44 Ct. Cl. 48 | Ct. Cl. | 1908
delivered the opinion of the court:
This is a motion by the claimant for a new hearing (and treated as such by consent) and to amend certain findings of fact found by the court and filed under an act approved February 24,1905. (33 Stats., 808; 42 C. Cls. R., 385.)
Strictly speaking there is no new testimony, but some additional matter has been officially certified from the public records and considered.
As these issues have been twice presented in elaborate oral arguments, supplemented by printed brief and manuscript reference at great length, the court has become familiarized with the many details, and with the correction of certain errors of statement, unimportant, to be sure, the case will now be finally acted on. Accordingly the findings now substituted, though not materially different from those heretofore reported, will supersede previous statements of fact, not alone because the additional matter certified since the former hearing has imposed the obligation to recast the facts, but also because, as now reported, the findings deal less with detail and conform more nearly to the rule applicable to this court by making the findings a summary of propositions which the evidence is intended to establish. This has imposed difficulties jarobably never contemplated by Congress, because it has been impossible to avoid the statement of certain details.
The court has also filed an opinion applying the law to the facts to avoid misunderstandings. This has been all the more necessary because rights are claimed under decisions which can not be embodied in the findings. Though it is conceded by claimant’s counsel that an opinion from the court may accompany findings in a certain class of cases it
The claim is for the value of 124,000 acres of land in Mississippi which, it is alleged, had been located to 150 Chickasaw Indians under the fifth and sixth articles of a treaty between the United States and the Chickasaw Nation, dated May 24, 1834, known as the treaty of Washington, amenda-tory of a treaty of October 20, 1832, known as the treaty of Pontitock (7 Stats., 450; 382), and which it is further alleged, had been purchased by Eli Ayres and one Thomas N. Niles, but which the United States, subsequent to the alleged purchases had as to 141 sections, sold under article 11 as authorized by the treaty for the benefit of the nation, collectively, and which, as to 53 sections, had been located to other Chickasaws by the terms of the fifth and sixth articles of the amended agreement.
If the persons with whom Ayres bargained had no right to be located, they could transfer nothing which a court, either of law or equity, could enforce as a title. This is so, even though such persons had paper evidence of title, because it was not the certificate of location which conveyed the beneficial interest in the land, but the correctness of the action of those who by treaty were charged with its execution. The legal and equitable title of the persons conveying to
The matter of Indian title is the root of the controversy, because if the persons from whom Ayres claims had no right to be located, Ayres, of course, acquired no interest, even if he paid value. In considering this initial matter we leave out of consideration for the present the matter of payment, the matter of location, and that last fatal provision which ojierated to make the conveyances to Ayres void as deeds and unenforceable as contracts. The matter now to be considered arises under the concrete statement set forth in the fifth finding, that:
The persons whose names appear as grantors of the lands described in the petition were not within the terms of the grant of the treaty.
Before the first of these treaties was executed the Chickasaws collectively lived on this land in Mississippi as temporary occupants, with only such right to remain on the soil as was accorded to tribes generally in the occupancy of land by the United States. Chickasaws were neither tenants in common nor joint tenants, but like other owners of communal property, where every member of the tribe, not as an individual but as a member and part of the community, held an equal, undistinguishable right of user, and nothing more. Nott, Ch. J., in Cherokee Nation v. United States (40 C. Cls. R., 325), emphasized the status of such persons by repeating from the previous decision of this court in Western Cherokees v. United States (27 C. Cls. R.., 1, 53) by saying: "The individual Gherohee had. no vested right which he could convey or devise or mahe the subject of a suit in partition. If he withdrew from the community, he left dll rights behind him; and if a stranger was admitted, he acquired a right by virtue of his admission alone.”
In Journeycake (155 U. S., 196, affirming this court), Mr. Justice Brewer declared that all adopted citizens of one of the civilized tribes must be regarded, in the administration
Chickasaws living on the land as communal occupants only ceded this limited ownership in their treaty of 1832 to all the land then in their possession on the east side of the river to the United States. This treaty contemplated the removal of the Chickasaws to new homes, and by article 4 it was provided that should the Chickasaws fail to procure a country to remove to previous to the first public sale of the lands they were then to select a comfortable settlement for “ every .family in the Chickasaw Nation,” to be held and occupied until they should -find a country. United States guaranteed quiet possession and uninterrupted use of these lands so long as the Chickasaws “ might live on and occupy the same,” but the object still existed to rid the State of Mississippi of the Chickasaws and to provide homes for them elsewhere. As these homes were found and they were removed, their occupancy of lands in Mississippi was to cease, and these lands were to be sold by the United States for the benefit of the nation. (Supp., Oct. 22, 1832; 7 Stats., 388.) This treaty did not invest the individual Indian with a title, but the proceeds of the sales were to be for.the benefit of the collective Chickasaws.
The treaty of 1834 is the pathetic story of those Chickasaws who were “ about to abandon their homes ” and had to do so. The treaty discloses as parties on the one side occupants of the soil, but no others. The fee was provided for individual Chickasaws only who by the previous treaty had the right of occupancy by virtue of actual residence. Articles 5 and 6 designated the persons so entitled. By article 14 all the articles of the first treaty inconsistent with the last were revoked, except as to the twelfth and thirteenth. Thus the title to the residue of the lands after the selections and locations had been made under the agreement which conferred the fee to individuals remained in the United States,
The second treaty with the Chickasaws gave the right of individual title generally, but before title could be vested in any occupant of the soil (these being the only parties to the new treaty) certain chiefs and commissioners Avere required to identify the residents so entitled, and locations-were required to identify each party claiming. Locations of those properly entitled Avere to be made with the assistance of the Indian agent. Heads of families, being Indians, or having Indian families, Avere provided for, but the reservations Avhich they were to take were expressly directed to be confined to the sections on which the party claiming might live or to such land as was contiguous or adjoining to the sections resided upon, subject to the restriction that in cases Avhere there Avere interferences arising the oldest occupant should have the preference; or, secondly, where the land was adjudged unfit for cultivation by the agent and three of the seven persons who Avere to make the locations the party entitled Avas to be located upon other lands which might be unappropriated. Reservations of a section each Avere provided to be granted to all persons not being heads of families of the age of 21 years and upivard, but the list within a reasonable time was required to be made out by the seven persons mentioned in the treaty and filed Avith the agent, upon whose certificate, of its believed accuracy the register should cause such reservations to be located upon lands fit for culti
A provision in the treaty stipulating for the appointment of a new commissioner whenever a vacancy occurred on the board being expressly provided for, it was the intention to prevent action by a part of the identifying body. No quorum being provided for, no act of a minority of the board, or, for that matter, of a majority of the board, could" make the identifications complete. Accordingly, if an insufficient number undertook to supersede the terms of the treaty by locating land, their action did not confer rights of location. As an illustration of this rule: There are five judges on this court. But it took an act of Congress to declare three could perform official acts.
The persons who executed the treaty expressed the hope that all Chickasaws who were then about to abandon their homes would be able to find a country west of the Mississippi. By that clause of the agreement which provided for persons not heads of families a rule was declared that where the estate given by the sixth article came’ to children, the survivor of such children should be entitled to the same, but this rule was not to endure longer than five years, nor beyond the yeriod when the GhicJcasaws might leave. The whole scheme of this treaty was for the benefit of Chickasaw parties to it, and they could only be parties to it by living on the land
It was further provided that where any white man, before the date of the treaty, had married an Indian woman the reservation he might be entitled to if she were alive should be in her name and no right of alienation should pertain to the husband unless he first divested himself of the title after the mode and manner that feme coverts usually divest themselves of title to real estate. Rights to reservation secured by the agreement were declared to pertain to those theretofore intermarried with Chickasaws, but residents of the nation. The dominant idea appears specifically in the last clause of the seventh article, which gave treaty rights to intermarried Choctaws resident on the land, but excluded all Indians affiliated with Choctaws, and having Choctaw rights by their treaty, and living on Choctaw soil with Choctaw families.
There was a purpose to limit reservations to residents in the Chickasaw Nation. When the land passed under the treaty only signatories — parties in membership — were meant. The rule of participation embraced all persons whom it was the policy of the Government to remove. The agreement could not relate to airy who by alliance with another tribe had ceased to be entitled to land which if they ever occupied (occupancy is not shown) they had left. The Choctaw married to a Chickasaw living on the land and remaining there became entitled as a fifth-article reservee, because the treaty said so. The children of such union residing there when the agreement was entered into also became entitled to land as sixth-article reservees if single and of age. All Indians intermarried with the Chickasaws and having Indian families in occupancy were entitled to land, whether such Indians had a drop of Chickasaw blood in their veins or not. The white wife, when the treaty took effect, was entitled to land through her husband as a full-blood Chickasaw. The white husband of a Chickasaw wife became entitled. The children of such unions if single and of age were entitled under the sixth article. The children of white mothers and Indian fathers affiliated with the Chickasaws,
On the other hand, if a Chickasaw intermarried with a Choctaw had gone west under the Choctaw treaty before the execution of the Chickasaw treaty and affiliated with the Choctaws as a Choctaw, he became entitled with the Choctaw tribe to such rights as the treaty with that tribe conferred, because that treaty provided for the tenure of land to the persons so occupying it as Choctaws and to their heirs forever.
These were matters of contract by which Ayres’s grantors must stand or fall. The purpose of the Choctaw treaty was to remove all of that tribe to western homes, which meant everything in the matter of a domicile; and by a change of. domicile such Indians lost their old domicile. If there was individual emigration by an Indian not of Choctaw blood but intermarried with a Choctaw, it was the case of an individual ceasing to be a member of the community such Indian left behind, no matter what tribe he abandoned, provided the Choctaw tribe permitted the incorporation by marriage and agreement for residence among them. Children born to such unions were as much Choctaws by established usage among the two tribes as Choctaw children of full blood. In law the findings established the Ayres grantors to be Choctaws. They could not be both Choctaws and Chickasaws.
Aside from the want of proof that the persons under whom, Ayres claims title were of actual Ghichasaw Mood or the extent of it, the contention that Chickasaws affiliated with Choctaws before this treaty were yet parties to the treaty can not be accepted as sound without running counter to every rule declared on the subject, not only by commissions engaged in the work of enrolling proper parties among the Five Civilized Tribes, but also by the courts, including the Supreme Court. Possession of blood alone is not sufficient to entitle an applicant to participation in the distribution of tribal property, either of the Choctaw tribe or the Chickasaw tribe, under the treaty of 1837 between the two tribes.
The possession of blood, is always essential, but the blood established a second inquiry necessarily follows — that is, whether an applicant belongs to any one of these classes of Choctaws or Chickasaws entitled to share in their property under the Choctaw treaty of 1837. In the Choctaw Nation there are but two classes entitled to share in Choctaw property: (1) Those who were parties to the Choctaw treaty of 1830 and who removed west and who with their descendants have continuously lived there in accordance with the agreement contained in the third article of that treaty, and (2) those persons who remained in Mississippi and complied with the requirements of the thirteenth article of the same treaty. Though an applicant might show possession of Choctaw blood, yet if he failed to show that he or his ancestors belonged to one or the other of these classes his application to membership has been continuously denied. As to the Chickasaws, there is only one class of claimants by blood entitled to enrollment, which class comprises those persons only who were parties to, and who complied with, the requirements of the Chickasaw treaty of 1837 and who removed upon the lands of the Choctaws in pursuance of that treaty, and who and whose descendants have continuously resided there.
There is a final view to take of this whole matter of great significance. If there is one fact better proved than any other fact in this case, it is that the persons who undertook to convey land to Ayres treated themselves as Choctaws; that not one of them personally ever claimed to have lived on the land; not one of them was on the land when the
The sixth ultimate finding shows that “None of the persons from whom Ayres and Niles attempted to purchase land set forth in the instruments of writing purporting to corvoey were duly enrolled, and the lands described in the petition were not legally reserved and located for or to them pursuant to the provisions of the treaties governing the disposition of Chickasaw lands in Mississippi, and no title was ever acquired by them to the lands which Ayres xmdertoo/c to 'purchase."
This finding discloses the attempt to locate people living with the Choctaws in the Indian Térritory and the means employed to give them land in Mississippi and the failure to do so. The requirements for certificates to carry out the treaty and to prevent frauds were disregarded. The papers on file affirmatively show that the requirements of the treaty, as -well as certain departmental regulations to insure identification, were not complied with. This is true as to the alleged enrollment of both fifth and sixth article reservees.
Claimant admits that the commissioners provided by article 4 of the treaty to locate sixth-article reservees did not act. He also admits that for fifth-article reservees (heads of families) only a part of the chiefs undertook to act, and the admission includes the fact that the effort of only some of the body of commissioners to locate fifth-article reservees could only act for those who had residence qualifications. As to persons claiming reservations under both articles, it is admitted that they were not only nonresidents of Mississippi when the treaty which gave the land was executed, but that they were living among and affiliated with the Choctaws west of the Mississippi. (There have been other counsel in this matter than those now in charge, whose admissions we quote.) But whether admitted or not, the finding is uncontradicted that the people attempted to b'e enrolled had no pretense of residence or occupancy on the land in Missisippi. Heads of families had to live on the land if properly located under the fifth article. Three of
Six lists bearing the names of the Ayres grantors contain no certificate of anyone, either commissioner or agent. The lists are on different paper in kind and size from persons lawfulfy listed and contain no information as to residence. Two out of the four sheets bear the signature of the Indian agent, with no comment. There is nothing in the first list transmitted to indicate to whom it was addressed or to whom sent; no age or sex indicated, except in one name; no location proposed, except for one name; no residence or roll number shown in any case; the signatures are not witnessed and no witness appears to identify the cross-mark signature of Ish-to-ho-to-pa; there is nothing on the list to shoiv that it was ever received by any Indian agent and it affirmatively appears that it was not made with the assistance, cooperation, or knowledge of any Indian agent. On the lists subsequently transmitted certain names appear assigned to double-roll locations under the fifth article. Other lists embracing 68 Indian names show a request of four commissioners for enrollment, but the lists show affirmatively that no Indian agent ever took any part in making up the lists as required by the treaty and those whose names appear as signing the lists never made any attempt to make locations or to select reservations or to give the required information as to residence or former occupancy. These lists are in every case witnessed by the paid agents of Eli Ayres or by others interested in the purchase of lands from Indians in the West. With these lists as a basis the incomplete papers were sent to the land office. The first agent, on October 22,1838, transmitted four sheets, together with all the testimony relating to the propriety of locating them. This agent thought that it was his duty to admit them to be enrolled and located, but
As to all the names appearing on the rolls transmitted by the first Indian agent it appears that the locations were not made either according to the requirements of the treaty or the regulations. It does not appear that the first agent transferred to the second agent any other authority, certificate, or proof than the letters and lists sent to him from the four - Chickasaw chiefs and the Choctaws who were aiding them in procuring locations.
Subsequently, the second agent transmitted for examination, and also for examination of the President, other lists of what he said was a roll of Chickasaw Indians who had emigrated west. This was May 4, 1839, from Memphis, Tenn. He stated that the paper was signed by all the commissioners who were in the 1Vest, and that he, the agent, presumed that they had examined the claims strictly and were satisfied with their justness. The agent also transmitted proofs from the Choctaws. Prompt action was requested so as to enable the agent to go west. This agent sent no certificate and the papers contain no certificate of believed accuracy, as required by the sixth article of the treaty, and nothing of the kind exists.
The action of the agents Avas not an approval of the lists. Both properly postponed the exercise of the power conferred upon them by the treaties until the matter could be investigated. Neither agent was present with those of the commissioners who assumed to act for all, but were hundreds of miles distant and kneAV nothing except what the papers disclosed. The lists had no validity for the two reasons appearing on the face of the papers.
Upon the recommendation of the Commissioner of Indian Affairs, the Secretary of War ordered an investigation, and thereupon transmitted the lists and accompanying papers to the acting superintendent of Indian affairs for the western country, with directions to refer the matters involved to the commissioners provided for in Article IY of the treaty of 1834. The persons who were thus given power to investigate, so as to enable an agent to certify to the necessary accuracy, constituted the same body which by the treaty was required to make up the lists.
The superintendent went west among the Chickasaws and Choctaws and for eighteen months investigated. A council of the Indians was called, and all of the commissioners duly authorized to act under the fourth article of the treaty, including Ish-to-ho-to-pa, the king, were present except one. The agent appointed to make the investigation provided for a meeting immediately after the annuities for the year 1841 should be paid the Choctaws and stated that this was considered a proper time to give notice to all concerned. It is now said that Ayres was in Mississippi at this time, but one Dol-larhicle, who was his active agent and who wrote the letter showing small cash payments, was undoubtedly present, because he had full notice that the claims of the persons from whom Ayres said he purchased would be investigated, since he said he was there for several years in a store on the line. This private representative of the claimant being in the Chickasaw country had full information, and the record
The original lists were declared to be erroneous except as to four Indians, and the action of the council was adopted by the king of the Chickasaws and five other commissioners provided for by Article IV of the treaty and by leading members of the tribe which included the sixteen chiefs of the Chickasaws. Thereupon, the superintendent charged with the investigation officially submitted the results, and -these reports received the approval of the President. This excluded about 500 persons not shown to be Chickasaws, including in this number the Ayres grantors.
It is urged that the council was attended by one less than the full board of commissioners; and for want of notice to purchasers of the land was irregular. The action' of the council, however, was as formal and regular as the original acts. Not more than four commissioners for any part of the land professed at the outset to have any knowledge of the identity of the persons, and the official action of this number ivas restricted merely to a request that certain persons be located. The council of revision >vas participated in by the Chickasaw king — the same Ish-to-ho-to-pah who had lent himself to the attempts to get up the lists — and by a representative body of commissioners and chiefs — enough to make their action more valuable as proof of who Avere entitled to locations than the sinall number who originally desired to locate the 524 Avestern people. So this last body was irregu
The finding as to notice is based upon direct proof and the absence of denial and counterproof.
The value of the Boggy Depot council as testimony in that state of affairs, caused by the Indian agent withholding a necessary act under the treaty and asking for instructions, can not be denied, because it aided the Indian Office in determining the status of the alleged reserves and, as proof of a matter then uncertain, the proceedings among the representatives of the Chickasaw tribe are valuable as testimony. The jurisdictional act makes the action of this council competent as testimony, and as there was nothing to contradict its findings the court has given credit to it.
The matters relating to rights of location rested pending efforts of the commissioners to complete their work by finding and identifying every Chickasaw entitled. As many as 53 sections were located to that number of Indians properly identified. (No question now appears as to the proper identification of these 53 persons.) Thereupon, the United States as trustee sold at public vendue 141 sections under that provision of the treaty which carried the proceeds to the credit of the Chickasaw Nation. (Art. XI.) Patents
When the Secretary of War in 1843 rendered his decision in the matter of the 524 claimants, it'included the 150 in issue here. ' He concurred in the report of the investigating superintendent and formally approved it by the allowance of those claims to reservations recommended and.the dis-allowance of those that the superintendent, six commissioners under the treaty, and sixteen chiefs of the nation had rejected. The Secretary also said that the rejected claims could not be allowed because the utmost liberality of construction could not extend the terms of the treaty of 1834 if the list embraced any Chickasaws who emigrated prior to that treaty. That was a departmental rule of construction acquiesced in at the time by people who had no certificate of location and who, as a matter of fact, had not been located. It was a construction resting with the political department
Whether under the rules and regulations then in force the Secretary possessed the authority to pass upon the matter is not necessary now to discuss, because the action of the required number of the commissioners and the necessary agent’s certificate were both wanting. The construction of the Secretary of the terms of the treaty was contemporaneous construction, which in the then state of affairs was proper to be made and must be acceped as final unless clearly shown to be erroneous. “ It is a settled doctrine ” -of the Supreme Court “ that in case of ambiguity the judicial department leans in favor of a construction given to a statute by the department charged with its execution.” (U. S. v. Ala. R. R. Co., 142 U. S., 621.) If the departmental construction were obviously wrong it would be the duty of the courts to so adjudge; but if there seemed to be doubt as to the soundness of the construction, the action of the Government should be respected and should not be overruled, except for cogent reasons. (United States v. Finnell, 185 U. S., 236.)
The, departmental construction is not obviously wrong, but right on the facts. Time has proven its correctness because no effort has ever been made with any administration to show that any of these reservees ever lived on the land or that they had enough Chickasaw blood in their veins to warrant any holding that they were parties to the treaty.
There would now be nothing left to consider in the matter of location and right of location but for the action of the register which caused certain- proceedings to be instituted in the courts. On March 18, 1846, the register issued a certificate showing a reservation under article 6 of the° Chickasaw treaty to one Ho-yo-po-nubby. Thereupon ejectment was instituted in the matter of John Doe, ex dem. Ho-yo-po-nubby v. Wray, 10 Sm. & Mar., 452. This case was followed by Hardin v. Ho-yo-po-nubby's Lessee (5 Cush., 567). (The latter case is merely an affirmance of the former decision.) The patent to the land had then been issued and the right of property vested in the patentees. The Land De
It was held on the same facts in both cases in the trial of the ejectment proceeding that the certificate of the register showing that land was reserved under the sixth article raised a presumption that the preliminary steps required by the treaty had been taken. No further evidence was offered and no defense made beyond an objection that the certificate was not competent evidence. If the defendant, however, had been in possession of the facts appearing in our findings and offered these facts in evidence, the presumption of the certificate would have been overcome. But none of the facts which the record here shows relative to the illegal and unauthorized attempts to enroll two Indian plaintiffs, and none of the facts relative to the subsequent action taken by the Government and by the chiefs and commissioners charged with the duty of investigating the alleged fraudulent attempts to obtain enrollment for those people was made known to the court'. The two cases, decided entirely upon the formal certificate of the register, were based wholly upon the presumption implied by the certificate. Mr. Justice Clayton, in the foundation case, stated that the reservation certified to by the register was secured before the date of the ¡latent, and had the preference over it if the location of the land was property] made. The certificate could not have been given the preference over the patent if the certificate was fraudulent or the result of mistake. The certificate would have been unavailable had the court been put in possession of the proof showing that no location, according to the directions of the treaty, had been made at all. The cases were followed in Best v. Polk (18 Wall., 112), which was likewise governed by the presumption of regularity raised by the register’s statement, because the local decisions furnished a rule of property in
All the cases were properly decided, and there is no conflict between what they decided and what this court now decides. With nothing before us but the > register’s certificate there would not only be no difficidty in arriving at the conclusions of the reported cases, but there could be no question of our duty so to do because of the obligation to follow the decision of the Supreme Court. But the accuracy of the register’s certificate is not only questioned but successfully impeached. It rests upon lists not made by those who in the first instance had authority to act. These lists went no further than to embrace names never assented to by the requisite number of chiefs. They were inade-, quate to confer the beneficial interest even if the requisite number had joined in their preparation, because the findings show that none of the persons listed were residents on the land or parties to the treaty, but on the contrary were neither entitled by affiliation or blood to claim a Chickasaw right
With proper lists in hand showing enrollments by the necessary number of Indian officers authorized to identify the persons whose names appeared thereon, such persons could not be prejudiced if the agent failed to annex the proper certificate before he returned it to the register’s office. Wray v. Doe, supra, so stated, but was followed by the explanation in Hardin v. Ho-yo-po-nubby’s Lessee, supra, that the location certified to by the register was evidence (only) that all the prerequisites were complied with and that a violation of duty on the part of the officer who made the location was not to be presumed. Of course not. With such certificate in hand the presumption was that the condition on which the officers were authorized to act had been observed. Without such a presumption a burden not contemplated by the treaty on those who had obtained such evidence would be imposed.
There was nothing sacred in the certificate nor did its issuance malee it true. If given as the result of an erroneous conception of duty, it was open to explanation, and if it was a fraud, then, upon the familiar principle that fraud vitiates everything, it was subject to impeachment. The jurisdiction of equity courts was not necessary to show the incorrectness of certificates issued either through fraud or mistake. Matters of defense going to the correctness of the register’s action were proper in ejectment proceedings at law without resort, to courts of equity to uncover all defenses, which under this jurisdictional act we have been obliged to investigate. It has already appeared that the alleged reservees were not Chickasaws entitled to land; that none of them ever established their right to claim as residents of the soil or as parties to the treaty at the date of the execution of either agreement ; that never at any time did they establish affiliation of any kind with people for whom reservations were provided or for whom annuities were ever given in dealing with the United States. Either one of the defenses recited is sufficient in itself to sustain the proposition that the persons from whom Ayres claims title had no title themselves.
The fifth article of the treaty providing for heads of families did not authorize the register to locate the head of any family, except in the contingency of residence as Chickasaws. This article only provided for heads of families on land upon which the party claiming lived at the time, or to such land as was contiguous or adjoining to the sections resided upon.
The court did not deem it material at the outset to decide anything respecting the validity of the regulations, nor is it necessary now (as the findings show that the locations were not made according to the treaty), beyond saying that where the regulations and the treaty conflict the terms of the treaty govern. This view is in line with the opinion of the high court of errors and appeals of Mississippi, but it is also proper to say that the regulations had meaning where not contradicted by the directions of the treaty. Under the act of July 9, 1832 (4 Stats., 564), which was then in force, it was provided that the direction and management of all Indian affairs and all matters arising out of Indian relations under the authority of the Secretary of War “ should be agreeably to
It is due the committees reporting on this claim to say that being without the facilities of a trial court and without possession of all the proofs there is no detailed statement of those essentials relating to the status of the alleged reservees and their right to claim land; no allusion to the insufficient methods employed to locate them as Chickasaws, and no showing made of the incorrectness of the register’s certificate which, in the making of - a prima facie showing of title in the alleged reservees, led to decisions which might have been averted by proof. These omissions are not to be wondered at, as the action of the courts created such alarm respecting the title to so much land that the President recommended that steps be taken to determine these titles. These steps were either never begun, or if taken were abandoned, because opportunity was never given the Government nor afforded the patentees to test the validity of adverse claims to the land, although the courts were open to declare title vested in every Indian on the register’s certificate, if such certificate had again been offered as the basis of a claim. This is highly significant. It refutes the contention that the belated certificate of the register had value. It is also significant that when Ayres concluded to avoid the courts and to invoke aid from the political department of the Government there were adverse reports to him on that line.
These reports rest upon the erroneous recitals of a Commissioner of Indian Affairs made as late as 1882 upon an examination that could not have been based upon all the evidence before this court. This initial report- ignores the status of the persons alleged to have been located as nonresident aliens; assumes that locations were made according to the treaty in the face of the fact affirmatively shown that the treaty was not complied with. The report speaks of the Indian title as having been affirmed by the courts while admitting that in the cases so affirmed the identity as Indians of the two named in the decided eases was not questioned. The report wrongly assumes locations to have been proper upon the mere request of three commissioners whose action in that regard was restricted by the treaty to the location of those -only living on the land (at some time certainly), which was
Aj'res was not an innocent purchaser; these so-calléd re-servees were never identified; they were not in possession of a single tract for want of identification, nor had any certificate of the right to possession been issued when the alleged purchases are said to have been made. The instruments of writing under which the claim is made were void and not entitled to be recorded by the law of the State where the land was situate.
As to the payments, a finding would be immaterial except for the special act, as the question naturally arises, What would the Government pay for if Ayres had no title? The court at the outset found that some nominal payments were made, because the payment of something was probably necessary to procure the signature of the Indians from whom the purchases were attempted, but that the amount of the payments was not established.
Upon a careful review the court is strengthened in the correctness of the finding that the payments were small and nominal. The evidence also establishes that substantial payments were not 'made pending the doubts respecting the right of the grantors to acquire the land.
The court is not unmindful that as to 21 of the conveyances an Indian agent certified to full payments generally. But that agent is contradicted by another agent on the spot making special examination; by another witness, who was the agent of Ayres, and that agent, though making his statement in the form of an unsworn letter, contradicting his own affidavit in the same manner. Six of the Indian -officials connected with this treaty also contradicted the statement that payments were made, and there is much proof and many cir
The findings show that white persons were giving antedated bills of sale to Indians on account of the purchase of lands. Hosts of speculators were hiring half-breeds to interpret for them, and deeds to land were being signed, some of them in blank, upon the payment of $5 to $10 in advance. This is so as regards those Indians about -whom no question existed as to their being properly located. Private memorials exhibited to the Government disclosed frauds on the part of land speculators, and numbers of these were passing into the country of the Choctaws in search of Chickasaws and their descendants. There was continued protest from officials and from the Chickasaw tribe against the methods employed to obtain lands. Ayres and Niles lived in Mississippi, and they and their agents were active in trading with red men wherever found. The language of a council which considered this matter was that the beneficiary “ never had, never will, or never intended to pay the pretended owner one cent.” The language refers specifically to these instruments. It is argued against one prominent witness that he was interested in having his constituents buy land at a nominal price, while Ayres was paying full value. This argument refutes itself. If the land would have sold for a few cents an acre at public sale, why should Ayres have been willing to give more at private sale ?
The proving power of circumstances alone is great enough to overthrow the presumptions arising from the recitals of instruments «which the alleged purchasers must have known were void as deeds and unenforcible as contracts when they were given. Proof of payment of something substantial to
There is a final view corroborative of the belief that the payments were nominal. Appeals were made to the Government to hasten the investigation upon the ground that the alleged reservees were in need of money. Why should such an argument have been .used if Ayres and Niles had paid for the land?
Regardless of Indian rights of location, Ayres never acquired a title of any kind. That he had no legal title is admitted. Nor did he have an equitable title.
The treaty prohibited conveyances except upon conditions never complied with. The restrictions thrown around the transaction (for reasons which can not be questioned by lapse of time) have not removed the difficulty, but, rather, have added to it. That an equitable title can not be carved out of the instruments of writing shown here to be void as deeds was decided under this treaty in Mississippi. It was held by its high court that the supreme power had the right to prescribe the conditions to be observed in alienating and that it might as well be contended that any citizen could dispose of his realty regardless of all statute provisions as to ask the courts to remove the restrictions upon this right of alienation, in the Indian. (Harmon v. Partier, 12 Sm. & Mar., 427.) The Supreme Court of the United States has given effect’ to similar restrictions not merely because of treaty supremacy over any claim of equitable right, but pursuant to
By the rule summarized from the equity jurisprudence of both the English and American systems by that great judge who delivered the opinion in one of these cases, the court finds that an equitable title was not acquired by Ayres. “An equitable title,” said Chief Justice Sharkey, “ is a right imperfect at law, but which may be perfected by the aid of a court of chancery, either by compelling parties to do that which in good faith they are bound to do, or by removing obstacles interposed in bad faith to the prejudice of another.” (Niles v. Anderson, 5 How., Miss.) Under this rule equity could have done nothing for Ayres. If it could, he had the right under an act approved February 5, 1841 (Miss. Code, 1848, 773), if a rightful owner of land in the State, to have conveyances forming a cloud on his own title canceled, whether as a real owner he were in .possession of the land or not. Whether this statute enlarging the jurisdiction for these purposes of quia timet bills could have been applied, as the patents were not the common source of title, is unnecessary to inquire. Before the invalidity of the patents could have been shown in equity there must have been a perfect legal or a perfect equitable outstanding title. (Toulmin v. Heidelberg, 32 Mississippi, 268.) There was ample time for judicial investigation, because the statute of limitations had not barred whatever right existed in the supposed muniments of title.
There is nothing in Niles v. Anderson, supra, to sustain the contention for an equitable title. That case merely enjoined a purchaser from prosecuting a possessory action for land who had obtained a conveyance from a lawfully located Indian, which conveyance Anderson charged had been taken in blank before location of the reservation with knowledge on the part of one Niles that the person asking the injunction had a conveyance to the same land but did not have attached to his conveyance the necessary certificate of the capacity of the Indian to convey. Niles being in possession of the
There would be force in the contention that the instruments of writing could not be approved as conveyances until there were sales but for the obligation of the treaty which imposed upon the President the power to examine the matter and Avithhold approval. That provision was intended not alone for the benefit of individuals properly located, but likewise designed to afford protection to the whole tribe against fraud. Purchasers took the risk in bargaining for land of having the conveyances made valid. And when in 1850 the two conveyances actually presented were not approved, Government had knowledge that there was a want of right of location, want of proper identification of the parties as Chickasaws, alleged and proven want of good faith in the matter of the purchases, and that if any payments at all had been made by Ayres such payments were made upon the pretense of location without such location as the treaty required.
A new treaty resulted between the United States and the Chickasaws in 1852, and authority was given to the Chickasaw legislature to determine the claims of all persons who were entitled to land in Mississippi as well as the claims of all persons to membership in the Chickasaw tribe for annuities. (-, Stats.) Whether rights of property could be taken away by subsequent act was not considered or decided by the Supreme Court in Roff v. Burney (168 U. S., 218), but it was there held that the validity of an act withdrawing citizenship and the rights of citizenship in the Chickasaw Nation when determined by the authorities of that nation was not subject to correction by direct appeal from the judgment of the Chickasaw courts and that personal rights founded on the mere status created, by a prior act fell when the status of citizenship was destroyed. The action of the legislature of the nation in declaring that Ayres’s grantors were not Chickasaws entitled to land did
In the face of adverse action all that was necessary for the parties to do was to appeal to the courts for the possession of the land if they had confidence in their evidences of title. Under the rule in Mississippi adverse possession under the patent would not have been a defense against an Indian properly located until the time prescribed by the statute of limitations. (N. O. J. and Great Northern R. Co. v. Moye, 39 Miss., 374.) Ayres knew enough to know that he could not succeed under the equity case of Niles v. Anderson, sufra. But the statute of limitations had not then barred the right of entry of the Indian grantors if they had any such right. Possession had been asserted for two Indians who had conveyed. No explanation is given why possessory proceedings were not taken to the courts by the Indians, and the conclusion is irresistible that it was either because Ayres had not paid for the land or the Indians were unwilling to subject themselves to the results. It was feasible, if Ayres had purchased the land, for him to procure the same kind of authority to bring ejectments in the names of his grantors as was done in the reported cases. Ayres had procured the same certificates; his grantors were then living; there could have been but little difficulty in procuring authority from some at least of his grantors, for the purpose of instituting proceedings. If he had paid for the land, who doubts that many if not all of his grantors would readily have said so and given the necessary authority? The Government became ready to defend its patents whilst witnesses were living, and certainly a trustee ought not now to remove restrictions where the beneficiaries united with the trustee in imposing restrictions that were then thought proper and which time has vindicated as proper. There is no answer to the declaration of the Committee on Private Land Claims of the
Claimant’s objection to the entry of judgment is not of enough importance for the court here to consider, as the findings have been adverse to Ayres, and the results as to him, whether they appear in the form of findings or in a judgment, are essentially the same. Claimant having voluntarily appeared and litigated the matter — which he was not bound to do — the action of the court is at least an award. (Mason v. United States, 17 Wall., 73.) While the court had great reason to believe that it was the intent of Congress to be guided by the court’s view of the law in determining the existence of a title, and the liability of the Government to pay for the appropriation of the land if the court could find that Ayres really had a title, there was and is room for doubt whether any statement of the court declaring legal grounds for recovery (had a liability been declared) positively meant more than an intention of the legislative body to be morally bound to appropriate. Whether the act of our jurisdiction meant the imposition of the ministerial duty or the exercise of the "judicial function, the intent is the test — not the accidents of language. The ministerial duty excludes mere discretion imposed upon executive officers where under acts requiring certain things to be done by these officers the conflicting decisions mainly- have arisen. Thus, in Kendall v. United States (12 Pet., 593), the Supreme Court said: “ We all agree that no discretionary power in relation to the award was given to the Postmaster-General; and that the duty enjoined upon him was really ministerial.” (Id., 626.) There the act required by the law to be done was a precise definite act purely ministerial because the Postmaster-General ivas simply to credit the relators with the full amount of the award of the Solicitor of the Treasury in adjusting an account. The fact that under the act of March 3, 1887, known as the Tucker Act, either House of Congress might have sent this claim here without a special act affords strong reason for believing that Congress desired an adjudication from the court as a court; and though the phraseology of the act calls
As the right to enter j udgment has never been considered by any member of the court as clear, the motion to set aside the action taken is sustained. The reasons for the action heretofore taken appear in a separate opinion because of the genral importance of the question. (P. 122.)
The findings of fact now filed together with the opinion on the merits and on the motion will be substituted for all former action and be transmitted to Congress.
