Marsh v. Brooks

*521 Mr. Justice CATRON delivered the opinion of the court.

This case was before us in .1850, and is reported in 8 Howard. We then'held that as the patent to Reddick’s heirs of 1839 was younger than the treaty of 1824, and the confirming act of 1836, by which the title of the United States was primd facie vested in the Sac and Fox half-breeds, the patent could not prevail. Nor could its recitals be relied on to give it legal effect from an earlier date than it had on its face.

The judgment was then reversed, and the cause remanded. for another trial, and an intimation given, that probably additional evidence might be adduced on a subsequent trial, which would establish an earlier and better title in the plaintiffs, than that of the half-breéds. That trial has taken place, and the case is now before us, with the evidence to which the recitals in the'patent of Reddick’s heirs, to some extent,-refer. This evidence consists of a- permit given by the Lieutenant-Governor of Upper Louisiana to Louis Honoré Tesson, to establish himself at the head of the rapids of the River Des Moines, (being a-great rapid in the River Mississippi,) and having formed his establishment, he was assured that then it would be the duty .of the Governor-General of Louisiana, residing at .New Orleans, to procure for said Honoré, a concession of sufficient space to render the establishment available and useful to the trade of the country in peltries, and so that said Honoré might exercise an oversight of the Indians, and keep them in the fidelity which they owed to His Catholic Majesty; the object being to increase the trade with the Indians on that border; and in which •said Honoré was permitted to. be a participant, and to trade with the Indians in that part of His Majesty’s dominions; nor . were any rival traders to be allowed- to deal with the Indians^ except such as had a passport .for that purpose, signed by the Lieutenant-Governor. This stipulation. was made in March, 1799. Honoré was then in possession, óf the land in dispute, and had improvements on it; and he, improved it further under the permit of 1799, and continued there until 1805. He had houses, orchards, and- fields.

Thos. F. Reddick’s claim was regularly derived by assignments from Honbré. Reddick’s heirs, claimed a league square,on the assumption that the permit to. settle and inhabit, entitled Honoré to this quantity. But the Recorder at St. Louis, acting as Commissioner, rejected the claim for a league square; and properly, as we think; there being only a promise of title in future, but no concession of land; in the, Lieutenant-Governor’s permission to Honoré.to establish himself, and occupy the premises, and trade with the Indians. As,’however, Honoré held actual possession, and had improved the land in afi expensive *522 and substantial manner, he was-beyond question entitled to six hundred and forty acres,; including his improvements, under our acts of Congress securing this quantity to actual settlers, had the land laid .within that part of Louisiana to .which the Indian title was extinguished, at the time when the occupancy existed. Being ui certain whether Honoré was entitled, by reason of his inhabitation and cultivation within territory to which the Indian title was not extinguished, the Recorder, in his tabular statement, granted the six hundred and forty acres, “ if Indian rights extinguished.” And this expression has embarrassed the' title for more than thirty years.- There were many claims in the Recorder’s report and tabular statement, in which this one is found; and by the act of April 29, 1816, all of them were confirmed without exception, and without any notice-having bem taken pf the Recorder’s remark, referring to ' an existing Indian title to the land. That the Sacs and Foxes did claim the colmtry generally, where this land lies, is not controverted; nor was their claim ceded to the United States till 1824.

A

nd this raises the question whether, according to Spanish usage, whilst that power governed Louisiana, an existing Indian claim to territory'precluded inhabitation and cultivation under a permit to inhabit and cultivate a particular place designated in the permit, and which was in the Indian country. Spain had no treaties with any bf the Indian tribes in Louisiana, fixing limits to their claims, so far as we are informed. The Indians were kept quiet, and at peace with Spanish subjects, by kind treatment and due precautions, which did not allow obtrusion on lands claimed by them, without written 'permits from the Governor ; but that such permits were usual, cannot be doubted. The county of St. Charles lies in the fork of the Mississippi and Missouri rivers; it was settled, and the village of St. Charles established there, twenty- years and more before we acquired Louisiana; and yet, by the' treaty of November 3d, 1804, this section of country was ceded to the United States, by the Sac and Fox tribes, extending from the Missouri River, opposite -to the mouth of the Gasconade, to' the Janfilione, ór “ North 2 rivers,” as now known; .which empties into the Mississippi, in the county of Marion, in the State of Missouri. This country .was as solemnly ceded, as was the country north of that cession; by the treaty of 1824; and. which treaty is here set up in opposition to Reddick’s title. The treaty of 1804 was- duly ratified by the Senate of the' United States, and apparently sanctioned, retrospectively, the Sac and Fox claim to the old county of St. Charles, in like' manner that the treaty of 1824 recognized an existing Indian claim to the half-breed tract, where the land in .dispute lies. ■ *523 And again in 1808, the Osages ceded to the United States all the lands east of a line running from Fort Clark on the Missouri River, situate a few miles below the mouth" of the Kansas; thence, due south to the River Arkansas, qnd down the same to the Mississippi; up the same to Sullivan’s line; then west to the north-west corner, being a point one hundred miles due north of the 'mouth of the Kansas Riffer; and with this line south to the north bank of the Missouri opposite the mouth of the Kansas. Sullivan’s line was run in 1816, in execution of the Osage treaty of 1808, and is the northern boundary of the half-breed tract, and the line referred to in the treaty off 1824 with the Sacs and Foxes, and which the Osage treaty of 1808, included.

This treaty had every sanction that a ratification by our Senate could give it, and is a recognition of an ‘Indian title in the Osages to nearly all the territory now embraced in the State of Missouri, and the greater part of Arkansas; and of an Osage right to the land claimed by Reddick up to November, 1808; and yet the county and town of St. Louis, the seat of government in Upper-Louisiana during the existence of the Spanish colonial government there, the post'of New Madrid, the county, town, and post of St. Charles, —were all within the cession made by the Osages; and within which cession, lay a great mass, of Spanish orders of survey and grants, in regard to which this country has been legislating and adjudicating for nearly fifty years, without any one ever supposing that such concessions were affected by these loose Indian pretensions set üp to the country at a time when the concessions were made ; pretensions that the Spanish government notoriously disregarded, further" than "a cautious policy required. If permits to inhabit and cultivate were given in so many other instances, regardless of Indian claims, no reason exists why Honoré Tesson, could not lawfully improve the land in dispute under his .permit; and in view of this notorious state of facts, the treaty of 1804 with the Sacs and Foxes, by an additional article, declared that' nothing in that treaty ■contained should affect the claim of any individual (or individuals, if more than one) who had- obtained grants oinland from the Spanish government b.eyond the boundary lines of the country then ceded to the United States, on lands claimed by 'the Sacs and Foxes, but not ceded by that treaty; provided, that such grants had at any time been made known to the said Indian tribes, and recognized 'by them.' 'IPhat the large, valuable, and notorious '-improvements were made by Honoré, at a place where the-Sacs and Foxes themselves resided at the time, is a histbrical fact. He resided there as notoriously as they did. His claim to this property was transferred to Reddick, and was *524 'occupied for twenty-five years under Tesson and Reddick, and his heirs before the treaty of 1824 was made. It was held and improved by authority of the Spanish government, and claimed as individual property, to which the Indian right of .possession did not extend; of this the* Indians never complained, nor do they now complain; no half-breed owner and Indian descendant is defending this suit; it is defended by trespassers, showing no color of claim under the half-breeds, or any one else; shelter is' sought under the assumption that Honoré’s permit and inhabitation were neither known or recognized by the Sacs and Foxes, and that therefore, the additional, article of the «treaty of 1804, cannot protect the title of Reddick. We concur with the opinion of Mr. Attorney-General Grundy, in his report of 1839 .on Reddick’s title, to the Secretary of the Treasury, (Opinions of Attorney-Gen'., 1230.) that it must be presumed that the Indians both had knowledge and assented to Honoré’s claim; and we are furthermore of opinion, that the Indian tribes, and the half-breeds, who claim under them, must beheld to knowledge, and to consent, that Honoré took and held, rightful possessions, from the fact of his open and notorious actual occupancy,' and holding for himself, in their midst. This is the settled rule in other cases, and no reason is seen why it should not apply in this case. The reasons are quite as strong, and the rulé quite as necessary in its application here, as it was in the case of Landes v. Brant, ( 10 How. 375 ,) where we enforced the rule. We are therefore of opinion that the' supposed Indian right of occupancy did not affect the confirmation by Congress in this case, and that the remark of the recorder, “ If Indian rights extinguished,” was surplusage, and which remark Congress properly disregarded.

That-the confirmation of 1816 earned the title with it, if the confirmation was valid, has so often been decided by this court, that -it is- not open to discussion; nor is it disputed here on be;half of the defendants below. The confirming act of 1816, 'however, ordered, that a patent should issue according, to a survey afterwards to be made, in all cases' confirmed by the act. This has been done. The patent recites the necesshry facts to connect-the’ confirmation with the patent, and gives date to it by relation, as a legal title, from the 29th of April, 1816, accord-, ing-.to the boundaries set forth in the patent; and as this ruling covers all,the instructions that were given i,n the court -.below, and all such as were refused, we order that the judgment be affirmed.

Order, This .cause came on to-be heard on the transcript of the *525 record from the District Court of the United States.for the Southern District of Iowa and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said District Court in this cause be, and the same is hereby, affirmed with costs.