9 Port. 488 | Ala. | 1839
The omission to state in the
In this position of the case, we should, so far as the bill of exceptions is concerned, deem it our duty to decline any response to the questions presented, if the Circuit court had not also stated an affirmative charge, as well as its refusal to give the particular one demanded.1 This refers to that part of the bill of exception, which informs us that the Circuit court “ charged the jury, if the plaintiff was the head of a family at the time of making the treaty, and entitled to her reservation aS such# which reservation included her improvement, (the land sued for,) then, the patent passed nothing, the title having vested in her by Operation of the treaty, of which she could not be divested by any subsequent act of the United States government, or its agents.” This charge enables Us to review its correctness, in conformity with the? rule laid down in the case of Pedin vs. Moore, (1 Stew. & Por. 71;) though it would have been more satisfactory if the evidence was disclosed, as greater precision might then be given to the decision, than can be, when the court remains uninformed of the exact facts, to which the charge given was intended to l e applied.
The charge of the Circuit court assumes, that a title' to the land in question, vested in the defendant in error; by the operation of the treaty, if she came within the class of persons described as heads of families in the se--
These expressions show conclusively, that the ascertainment of the individuals entitled, was to be confided to an agent of the government, appointed by the President, and that the respective Indians were to be located on the lands under his directions. It would be impossible, otherwise to ascertain what portions of the ceded lands could with propriety be sold, as the government would be continually in danger of invading on the rights of the Indians, if those particular lands were not ascertained and allotted. It is equally clear, that many Indi
In the case of Jones and Parsons’ heirs vs. Inge and Mardis’ heirs, (5 Porter, 327,) and Fipps vs. McGehee et al. (id. 413,) the nature of those titles, derived under the treaty is very fully examined, and they are pronounced legal titles, capable of sustaining an ejectment, and of being transmitted to au approved purchaser. But these decisions turn mainly on the ground, that the treaty stipulates that the Indians shall have a possession of the lands located to them, and provides that the government shall put them in possession. In the latter case, the court holds this language: “ To deny to the peaceful action of courts of law, a power which has been claimed to be exercised, on a summary application by an executive officer of the government, would present a solecism, which we are not disposed to admit.” Now, under the treaty, it is clear that the right of possession is consequent alone on the location, on the recognition of the right of the Indian by the government. Until then, he has no title: he has, indeed, the same claim as all others on the government, that the utmost good faith shall be used toward him, but he can compel the government to locate him on the land to which he may be equitably entitled, or recover its possession from another, on the
We do not intend to intimate any opinion, whether a patent wrongfully issued could be collaterally impeached. Such a question as this does not arise on this record, and from the generality of the terms used, wé are compelled to presume, that a patent lawfully issued was shown in defence. This being the case, the title of the defendant in error, if dependent alone on the treaty, and unascertain-ed or unrecognised by the United States, by the act of location, was not of sufficient dignity to prevail in a court of law. We thus limit the expression, not that we entertain the belief, that an application to a court of equity would be more appropriate, but because, in cases of this nature, necessarily affecting classes of persons, we do not deem It prudent to go beyond the precise question presented.
It is not necessary to examine the question supposed to be raised on the demurrer to the declaration, further than to determine, that the first count is liable to no valid objection, and consequently, would sustain the decision of the Circuit court, even if the second count was defective in substance.
For the error in the charge, as given, the judgment is reversed, and the case remanded.