Washington sentinel. [volume] (City of Washington [D.C.]) 1853-1856, 1855-08-09

where the right to the ultimate fee is owned by
the States as their grantees. II has been adopted
by the United States, and purchases made and
(dt) treaties held by their authority have been
always held good by the ratification of the treaty
without any patent to the purchasers from the
United States" Upon this Gov. Reeder remarks:
''When we consider that the court speaking
of first purchasers from the whole tribe and upon
precisely the same footing these half-breed re-
services or grantees, and that in legal language
the word purchase includes every mode of acquir-
ing land except by descent, il becomes conclusive
on his point. +"
will say, with all due Difference, that this de-
cislon, upon which so mnch stress is laid, has, in
my humble opinion, no bearing Whatever upon
the present 1t has reference TO titles derived
under the Spanish laws, and in effect says that
titles acquired under them in Florida, before its
purchase by our government, were binding upon
the United States; as by the law of nations the
inhabitants, citizens, subjects of conquered
or coded country retain all the rights of property
which had not been taken from them by the orders
OF the conqueror. This claim (Which the Supreme
Court confrmed) derived from Creek and
Seminole Indians, and had been ratified bv the
local authorities Of Spain before The ceSsion Of Florida
by Spain to the United States The decision also
has special reference to the tenure of Indian lands
under the laws of certain States holding the ulti-
mate fee in the inappropriate lands within their
borders-such for instance, as New Iork-and
not upon the tenure Of Indian lands in which
tribes under the guardianship and protection of
the government of the United States enjoy certain
possessory rights Governor Reeder's construc-
ton would, indeed, work complete ''revoluton"
IN the practice of our government in respect to
Indian reserves, in which the express nature or
limitation of the grant is not mentioned in the
treaty setting the reserves apart In the case of
Mitchell rs. the United States, above quoted, it
was decided that purchases from the Indians in
order to be valid, had to be made in the presence,
and with the appreciation, of the officer under
whose direction ssthe treaties with them were
held;" and yet, as will be seen hereafter, the
tracts submitted by Governor Reeder for approval
have not only no such sanction in their favor, but
the whole transaction appears to have been an
er parte affair, the work of the grantees of the
lndians-the contracts and memorials being in
| the handwriting of one of the purchasers, and
some OF the other grantees acting as witnesses !.
1t will be, therefore, that even if the deci-
sion in the Mitchell case was applicable, the con-
tracts then submitted wanting in the most
essential prerequisite, established by the language
quoted-the presence of the egally-consttuted
guardian of the Indian, his agent, at the max
| ing of the contracts. The absence of the agent,
| under the circumstances, is of itself (under the
| uniform practice of the Department. an ample
reason why the contracts should not be submitted
for approval might, therefore, rest my obiec-
tons to these contracts upon the agents absence
when they were made, had you not directed me
to report upon ''thc new papers, and ''give my
| reasons"
| Gov. Reeder's unqualified asserton that cali
the titles to individual Indians are made by the
use OF the word, reserve, singular mis-
/ take, in many individual grants the word SIRE
| serpe" is not used at all. So far from it, a cur
sorry glance at treaties making such reservations
will show that almost every conceivable form of
expression is employed on such occasions-such
| as Preserved" s'granted," ''allowed," ssset
apart" assigned, !" ''allotted," Sc; and some
times the reserve is described as being Gin fee
simple" and in others being made for the
| grantees Sand their heirs and assigns" Some
of the reserves arc to be held in common, and
others in severdty; some are forever in fee sim
pie, and others are limited to a term of years,
and for the of the reserves. This proves
/ that the nature of the reservation made in each
| treaty, unless where similar language is employ
ed in setting them apart, is best Judged of by a
| careful study of the language making the grant,
assignment, allotment, and not by far-fetched
quotations from decisions on cases having little or
no relevancy. With this view of the matter, |
do not think it necessary to waste time by follow
| ing the governor in his verbal criticisms on the
words purchase, = "grant," and ''reserve, +" and
his labored attempt to show that, wherever or
| however used, these words have precisely the
| same import or meaning; nor do think il neces-
sary to notice the equally Iabored effort prove
that in every where land has been Preserved
for Indians, whether expressly for their or in
fee simple, the reserves have, under general
principles" established by the practice of the
Spanish, British, and American governments,
| and the decisions of the supreme courts 10 which
he refers, right to sell and ALLEVIATE their re-
serves, with or without the Presidents approval.
| The reference Of Gov. Reeder 10 the definition
Of the meaning of the word PRESERVE" as given
in 8 Cranch, page 49, in the case of Meigs Us.
| McClung, is surely far-fetched, when the circum-
stances under which that decision was made are
| considered.
"The question on which the cause has been
placed" says Chief Justice Marshall, sis this
is the land claimed (by patent anterior to its
sion by the Cherokees in l805) by the plaintiff in
the court below within the ceded territory"
The Chief Justice, in stating the case, then re.
marks: 'The ceded territory lies ADORE the mouth
of Highwassee, as does the land in controversy
yet the plaintiffs in contend that this land il
within the stipulation for a Of three square
miles TO be beio,r the mouth of Hghwassee.
And then adds that the court could not accede
to the reasoning that the lands Preserved for the
particular disposal Of the United States" must
| necessarily be part Of the coded territory, and
that no great violence is done to the knotcn i'm
port Of The term as used in The treaty if il be con
sidered as equivalent TO the words 'set apart. :
| This construction, he continues, sis rendered ne.
cessng by the word other" "Three other
square les''-that is, other than those before
| ceded-are reserved for the particular disposition
proving that the word "below" was used by mis-
take in the treaty, would rather induce the court
TO put that construction on an ambiguous term
had one been employed" II will be seen by this
that the Chief Justice, in his definition, had in
view the meaning Of the word as used in N,
Cherokee treaty, and that he did not travel out o.
the record, but, 10 use his own words, "drew his
argument TO the meaning Of the instrument
from the treaty itself" "That the treaty is the
contract Of both parties, " no one can doubt; but
this admission does not necessarily involve the
absurdity that reservations thereby made must
Of necessity, invest the reserves with fee sim
pie, instead Of a usufructury title. Treaty stpu.
ations might be for either, and il depends entirely
upon the language employed whether the reser.
wees are entitled TO the use or the fee simple o.
their reserves.
The reference 10 the case Of Johnson rs McIn.
tosh, Wheaton, SIS, TO prove that the words
Preserve" and "grant, as used in Indian treaties
have the same meaning, is not deemed worthy OF
comment; for, unless il can be also shown that
neither a reserve nor grant can be made with.
out comforting the right Of alienation on the
grantees or reserves, cannot see how the ad.
mission Of the identity in meaning Of these words
can strengthen the position that the Kansas half.
| Il. ~ xt,.LN 20 all I'D ,kas