 Copp’s Land-Owner 197, 197-98 (Sec’y of the Interior Feb. 7, 1877), reaff’d, 4 Copp’s Land-Owner 119 (Sec’y of the Interior Sept. 24, 1877); C.N. Cotton, 12 L.D. 205, 206–07 (Sec’y of the Interior Dec. 27, 1890). …Open this footnote Close

The same rules applied to lands set aside for Indian purposes. This the Secretary of the Interior explained in 1879: An Indian reservation is “appropriated” land “for the purpose of securing a home for certain tribes of Indians”; they are no longer “‘public lands,’ owned absolutely by the United States, and subject to disposal, under general laws.” 38Open this footnote Close this footnote 38 Stroud v. Grand Rapids & Indiana R.R. Co., 6 Copp’s Land-Owner 112, 112 (Sec’y of the Interior Aug. 25, 1879); see also Jackson, Lansing & Saginaw R.R. Co., 5 L.D. 432, 433, 435 (Acting Sec’y of the Interior Feb. 26, 1887) (executive order reservation withdraws land and precludes a railroad grant claim); United States v. Grand Rapids & Indiana R.R. Co., 17 L.D. 420, 423 (Sec’y of the Interior Oct. 17, 1893) (executive order established the land as “segregated from the mass of the public domain”); Cherokee Lands in Arkansas, 8 Copp’s Land-Owner 110, 112 (Gen. Land Off. Comm’r Mar. 8, 1881), approved by the Secretary of the Interior (Mar. 19, 1881) (“When from any cause Indian reservations have ceased, or have been abandoned, Congress invariably provides the method of disposing of the lands. Such reservations do not pass by a grant of public lands for any purpose, nor are such reserved lands open to entry under the general land laws of the United States until the reservation has been removed.”). …Open this footnote Close  Unsurprisingly, acts of Congress 39Open this footnote Close this footnote 39 See, e.g., Act of March 3, 1875, ch. 152, § 5, 18 Stat. 482, 483 (“[T]his act shall not apply to any lands within the limits of any military, park, or Indian reservation, or other lands specially reserved from sale, unless such right of way shall be provided for by treaty-stipulation or by act of Congress heretofore passed.”). …Open this footnote Close and decisions of the Department of the Interior 40Open this footnote Close this footnote 40 See, e.g., Cephas W. Carpenter, 10 Copp’s Land-Owner 87, 87 (Gen. Land Off. Comm’r May 3, 1883) (no mineral location on an Indian reservation); Keith v. Townsite of Grand Junction, Colorado, 11 Copp’s Land-Owner 139, 139 (Sec’y of the Interior July 21, 1884) (same for settlement or attempted location of townsite); Ira O. Hanchett, 12 L.D. 437, 438 (Assist. Sec’y of the Interior Apr. 29, 1891) (same for homestead entry); Hugh A. Carmon, 7 L.D. 334, 334-35 (Assist. Sec’y of the Interior Sept. 29, 1888) (same for preemption entry). …Open this footnote Close recognized a core parity in legal effect among different kinds of reservations, including Indian reservations. All these reservations accomplished the withdrawal of such lands from disposition under the public land laws, 41Open this footnote Close this footnote 41 See, e.g., Claims of Meek and Luelling (Sec’y of the Interior July 10, 1875), Copp’s Land-Owner, Vol. 2, No. 6, at 4, 4 (1875) (describing an ordnance reservation as “having not suspended, but destroyed all inchoate adverse rights”). …Open this footnote Close and all were established for “public uses,” whether an Indian reservation 42Open this footnote Close this footnote 42 State of California, 11 Copp’s Land-Owner 375, 375 (Acting Sec’y of the Interior Jan. 22, 1885); George Herriott, 10 L.D. 513, 519 (1890) (“In some of the cases cited the reservations were for military purposes, but establishing a reservation for Indians is equally for a public purpose, and these cases are therefore authority in support of the President’s right to make such a reservation.”). …Open this footnote Close or, say, a military 43Open this footnote Close this footnote 43 See, e.g., Fort Maginnis, 8 Copp’s Land-Owner 137, 137 (Att’y Gen. Oct. 21, 1881). …Open this footnote Close or saline 44Open this footnote Close this footnote 44 See, e.g., Morton v. Nebraska, 88 U.S. 660 (1874); Hall v. Litchfield, 2 Copp’s Land-Owner 179 (Acting Gen. Land Off. Comm’r Mar. 2, 1876). …Open this footnote Close reservation. 45Open this footnote Close this footnote 45 N. Pac. R.R. Co. v. Miller, 7 L.D. 100, 112 (Sec’y of the Interior Aug. 2, 1888). …Open this footnote Close

II. Sources of Authority

From where did the executive purport to derive its authority to withdraw lands for public purposes? The answer is Congress. The Court’s earliest case on the issue, Wilcox v. Jackson, placed great weight on the fact that the 1830 preemption law exempted lands that were “reserved from sale . . . by order of the President, or which may have been appropriated, for any purpose whatsoever,” 46Open this footnote Close this footnote 46 An Act to Grant Pre-emption Rights to Settlers on the Public Lands § 4, 4 Stat. 420, 421 (1830). …Open this footnote Close reasoning that Congress had recognized and thus legitimated withdrawals from the public domain. 47Open this footnote Close this footnote 47 Wilcox v. Jackson, 38 U.S. (13 Pet.) 498, 514 (1839). …Open this footnote Close And executive branch legal officers tended to parrot that reasoning. An 1882 Attorney General opinion explained that the practice of setting aside lands through executive order “doubtless has sprung from the authority given by Congress,” embodied both in early statutes allowing him to the establish forts and trading houses 48Open this footnote Close this footnote 48 See, e.g., Act of May 3, 1798, § 1, 1 Stat. 554, 555 (appropriating funds for the President to make “fortifications in any other place or places as the public safety shall require”). …Open this footnote Close and “recognized” in the 1830 49Open this footnote Close this footnote 49 See supra note 46. …Open this footnote Close and 1841 50Open this footnote Close this footnote 50 An Act to Appropriate the Proceeds of the Sales of the Public Lands, and to Grant Pre-emption Rights § 10, 5 Stat. 453, 456 (1841) (excluding from preemption rights any “lands included in any reservation, by any treaty, law, or proclamation of the President of the United States, or reserved for salines, or for other purposes”). …Open this footnote Close preemption laws. 51Open this footnote Close this footnote 51 Indian Reservations, 17 Op. Att’y Gen. 258, 258-59 (1882) [hereinafter 1882 AG Opinion]. …Open this footnote Close

True, executive branch officers often took for granted that the President had the power to set aside lands for public purposes. For example, Attorney General MacVeagh in 1881 described the President’s authority to reserve public lands “from sale and to set apart for public uses” as “too well established to admit of doubt” 52Open this footnote Close this footnote 52 Reservation of Land for Public Uses, 17 Op. Att’y Gen. 160, 160 (1881) (citing Grisar v. McDowell, 73 U.S. 363, 381 (1867)). …Open this footnote Close ; Interior lawyers spoke of it as “an existing undisputed power too well settled ever to be disputed,” such that the President’s power was “a part of the land office law” and existed “ex necessitate rei, as indispensable to the public weal.” 53Open this footnote Close this footnote 53 Memorandum of Different Provisions Bearing Upon the Subject of Reservations by the President, 1 L.D. 702, 703 (undated; volume rev. ed. 1887), reprinted in 11 Copp’s Land-Owner 273. Interestingly, these words were quoted by the Supreme Court in a 1915 opinion characterizing the passage as a “frequently quoted statement of Secretary Teller made in 1881” and as “one of the strongest assertions of the existence of” the President’s power to reserve lands. United States v. Midwest Oil, 236 U.S. 459, 472 (1915) (citing “1 L.D., 338 (1881-3),” the first volume of the unrevised edition of the Land Decisions). Reflecting the Supreme Court’s observation as to the influence of this memorandum, a very similar memorandum appears as Memorandum Regarding the Power of the President to Set Aside by Proclamation or Executive Order Public Lands for Indian Reservations and Other Public Purposes, and the Right of the President to Revoke Such Order, reprinted in 3 Indian Affairs: Laws and Treaties 692-93 (Charles J. Kappler ed. 1913). That the memorandum was included in the Kappler volumes speaks to its relevance, since the Kappler compilations were (and still are) widely read—they were among the first compilations of federal Indian law. Thus, as the Secretary of the Interior wrote to the Senate in recommending the printing of Kappler’s compilations: “The compilation of Indian laws and treaties is constantly used and referred to in this department and the office of Indian Affairs . . . It has been a most useful and convenient document . . . .” Letter from Hubert Work, Sec’y of the Interior, to J.W. Harrel, Chairman, S. Comm. on Indian Affs. (Dec. 23, 1925), in Printing of Manuscripts Relating to Indian Affairs, S. Rep. No. 70-200, at 1, 2 (1928); see also Charles D. Bernholz & Robert J. Weiner, Jr., The World of Charles J. Kappler: A Digital Portrait, 27 Legal Reference Servs. Q. 377, 380-81 (2009) (describing Kappler’s “enduring influence” through his compilations of “fundamental Indian law documents”). …Open this footnote Close  But the layers of executive branch practice ultimately traced to, and thus bottomed out with, congressional statute. The power was delegated and not inherent.

The more difficult question was whether the President’s delegated authority to reserve land from sale extended to the setting aside of land for Indian purposes without a specific statute or treaty. Perhaps the strongest articulation of a claim to presidential unilateral authority to establish Indian reservations by executive order came from the Secretary of the Interior in 1873. In February of that year, Interior had sought an opinion from the Attorney General on whether the Secretary of the Interior, acting alone, had legal authority to establish the Chehalis Reservation in Washington Territory as “an Indian reservation and in the Indian Country.” 54Open this footnote Close this footnote 54 Letter from Columbus Delano, Sec’y of the Interior, to the Att’y Gen. of the United States (Feb. 4, 1873), in Letters Sent by the Indian Division of the Office of the Secretary of the Interior, 1849-1903, Roll 12, at 236 (archived in Gale Primary Sources: Indigenous Peoples of North America). …Open this footnote Close Attorney General Williams’s response was a simple and emphatic no: “[I]n the absence of authority” vested by treaty or statute, the power of the Secretary of the Interior to “set apart a certain portion of the public domain” as an Indian reservation “does not exist.” 55Open this footnote Close this footnote 55 The Chehalis Indian Reservation, 14 Op. Att’y Gen. 181, 181-82 (1873). …Open this footnote Close

Interior disagreed. The Secretary “expressly overruled” 56Open this footnote Close this footnote 56 Opinions of the Attorney General Advisory, Not Mandatory, 3 Copp’s Land-Owner 54, 57. …Open this footnote Close Attorney General Williams’s opinion, concluding that Interior, acting as an arm of the President, had power to establish an Indian reservation “without any previous authority by act of Congress or treaty stipulation.” 57Open this footnote Close this footnote 57 Letter from Columbus Delano, Sec’y of the Interior, to the Acting Comm’r of Indian Affs. (Mar. 12, 1873), in Letters Sent by the Indian Division of the Office of the Secretary of the Interior, 1849-1903, Roll 11, at 322, 323 (archived in Gale Primary Sources: Indigenous Peoples of North America). …Open this footnote Close The Secretary reasoned that “[l]ong practice and the express recognition of the power by the Supreme Court make it clear that the President may rightfully reserve lands for public uses.” 58Open this footnote Close this footnote 58 Id. at 324. …Open this footnote Close He then argued that the creation of an Indian reservation was a “public use” that “stands on the same basis as a military, light house, or naval reservation” because “the public good requires it”:

The demands of an increasing population and advancing civilization are such as absolutely require that the Indians shall be removed from the midst of white settlements, and located, with those of his own race, upon tracts separated from the interference and antagonisms that spring from contact with the whites, and where the government can more readily supply his wants. 59Open this footnote Close this footnote 59 Id. at 325-26. …Open this footnote Close

Elsewhere, the Department relied on similar reasoning to justify an executive order reserving land in anticipation of an Indian treaty. Citing the memorandum articulating the President’s authority as existing “ex necessitate rei,” Interior upheld the legality of that reservation as necessary to prevent others from “secur[ing] rights in the contemplated territory, which would have embarrassed the government in its future negotiations with the Indians.” 60Open this footnote Close this footnote 60 United States v. Grand Rapids & Indiana R.R. Co., 17 L.D. 420, 422 (Sec’y of the Interior Oct. 17, 1893) (quoting Memorandum of Different Provisions Bearing Upon the Subject of Reservations by the President, 1 L.D. 702, 703 (undated; volume rev. ed. 1887), reprinted in 11 Copp’s Land-Owner 273). …Open this footnote Close

Interior’s legal theory made lots of functional sense given difficulties with surveying and demarcating the boundaries of reservations in the West. 61Open this footnote Close this footnote 61 See, e.g., Laurence F. Schmeckebier, The Office of Indian Affairs 59 (1927) (“[T]he area west of the Mississippi, however, was little known when many of the treaties were made, and the descriptions were of the most indefinite character.”). …Open this footnote Close Executive orders reserved lands to preserve the status quo ante pending surveying, 62Open this footnote Close this footnote 62 Cf. William W. Whitehead, 3 L.D. 219, 219-20 (Sec’y of the Interior Dec. 3, 1884) (concluding that treaty withdrawing the “red pipe-stone quarry” effects a withdrawal of all land around the quarry until the reservation is surveyed and marked, rendering those lands immune from settlement). …Open this footnote Close and they were also routinely issued to modify the boundaries of Indian reservations, 63Open this footnote Close this footnote 63 See, e.g., Mathias Ebert, 14 L.D. 589, 589-90 (Assist. Sec’y of the Interior June 1, 1892) (noting three executive orders altering the boundaries of the Navajo Nation’s reservation between 1880 and 1886). …Open this footnote Close for example, to correct previous orders that anticipated sweeping in certain landmarks that were erroneously excluded. 64Open this footnote Close this footnote 64 See, e.g., William F. Tucker, 13 L.D. 628, 629-30 (Sec’y of the Interior Nov. 28, 1891) (describing 1883 executive order that altered 1877 order establishing the Indian reservation because the land was “unsurveyed” at the time of the initial reservation, such that certain natural landmarks were “erroneously designated” to be “excluded from the reservation intended to embrace them”). …Open this footnote Close Moreover, given the “pressure of white settlement,” the federal government was “constantly redrawing” the boundaries of Indian reservations. 65Open this footnote Close this footnote 65 .Banner, supra note 2, at 255. …Open this footnote Close No wonder that Interior described the President’s authority to make reservations by executive order as “a necessary incident to the operations of the government in the west.” 66Open this footnote Close this footnote 66 Territory of Alaska, 13 L.D. 426, 428 (Assist. Att’y Gen. June 17, 1890). …Open this footnote Close

Given this necessity rationale, it’s also not surprising that executive officers sought to argue—and indeed often argued—that the President’s reservation power did not require specific statutory delegation. Then, as now, executive branch lawyers wanted to preserve flexibility for the executive. But these arguments ultimately assumed that congressional authorization, at some basic level, was necessary. Executive branch officers usually tried to make statutory arguments, even if of varying levels of persuasiveness, or they relied on caselaw that in turn was based on statute. For example, Interior’s position on the Chehalis Reservation, discussed earlier, rested on the Court’s pronouncement that the President had authority to withdraw lands for public uses—a power that traced to statute, as discussed earlier.

The leap was to extend that logic into the context of an Indian reservation, requiring some identification of congressional acts that could justify the proposition that an Indian reservation was a reservation for public use. While the Secretary did not substantiate that claim when establishing Interior’s position with respect to the Chehalis Reservation, creative executive branch lawyers found a veritable hodgepodge of statutory hooks in other proceedings. One Attorney General opinion issued in 1882 relied on the organic acts for the Bureau of Indian Affairs and the “extensive powers” vested in the President with respect to “the control and management of the Indians” to conclude that “[t]he regulation of the relations of the Government with these tribes is a great public interest, and their settlement upon reservations has been considered a matter of great importance.” 67Open this footnote Close this footnote 67 1882 AG Opinion, supra note 51, at 260. …Open this footnote Close An opinion from Interior, relying on similar authorities, went so far as to hypothesize that the organic acts for the Bureau of Indian Affairs “might well be held to include the power to establish such reservations as are necessary to the proper administration of a just and humane governmental policy toward this unfortunate race of people, if there were no other acts in relation to the matter.” 68Open this footnote Close this footnote 68 George Herriott, 10 L.D. 513, 519 (Sec’y of the Interior Apr. 30, 1890). …Open this footnote Close In a different opinion, Interior concluded that the President had authority to create a reservation for the Zuni by relying on caselaw acknowledging the President’s general reservation authority, the legal status of Indians as in a state of tutelage, treaty provisions along with the Take Care Clause, and the preemption acts. 69Open this footnote Close this footnote 69 See William F. Tucker, 13 L.D. 628, 630-32 (Sec’y of the Interior Nov. 28, 1891). …Open this footnote Close Courts, echoing this confusion, also relied on a variety of legal theories such as specific appropriations that gave an executive order the imprimatur of congressional approval 70Open this footnote Close this footnote 70 E.g., United States v. Leathers, 26 F. Cas. 897, 888-89 (D. Nev. 1879) (arguing that appropriations for Indians on a reservation in Nevada, along with the President’s general authority “in the management of Indian affairs” imply authority to create a reservation by executive order); Donnelly v. United States, 228 U.S. 243, 257 (1913) (noting congressional recognition of a reservation established by executive order by appropriation). …Open this footnote Close or invoking the President’s broad authority over Indian affairs given the existence of the BIA. 71Open this footnote Close this footnote 71 E.g., United States v. Sturgeon, 27 F. Cas. 1357, 1357-58 (D. Nev. 1879) (reasoning that the President’s “very large powers and discretion in the management of Indian affairs” includes the power to establish a reservation by executive order). …Open this footnote Close All of these theories, however, ultimately traced the President’s authority to some act of Congress.

* * *

Writing in the 1940s, Felix Cohen described the decades-long practice of establishing Indian reservations by executive order prior to the Dawes Act as having rested on “uncertain legislative foundation.” 72Open this footnote Close this footnote 72 .Felix S. Cohen, Handbook of Federal Indian Law with Reference Tables and Index 299 (4th prtg. 1945). …Open this footnote Close It is tempting to read the law of these decades as a kind of handwavy effort—mostly by executive branch lawyers—to find some legibly legal rationale to justify policy decisions made independent of the rule of law. Indeed, that courts and executive branch lawyers alike often invoked long practice to justify the legality of executive order reservations is striking. 73Open this footnote Close this footnote 73 Cohen, for example, remarked that an 1882 attorney general opinion concluding that the President has authority to establish reservations by executive order made that conclusion “chiefly on the basis that the practice had been followed for many years and Congress had never objected.” Id. (discussing 1882 AG Opinion, supra note 51). …Open this footnote Close The question-begging nature of the argument invites skepticism about the legislative foundation to these actions. Nevertheless, lawyers typically did not rely on practice alone. Persuasively or not, they sought to invoke some kind of legislative enactment, if only in the form of the President’s general power over Indian affairs vested by the establishment of the BIA.

The era’s law thus reveals a consistent adherence to a norm of legislative supremacy. The practice of these lawyers, in other words, not only reflects the conventional doctrinal assumption of congressional primacy in federal Indian law but also is consistent with a first-principles intuition that Congress, not the President, has authority over public lands. 74Open this footnote Close this footnote 74 See U.S. Const. art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . .”). …Open this footnote Close These lawyers appear to have thought of the establishment of Indian reservations as simply a species of executive withdrawal from the public domain, and they relied on judicial authorities from public lands law to justify the legality of their actions.

What’s striking, then, is not the Indian law exceptionalism revealed in the history. It’s the seemingly unexceptional status of Indian law, as if there was no difference between reserving a salt mine from being subject to squatters’ preemption rights and creating an Indian reservation subject to tribal occupancy rights and jurisdiction. Indeed, in an interesting historical development, the Supreme Court would later complete the circle by invoking the history of executive order reservations for Indian purposes to conclude that the President had inherent executive power to withdraw public lands “for a public purpose” even in seeming contravention of a statute opening up public lands to oil drilling. 75Open this footnote Close this footnote 75 United States v. Midwest Oil Co., 236 U.S. 459, 470-71 (1915). …Open this footnote Close In importing Indian law practice to justify the development of public lands doctrine, the Court confirmed what executive branch lawyers had suggested for decades: that, at least as far as the establishment of executive order reservations for tribal nations went, ordinary principles regarding the separation of powers and public land laws would suffice.

* My thanks to Professors Liz Reese and Greg Ablavsky for their comprehensive support throughout this project, from insightful comments in formulating my research question to advice as to useful secondary literature and feedback on drafts. I am also indebted to Graham Ambrose for helpful advice on how to situate this work in the literature; to Eli Barrish for helpful conversations about the history of Midwest Oil; to Julie Combs, who graciously tolerated my babbling about executive order reservations throughout my time at Interior; to Professor Michael McConnell for providing the opportunity to turn this into a research project for his executive power class; and to Professor Bethany Berger for helpful comments. Finally, I am grateful to the Stanford Law Review for the opportunity to participate in its symposium on federal Indian law; to the gracious SLR editors (Sophia Caldera, Andrew Thompson, Kevin Wang, and Lilly Weidhaas) who combed through this piece with acumen; and to the executives at SLR (Salma Abdelrahman, Carson Smith, and Marit Vike) who made the symposium and the publication of this piece possible. All errors, of course, are my own.