47 Cal. 554 | Cal. | 1874
Though there are two records in these cases, brought up on separate appeals, they constitute in fact but one case; one of the appeals being from the judgment, and the other from the order sustaining the demurrer to and dismissing the cross-complaint. It is unnecessary to decide whether this was an appealable order, and we shall treat the transcript filed on the last appeal, as only an amendment of the transcript on the first appeal.
The most important question to be considered, and which, we think, is decisive of the case, is whether the patent to Brunette, under which the plaintiff claims, is void on its face.,
The patent recites, that by the second article of the treaty with the Chippewas of Lake Superior and the Mississippi, dated thirtieth September, 1854, it is provided that “each head of a family or single person over twenty-one years of age, at the present time, of the mixed bloods belonging to the Chippewas of Lake Superior, shall be entitled to eighty acres of land, to be selected by them under the direction of the President,” and that there had been deposited in the General Land Office, a certificate of the Begister of the Land Office at San Francisco, whereby it appears that Chippewa certificate No. 166 C, in the name of Francoise Brunette, for eighty acres, issued by the Commissioner of Indian Affairs, under the aforesaid treaty, has been located and surrendered by Brunette in full satisfaction for lots 1 and 2 (describing the premises in controversy in this action), which tract had been
There appears to have been no act of Congress authorizing the scrip issued to these mixed blood Indians to be located on the public lands of the United States; and the argument for the defendants is, first, that under the third section of the fourth article of the Constitution of the United States, Congress has the sole power “to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States;” and it is claimed that under the treaty-making power, tho President and Senate had no authority to dispose of these lands without the consent of Congress.
Second, that if it be conceded that it is competent for the treaty-making power, under any circumstances, without the consent of Congress, to cede a portion of the public domain, nevertheless, if the treaty provides that a patent in the usual form shall issue for the ceded lands, the officers of the Land Department have no power to permit entries of the lands to be made in the local land offices, nor has the President authority to issue patents therefor, unless empowered to do so by some Act of Congress. Under the views which we entertain in respect to the last proposition, it will be unnecessary to consider or determine the first.
In the exercise of its exclusive power under the Constitution, Congress has established a Land Department for the management and sale of the public lands. This department is under the immediate supervision of the Commissioner of the General Land Office, subject to the supervisory control of the Secretary of the Interior. And the subordinate duties are performed by Surveyors, Registers, and Receivers in the several districts. The duties of all these officers are prescribed by law, or by regulations having the force of law; and, in permitting entries to be made in their
The treaty-making power cannot confer upon the Land Department any authority, nor enjoin upon it any duty, in respect to the sale, conveyance, or disposal of the public lands of the United States, except with the consent of Con-, gress, which is the source of all its powers. An entry in the local land office is void, unless authorized by some Act of Congress, and the President has no authority to issue patents, except in the cases provided by law. In Stoddard v. Chambers, 2 How. 318, it was decided that a location “ made on lands not liable to be thus appropriated, but expressly reserved,” and a patent issued in accordance with the location, were void. In Easton v. Salisbury, 21 How. 431, the Court says: “The President of the United States has no right to issue patents for land, the sale of which is not authorized by law.” In United States v. Stone, 2 Wall. 535, it was held that patents are void “where the officer has no authority in law to grant them.” In Patterson v. Winn, 11 Wheat. 388, it was announced as the settled doctrine of the Court “that if a patent is absolutely void on its face, or the issuing thereof was without authority, or prohibited by statute, or the State had no title, it may be impeached collaterally in a Court of law in an action of ejectment.” The same proposition is maintained in Polk's Lessee v. Mendell, 9 Cranch, 99; 5 Wheat. 303; Ladiga v. Roland, 2 Howard, 588; Reinhart v. Phelps, 6 Wall. 160,) and numerous other cases. But the plaintiff contends, inasmuch as the constitution declares a treaty to be the supreme law of the land, first, that if the treaty, as in this case, provides that patents shall issue, this provision is as obligatory as any other; second, that the acts of Con
Tested by these rules, we think it is clear that the officers of the land department, in the absence of any legislation by Congress authorizing it to be done, had no authority to issue the Chippewa scrip, nor to permit entries to be made under it, and, consequently, that the patent was issued without authority of law. The language of the treaty is, that the lands to be selected by mixed bloods, under the direction of the President, “shall be secured to them by patent in the usual form.” This imports a contract that the Government would thereafter cause the patents to be issued; and in principle, is not to be distinguished in this respect from the treaty considered in Foster v. Wilson, supra, in which it was stipulated that certain grants “shall be ratified and confirmed." In both cases the acts were to be performed in futuro, and in neither could there be a performance without the aid of the legislative department. So in Turner v. The American Baptist Mission Union, supra, it was held that a stipulation in the treaty for the sale of certain lands and the application of the proceeds could not be carried into effect without an Act of Congress. In the case of Stockton v. Williams, 1 Doug. 546, the Supreme Court of Michigan considered the question now under discussion. The facts were that by a treaty with the Chippewas there was reserved out of the ceded lands a tract of 640 acres for the use of a half-breed woman named Mokitchenoqua, “to be located at and near the general traverse of the Plint river, in such manner as the President of the United States may direct." The Land Department subsequently directed the Register and Receiver of the proper district to take
Thus far we have proceeded on the assumption that it was contemplated by the seventh subdivision of the seeond article of the treaty with the Chippewas, that each of the mixed bloods therein specified, should be entitled to eighty acres of land, to be selected by him, under the direction of the President, from any portion of the public domain of the United States, whether within or without the ceded territory. But we think this is not the proper interpretation of the treaty. By the second article there was set apart and withheld from sale six large bodies of land, for the use severally of six different bands of that tribe. Immediately following these reservations is the provision for the mixed bloods, by which each is to be entitled “to eighty acres of land to be selected by them under the direction of the President, and which shall be secured to them by patent in the usual form.” The third article, after providing for a survey of the reservations, authorizes the President to “ assign to each head of a family, or single person over twenty-one years of age, eighty acres of land for his or their separate use; and he may, at his discretion, as fast as the occupants
This view of the case renders it unnecessary to decide the other questions discussed by counsel.
Judgment and order reversed, and cause remanded for a new trial.