Washington sentinel. [volume] (City of Washington [D.C.]) 1853-1856, 1855-08-09
SHAWNEE Mission, June &c, 1854.
Governor Reedsr 10 the President,

+. G. MCCARTHY.
SHAWNEE MISSION, June &c, 1854
Governor Reeder 10 the President,
Sir: ! address you this communication in re-
gard to certain memorials of half-breed Kansas
Indians for confirmation of contracts for sales Of
land TO Hon S w. Johnson.
These contracts and memorials were submitted
for approval IN January last, and not approved,
for some OF the reasons mentioned III the report
of the Commissioner of Indian Affairs | submit
them again, with additional evidence intended 10
supply all former DEFICIENCIES, and with refer
cnce TO some authorities which appear to me TO
be conclusive.
In regard to the grantors right TO SELL the
Commissioner relies upon the opinion of the At
torney General of Goth September, 1883 under
a reservation, in similar language, contained in
another treaty. The opinion holds that the title
Of the Indians is mere personal right to use or
occupy the lands, and not disposable estate in
fee; that il is not grant of the ultimate title Of
the United States, but mere reservation or re-
tention of the imperfect title as held by the In
dams previous TO the treaty. The opinion is
brief and hasty one, and, although emanating
from great man, will not bear comparison with
other opinions Of himself and other Attorneys
General, and the decisions Of the Supreme Court
of the United States. There is no man SO great
as TO commit no errors of haste and inadvertence:
and there is no TO whom would more cheer
fully submit this argument than the author Of
that opinion himself
II is contrary TO tho long continued practice Of
the department, need only take up the In
dian treaties, and find reservation after reserva-
ton in language equivalent to this, where the
reserves have been allowed to make deeds
II is in direct conflict with the opinion Of the
Supreme Court in the case of'.Nifchel VS. United
States, 9 Peters, I'll, in which Chief Justice Mar
shall says, at page 74S: 9 1t is a universal rule
IL. a III. -
presence and with the appreciation Of the officer
under whose direction they were held by authority
of the Crown, gave a valid title TO the lands II
prevailed under 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 or their grantees.
g 1t has been adopted BY the United States
and purchases made and treaties held by then
authority have been always held good By the rati
hcation Of the treaty, without any patent 10 the
purchasers from the United States"
When we consider that the court are speaking
Of first purchasers from the whole tribe upor
precisely the same footing as these half-breec
reserves or grantees, and that in legal language
the word purchase includes every mode Of &C
curing land except by descent, il becomes con
elusive on the point.
Again il is admitted that the title Of thes,
halfbreeds must be either a reservation or !
grant, and, on the strength of the opinion al
luCCQ 10, IL Is COntelued tlat ~ rs reservation
and not grant. But this is a misuse Of terms
II will not do at this day 10 say that because In,
word reserve is used in passing the land 10 otho
parties ii is mere reservation or retention of IN,
Indian right Of occupancy. All the titles to ind
vidual Indians are made by use Of the same word
and il is the constant practice to treat them no
only grants, not only Of the Indian rirh
Of occupancy, but also Of the ultimate fee q
the United States, and alienable with the con
sent Of the President. Indeed, although callet
reserves, they want the essential element ant
first requisite Of a reservation. a reserva
ton is that which one, when making a grant
keeps fer himself; il Is that which he hel,
before, and does not grant Whenever il passea
from one 10 another these lands passed from
the whole tribe to these individual halfbreeds
or, as ! contend, from both the United States anc
the tribe, or, what i the same thing, under the
authority Of Mitchell IS the United States from
the tribe, with the sanction Of the United States
no matter by what name you call il, or by wha
form Of words il Is done, i is a grant in effect
When both parties say 70 these halfbrceds-ir
not very appropriate language, ] admit" w,
reserve these lands from us to you" il mean
a grant or il means nothing. The opinion o
1888, then, which is based on the idea that Ian
guage Of this kind makes mere reservations, an,
not ? grant, cannot be sustained. Indeed Thu
is decided by the Supreme Court in the yer,
teeth ri the opinion. In the case Of .ATeigs vs.
.HcCiung, 9 Cranch, II, where il Is decided tina
the treaty Is the contract Of both parties, ant
that the words are the words OF both parties. ,
question Is 10 the identity of the land. anr
as the word reserve had been used il was in
sisted th8t IL was applicable only to lands which
The United States had owned before the treaty
and could not apply 60 lands of which The In
dams were the owners at the time Of the treaty
the reservation being 10 the United States. III,
counsel argued that IL was straininp tho word r.
serve very far, and could only mean RETAINED
and al page u, Chief Justice Marshall saw,
= the treaty y the contract Of both parties eacl
bnvlng lands The words are the words Of boti
parties, and the term might without any strained
construction 10 applied ~ tile lands Of either. M
great violence Is done 10 the known inport Of IN,
word, II i be considered equivalent 10 The u,ord.
60 set apart" And the case was II decided ss ~
make the word reserve operate "a pass lands y,
way q grant rom The Indians 70 tho United
States. The case Of johnson re- McT,to.b :
Wheaton, SIS tends to the same poin,. ard IL
court say: The usual mode adopted III M
Indians Of granting lands to individuals bas
been 10 reserve them in treaty, or TO grant them
under the sanction of the commissioners with
whom the treaty was negotiated" By which
language the court treat the rcsul, as the same
whether the terms arc those Of reservation or o
grant
" anything more were wanting 60 show that
the opinion referred 20 is not in accordance with
the usual construction Of these treaties refer "a
another opinion q the same Attorney General
70 be found IN vol 2, page 465, Opinions Of At.
torneys General where il is held by him that 4
similar reserve acquires an absolute title alien.
able with the consent of the President: for that
otherwise the reserve would be Of little value ia
the party. This opinion is founded upon The sun
plement TO the Chociaw treaty, 60 be found In
Statutes at Large, vol. z, page 333; and the Ian
guage Of the reservation is no stronger than that