Des Moines courier. ([Ottumwa] Iowa) 1848-1854, 1851-02-14
Opinion OF Attorney Gent Crit
tensicn, as TO the Extent Of tic
Dcs MOines River Grant.
OFFICE OF THE ATTORNEY GENERAL, ,
December, 2nd 1850.

ahiheu anu COnSluereu me TWO cases
which you lately referred to me. The
first, respecting the claim of Iowa to Ger.
tain lands in that State, under a gran
made by the Act Of Congress of the s,t
Of August. 1916. ~. S. Statutes, page
~ and the seconG, being & memorial
presented to you on the part of Joseph
Fellows d Co., invoking YOU to interfere
officially in their behalf for the decision
and settlement of certain questions and
interests which have arisen out of Ger.
tain contract and purchase of lands made
by them from the Seneca Tribe of In.
dams, and set forth and sanctioned in IL
Treaty Of the u. States with said In
dams, dated 20th May 1912.
The question presented in first case
depends upon the legal construction OF
the Act Of Congress as TO the ecsent of
the grant TO Iowa.
1t is insisted on the part of Iowa.
that it extends from the mouth to the
source of the Des Moines River, while
it is contended on the part of the u.
States, that it extends only from the
mouth Of the River to the point where
the Racoon Fork flows into it. Accor-
ding to the first construction, the grant
includes about 100000 acres more than
it would include if limited TO the Racoon
Fork. The question involved is one of
construction only-a mere legal cues
tion, and upon it there has been re-
markable difference of opinion among
some of the highest and most enlighten-
ed officers of the Government. Mr..
Walker, late Secretary of the Treasury
and Mr.. johnson, late Attorney General,
being in favor of The more extensive,
and Mr.. Ewing, late Secretary of the
Interior, and the Commissioner of the
General Land Office, in favor of the
less extensive construction.
By the terms of the Act, Iowa is TO
have the alternate sections of all the
lands laying within the prescribed boun-
Diary, and the priveledge is given here to
make choice of those sections, subject
TO the approval of The Secretary of the
Treasury. ...... ..... @
|. You are now applied to as | under
stand 10 determine this disputed question
of construction of the Act and also TO
determine, perhaps, another question
which has arisen in this case, as to the
extent and legal effect of the opinion or
decision given by Mr.. Walker on this
subject. ......
In the other case, that presented by
the memorial of Fellows 81 CO., ii ap-
pears that by the terms of contract and
conveyance made by and between the
parties and recjted and approved in the
Treaty before alluded to, a valuation was
to be made by certain Arbitrators of the
conveyed and Of the Improvements there
on. That the award so to be made ac-
cording to the terms stipulated, was to
be reported to and ''filed in the Office of
The Secretary of the Department of
War;" and within one month after said
report was fled, the unimpro, cd land was
to be surrendered to the purchasers, and
The improved land within two years.
The memorial states that the arbitrator
had made a report of tl3i; proceedings,
and award, and that the same had been
presented TO the Secretary of War TO be
filed in his Office. but that he had refus ed
to receive and file the same, and that
thereby the rights of the memorialists
to the lands Or the possession of them
were hindered and delayed. ..'...
That they had attempted by process
of law to compel the said Secretary to
receive, and file the said report, but that
the court had refused to interfere and
had decided that il was matter in re-
spect to which discretion had been
contided to the Secretary, and that the
court had no jurisdiction TO control him
in the exercise of that discretion.
Failing in that attempt to coerce the
Secretary, the memotialists have now
addressed the President, and their OBJ
ject seems to be to induce him to inter-
| pose and 10 do what the court refused to
DO, namely, compel the Secretary oil
War TO receive and file said report.
| have stated above only so much oil
these cases as was necessary 10 the
view | have taken of the subject, and 10
| enable you TO exercise your better Judge
ment as to the correctness of the con.
illusions 10 which have come in regard
to the course proper to be pursued by
you and which | proceed briefly to Sc
| forth.
Neither the act of Congress making
the grant in question to Iowa, nor The
contract of Fellows a. Co., for the pur.
chase from the Indians, make any refer
ence or delegation Of authority, to thu
President. respecting any of the matter:
now brought before him.
To other functionaries Of the Govern
ment the settlement Of all these matters
of controversy seems TO me more prop
erly to belong, and neither the Act o
Congress in The one case, nor the Treaty
and contract of the parties in the other
provide for, and appear to have intended
or contemplated the interposilion of tn,
President IN any manner or respec
whatever.
The interference of the Presiden
with the performance of the particula
duties assigned by the law to subordi
nate oflicies, either on the ground o
correcting errors or supplying omission.
would, in the general, be exceedingly