#### MEIGS and AL *v.*M‘CLUNG’S lessee.

•ífcseat... Johnson, J. Todd, J.

ERROR to the Circuit Court tor the district of East Teimesso', in an nclion of ejectment brought 1VTCiting’s lessee against Meigs and others.

in the treaty with the Che.5 *12rokc^.s, tiic. i'c-milTM Iquíiní’ for # garrison, noub'vn thed lnomh of the wiiS0TMThe% s. have piacLd die garrison.

On the trial in the Court below, a bill of exceptions was taken, which stated the case as follows:

The Plaintiff ’s lessor claims the Sana under a grant from the state of North Carolina, to John Doaelson. dathe 11th of July 1788, for 1500 acres lying on the north side of Tennessee river, opposite to a high bluff of cocks of diverse colors. The. Defendants resided on the the land as officers, and under the authority of the Unitci* States who had a garrison there and had erected-works at an cxpeiice, of 50,000 dollars. ’ The place where ^lc defendants resided was two miles at least *above*the termination of the treaty line opposite the mouth of the Highwassee. In 1805 the line between the United States and liie Cherokee Indians was run, according to the treaty, under the direction of the Defendant, Meigs, wh.- was an agent of the United States for that purpose; and afterwards the'garrison reserve of three square miles was laid off by the. direction of the Defendant, Meigs, opposite and *above*the mouth of the Highwassee river, making the treaty lino from the three forks of Duck river to the point on Tennessee river opposite the mouth of Highwassee the lower line of said reservation, and the Tennessee river the southern line, meandering the river and reducing it to a straight line of three miles in length.

The Defendant’s Nad a copy of a letter written by D. Smit!> and theD'-f ndant, Meigs, who were commissioners on the part of the United St des, at the treaty holder* with the Cherokee Indians, on tlx- 25th of October, 1805, dated-at Washington, January 10th, 1806, and addressed to the secretary at war; in which they say “ by the treaty with the Indians concluded at'Pellico on the 25tl> day of October, 1805, there wms reserved three square iniles of land for the particular disposal of the United States, on the porth bank of the Tennessee, opposite to and below the mouth of Highwassee. This reservation is ostensibly predicated on the supposition that tile garrison at south west point, and the United States factory how at Tellico, would be placed on the reserve during the pleasure of the United States. Biit it was stipulated with *Doublehead*thpt. whenever the United States should find this land unnecessary for the purposes mentioned, then it is to revert to Doublehead; provided,, as a condition, that he retain one of the square iniles to his own usé, *13pnd that he is to relinquish his right and claim to the other two sections ot, one mile square each in favor of JohnD. Chisholm and John Riley, sonto Samuel Riley, one of toe inb rpreters in the Cherokee nation in equal shares.”

As it is proper that this be recognized we have made this statement for your information,

And have the honor to be, &c.

DANIEL SMITH, RETURN J. MEIGS.

When the Defendant and the other officers of the United Stales went to look for the place to erect the garrison.in pursuance of the reserve, they went first below the mouth of Highwassee; But it was a low and marshy country, affording no good scite fpr a garrison and no water or spring was ifco be had there.

The Plaintiff’s counsel insisted, that the Indian title to the land was extinguished, and that lie had a right to recover, and prayed the Court so tó instruct the jury; to which the Defendant’s counsel objected and insistéd that the Defendants were entitled to recover against the Plaintiff, because the Indian title was not extinguished; and because the land was occupied by the United States* troops, and the Defendants as officers of the United States, for the benefit'of the United States, and by their direction; and because the garrison was erected on the land really reserved for that purpose by the treaty; as they insisted it was out of the land ceded that reserve was made. That it must, by the letter of tn~ •treaty, be understood to be land reserved to the Indians, out of the part ceded, and not a reserve in favor of the United States, out of the land, not ceded by the Indians; and that the term *“*reserve” in the treaty controlled the other expressions, *“ opposite “and below the mouth of*HighxvasseeThat the United.States had a right by the constitution to appropriate the property of individual citizens; and that the line run, was the true line of. the reservation.

But the Court over-ruled the objections of the Defendant’s counsel, and charged the jury that the land reserv*14eel lor a garrison was opposite to and *below*the mouth of the Highwassee, and that the land opposite to and above was ceded to the United States by the Indians by the treaty of Tellico, and that the United States had no right to appropriate the land mentioned in the Plaintiff’s And that the Plaintiff was authorized by law to recover, if the land covered by his grant lay opposite to and above the mour.li of the Highwassee. - That if ihe" treaty had expressly reserved the three miles square for the disposal of the United States opposite and above the mouth of Highwassee, the Indian title wauld be thereby extinguished, as that reserve would be north of the .treaty line. That if the land thus reserved was at the time vacant land the United States could appropriate it as they pleasedj but if it was private property !he United States could not deprive the individual of it .without making him just compensation therefor. And’further, that by the expressions used in fhe-said treaty, the Indian title to all land north of the treaty line, from the point opposite the mouth of Highwassee to fort Nash, ■except such tracts as were expressly reserved for the ■Indians, was extinguished; and tiiat the three square miles, reserved for the United States, must, according to the treaty, be situate opposite and *below*the mouth of Highwassee.. To this opinion the counsel for the Defendants excepted.

By the 2d art. of the treaty of 25th October 1805. *.("Laws of United States, vol.*8, *p. 192.J*“ The Chero“kee’s qujt claim and cede to the United States, all the “land which they have heretofore claimed, lying to the *“north*of the following boundary line: beginning at the “mouth of Duck river, running thence up the main “stream of the .same to. the junction of the fork, at tha “ head of which fort Nash stood, with the main south “ fork ; theitce p direct course to a point on the, Tennes«see ri ver bank opposite the mouth of Highwassee ri- “ ver.’’ • &c.

After describing the other lines of the cession., the treaty proceeds thus, “ and whereas, from the presen! ces- « sion made by'■the Cherokees, and other cm umstahees, “ the scite of the garrisons at south west point and Telli- “ co are become not the most convenient and suitable places « for the accommodation of the Indians, it may become *15« expedient *to remove*the said garrisons and factory tó « some (nore suitable *place; three other-square miles arc re-ft, served*for the particular disposal of the U nited Stateson «the'north bank of thp Tennessee, opposite to and *béiow*«the mouth of the Highwassee.’?

*C. 'Xti.it,'for the Plaintiff's in Error.-*

The points in dispute in this cause are stated in the bill of exceptions. The principal, question is whether the three miles reserved for the use of the United States are • to lay below or above the mouth of the Highwassee.

We say that it was the intention.of the parties, that they should lye ahoyé.. The. expression « *reserved”*imports an exception tó the cession. The reservation must have been out of the land ceded. The United States jcouldi. not reserve, what was not theirs before? but for the accommodation of the Indians *they*reserve three miles, square for the use of the United States, It. was intended'Jo prevent the extinguishment of the Indian title, to só ' much in order to prevent individuals from purchasing it. The letter of Smith and Meigs to the secretary of war shows that the land was to revert to DoiiMehead and two others, whenever the United States should cease to have a use for it. It was therefore clearly a reserve, or exception from the general operation of,the grant. It' would be inconsistent with the faith of the treaty fo s.uf-r fer any individual to possess it.. '

Jones, *contra,*

Relied upon. the. plain words' of the.treaty..

The word « reserve” is the only thing that can justify a question ? but it means “to appropriate” to “ 'set apart” to hold it for the use. of the U. States, for the purpose of a garrison, but not to make aty absolute grant or cession of. the. land,.' The expression “three *other*square miles',” §hows that they meant other than the land ceded.

The letter is not evidence ? it is no part of the treaty ? it was never ratified by.the senate? and Is unimportant-if it was. It, however, shows that títere was no mistake in the word.“ *below”*in the treaty.

*16C. Lee, *in reply.*

The word “reserve” was used to keep individuals from appropriating to themselves, the lanes supposed most convenient for the mutual accommodation of the and the United States. It means the same as the word “ *retain.”*

The word “ *other”*is put in opposition to the former sites of the garrison and factory, it is siraining the word “ *reserve”*very, far to make it mean a new grant.

Marshall, *Ch. J.*

Does the question arise in this case whether a grant is good before extinguishment of the Indian title ?

C, Lee.

That question does not come up in. this case.

Store, *J.*

That question has been decided in. the case of *Fletcher '¡). Peek.*

*February 13th.*

Msent....Johnson, *J.*Todd, *J.*

Marshall, *Ch,*J.

delivered the opinion of the Court as follows.-

The land for which this ejectment was brought^ lies within the territory ceded to the United States by the state of.North Carolina, and was claimed by a patent anterior to that cession. At.the date of the grant, the Indian title had not been extinguished. On the 26th day of October, 1805, á treaty was made between the United States' and the Cherokee Indians, in which the' Indian's ceded to the United States “ all the land lying to the “ north of the following boundary line; beginning at the ■“mouth ofDuck river, runningtlienceup themain stream “ of the same to the junction of the fork, at the head of “ which fort Nash stood, with the main south fork'; “ thence a direct course to a point oil the Tennessee ri- “ ver bank opposite the mouth of the Highwassee river.5*

*17The question on which the cause has been placed is this. Is the land, claimed by the Plaintiff in the Court below, within the ceded territory ?

The line mentioned in the treaty has been run, and the land in controversy lies on the north side of it, consequently within the limits ceded to the United States^ but there was a further stipulation in the treaty, which the Plaintiffs in error say comprehends the lands for which this suit is brought.

After describing the ceddd territory, the treaty proceeds to say : “And whereas front'the present'cession “ made by the-Cherokees, and other circumstances, the “scites of the garrisons at South west puint and Tellico “are.become not the most convenient and ¡jüitahlc pla“ces fort e accommodation of the said Indians, it may “ become expedient to remove, the said garrisons and “factory to some more suitable place,” three *other*square miles .are *reserved*for the particular disposal of the United States on the north bank of the Tennessee opposite', to and below- the mouth of Highwassee.

The. ceded territory lies above the mouth of Highwassee, as does the iand in controversy ; yet the Plairitiffs in error contend that this land is within the stipulation for a reserve of three square miles to lie below the mouth of Highwassee.

They attempt to sustain this proposition by alleging that the word “below” was inserted in. the treaty by mistake, when the word “ above” was intended.

This mistake ought certainly to be very Clearly demonstrated, before the Courts of the United “States can found upon its existence a judgment which shall deprive a citizen of his property.'

The argument, so far as it is drawn from tne treaty itself, rests on the word “ reserved.” It is said that the lands “ reserved for the particular disposal of the United States,” must necessarily be a part of the ceded territory, or the term would not aptly express the idea óf the parties.

*18The Court cannot accede to this reasoning. The treaty is the contract of both parties,. each having lands, The words are the words of both parties, and .the term might, without, any strained construction, be applied to' the lands of either. No great violence is done to the. import of tue term as used in the treaty, if ft bé considered as equivalent to the words “ set apait.” This construction is rendered necessary by the word “ other.” “ Three *other*square miles,” that is,-other than those be'-* fore ceded, are reserved for the particular disposal of the United States. The context, instead of proving that the word, “ below” was used by mistake in-the treaty, would rather induce the. Court to put that construction on an ambiguous term, had one been employed.

The counsel for the Plaintiffs in error also rely on a letter written by the commissioners who negotiated the treaty to, the secretary of war on the 10th day of January, 1806. . But, Without inquiring into the weight to 'which such a letter is ihtitled in such a case, it is to be observed that the letter agrees with the terms of the treaty. It says that the three square miles reserved for the particular disposal of the U. States, were “.opposite to and below the mouth of the Higliwassee.” -It is uunecessa-. ry to make- a farther comment on this letter than to say, that there is no expression in it which appears to the Court to countenance, in the slightest degree, the idea that the word “.below” in the treaty was used by mistake instead of the word “ above.”

The facts, that the agents of the United States took possession of this laud lying above the mouth of the Higliwassee, erected expensive buildings thereon, and placed a garrison there, cannot be admitted to give an explanation to the treaty, which would contradict its plain words and obvious meaning. The land is certainly the property of the Plaintiff *below;*and the United States cannot liave.inlended to deprive him of it by violence, and without compensation. This Court is unanimously and clearly of opinion that the Circuit Court committed no error in instructing the .jury that the In* dian title was extinguished to the land in controversy, and that the Plaintiff below might sustain his action.

The judgment is affirmed witli costs.