Imágenes de páginas
PDF
EPUB

RESERVATIONS UNDER CHICKSAW TREATIES OF 1834, (continued.)

Page.

commerce at all, cannot be treated, at the end of the term designated in the treaty with the Indians, as lands for which nobody would bid... RESERVATIONS UNDER CHOCTAW TREATY OF 1830.

.........

The fourteenth article of the treaty provides for those who desire to remain and be-
come citizens of the United States, and their title is made to depend upon a resi-
dence of five years on the land with the intention of becoming citizens..
The nineteenth article provides absolutely for those who may not desire to remain
and become citizens of the United States...

The President has the power to approve the sale of any of the reserves under the
supplement to the Choctaw treaty of 1825, although the same is derived only by
construing both instruments together as forming but one treaty....
The reservations are absolute; and the power to sell must be implied, to give them
value to the parties.....

1580

784

784

786

786

786

786

A mistake in the Christian name of a .reservee may be explained by parol; yet, as precedents are to the contrary, a reference to Congress is recommended.. The sale may be approved either before or after survey, at the discretion of the President; who also has power to accept a relinquishment of title from any chief, and to pay fifty cents per acre... Where a reservee entitled, under the treaty of Dancing Rabbit creek, to two sections of land—the one to include his improvement, and the other to be afloat, had built and paid for a house on section 31, in township 16, range 1 east; and had no other improvements in the nation, but resided with his mother on another lot-Held, that his residence with his mother does not deprive him of the right to the said section 889 Under that treaty, where two reservees shall be found to have improvements on the same lot, the same may be divided, and the deficiency made up from contiguous land not otherwise appropriated...

The reservees named in the supplement to the Choctaw treaty of September 27, 1830, may, with the approbation of the President, sell and convey their reserves.... Patents must issue under the fourteenth and nineteenth articles of the Choctaw treaty of 1830, and the Chickasaw treaty of 1834, in order to divest the United States of title in the reservations..

889

997

998

Patents for reserves, under the former, may issue to Indian residents or assignees ; under the latter only to the reservees..

998

The reservations under the Choctaw treaty of1830 may be located on the sections granted in the act of March 2, 1819, to Alabama for the use of schools, notwithstanding said act, for the reason that the United States could only grant subject to the Indian right of occupancy. The contingency was provided for in the authority given for the granting of equivalent contiguous lands where section sixteen was disposed of....

...

There was no such proviso, however, in the offer of lands to Mississippi...
In the event of the death of reservees, under the Choctaw treaty, before the expira-
tion of the five years' residence upon the land, required as a condition precedent to
a grant and fee simple, the interest is not defeated, but goes to those persons who,
by the State laws, succeed to the inheritable interest of individual Indians.....
The grant of the reservation is the essence of this provision of the treaty, and the di-
rection as to the manner in which the same shall be located ought not to be so con-
strued as to defeat the grant.....

Locations of sections, or parts of sections, should be made by taking the whole, half,
or quarter sections, as the case may be, without breaking up the legal divisions or
disturbing sectional lines....

1003 1003

1037

1040

1041

1041

1055

In this case, the reservee is entitied to the half section on which his improvement is located, and the whole of that chosen for the balance.... The Department of War is at liberty to receive, and ought to receive, any credible evidence, documentary or oral, coming from any disinterested source, which may tend to establish the fact that heads of families signified to the agent, within due time, their intention to remain and become citizens of the States.... The residence of heads of Choctaw families who in due time signified to the agent their intention to remain and become citizens of the United States, or a valid excuse for non-residence, entitles them to grants pursuant to the treaty; and such grants when made are paramount to pre-emption and all other claims.. The War Department, however, should endeaver to avoid interference with the rights of settlers whenever it can be done consistently with the provisions of the treaty 1209 The only requisites to a title to reservations under the treaty of Dancing Rabbit creek, indicated in the treaty, are, that the persons applying be Choctaws and heads of families, and shall signify their intention of becoming citizens of the States within six months from the ratification of the said treaty.... Whaere a Choctaw reservee conveyed his reservation to D., in trust, to sell and ap

1209

1238

RESERVATIONS UNDER CHOCTAW TREATY OF 1830, (continued.)

ply the proceeds to the payment of a debt owing by the reservee to A. and R., who thereupon soll a portion of the land, and with the proceeds paid a part of the said debt; and, at this stage of the affair, the reservee died, leaving two children, whose guardian, under pretence that he was acting for the children, bought the residue at a sum far below its value, who, after taking H. into partnership with him, conjointly with him sold the land to Banks and Lewis, without the consent of the President, and refused to pay over any part of the proceeds to said children-DECIDED, that the President ought not to give his approval to the sale to said Banks and Lewis, as it would probably deprive the children of their inherit

ance....

The approval of the President to a sale of a Choctaw reservation is required only to contracts between the Indian reservees and their vendees.

Page.

1312

1493

1493

1498

The patents ought to issue to the first vendees in trust for the equitable proprietors, or subsequent assignees, and bear on their face a declaration... The reservations under the Choctaw treaty, of "sections," refer to quantity; but that is to be taken and patented in reference to the established system of our land surveys, in parallelograms of fixed extent and uniform character.. The claimant in this case is entitled to 640 acres, but cannot take it by smaller subdivisions, at his will and pleasure; he must be made to conform to the land laws. 1498 The patents heretofore issued to the parents of Choctaw children, for such children must stand for what they shall be found by the judiciary to be worth; but patents for reservations to Indian children, under the 14th article, hereafter to be issued, should be made to the children, and not to their parents; care being taken that they show, on their face, that they are issued to the children independently of their father, in fulfilment of the 14th article of the treaty of Dancing Rabbit Creek....

The President has power to cause the lands reserved for orphans under the treaty of Dancing Rabbit Creek to be sold, and to cause patents to be issued to purchasers.. He may, on application of the orphans for whom the provision was made, cause the proceeds of land located for them to be applied to some beneficial purpose for their benefit....

Wherefore, the sales already made of these lands are valid.

By the treaty of Dancing Rabbit Creek, if any portion of a section on which a claimant under the 14th article of said treaty resided at the date thereof had been sold by the United States prior to the passage of the law of 1842, the commissioners were not authorized to award to said claimant scrip instead of land, unless it was then impossible to give to said claimant the quantity of land to which he was entitled, including his improvements, or any part thereof, on the adjoining lands...

If two or more claimants under the 14th article resided, at the date of the treaty, upon the same section, and a portion of it had been sold by the government; there existed no authority to issue scrip, unless it were impossible to give them the quantity of land to which they were entitled, including their improvements, or any part thereof, agreeably to the terms of the 3d section of the act of 1842, on adjoining lands....

A claimant who, having complied with the 14th article, has been expelled from or induced to leave his land by the fraud of the government or its agents, and kept out of possession by a sale thereof by the government, has not forfeited his rights...

1539

1686

1686

1697

1697

1697

If two grants have been made for the same land to the same claimant, under two
separate articles-one for 640 acres, upon conditions with which he complied, and
another for 320 acres-his acceptance of the larger grant, if prior in point of time,
will render the smaller grant unavailing; and where the smaller was made first,
the larger will be available only for the excess...
1697
Locations under the 19th article, before the passage of the act of 1842, worked a
forfeiture under the 14th in certain cases...

All assignments, or agreements to assign claims, under the Choctaw treaty of Dan-
cing Rabbit Creek, previous to the expiration of five years from the ratification
thereof, are causes of forfeiture, without reference to the consideration upon
which they may be founded; and these matters are specially cognizable by the
commissioners, whose judgment respecting such assignments is conclusive.....
The same Indian cannot be allowed a claim under both the 14th and the 19th article
of the treaty of Dancing Rabbit Creek. (See opinion of Mr. Taney, given 9th of
September, 1831, which settled the construction which has ever since been ad-
hered to.)..

.......

A claimant under the 14th article of the treaty, who complied with its requisitions, and who was expelled from his land by the force or was induced to leave it by the

1697

1699

1769

RESERVATIONS, (continued.)

ment who induced claimants to apply for a reserve under the 19th article, and which were located for them, but for which patents have not been demanded nor issued....

Page.

1769

The certificate of the Indian agent in reference to the facts upon which the Choctaw claims are based is not conclusive testimony for any purposes beyond the act of Congress. ...... 1769

The 3d section of the act of 1842 authorizes the examination and allowance of claims under the 14th article of the treaty, and the proviso contains nothing to affect them. 1769 As the official acts of President Van Buren and his successor in office, in relation to the confirmation of sales of reservations under the treaty of Dancing Rabbit Creek, were predicated on a construction of that instrument which forbids certain sales; and as certain questions arise which ought to be adjudicated, it is recommended that a case to test the validity of sales made by the Commissioner Brown, be brought before the Supreme Court.....

The Attorney General intended, in his opinion of November 18, 1845, to advise that a claim, under the fourteenth section of the treaty and the act of 1842, might be perfected even though the Indian had temporarily lost the possession by the tortuous acts of unauthorized individuals, he having in all other respects complied with the requisitions of law..

A Choctaw head of a family, entitled, under the 14th article of the treaty of Dancing Rabbit Creek, to a reservation of land, who gave the notice, made the claim, and continued the residence therein required, is entitled to a patent, although the agent, whose register a former Executive declared to be the evidence in such cases, failed to make the necessary entry, inasmuch as a subsequent agent did make entry of the facts and location, and certified them to the General Land Office..... The treaty under which the right has accrued, is silent concerning any such register as that required to be kept by the agent..

RESERVATIONS UNDER CREEK TREATY OF 1814.

1890

1809

2097

2097

The reservees under the Creek treaty of 1814, and the act of 1817, have not power to lease their lands; the renting for a term of years and removal from the State may be regarded as an abandonment of their reservations...

On their abandonment, the title becomes immediately vested in the United States by operation of law, and is to be then treated as if then for the first time acquired by a treaty RESERVATIONS UNDER CREEK TREATY OF 1832.

.......

The twenty-nine sections reserved to Creeks under the treaty of 24th March, 1832, may be lawfully located either before or after assignment thereof by the tribe, except in respect to locations before assignment. Should any of those sections be located to persons who possess improvements not already allotted to them under other provisions in the treaty, such persons will be entitled to insist that the tracts assigned to them shall be located in such manner as to include their improve

ments..

1119

1119

941

992

Purchasers of lands reserved by the second and third articles of the Creek treaty of March 24, 1832, must have patents to complete their title..

Sales by the Creeks, where purchasers, either by force or fraud, abstract from them the purchase money, are fraudulent and void........

1138

So, also, are sales approved by the President where the reservee was personated by other Indians, and patents may be withheld....

1138

Patents may issue directly to a white person, being the assignee of a Creek reservee, to whom the tribe had assigned a portion of the twenty-nine sections reserved under the 6th article of the Creek treaty of 1832..

1157

The removal of the Creek reservees from their reserved lands, without the intention
of returning and occupying them as their place of residence, is an abandonment,
which gives the right of possession and occupancy to the United States..
The right of the United States accrues and becomes complete immediately upon
such an abandonment..

.......

1226

1226

1242

On completion of payment for Creek reserves conveyed by the reservees to other persons, certified by some person appointed by the President for that purpose, and approved by the President himself, patents must issue to the purchasers... It will not be a compliance with the treaty of 24th March, 1832, to issue patents in such cases where the right is controverted to the original reservees to abide the result of suits and to inure to the successful parties.... Transfers of reservations by assignees, whose assignments expressed them as a firm, fraud of the government or its agents, by virtue of a sale of his land made by the government, has not forfeited his rights under the treaty and law of 1842........ 1769 Nor has any forfeiture resulted from the fraudulent acts of the agent of the govern

1242

RESERVATIONS UNDER CREEK TREATY OF 1832, (continued.)

Page.

are not valid when executed by one member thereof, but only when executed by all, unless the partner assigning exhibit authority to assign from all.... But where the reservee assigned to a firm, as to " M. W. Perry & Co.," and the transfer by the firm was signed in that manner, the assignment is valid, and the patent may issue to the assignee..

1248

Where there are two assignors, and both names to the assignment are in the same hand-writing, the assignment is invalid as to him who did not sign, unless the other exhibit authority..

Where approved contracts are endorsed in blank, with the names of first purchasers
endorsed thereon, the endorsement of the name of the purchasers on the approved
contracts is evidence of their having disposed of them; and possession by others
is sufficient evidence to warrant the issuance of the patents to those having pos-
session of the approved contracts.

These assignments are not required to be acknowledged, and ought not to be made
subject to any rule made after they were executed..
Possession of a contract is not sufficient evidence of a legal transfer..
Where Creek reservees died within the five years during which their reserves were
to be withheld from sale, and the lawful administrators sold the reserves, and paid
over the proceeds (less the expenses) to the Indian widows, as the heirs, and the
question of other heirs being now raised, in opposition to the confirmation of the
sales to the purchasers, who have paid the consideration money therefor once m
full-DECIDED, that the purchasers are entitled to the confirmations which they ask,
and should not be required to pay a second time any portion of the purchase
money.

If the distribution of the proceeds were illegal, it ought in no wise to affect the bona
fide purchasers..

Heads of Creek families who otherwise would be entitled to a patent for land in Alabama, have not forfeited their right to the same by having become residents and citizens of Georgia, before the expiration of five years from the time when his reservation was selected..

The President of the United States may properly confirm sales of Creek reservations made by administrators pursuant to the orders of courts having jurisdiction, whether the distribution of the proceeds among the heirs shall have been correctly made or not; provided the purchaser shall have paid in the purchase-money in good faith to the administrators or legal representatives...

But where purchasers have withheld any portion of the purchase money on any pretence, or the administrators themselves were the purchasers, and having not accounted for the purchase-money, sales ought not to be confirmed. Patents for reserve lands under the Creek treaty of 1832 are to be issued to purchasers, owners, assignees, or transferees; and claimants must show themselves to be within the description of persons entitled, by exhibiting authentic evidence of the fact.

The transfer to the claimant, in this case, by the attorney-in-fact of the Columbus Land Company, unaccompanied with evidence of the title of said company, is not sufficient to authorize the issuing of a patent to him..

But a succession of assignments endorsed on the original deed, if accompanied with satisfactory proof of genuineness and fairness, is sufficient to authorize the issuing of a patent..

Transfers and assignments by agents of a land company, acting within the scope of their authority, are valid; yet, before the Commissioner of the Land Office gives effect to them, he should have satisfactory proof that such agents have acted within the compass of their authority......

1248

1248

1248

1248

1248

1352

1352

1357

1364

1364

1398

1398

1398

1398

The President should confirm those sales of Creek reservations only where the law of the State of Alabama has been complied with; such having been the practice... 1518 Attorneys General Butler and Gilpin having so advised, and the department having so conformed its practice, it may be considered res judicata.....

1518

1518

It is inexpedient, always, to disturb the settled practice of the executive departments, especially so in respect to questions about which there is any doubt...... The former opinion, on new facts stated, and assurances that the practice has not conformed to the opinions of Attorneys General Butler and Gilpin, reconsidered, and held that in all cases where the provisions of the treaty have been fufilled, the sales shown to have been fair, and the consideration adequate, the sales may be confirmed, even though, under the law of Alabama, they may have been informal and irregular... 1519 Congress was competent to pass, and did pass, an act conferring original authority upon administrators to make sales, without reference to the law of Alabama...... 1519 The names of assignors need not be written in full in assignments of Creek Indian

RESERVATIONS Under Creek TreATY OF 1832, (continued.)

contracts; and the fact that they do not import a consideration does not render them insufficient. (See opinion of Attorney General Crittenden, of 26th July, 1841.)....

Page.

1525

Where an Indian reservee under the 2d article of the treaty of 24th March, 1832, contracted to sell his reservation to A, who paid therefor $100, and then permitted B. to go into possession thereof; and A afterwards died, and B, offering to pay the balance of the valuation of the land, claims a patent-DECIDED, that B may be regarded as the last bona fide transferee within the act of 1848, and that a patent be issued to him on payment by him of the balance of the purchase money........ 1794 RESERVATIONS UNDER MIAMI TREATY OF 1826.

As the treaty with the Miamies contained an agreement on the part of the United
States to grant to certain persons each a quarter section of land out of the territory
ceded by it, to be located by the President, no other parcels than those defined can
be substituted for them; for the President must execute the treaty according to its
stipulations..

The President of the United States may properly give his consent and approval to
the conveyance by will made by Indians La Gros and Waises-kea, his daughter,
to General Tipton, to four sections of land reserved to said La Gros in the treaty
with the chiefs and warriors of the Miamies, concluded 23d October, 1826, subject
to all legal questions in respect to the capacity and right to make conveyances by
will, and to the execution, validity, and effect of those instruments..
Whether Indian reservees are capable in law of devising their reservations to third
persons in any case-quere...

RESERVATIONS UNDER OTTAWA TREATY OF 1821.

A general approval endorsed on an Indian's petition for authority to alienate his reserve under the treaty with the Ottawas, &c., of the 29th of August, 1821, is a valid consent-such having in 1822 been the mode adopted by the President for the exercise of his supervision...

RESERVATIONS UNDER OTTAWA, CHIPPEWA, AND POTTAWATOMIE TREATY OF 1829. Patents are requisite to divest the United States of title to the Ottowa, Chippewa, and Pottawatomie reserves, and should be so issued as to disclose the estate granted.(See opinions of the 19th instant and 26th ultimo, on the subject of Indian reservations.)...

RESERVATIONS UNDER POTTAWATOMIE TREATY OF 1826.

The President's consent to sales of land reserved to the Indians by the Pottawatomie treaty of 16th October, 1826, and the Miami treaty, concluded on the 23d of the same month, is only necessary in cases where the sales shall have been made by the reservees.....

.....

Where the reservees shall have died, and sales are made under an order of court
granted pursuant to the laws of the State in which the lands are situated, the Pres-
ident's consent is not necessary to their validity..
Those treaties not only extinguished the Indian right of occupancy, but granted the
reserved lands as effectually to all intents and purposes as if patents had been is-
sued to the, so called, reservees; and as the State laws are operative upon lands
thus held in fee-simple, and have acted upon those in question in causing their
transfer for the payment of the debts of their decedent owner, the title of the pur-
chaser is perfect without the President's consent....

But as the rights of the heirs cannot be affected injuriously by the giving of the Exec-
utive consent, as the sale, in this case, appears to have been fairly made, and for a
satisfactory price; and as it may possibly relieve the title from doubt, and thereby
prevent litigation, it may nevertheless be given.....

RESERVATIONS UNDER POTTAWATOMIE TREATY OF 1832.

The reservations to certain Indians contained in the treaty of 20th October, 1832, with the Pottawatomies, excepted out certain lands from the general cession, which did not therefore pass; consequently, the title thereof remains as it was before the treaty....

Being held under the original title, the occupants cannot convey them to individuals, but can only make a valid cession thereof to the United States.. RESERVATIONS UNDER WINNEBAGO TREATY OF 1829.

The approval by the President of the location of certain lots by reservees under the Winnebago treaty of 1st August, 1829, vests a title in the reservees, that is superior to that of certain Polish exiles who located 18th April, 1836, under act of 30th June, 1834.....

RESERVATIONS UNDER WYANDOT TREATY OF 1817.

The Wyandot nation of Indians have the authority to treat with the United States respecting the reservation of twelve miles square at and about Upper Sandusky, in

852

898

898

1105

1002

1819

1819

1819

1819

868

868

1356

« AnteriorContinuar »