Newman v. Doe ex dem. Harris

delivered the opinion of the court.

The defendants in error brought ejectment for the land mentioned in the declaration, and claim title thereto as the grantees of Hugh Foster, who claimed by virtue of the 14th article of the treaty concluded at Dancing Rabbit Creek, in 1830, as the head of a Choctaw family. The defendants in error succeeded in the court below, and the case is brought up by writ of error. The grounds relied on for reversing the judgment, are contained in nine bills of exceptions taken at the trial, each of which is made the foundation for a general assignment of error. Some of them also embrace many points, which will of course be considered, or such of them as may be material in their appropriate places.

1st. It is first assigned as error, that “ the court permitted the lessors of the plaintiffs to read in evidence to the jury the transcript of the registry of Choctaw names, kept by Ward, United States Agent, of the applications of Choctaws to become citizens, without showing that the names were the names of Choctaw heads of families.” To understand the force and application of this instrument, as a matter of evidence, resort must be had to the treaty, and as we shall have frequent occasion to refer to the 14th article, it is inserted as follows, to wit: “ Each Choctaw head of a family being desirous to remain and become a citizen of the States, shall be permitted to do so, by signifying his intention to the agent, within six months from the ratification of this treaty, and he or she shall thereupon be entitled to a reservation of one *555section of six hundred and forty acres of land, to be bounded by sectional lines of survey; in like manner shall be entitled to half that quantity for each unmarried child which is living with him, over ten years of age; and a quarter section to such child as may be under ten years of age, to adjoin the location of the parent. If they reside upon said lands, intending to become citizens of the States for five years after the ratification of this treaty, in that case a grant in fee simple shall issue; said reservation shall include the present improvement of the head of the family, or a portion of it. Persons Avho claim under this article, shall not lose the privileges of a Choctaw citizen; but if they ever remove are not to be entitled to any portion of the Choctaw annuity.” The privilege of becoming a citizen Avas conferred on each head of a family, provided he signified his intention to the agent within six months after the ratification of the treaty. It became, therefore, the duty of the applicant to signify his intention. It became the corresponding duty of the agent to receive that signification and to register his name. No particular form of doing this was pointed out, but the one adopted was as convenient and effectual as any. other, and the registry so taken was an official act, and proper evidence under the general rule that certificates and other documents made by persons entrusted with authority for the purpose, are evidence of the facts which they are required to certify to, to the extent of their authority. 1 Starkie, part 2, 173. The treaty having appointed the agent for this purpose, he must be trusted as far as he acts under the authority conferred. He was not authorized to register any other persons but Choctaw heads of families, and it is to be presumed that he did his duty. The document professes to be a “ Register of ChoctaAV names as entered by the agent previous to the 24th of August, 1831, who wish to become citizens, according to the provisions of the late treaty in 1830.” Now either the agent violated his duty, or these persons were entitled to the benefits of that treaty ; as we are not at liberty to suppose a violation of duty, Ave must regard the register as evidence that they were ChoctaAV heads of families. Under a similar provision in the Cherokee treaties of 1817 and 1819, the registry of the name with the agent, Avas held to be conclusive evidence that the individnal Avas the head of a *556family. 5 Yerger, 323. The first error is therefore not well founded.

2d. It is secondly said, “ that the court erred in permitting the lessors of the plaintiff to read in evidence to the jury the copies of private letters from Hugh Foster, Elbert Herring, F. E. Plummer et al. set out in the second bill of exceptions.” This bill of exceptions contains several communications, but it does not appear that any of them were permitted to be read to the jury, except two. The first is Foster’s application to have his land located, in which he specified the particular sections and lots claimed, addressed to G. W. Martin as locating agent, and the second is Martin’s certificate that Foster ivas registered for the land claimed, in which the register at Chocchuma is requested to reserve it from sale. To these documents there can be no objection. Under the treaty it became necessary to have his land located, and for that purpose the locating agent was appointed. The reservation would have been otherwise incomplete for want of identity. By this application Foster was presenting himself as a claimant under the 14th article of the treaty, and taking the necessary steps to avail himself of the provision. By the treaty it was necessary that Foster should designate the land which he claimed, so that the government might fufil its stipulation. By the treaty the right was given, but identity was wanting, and the application to the locating agent fixed this also. As evidence of identity, these documents were admissible. The certificate of the locating agent was an official act within the scope of his duty, and as such must be entitled to credit. But it is said that they were mere copies. This objection might prevail, if the originals were subject to the control of the party, but if they were necessarily placed in the department of Indian affairs, as documents pertaining to that office, then of course the originals being beyond the control of the party, copies certified by the proper officer were admissible. Counsel have been silent on this question, and we are left to infer from the fact of their being certified by the superintendant of Indian affairs, whose certificate is approved by the Secretary of War, that their custody was according to law. But it is further to be remarked, that these documents prove nothing but location, a fact which was in fact proved by parol. They are not title papers, *557but relate merely to the identity of land, the title to which passed under the treaty.

3d. The third error assigned is, “that the court allowed to go to the jury, on the part of the plaintiffs, the evidence of G. B. Wild, to prove that G. W. Martin was the acting locating agent of the United States government, to locate the reservations of the Choctaws. In reference to all peace officers, justices of the peace, constables, revenue officers and military officers, it seems lo be sufficient to prove that they acted in their several capacities, and were reputed to be such officers, without producing their appointments. Phillips’s Evidence, 171. No good reason can be perceived why this rule should not extend to the locating agent.— The witness testified that Martin was reported to be the locating agent, and acted as such from 1833 to 1837, and this was at least prima fade evidence of his appointment for all purposes connected with this controversy.

4th. The fourth ground of error is, “that the court erred in ruling out and refusing to permit defendant’s counsel to read in evidence to the jury the act of the Legislature of the state of Mississippi granting to Hugh Foster certain privileges, upon his relinquishing all his Indian privileges, as set out in the fourth bill of exceptions.”

5th. In connection with this objection and as a constituent part of it, may be considered the fifth error, to wit: that the court erred in refusing to permit defendant’s counsel to read to the jury a certified copy of the record of relinquishment, by Hugh Foster, et al. of all his Indian privileges, filed in the county court of Claiborne county in 1826, which is set out in the bill of exceptions. The questions here propounded may be briefly answered thus : If Foster had Indian privileges and relinquished them under this act, it was a contract, if a contract at all, beetween him and the state of Mississippi, and although the general government might with some plausibility have urged it as a reason why he should not be entitled to a reservation, yet if it has not done so, it dons not lie with defendants to make the objection. If the lessors of the plaintiff recover, it must be on the strength of a title already acquired, and no objection can be heard which should have been urged against the inception of title. We can only enquire wheth*558er he has a title under the treaty, not whether he ought to have had one. If he was treated by the general government as the head of an Indian family, it is sufficient, and that he was considered as an Indian is shown by his signature to the treaty.

6th. It is next said “that the court erred in ruling out the testimony of Orrin Kingsly, and in refusing to permit the defendants to prove by said witness, that Hugh Foster had voluntarily removed from his residence and improvement before the expiration of five years after the ratification of the treaty of Dancing Rabbit Creek, to avoid a prosecution for felony, and that he did not reside upon said land for five years after the ratification of said treaty.” In the consideration of this proposition, we are necessarily led into an inquiry into the nature of Foster’s title, and whether he held, subject to the condition of five years residence. For the plaintiff in error, it is insisted that his title was only equh table, and therefore insirfficient to maintain ejectment. In support of this position that elause of the treaty is relied on which provides that “if they (the reservees) reside on said lands, intending to become citizens of the states, for five years after the ratification of this treaty, in that case, a grant in fee simple shall issue,” and hence it is said that by providing that a grant should subsequently issue, the title acquired by the treaty must be inferior to a grant amounting, in reality, to nothing but a promise to grant on certain conditions. It is further insisted, that as the Indians had nothing hut a right of occupancy, a grant was necessary to pass title. Since the decisions in the cases of Fletcher v. Peck, and Johnson v. McIntosh, the Indian title is understood to mean but a right of occupancy. That, it is conceded, they have, and with all deference to the decisions mentioned, this concession seems to me to produce some departure from principle. A perpetual and exclusive right of occupancy, is not easily distinguished from a right of soil. A fee is but an inheritable right to occupy or hold, to the exclusion of all others. Denying them the power to alienate to any other power than to the United States, is only an abridgement of an incident to the right of property, for the power to alienate is but an incident to a fee simple, and not an essential requisite. Perhaps the opinion of Judge Haywood in the case of Cornet v. Winton, is more consistent with the laws of nations in *559relation to the right acquired by discovery and conquest. He holds the Indians to be mere tenants at sufferance, having neither a right of property or possession, and removable at pleasure. The nature or extent of the Indian title is not material, however, in the present controversy. If the title to the soil was in the Indians, the terms used in the treaty are undoubtedly sufficient to prevent their right from passing to the United States for such portions as were excepted out of the general cession, and to each head of a family was reserved a certain quantity, on his performing certain acts. The reservation seemed a right to a portion of that which was before held in common. If on the other hand the right to the soil was in the United States, the right to dispose of particular portions of it to individuals by treaty, cannot be questioned. Assuming the latter position as the true one, the right has been well conveyed by the treaty.

By the common law there were several kinds of assurances, each having its technical peculiarities, and they were all equally effectual, but it is not necesssary that any of these should be resorted to by a government exercising its legitimate functions, and hence we find that it has not been uncommon for the states to grant by legislative act, and for the United States to grant by act of Congress. By treaty is a mode equally valid. The only question therefore is whether a grant has been actually made, or that which is equivalent to a grant. In construing Legislative acts, we look to the intention of the Legislature; in construing treaties the same rule must prevail, in order that they may be carried out in good faith. Independent of the condition of the people with whom this treaty was made; their want of skill in making contracts; their implicit reliance on the government for protection, and a just policy; the liberality which has been professed towards them; the declared parental affection entertained for them; independent of all these considerations, there is an additional reason for giving a liberal construction to this treaty. We find in it a clause expressly providing that whenever a well founded doubt shall exist, it shall be construed most favorably for the Choctaws. When, therefore, the treaty declares that each head of a family who wishes to become a citizen shall be permitted to do so by signifying his intention within six months, “and he shall *560thereupon be entitled to a reservation of one section of six hundred and forty acres of land,” what did it mean? Can it be said there was no intention to give a title to this land ? it certainly cannot. The object of the concession was to provide a permanent home for the individual. It would be tantalizing and deceptive to say to him afterwards that no title was intended to pass. We cannot doubt but what the commissioners intended that the right of soil should pass on conforming to the conditions, and still less can we doubt but what the Indians, by the term “ reservation,” used in this article, supposed they were providing for a good title. Suppose one claiming under this provision should actually have resided on the land five years, after complying with the other conditions, could it be said that his title was incomplete? and still it ' would be so if a grant be necessary. The subsequent provision that a grant in fee simple shall issue, does not destroy the legal effect of the previous part of the section, as will be shown hereafter. In the 19th article we find the following language, to wit: “the following reservations of land are hereby admitted; to Col. David Fulsom four sections, of which two shall include his present improvement, &c.” It is evident that a title was intended to be conveyed by this language. It was designed to convey the right, and is sufficient to do so. In the 2d article of the supplement is the following language, to wit: “and to each of the following persons there is allowed a reservation of a section and a half of land, &c.'” and so in other articles of the treaty, from which it is manifest that the term “reservation,” has been invariably employed to convey title. Without some cogent reason we do not feel authorized to give to it a different meaning in the 14th article, from that which it is entitled to and must receive in other articles. The use of the same language or words, in the same instrument, must be regarded as indicative of the same idea. Indeed so common is the word “reservation,” in the various Indian, treaties, that it may with propriety be considered strictly technical. Its meanizig is generally understood, but particularly by the Indians. In the case of Eu-che-lah v. Welsh, 3 Hawkes R. 155; the words “do agree to allow a reservation of six hundred and forty acres of land to each head of a family formerly residing within the ceded territory,” in. the Cherokee treaty, were held sufficient to convey the title, al*561though it was objected that they only amounted to a promise to convey in future. The point was so ruled also in McConnel v. Mansepaine, 2 Yerger, 438. Under these considerations we must consider that a title passed under the treaty, and this view of the case is not inconsistent with the subsequent provisions. In the further investigation of this branch of the subject, it becomes necessary to determine whether the title was conditional or absolute.

No particular words are necessary to create a condition in a deed, and perhaps still less strictness should be required in a treaty. In both if it appear to have been the clear intention of the parties to make a condition, it will be sufficient. The whole treaty before us was rather inartificially drawn, but still it is believed that we cannot be mistaken in sayihg that an intention is manifested in the fourteenth article to annex a condition to the grant or reservation. We are told that «the reason of the law, or the treaty, that is, the motive which led to the making of it, and the view there proposed is one of the most certain means of establishing the true sense.” Vattel, 320. I have already said, and I think correctly, that the words “ shall be entitled to a reservation” used in the fourteenth section, were equivalent to a grant. What was the purpose or motive for making this grant? The language immediately preceding explains it. “ Each Choctaw head of a family being desirous to remain and become a citizen of the States, shall be permitted to do so by signifying his intention to the agent.” Permitted to do what; to become a citizen, of course. It was in consideration therefore of his remaining and becoming a citizen, that the reservation was given. It was not given merely in consideration of having signified an intention to become a citizen. It is impossible to conceive how a mere unexecuted purpose of mind could have been considered as an inducement or motive for the reservation. Signifying the intention to the agent was nothing more than a declaration that the party wished to avail himself of the benefit of this article. It was evidently foreseen that some of the Indians would wish to remain east of the Mississippi; Having sold all their land, they would have been homeless without some special provision in their favor, and their habits are too Avell known to suppose they would have acquired homes by *562their industry, or with means on hand. For such, this provision was intended. The object was to confer on them the privileges of citizenship, and to provide for them the means of living in comfort in the society of the white man. But some evidences of a permanent residence was also intended to be required, and inasmuch as it might be doubtful what length of residence was necessary to enable them to claim as citizens, the doubt is removed by the treaty. It is declared that “ if they reside upon said lands, intending to become citizens of the States, for five years after the ratification of this treaty, in that case a grant in fee simple shall issue.” If this does not create a condition, it means nothing, because no grant in fee simple was necessary to confer title, and if the title was not to be forfeited by removing before the expiration of five years, why insert this clause ? It must have been designed for some purpose; that purpose was to annex a condition; it could have been nothing else. A different interpretation would fix on the framers the charge of absurdity, and treaties are not to be so construed. Vattel, b. 3, chap. 17. We are not to suppose the language was used without meaning, and it can have none and must be useless and void, unless it creates a condition. But by supposing it to mean a condition, it is in consonance with the previous part of the article, and the whole is in harmony with a steady train of thought. It was saying to the Indian, if you remain and become a citizen, you shall not be deprived of a home; but you must remain five years; this length of residence shall make you a citizen, and your title complete; and then you may dispose of your land if you think proper. This was but imposing a reasonable condition. The grant that was to issue at the expiration of that time, was to be an acquittance from the condition, or an acknowledgement that it had been performed, and that the title had become absolute. Suppose that some length of residence had not been fixed, then a title was acquired merely by remaining long enough to become a citizen. What time was necessary for this purpose? Six months would be long enough, and it is not to be supposed that a residence of this short time could have been the inducement for the reservation. It must be remembered that by another provision in the treaty, they had one, two and three years to remove from the ceded land. This was certainly a length *563of time which might well justify a claim of citizenship, and without some definite provision they might all have claimed to be citizens, and having signified their intention, every head of a family might have removed with the tribe at the time stipulated, without impairing his right to a reservation.

Again, the last clause in the article provides that “persons who claim under this article shall not lose the privilege of a Choctaw citizen, but if they ever remove are not to be entitled to any portion of the Choctaw annuity.” Why speak of their removal, and the consequences, if it was not intended they should remain five years? On any other supposition than that they were bound to stay, this would again seem to be language used without meaning. The meaning, however, is perfectly plain. The provision had in contemplation and applies to a removal after five years, when they would have a right to do so without further penalty than the loss of the annuity. If this view be correct, it follows that the reservations were made on condition subsequent, the non performance of which put an end to the right, and the court erred in not receiving the proof of Foster’s abandonment before .the expiration of five years. That a removal to cause a forfeiture must be voluntary, there can be no doubt, and a removal to avoid a prosecution is voluntary. 5 Yerger, 326; 7 Yerger, 60. But suppose the reservation was made on a condition precedent, and that no title vested until a residence of five years, as contended by counsel for the plaintiff in error, still the effect would be precisely the same on the title of the lessors of the plaintiff below. In either view, he can have no title without the five years’ residence on the land.

7th. This brings us to the seventh point, to wit, “ that the court erred in giving the charges to the jury first set out in the seventh bill of exceptions, and in giving the fourteen succeeding charges, as numbered from one to fourteen, inclusive. Many of the charges here referred to fall within the remarks- already made; it would be both tedious and useless to notice them in detail; such only as seem to be erroneous or doubtful will be considered. The court charged the jury, that by signifying his intention to remain and become a citizen within a proper time, Foster became *564entitled to a reservation of 640 acres-of land; and if they believe he had four children at the ratification of the treaty, he was entitled to a further reservation of 640 acres. If by this charge the court intended to convey the idea that the title to the whole 1280 acres vested in Foster individually, and no portion of it to his children, or to him in trust for them, the propriety of the charge may be doubtful. This question has not been discussed, and wé shall not now decide it.

The 13th charge given is in these words: “ That the endorsement of the agent, G. W. Martin, on the part of the government, is conclusive evidence that the reservation of Hugh Foster, as specified in his application, was in pursuance of and according to the terms of the treaty, and that it sufficiently specified said land as the land to which said Foster was entitled, under the 14th article of the treaty, and that said Foster was entitled to all the land specified in said application.” This charge would seem to be too broad. Martin’s certificate was evidence of identity, but not that Foster’s reservation was “ in pursuance of and according to the terms of the treaty,” unless the powers and duties of the agent were more extended than we suppose they were; we have been furnished with nothing which shows the extent of his authority. We take it to be true that Martin’s certificate was not evidence that Foster had complied with the termsof the treaty, in reference to which Martin had no authority. An official certificate is evidence only so far as the matter certified comes within the official duty or cognizance of the officer.

8th. The eighth error assigned is predicated on a bill of exceptions which was taken to the decision of the court in refusing to give the charges, twenty-four in number, requested by the counsel for defendant below. Many of these charges embrace substantially the same question, and some of them have been already answered. We shall briefly notice such as seem to have been considered as prominent, and not undertake to swell this opinion unnecessarily, by taking up each one.

It is insisted that Foster should have resided on the land claimed at the date of the treaty, or, at all events, when it was ratified. This position is believed to be erroneous. The provision in the *565treaty is general, to each head of a family. There is nothing by which we can restrict its operation, or hold the provision to be on condition that the applicant had then a residence or improvement. It is true, that in directing how the location shall be made, it is said the improvement must be included, but this is merely directory, and may have been intended as much for the benefit of the Indian as any thing else. This is in accordance with -the construction which has been given to the treaty by the officers of the government, and is consistent with justice, and liberality.— The Cherokee treaty before referred to contains a similar provision, and has received a similar construction. 1 Yerger, 61, 63. But as it became necessary for the Indian to reside upon the land five years, it was of course necessary that he should commence that residence, but at what precise time is left to be gathered from a reasonable construction of the treaty. If the Indian had an improvement, of course that was to be included. The privilege of becoming a citizen was intended to be given to each head of a family who might register his name with the agent within six months after the ratification of the treaty. .Thus long he had, to make his election, and it seems to be a consequence that this long he had to select his land or make his location. By the expiration of that time if he had made no location, of course he could have no reserve. This rule of construction may seem to be arbitrary, but it is consistent with the meaning of the treaty.

It is also insisted that Foster’s reservation should have been so located as to make but one tract. This is true. The reservation mentioned in the treaty is a section of land to contain six hundred and forty acres, to be bounded by sectional lines. He was not entitled to part of his reservation at one place, and the residue at a distance from it, but he was entitled, by a fair construction, to his quantity of acres in different sections. Suppose the centre of his improvement had been on a corner, in such case he would have been entitled to take his reserve out of the four sections. But even if Foster’s reservation does not conform to this rule, and still has been effectually recognised by the government before the rights of others accrued, we are not prepared to say that it was not sufficient.

*566There are some other points in this bill of exceptions -which involve the consideration of defendant’s title, concerning which we need say nothing, as his possession is a protection against any but a good title.

The ninth bill of exceptions was taken on overruling the motion for a new trial, and contains the substance of the testimony, and the reasons for a new trial at large. This we need not now notice; as, for the reasons already given, the judgment must, be reversed, the cause remanded, and a venire de novo awarded.