1. The Treaty of May 24, 1834, with the Chickasaw Indians, 7
Stat. at Large 450, conferred title to the reservations
contemplated by it, which was complete when the locations were made
to identify them.
2. A patent (as often decided before) is void which attempts to
convey lands previously granted, reserved from sale, or
appropriated.
3. Reservees under the treaty above named are not obliged, in
addition to proving that the locations were made by the proper
officers, to prove also that the conditions on which these officers
were authorized to act had been observed by them.
4. Copies of records appertaining to the land office, certified
by the register of the district where they are, are evidence in
Mississippi.
5. An officer commissioned to hold office during the term of
four years
from the 2d of March, 1845, is in office
on the 2d of March, 1849. The word
"from" excludes the day of date.
By virtue of a treaty made October the 20, 1832, [
Footnote 1] the Chickasaw Nation of Indians,
in the belief that it was better to seek a home west of the
Mississippi, ceded their lands to the United States, who agreed to
survey and sell them on the same terms and conditions as the other
public lands, and to pay the proceeds to the nation. In order,
however, that the people of the tribe should not be deprived of a
home until they should have secured a country to remove to, they
were allowed, after the survey and before the first public sale of
their lands, to select out of the surveys a reasonable settlement
for each family and to retain these selections as long as they were
occupied. After this occupation ceased, the selected lands were to
be sold and the proceeds paid to the nation.
On the 24th of May, 1834, a little more than a year after the
date of the first treaty, another treaty [
Footnote 2] was made with these Indians, essentially
changing the provisions of the former one. These changes were made
owing to the supposed inability of the Chickasaws to obtain a
country within the
Page 85 U. S. 113
territorial limits of the United States adequate to their wants,
and to the desire expressed by them to have within their own
direction and control the means of taking care of themselves.
Accordingly they abandoned the idea of selecting, out of the
surveys, lands for temporary occupancy, and in lieu thereof
reservations of a limited quantity were conceded to them. The
scheme embraced the whole tribe -- heads of families as well as all
persons over twenty-one years of age, male and female, who did not
occupy that relation. The sixth article of the treaty reserved a
section of land to each of this latter class of Indians, a list of
whom, within a reasonable time, seven chiefs (named in the treaty)
were to make out and file with the agent. On this officer's
certifying that the list was believed to be accurate, the register
and receiver were to cause the locations to be made.
In this state of things, the United States, on the 13th of
March, 1847 -- reciting that one James Brown had paid, "according
to the provisions of two several treaties with the Chickasaw
Indians, dated October 20, 1832, and May 24, 1834," &c., for
the section 23, in township 5, of range 11 west, in the district of
lands subject to sale at Pontotoc, Mississippi, containing
&c.,
"according to the official plat of the survey returned into the
General Land Office by the surveyor general, which said tract has
been purchased by the said James Brown,"
granted the section of land described to the said Brown in
fee.
Brown granted it to one Polk. Hereupon, a certain Best being in
possession, Polk sued him in ejectment. The defendant set up that
prior to the issuing of the patent to Brown, the section had been
located to an Indian, named Bah-o-nah-tubby, of the Chickasaw
Nation, under the terms of the second treaty, and that he held
under the said Indian.
On the trial the defendant offered in evidence a paper certified
by one A. J. Edmondson, styling himself register of the land office
of the United States at Pontotoc, Mississippi, to be "a true copy
of the roll, number, reserves, and locations under the sixth
article" of the treaty between the United States and Chickasaw
Indians &c., "and of the list
Page 85 U. S. 114
of persons furnished by the Chickasaw agent to the register and
receiver as Indians entitled to land under said article." The paper
ran thus:
Reservations under the sixth article of the Chickasaw
treaty.
image:a
The certificate of Edmondson to this exhibit was dated March 2d,
1849, while the commission of Edmondson himself, which was produced
and put in evidence by the other side, was dated on March 2d also,
four years previously; and appointed him register of the land
office at Pontotoc "during the term of four years from the 2d day
of March, 1845."
The plaintiff objected to the paper offered in evidence, upon
the ground that it did not purport to be a copy of the record of
the land office; that the certificate was not authorized by any act
of Congress; that it stated facts and legal conclusions; that it
did not show that the list was made by the person named in the
articles of the treaty, or that the agent certified to its believed
accuracy; that it was not founded on any order of survey, donation,
preemption, or purchase; that it did not purport to be a copy of
the plat of the general office; that it could not be set up to
defeat a patent; that the present action being one of ejectment the
legal title alone was involved, and that such title could only pass
by a patent; that a patent could not be impeached at law except for
defects apparent on its face; that the treaties did not convey the
title in fee to the Indian Bah-o-nah-tubby, for the section of land
sued for, but that the title remained in the United States till it
passed out by patent.
The court decided that the paper was incompetent, and verdict
and judgment having been rendered for the plaintiff, the defendant
brought the case here, assigning for error the exclusion of the
paper.
Page 85 U. S. 115
MR. JUSTICE DAVIS delivered the opinion of the Court.
In order to carry out in good faith Indian treaties, effect
Page 85 U. S. 116
must be given to the intention of the parties to them, and from
the different provisions of the treaties which are applicable to
this case, no well founded doubt can exist of the proper
construction to give to the sixth article. The cession in the first
treaty contemplated the ultimate abandonment of the lands by the
Indians. This treaty did not prove satisfactory, and the Indians
asked, and the United States conceded to them, a limited quantity
of land for a permanent home. This object could not be obtained if
it were meant to give only an equitable title to the Indians. Such
a title would soon become complicated by the encroachments of the
white race, and that the Indians supposed they were providing for a
good title to their "reservations" is manifest enough, because they
declare in the second treaty that they wish to have the management
of their affairs in their own hands.
This disposition, which was natural under the circumstances, the
United States yielded to, and agreed, when the body of the lands
were surveyed, to reserve from sale certain limited portions on
which the reservations should be located. This was done in
obedience to a just policy, for it would have been wrong,
considering the dependent state of these Indians, to hold them to
their original engagement. The United States could not afford to do
this, and therefore willingly consented to re-cede to the Indians
enough lands for their wants. Can it be doubted that it was the
intention of both parties to the treaty to clothe the reservees
with the full title? If it were not so, there would have been some
words of limitation indicating a contrary intention. Instead of
this, there is nothing to show that a further grant, or any
additional evidence of title, were contemplated. Nor was this
necessary, for the treaty proceeded on the theory that a grant is
as valid by a treaty as by an act of Congress, and does not need a
patent to perfect it. We conclude, therefore, that the treaty
conferred the title to these reservations, which was complete when
the locations were made to identify them. This was the view taken
of this subject by the highest court of Mississippi soon after this
treaty went into
Page 85 U. S. 117
operation, in litigations which arose between the white race and
the Indians themselves concerning the effect to be given to these
reservations. [
Footnote 3] In
all these cases, the Indian reservee was held to have preference
over the subsequent patentee on the ground that the United States
had parted with the title by the treaty. These decisions,
furnishing a rule of property on this subject in Mississippi, were
not brought to this Court for review, as they could have been, but
have been acquiesced in for a quarter of a century. To disturb them
now would unsettle titles
bona fide acquired.
It has been repeatedly held by this Court that a patent is void
which attempts to convey lands that have been "previously granted,
reserved from sale, or appropriated." [
Footnote 4]
"It would be a dangerous doctrine [said the Court in
New
Orleans v. United States [
Footnote 5]] to consider the issuing of a grant as
conclusive evidence of right in the power which issued it. On its
face it is conclusive, and cannot be controverted, but if the thing
granted was not in the grantor, no right passes to the grantee. A
grant has been frequently issued by the United States for land
which had been previously granted, and the second grant has been
held to be inoperative."
If, therefore, the location of the land in controversy was
properly made, the legal title to it was consummated, and the
subsequent patent was unauthorized. And this brings us to the
consideration of the question whether the evidence on the subject
of the location ought to have been received by the court.
This evidence consists of the certificate of the register of the
land office at Pontotoc that the reserve of a Chickasaw Indian
(naming him) was located on the disputed section in June, 1839,
under the provisions of the sixth article of the Chickasaw treaty,
and a copy of the roll, number, reserve,
Page 85 U. S. 118
and location is given, showing this to be the case. It is
insisted that this certificate did not go far enough; that it ought
to have shown that a list, including this Indian, was furnished by
the seven chiefs to the agent, and that the agent certified to the
register and receiver, prior to the location, that he believed the
list to be accurate. If this were so, no presumption could arise
that local land officers, charged with the performance of a duty,
had discharged it in conformity with law.
It would be a hard rule to hold that the reservees under this
treaty, in case of contest, were required to prove not only that
the locations were made by the proper officers, but that the
conditions on which these officers were authorized to act had been
observed by them. Such a rule would impose a burden upon the
reservees not contemplated by the treaty, and of necessity leave
their titles in an unsettled state. The treaty granted the land,
but the location had to be fixed before the grant could become
operative. After this was done, the estate became vested and the
right to it perfect, as much so as if the grant had been directly
executed to the reservee. It has been frequently held by this Court
that a grant raises a presumption that the incipient steps required
to give it validity have been taken. [
Footnote 6]
The grant in this case was complete when the location was made,
and the location is in itself evidence that the directions of the
treaty on the subject were observed, and it cannot be presumed that
the officers empowered to make the location violated their duty.
Even if the agent neglected to annex a proper certificate to the
roll of Indians entitled to the reservations, it is difficult to
see how the Indians could be prejudiced by this neglect. We
conclude, therefore, that the certificate of the register was
competent evidence, and if the locations were not as there stated,
it is easy for the plaintiff below to show that fact. The same
effect was given to a similar certificate of this same officer,
Page 85 U. S. 119
by the High Court of Errors and Appeals of Mississippi, as early
as 1848, in an action of ejectment brought by a Chickasaw Indian
for a tract of land claimed by him in virtue of a location made in
his behalf as a reservee, against a party claiming by patent
subsequent in date to the location of his reservation. And this
decision was reaffirmed by the same court in 1854, in the case of
another Indian suing for his land under similar circumstances.
[
Footnote 7] It must have been
supposed at the time by the losing parties that these decisions
were correct, or else the opinion of this Court would have been
asked on the point involved. After such a length of acquiescence,
it would produce great mischief to hold this evidence to be
incompetent.
It is objected that the paper offered in evidence should have
been certified by the Commissioner of the General Land Office; but
this want not necessary, for copies of records appertaining to the
land office, certified by the register, are evidence in
Mississippi, and similar statutes exist in nearly all the Western
and Southwestern states. [
Footnote
8]
Another objection is taken to the certificate of Edmondson on
the ground that when it was given, his term of office had expired.
This objection cannot be sustained, for the certificate bears date
the 2d March, 1849, and he was commissioned to hold the office of
register "during the term of four years from the 2d day of March,
1845." The word "from" always excludes the day of date. [
Footnote 9]
It is argued that in ejectment, a stranger to the outstanding
title cannot invoke it to defeat the action. Whether this be so or
not depends on the laws of the state; but the point does not arise
in this case, for there was no opportunity for the defendant to
connect himself with the Indian title after the court refused to
let the evidence on the subject of this title go to the jury.
Page 85 U. S. 120
The decision respecting this evidence necessarily disposed of
the case.
Judgment reversed and a venire de novo awarded.
[
Footnote 1]
7 Stat. at Large 381.
[
Footnote 2]
Ib., 450.
[
Footnote 3]
Wray v. Doe, 10 Smedes & Marshall 461;
Newman
v. Doe, 4 Howard (Mississippi) 555;
Niles v.
Anderson, 5
id. 365;
Coleman v. Doe, 4
Smedes & Marshall 46.
[
Footnote 4]
Stoddard v.
Chambers, 2 How. 284;
United
States v. Arredondo, 6 Pet. 728;
Reichart
v. Felps, 6 Wall. 160.
[
Footnote 5]
35 U. S. 10
Pet. 731.
[
Footnote 6]
Polk's Lessee v.
Wendell, 5 Wheat. 293;
Bagnell v.
Broderick, 13 Pet. 436.
[
Footnote 7]
Wray v. Doe, 10 Smedes & Marshall 452;
Hardin
v. Ho-yo-ho-Nubby's Lessee, 27 Miss. 567.
[
Footnote 8]
See Revised Code of Mississippi.
[
Footnote 9]
See 1 Parsons on Notes and Bills, 385, and the
authorities therein cited.
