The daily union. [volume] (Washington [D.C.]) 1845-1857, 1855-08-05

".
Reder in conflict with the opinion Of Attorney General
fancy, mu-t confess they do strike as either APP
pose or convincing In the case Of Mitchell the Un
ted States Peters I'll, which the governor quotes
bearing upon the contracts of certain Kansas habreed
in favor Of Messrs Johnston, Gilmore aud Others for the
sale Of their he assumes that purchases is
word equivalent 10 reserves and thus quotes Judge
Baldwin (not Marshall euoted) page T4s; oit is
universal rule that purchases made and at Indian
ties in the presence and with the appreciation Of the officer
under whose direction they held by authority Of
the Crown gave valid title the lands II prevailed uu-
der the laws of the States after the revolution and yet
continues IN those States where the right TO the ultimate
fee IS owned by the States their grantees II has been
adopted by the United States and purchases made and a
treaties held by their authority have been always held
good by the ratification OF the treaty without any patent
70 the purchasers from the United States Upon this Gov
Reeder remarks "When we consider that the court
speaking OF s purchasers from the whole tribe and upon
precisely the footing these habreed
grantees and that in legal language the word purchase in
eudes every mode OF acquiring land except by descent
becomes conclusive hiS point
win say, with all due Difference that this decision up
on which much stress is laid has in my humble opin-
ion, bearing whatever upon the present II has
reference titles derived under the Spanish laws and in
effect says that titles acquired under them in Florida be-
fore its purchase by government binding upon
the United States; by the law OF nations the inhabit-
ants citizens subjects of conquered 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
Greek and Seminole Indians, and had been ratified ~ c
local authorities Of Spain before the cession Of Florida
By Span 10 he United Safes The decision also has
special reference TO the tenure Of Indian lands under
the laws of certain States holding the ultimate fec
in the unappropriaed lands within their borderssuch
for instance, New Yofkand upon the tenure of
Indian lands in which tribes under the guardianship and
protection Of the government Of the United States enjoy
certain posessory rights Governor Reeders construction
would, indeed work complete revolution in the prac-
tce Of government in respect Indian reserves in
which the express nature Limitation Of the grant not
mentioned in the treaty setting the apart In the
of Mitchell the United States above quoted it
decided that purchases from the Indians order to be
valid had to be made in the presence and with the appro
bdto Of the officer under whose direction the treaties
with them held y yet will be seen hereafter
the submitted by Governor Reeder for approval
have not only snch sanction in their favor but the
whole transaction appears TO have been parte affair
the work of the grantees of the lnanthe contracts and
memorials being in the handwriting of of the pur-
chases and OF the other grantees acting witnesses
1t will be- therefore, that If the decision in the
Mitchell case applicable, the contracts then submitted
wanting in the most essential prerequisites established
by the language quotedthe presence of the legally
tuted guardian of the Indian his agent, the making
Of the contracts The absence OF the agent under the cir
cumstanee is of Itself (under the uniform practice of the
department ample reason why the contracts should not
be submitted for approval might therefore, rest my OBJ
econ to these contracts upon the agents absence when
they made, had directed report upon
the papers, and give my reasons"
Gov. Rceders unqualified assertion that all the titles
individual Indians made by the Of the word
"reserpch is singular mistake, in many individual
grants the word reserge is not used ALL So far from
cursory glance at treaties making snch reservations will
show that almost every conceivable form of expression is
employed such occasionssuch PRESERVED granted
allowed "set apart assigned" ALLOTTED Sc and some
times the described being Sin fee simple and
in others being made for the grantees and their heirs
and assigns Some of the TO be held IN
and others in severalty forever in fee sim
pie and others are limited TO term of years and for the
of the This proves that the nature of the eser
walton made each treaty unless where similar language
employed in setting them apart Is best judged of by
full study uf the language making the grant assignment
allotment and by aretched quotations from decisions
cases having little relevancy. With this view of
the matter, do not think it necessary time by
following the governor in his verbal criticism the
words purchase grant and reserve, and his lahoed
attempt to show that wherever or however used these
words have precisely the import meaning do
think il necessary notice the equally labored
prove thar every where land has been reserved
for Indians whether expressly for their in fee simple
the have under general principles established
by the practice of the Spanish British and American gov
ernmens and the decisions of the supreme to which
he refers right sell and ALLEVIATE their reserves, with
without the Presidents approval The reference OF Gov
Reeder to the definition of the meaning Of the word re
serye given in Cranch page So in The of Megs
McCuhe, surely farfetched when the circumstances
under which that decision made are considered.
The question which the cause has been placed says
Chief Justice Marshall sis this Is the land claimed (by
patent anterior to It's cesson by the Cherokees in 1909 by
the plaintiff in the conrt below within the ceded terri
toryP
The Chief Justice in stating the case then remarks
The ceded territory lies ADORE the mouth of Hghwassee
does the land in controversy yet the plaintiffs
contend that this land is within the stipulation for
serve Of three square miles TO be too the mouth of High
wasseen
And then adds that the court could not accede to the
reasoning that the lands reserved for the particular dis
posal the United States must necessarily be part OF the
eedd territory and that great violence is done the
knoea import Of The used the treaty if il be
sdered equivalent the words set apart This
suctop he continues is rendered necessary by the word
other'R Three other square mes'tha is other than
those before cededae reserved for the particular DISPOSE
ton of the United States The conr instead proving
that the word below" used by mistake in the treaty.
would rather induce the put that construction on
ambiguous term had been employed 1t will be
by this that the Chief Justice in his definition had
the meaning of the word used The Cherokee treaty.
and that he did travel of the record but his
words drew his argument to the meaning of the
instrument from the treaty ITSELF "That the treaty is the
contract of both parties doubt; but this adj
mission does necessarily involve the absurdity that
reservations thereby made must Of necessity invest the
Treaty stpulaons might be for either and depends
irey upon the language employed whether the
entitled to the the fee simple of their
The reference TO the of Johnson Mcintosh 8
Wheaton, 57S to prove that the words reserve and
grant used in Indian treaties have the meaning
is not deemed worthy of comment for, unless it be
also shown that neither grant be made
without comforting the right of alienation the grantees
reserves how the admission Of the iden
tty in meaning of these words strengthen position
that the Kansas halfbreeds had right seli and that
MesSrs Reeder, Johnson Emore and lsacks had right
purchase the lands embraced in their contracts.
think if there doub the correctness
of Judge Tapeys opinion II is late to disturb the
practice which has grown up under it for, in the Ian
guage of Attorney General Legar6 in reference Greek
CASE it is at all times but especially in OBJ
and uncertain nexpediept to sacrifice settled
mere theoretical accuracy Of doctrine when that is
aainable which Ia doubtful here The ingenious specu-