The Treaty of Prairie du Chien, 7 Stat. 320, made grants of
lands to certain Indians upon condition that they should never be
leased or conveyed by the grantees or their heirs to any persons
whatever without the permission of the President of the United
States. One of those grantees conveyed his land in 1858 by a deed
which had endorsed upon it the approval of the President, given in
1571. The state court of Illinois held that the Indian had no
authority to convey the land without permission from the President
previously obtained.
Held:
(1) That this ruling of the state court raised a federal
question.
(2) That the permission thus given by the President to the
conveyance, after its execution and delivery, was retroactive, and
was equivalent to permission before execution and delivery, as no
third parties had acquired an interest in the lands.
The Court stated the case as follows.
This was an action of ejectment brought by Pickering against
John A. Lomax and William Kolze to recover two parcels of land in
Cook County, Illinois, which had originally been granted by the
United States to certain Indians under the Treaty of Prairie du
Chien of July 29, 1829. A jury was waived, the case tried by the
court, and a judgment rendered in favor of the defendants. The
plaintiff thereupon sued out a writ of error from the Supreme Court
of Illinois, which affirmed the judgment of the lower court.
Upon the trial, in order to establish his title, the plaintiff
offered in evidence article 4 of the Treaty of Prairie du Chien, 7
Stat. 321, which, so far as the same is material, reads as
follows:
Page 145 U. S. 311
"There shall be granted by the United States to each of the
following persons (being descendants from Indians), the following
tracts of land,
viz.: to Claude Laframboise, one section
of land on the Riviere aux Pleins, adjoining the line of the
purchase of 1816; . . . to Alexander Robinson, for himself and
children, two sections on the Riviere aux Pleins, above and
adjoining the tract herein granted to Claude Laframboise. . . . The
tracts of land herein stipulated to be granted shall never be
leased or conveyed by the grantees or their heirs to any persons
whatever without the permission of the President of the United
States."
Plaintiff then offered in evidence a copy of the patent issued
December 289, 1843, signed by President Tyler under the provisions
visions of the above treaty, granting the lands, including those in
litigation, to Alexander Robinson for himself and children. The
patent also contained the provision:
"But never to be leased or conveyed by him, them, his, or their
heirs to any person whatever without the permission of the
President of the United States."
The next instrument in plaintiff's chain of title was a decree
in a suit in partition instituted February 22, 1847, in the Cook
County Court of Common Pleas between Alexander Robinson and his
children, and evidence to show that the lands in question were set
out to Joseph Robinson, one of the children.
The following deeds were then put in evidence:
Deed dated August 3, 1858, from Joseph Robinson and wife to John
F. Horton, which had endorsed upon it the approval of the President
of the United States, which approval was dated January 21,
1871.
Deed from Leon Straus, administrator, etc., of the estate of
John F. Horton, deceased, to Moses W. Baer, dated October 6, 1863,
and made in pursuance of an order of sale by the County Court of
Cook County for payment of debts.
Several intermediate conveyances of the premises down to a deed
dated November 10, 1866, from Henry H. Dyer and wife to Aquila H.
Pickering, the plaintiff.
The defendant introduced no evidence, but at the close of the
plaintiff's case moved that the plaintiff's testimony be
Page 145 U. S. 312
excluded, and the case dismissed, upon the ground that the deed
of August 3, 1858, from Joseph Robinson and wife to John F. Horton
was made in direct violation of the terms of the patent as to
obtaining the approval of the President to the conveyance.
This motion was sustained, the court being of the opinion that
Robinson had no authority to convey without obtaining the
permission of the President beforehand; that the subsequent
sanction obtained by persons claiming title under Robinson was
invalid, and that even if such sanction would have the effect of
giving force to the deed, yet as the grantee under that deed was
dead, the administrator's deed would not carry any title to the
purchaser from the administrator, but that if any title accrued by
reason of the sanction of the President, it would be to the heirs
of Horton.
Thereupon the court rendered judgment for the defendant, which
was affirmed by the Supreme Court of Illinois, 120 Ill. 293, and
the plaintiff sued out a writ of error from this Court.
Page 145 U. S. 313
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case turns upon the question whether the act of Congress
prohibiting Indian lands from being conveyed except by permission
of the President is satisfied by his approval endorsed upon a deed
thirteen years after its execution and after the death of the
grantee and the sale of the land by his administrator.
1. A preliminary question is made by the defendant in error as
to the jurisdiction of this Court. By Rev.Stat. § 709, our
authority to review final judgments or decrees of the highest
Page 145 U. S. 314
courts of a state extends to all cases
"where is drawn in question the validity of a treaty or statute
of, or an authority exercised under, the United States, and the
decision is against their validity."
The argument of the defendant in this connection is that as the
title to the lands did not pass by the treaty, which contained only
an agreement to convey, the proviso ceased to be operative when the
patent was issued in 1843; that the same restriction upon
alienation contained in the patent was one which the Supreme Court
of Illinois had considered, and that their construction that no
title passed from Robinson and Horton for want of permission of the
President of the United States could not be reviewed by this Court.
There are two sufficient answers to this contention: first, the
proviso in the treaty did continue by its express terms to be
operative, so long as the land was owned by the grantees or their
heirs, and the object of carrying this proviso into the patent was
merely to apprise intending purchasers of the restrictions imposed
by the treaty upon the alienation of the lands; second, the case
raised the question of the validity of an authority exercised under
the United States,
viz., the authority of the President to
approve the deed thirteen years after its execution and the
decision of the Supreme Court of Illinois was against its validity,
so that the case is directly within the words of the statute.
2. So far as the main question is concerned, we know of no
reason why the analogy of the law of principal and agent is not
applicable here --
viz., that an act in excess of an
agent's authority, when performed, becomes binding upon the
principal if subsequently ratified by him. The treaty does not
provide how or when the permission of the President shall be
obtained, and there is certainly nothing which requires that it
shall be given before the deed is delivered.
Doe v.
Beardsley, 2 McLean 412. It is doubtless, as was said by the
Supreme Court of Mississippi in
Harmon v. Partier, 12 Sm.
& Marsh. 425, 427, "a condition precedent to a perfect title"
in the grantee, but the neglect in this case to obtain the approval
of the President for thirteen years only shows that for that length
of time the title was imperfect, and that no action of
ejectment
Page 145 U. S. 315
would have lain until the condition was performed. Had the
grantee, the day after the deed was delivered, sent it to
Washington and obtained the approval of the President, it would be
sticking in the bark to say that the deed was not thereby
validated. A delay of thirteen years is immaterial, provided, of
course, that no third parties have in the meantime legally acquired
an interest in the lands.
If, after executing this deed, Robinson had given another to
another person with the permission of the President, a wholly
different question would have arisen. But so far as Robinson and
his grantees are concerned, the approval of the President related
back to the execution of the deed and validated it from that time.
As was said by this Court in
Cook v.
Tullis, 18 Wall. 332,
85 U. S.
338:
"The ratification operates upon the act ratified precisely as
though authority to do the act had been previously given, except
where the rights of third parties have intervened between the act
and the ratification. The retroactive efficacy of the ratification
is subject to this qualification. The intervening rights of third
persons cannot be defeated by the ratification."
See also Fleckner v. Bank of the United
States, 8 Wheat. 338,
21 U. S. 363.
In
Ashley v. Eberts, 22 Ind. 55, a similar act of the
President approving a deed was held to relate back and give it
validity from the time of its execution, so as to protect the
grantee against a claim by adverse possession which arose in the
interim between its date and the confirmation. "Otherwise," said
the court, "a mere trespasser, by taking possession after a valid
sale and before its consummation, would have power to defeat a
bona fide purchaser." This case was approved in
Steeple v. Downing, 60 Ind. 478, 497. In
Murray v.
Wooden, 17 Wend. 531, a conveyance of land by an Indian which,
subsequent to its date, had been ratified by a certificate of
approbation of the surveyor general in the form prescribed by law
was held to be inoperative upon the ground that previous to the
granting of such certificate, the Indian had conveyed to a third
person and the deed to such person had been approved in the mode
prescribed by law previous to the endorsement of the certificate of
approbation of the deed first executed. This was a clear case of
rights intervening
Page 145 U. S. 316
between the execution of the first deed and its approval. In
Smith v.
Stevens, 10 Wall. 321, the right to convey the
lands reserved for the benefit of the Indians was expressly vested
in the Secretary of the Interior upon the request of anyone of the
Indians named, and it was held that, there being no ambiguity in
the act which had provided the way in which the lands could be
sold, by necessary implication it prohibited their being sold in
any other way. "The sale in question not only contravened the
policy and spirit of the statute, but violated its positive
provisions." In that case, there was no pretense that the
requirements of the act had been fulfilled.
Nor do we consider it material that the grantee had in the
meantime died, since, if the ratification be retroactive, it is as
if it were endorsed upon the deed when given, and inures to the
benefit of the grantee of Horton, the original grantee, not as a
new title acquired by a warrantor subsequent to his deed inures to
the benefit of the grantee, but as a deed, imperfect when executed,
may be made perfect as of the date when it was delivered. This was
the ruling of the court in
Steeple v. Downing, 60 Ind.
478.
The object of the proviso was not to prevent the alienation of
lands
in toto, but to protect the Indian against the
improvident disposition of his property, and it will be presumed
that the President, before affixing his approval, satisfied himself
that no fraud or imposition had been practiced upon the Indian when
the deed was originally obtained. Indeed, the record in this case
shows that the President did not affix his approval until
affidavits had been presented showing that Pickering was the owner,
and that the amount paid to Robinson was the full value of the
land, and that the sale was an advantageous one to him.
We are constrained to differ with the Supreme Court of Illinois
in its view of the treaty, and to hold that, so far as this
question is concerned, plaintiff's chain of title contained no
defect.
The judgment of the supreme court is therefore
Reversed, and the case remanded for further proceedings not
inconsistent with this opinion.
