In a treaty made with the Pottawatomie Indians in 1832, there
were reservations to individual Indians, which should be selected
under the direction of the President of the United States, "after
the land shall have been surveyed, and the boundaries shall
correspond with the public surveys."
Before this was done, one of these reservees made a conveyance
by a deed in fee simple, with a clause of general warranty. In
1837, patents were issued for the reservations.
This deed vested the title of the reservee in the grantee. The
former was a tenant in common with the United States, and could
sell his reserved interest,
Page 64 U. S. 458
and when the United States selected the lands reserved to him,
and made partition, of which the patent is conclusive evidence, his
grantee took the interest which the reservee would have taken if
living.
A prayer to the court that the land patented was not the same as
that reserved was properly refused because the recital in the
patent was conclusive evidence to the contrary.
This was an ejectment brought by Mann, a citizen of New York,
and Hannah, a citizen of Iowa, against Wilson, to recover sections
nine and ten, in township 35, range 4 west, in the County of
Laporte in Indiana.
The important question involved in the case may perhaps be more
distinctly presented to the reader by a chronological order of
events than by a recital of the titles offered upon the trial by
the plaintiffs and defendant, respectively.
In October, 1832, treaties were made with the Pottawatomie
Indians by which the Indians ceded to the United States certain
tracts of land therein described, except certain reservations to
the Indians, amongst which was one to Pet-chi-co, of two sections.
The language of the reservation was:
"The United States agree to grant to each of the following
persons the quantity of land annexed to their names, which lands
shall be conveyed to them by patent."
To Pet-chi-co two sections &c.
Then followed this sentence:
"The foregoing reservations shall be selected under the
direction of the President of the United States after the lands
shall have been surveyed, and the boundaries to correspond with the
public surveys."
7 Stat. 394, 395.
In February, 1833, Pet-chi-co made a deed to Coquillard and
Colerick, with a general warranty, conveying "all of those two
sections of land lying and being in the state aforesaid"
&c.
Before the lands were selected or located by the President, and
before any patent issued, Pet-chi-co died.
In January, 1837, patents were issued to Pet-chi-co and his
heirs for the two sections mentioned in the treaty. They
recited
Page 64 U. S. 459
that "whereas, by the third article of the treaty made in
October, 1832, the United States agreed to grant to Pet-chi-co two
sections, therefore" &c.
In 1854, certain persons obtained a deed from the heirs of
Pet-chi-co, and under this deed the plaintiffs below, who were also
plaintiffs in error, claimed upon the ground that the deed from
Pet-chi-co in 1833 was invalid. Wilson claimed under the latter
deed. The leading question in the case was therefore whether
Pet-chi-co had a right to make the deed when it was made.
In the course of the trial below, many exceptions were taken
respecting matters of evidence, and many prayers to the court made,
in so much that the counsel for the plaintiffs in error, after many
other points, enumerated twenty-six distinct causes of error. It is
not necessary to mention these. The rulings of the circuit court
upon the two following points are sufficient for the purpose of the
present report:
4. If Pet-chi-co, between the ratification of the treaty and the
issuing of the patents, sold and conveyed the land in controversy
by a sufficient deed of conveyance, with covenants of warranty, to
Coquillard and Colerick, and their assigns, then the patents when
issued, as to the assignees, related back to and took effect from
the ratification of the treaty.
5. If, before the issuing of the patents to Pet-chi-co, he had,
by a legal and valid instrument, assigned to Coquillard and
Colerick his interest in the lands which were to be granted to him
under the treaty of October, 1832, and if Colerick had in like
manner assigned his interest to Coquillard, and if Coquillard had
in like manner assigned to Wilson, then, by virtue of the Act of
Congress of May 20, 1836, the patents when issued inured to the
benefit of Wilson and vested the legal title to the land in him,
although Pet-chi-co may have died before its date.
The verdict being for the defendant, the plaintiffs brought the
case up to this Court.
Page 64 U. S. 461
MR. JUSTICE CATRON delivered the opinion of the Court.
By the Treaty of October 27, 1832, made by the United States,
through commissioners, with the Pottawatomie tribe of Indians of
the State of Indiana and Michigan Territory, said nation ceded to
the United States their title and interest in and to their lands in
the states of Indiana and Illinois, and the Michigan Territory
south of Grand River.
Many reservations were made in favor of Indian villagers
jointly, and to individual Pottawatomies. The reservations are by
sections, amounting probably to a hundred, lying in various parts
of the ceded country. As to these, the Indian
Page 64 U. S. 462
title remained as it stood before the treaty was made, and to
complete the title to the reserved lands, the United States agreed
that they would issue patents to the respective owners. One of
these reservees was the chief, Pet-chi-co, to whom was reserved two
sections. The treaty also provides that
"the foregoing reservations shall be selected under the
direction of the President of the United States after the land
shall have been surveyed, and the boundaries shall correspond with
the public surveys."
In February, 1833, by a deed in fee simple, Pet-chi-co conveyed
to Alexis Coquillard and David H. Colerick, of the State of
Indiana, "all those two sections of land lying in the state
aforesaid, in the region of country or territory ceded by the
treaty of 27th October, 1832." The grantor covenants that he is
lawful owner of the lands; hath good right and lawful authority to
sell and convey the same. And he furthermore warrants the title
against himself and his heirs. Under this deed, the defendant holds
possession.
The lessors of the plaintiff took a deed from Pet-chi-co's
heirs, dated in 1855, on the assumption that their ancestor's deed
was void, he having died in 1833, before the lands were surveyed or
the reserved sections selected. And on the trial below, the court
was asked to instruct the jury
"that Pet-chi-co held no interest under the treaty in the lands
in question, up to the time of his death, that was assignable, he
having died before the location of the land, and before the patents
issued."
This instruction the court refused to give, but, on the
contrary, charged the jury that
"The description of the land in the deeds from Pet-chi-co to
Coquillard and Colerick, from Colerick to Coquillard, and from
Coquillard to Wilson, are sufficient to identify the land thereby
intended to be conveyed as the same two sections of land which are
in controversy in this suit, and which are described in the patents
which have been read in evidence."
It is assumed that the lands embraced by the patents to
Pet-chi-co, made in 1837, do not lie within the section of country
ceded by the treaty of 27th October, 1832, and therefore the
Page 64 U. S. 463
court was asked to instruct the jury that the defendants cannot
claim nor hold the land as assignees of Pet-chi-co by virtue of the
treaty. The demand for such instruction was also refused.
There is no evidence in the record showing where the land
granted by the patents lies except that which is furnished by the
patents themselves. They recite the stipulation in the treaty in
Pet-chi-co's behalf; that the selections for him of sections nine
and ten had been made, "as being the sections to which the said
Pet-chi-co is entitled," under the treaty. The recitals in the
patents conclude all controversy on this point.
The only question presented by the record that we feel ourselves
called on to decide is whether Pet-chi-co's deed of February, 1833,
vested his title in Coquillard and Colerick.
The Pottawatomie nation was the owner of the possessory right of
the country ceded, and all the subjects of the nation were joint
owners of it. The reservees took by the treaty, directly from the
nation, the Indian title, and this was the right to occupy, use,
and enjoy the lands in common with the United States until
partition was made in the manner prescribed. The treaty itself
converted the reserved sections into individual property. The
Indians as a nation reserved no interest in the territory ceded,
but as a part of the consideration for the cession, certain
individuals of the nation had conferred on them portions of the
land, to which the United States title was either added or promised
to be added, and it matters not which, for the purposes of this
controversy for possession.
The United States held the ultimate title, charged with the
right of undisturbed occupancy and perpetual possession, in the
Indian nation, with the exclusive power in the government of
acquiring the right.
Johnson v.
McIntosh, 8 Wheat. 603;
Comet v. Winton, 2
Yerger 147.
Although the government alone can purchase lands from an Indian
nation, it does not follow that when the rights of the nation are
extinguished, an individual of the nation who takes as private
owner cannot sell his interest. The Indian title is property, and
alienable, unless the treaty had prohibited
Page 64 U. S. 464
its sale.
Comet v. Winton, 2 Yerger 148.
Blair and
Johnson v. Pathkiller's Lessee, 2 Yerger 414. So far from this
being the case in the instance before us, it is manifest that sales
of the reserved sections were contemplated, as the lands ceded were
forthwith to be surveyed, sold, and inhabited by a white
population, among whom the Indians could not remain.
We hold that Pet-chi-co was a tenant in common with the United
States, and could sell his reserved interest, and that when the
United States selected the lands reserved to him, and made
partition, of which the patent is conclusive evidence, his grantees
took the interest he would have taken if living.
We order the judgment to be affirmed.
