The New York herald., 1868-05-04
UNITED STATES SUPREME COUNT.
Congress- Has No Constitutional Power 10 Settl
Rights Under Treaties, Except In Cases Purel,
POlificRi-The Construction Of Treaties Be

Congress Has No Constitutional Power 10 Settle
Rights Under Treaties, Except In Cases Purely
PolificRi-The Consfruction Of Treaties Be.
longs 10 the Judiciary.
Sanatsel wilson, Piai,stiDin Error u.s. Thomas Wau
ana Ipfte ct oi.-In to the Supreme Court of
the State Of Alabama. Mr.. Justice Grer delivered
the opinion OF the COURT
When the United States acquired and took poses-
sion OF the Floridas under the Louisiana treaty, the
treaties which had been made with the Indian tribes
laws which regulate the relations with all the ndi-
ans who were parties 10 them. They were pinding
ON the United States as the iundamentai iaws OF IN
nicpal regulations BY these the Indian right was
not merely of possession but that OF alienation Ihe
parties to this contract may justly be presumed 10
have had In view the previous customs and usages
with regard to grants to persons desrous to become
citlens" They suggest m tie treaty tnat .ney are
ton and reGnementr But It does not follow that
they were acquainted with the doctrine OF trusts.
win them lands were. either neld IN coi-
mon by the whole nation or tribe, and the
families were In fractions or portions. The head OF
ie laly could dispose OF the property oil tle aui-
y the head of the tribe or nation could
tiat or The nation. Under the spanish and french
do,nlnons grants or land were always made to indi-
Vlduas in proportion to the number OF persons COM
posing the family. Thus in Frique Hopkins l4ta
Martn, 2lo 1t was decided 'that by the regulations
or the spanish government, II the individual who
applied for land was unmarried certain quantity
was given TO him. II he had wife this quantity
increased and If he had children additional num-
ber OF acres conceded. Now il the circumstance
OF his being married made the thing given become
the property OF both husband and WIFE, we must on
the same principle hold that when children became
the moving cause they too should be considered "a
owners in common OF the land conceded. That such
was the eject OF the dOnee having family was
er even suspected. It certainly Is unsupported by
law. Many donations are made In which the donees
| having wife and being Duredned with large fam
iy Is great consideration for the beneicence OF the
donor, but this motive in him does not prevent the
ere 20 nor e v Se ge
ing to his heirs" We can hardly expect the Indians
to be very profound on the subject Of afverbs or
| propositions and the agents or thy govern
| ment do not seem to have exhibited much
greater knowledge of the proprietles OF grammar or
they would not have left this section Of the treaty
capable of miscOnstruction doubt when II was SO
easy to avoid IL. The words of this fourteenth Sec
ton OF the reatry were construed by Mr. SECRETARY
CasS to give to the parent the title to the whoe.
| This construction had been the uniform one OF the
| department in executing the treaty, and patents
We're ISSUED accordingly OF the correctness OF which
| no doubt was entertained. The register OF these
that applied to the agent under the article contained
The names OF the heads of families only, which would
seem 10 show the Indian construction or the contract
or treaty. Accordingly on the 10Th Of June, lS4l,
patent was granted 10 William Hull not to himself
and his children, but to him and MS heirs. At this
time the secretary had no means of ascertanng the
names OF the children so that separate patents might
be given them in case OF q different construction
given to the treaty In all Others OF the numerous
treaties made with the Indians (more OF them made
When lands were @ reservea or y asresd to- BE-
granted to any Indian, the name OF the grantee
ana quantity to be given were carefully stated IN tn
different construction, and in order to save some
thing for the children from The folly ncapacity of
the parent, Congress- the 23d OF August, 1872 ap
pointed commissioners with full power TO examine
and ascertain the names OF the parties who had full
nled the conditions OF settlement TO entitle them TO
patents for their land ana ascertain the quantity for
each child, according to the limitations contained
in said article" Now, while It is freely conceded
that this construction given to the treaty should form
rule FOR the subsequent conduct OF the department,
1t cannot affect titles before given by the govern
ment, nor does 1t pretend TO do Congress has no
treaties except in cases purely political--the con-
struction OF it is the peculiar province of the judi
diydusls; t . the legislature may prescribe IT.. to
were only the aim and purpose OF this act. In the
Cherokee treaty gage 1850 where grant OF six
ing to become citizens" life estate only given
to the settler, with revcrsion to his children This
construction given by the Representatives OF both
parties to the treaty. and the grants issued under it,
ere not v0G nor % eo%a smey pe ny mere ey *
doubtful article OF the treaty. The treaty only de-
scribes the person who is contingenty entitled TO the
| reservation. He must be Choctaw and head OF .
| family, and desirous not only to remain but must
signify to the agent his intention to do These
conditions precedent in the performance OF which he
shall "thereupon be emitted to half that quantity
| for each unmarried child which IL living with him
over ten years, and quarter section to such child
the land intending to become citizens for live years,
Nc "a grant IN fec simple ,s, 81, shall iSsde" &c:
1
| would not be entitled 10 the additional land unless
for child that "was living with him." The treaty
necessary to the person who alone could perform the
conditions. We DO not consider II necessary to ind
cate the conclusion at which have arrived in this
case, Dy furiher argument on the grammatical con-
structon OF this section Of the treaty. Assume the
construction put Oh this treaty by the court below
may possibly be correct what, them the facts Of
tine case? The complainants below have applied to
Court OF Chancery which should be court OF con-
science, 10 vacae the title OF bona fde purchaser
who purchased and paid his money and expended u
llie's labor on land granted by patent from the
United states, conveying fee simple estate, which
issued by the ONCE of the government without
intention OF imposing any hurt on the grantee or
limiting 1t on the face OF the decd IL Is cOntendcd
that the purchaser is affected with notice OF the
terms Of the treaty referred to In his patent If there
be any trust for children 1t must be constructive
trust, which IL negatved By the express terms OF the
grant. How can chancellor build up by the words
for and to-wOrds OF equivalent import and doubt
dreny The TACT Is clear that such was not
the construction under which the grantor gave the
deed or the grantee accepted It, A. chancellor Will
not be aStIte 10 charge a constructive trust upon one
who has acted honestly and paid fall and fair
sideration without notice or knowledge. ON this
point we need only refer to Engden on Vendors,
(pa2e 1872 where Inc says-"ln Ware vs. Lord Eyre
mont the Lord Chancellor Cranworth expressed his
entiro concurrence in what on many occasions of
late years had fallen from judges OF great euiacnce
on the subject OF constructive notice-namelv that
it was nigDiy ineXpedent In writs OF equity 10 eX.
tend the doctrine. When o person has not actual
notice lie ought not 10 oe treated as II he had notice
unless the circumstances are such as enable the
but also tat nc ought 10 have acquired IL, bat Tor
his gross negligence In the conduct OF the business in
question. ''fne question, ten when 10 IL sought to
AFFECT purchaser with constructive notice, ~ not
whether ne mad the means Of Obtaining, and might
by prudent caution have obtained, the knowledge IN
question: but whether not obtaining it was
an act OF gross cupable negligence" The appli-
cation OF these principles OF equity to tie present
case is too apparent 10 need further remark. Ihc
Judgment must he reversed.
AloHs THE HUDSON.