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Claims under Indian Treaties.
EXTRACT FROM THE GENERAL REGULATIONS IN RELA
TION TO THE EXECUTION OF INDIAN CONVEYANCES.
“The deed must not only be acknowledged before a justice of the peace or other officer authorized by the laws of the State or Territory to take the acknowledgment of deeds or other instruments of writing, but such officer must certify that he made known to the grantor the contents of the deed, and explained to him its purport and meaning, and that he freely acknowledged the signing, sealing and execution thereof, and was satisfied and content with the consideration paid, or secured to be paid therefor, and that he executed the said deed, and made the acknowledgment of the same, without any circumvention or undue persuasion of the grantee, or any other person or persons whomsoever. Annexed to such acknowledgment must be a certificate of the clerk of some court of record of the proper county,
The following sections from the Act of June 30, 1834, to regulate intercourse with Indian tribes, relate to Indian lands :
Sec. 10. And be it further enacted, That the superintendent of Indian affairs, and Indian agents, and sub-agents, shall have authority to remove from the Indian country all persons found therein, contrary to law; and the President of the United States is authorized to direct the military force to be employed in such removal.
Sec. 11. And be it further enacted, That if any person shall make a settlement on any lands belonging, secured, or granted by treaty with the United States to any Indian tribe, or shall survey, or shall attempt to survey such lands, or designate any of the boundaries by marking trees, or otherwise, such offender shall forfeit and pay the sum of one thousand dollars. And it shall, moreover, be lawful for the President of the United States to take such measures, and to employ such military force as he may judge necessary, to remove from the lands as aforesaid, any such person as aforesaid.
Sec. 12. And be it further enacted, That no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation, or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty, or convention entered into, pursuant to the Constitution. And if any person, not employed under the authority of the United States, shall attempt to negotiate such treaty or convention, directly or indirectly, to treat with any such nation, or tribe of Indians, for the title or purchase of any lands by them held or claimed, such persons shall forfeit and pay one thousand dollars : Provided nevertheless, That it shall be lawful for the agent or agents of any State who may be present at any treaty held with Indians, under the authority of the United States, in the presence and with the approbation of the Commissioner or Commissioners of the United States, appointed to hold the same, to propose to and adjust with the Indians, the compensation to be made for their claim to lands within such State, which shall be extinguished by treaty.
A grant made by an Indian tribe northwest of the Ohio, in 1773 and 1775, to private individuals, does not confer a valid title which the courts of the United States will recognize or sustain.—Johnson and Graham's Lessee v. M Intosh, 8 Wheaton, 543; 5 Condensed Reports, 503.
The Indian title to their lands in Florida, and the rights and practices of the crown
authenticated with the seal of said court, that the magistrate or other officer before whom such acknowledgment shall have been duly taken, was, at the time, duly commissioned and qualified, and authorized, under the laws of the State or Territory, to take the acknowledgment of deeds and other instruments of writing.
“ The deed must be accompanied with a certificate of the Superintendent of Indian Affairs, or the Indian agent, if the facts are within his personal knowledge, of the precise consideration paid or secured to be paid, whether in money or other property, with sums, dates, and such other incidental matters connected therewith, as will show the true character of the contract and transactions; also, if the grantor is the individual for whom the reservation was made, and is capable of taking care of, and properly managing his property, and that the consideration is a full and fair price for the lands intended to be conveyed; or, if the facts should not be within the personal knowledge of the agent, then the affidavit of some disinterested and credible person known to him, who possesses such knowledge, and who has not acted as agent of either of the parties, must be forwarded.”
of Spain in reference thereto, examined.-Mitchell v. United States, 9 Peters, 711; 11 Condensed Reports, 539.
Entries and grants of lands within the Indian Territory of North Carolina, are void by the laws of that State, though the State had the power to grant the fee, subject to the Indian right of occupancy.--Lattimer's Lessee v. Poteet, 14 Peters, 4; 13 Condensed Reports, 306.
A grant of land in the possession of the Indians, by the Spanish authorities in Florida, passed the title of the crown, and made a title to the land, subject only to the Indian title. Such a title is valid as against the United States, under the treaty of cession of February 22, 1819. (8 Stats. at Large, 252.)— United States v. Fer
A supplemental article to a treaty of cession of land with a tribe of Indians, reciting: that a certain quantity of land had been granted by the tribe to certain persons, and stipulating that those persons should have their right to the said land reserved for them, and their heirs and assigns forever, to be laid off in the southeast corner of the lands ceded, gave a fee simple to the persons named, and their grantee has a perfect title.—United States v. Brooks, 10 Howard, 42; 18 Condensed Reports, 445.
Under the treaty between the United States and the Creek tribe of Indians, of March 24, 1832, (7 Stats. at Large, 366,) it was held : 1st. That the twenty sections of land to be selected by the President for the orphan children of the tribe, were not to be taken from the lands reserved for the tribe by the preceding stipulations of the treaty. 2d. That a grandmother, with whom some of her grandchildren resided, was the head of a family, and entitled to a half section of land, as such.-- Ladiga v. Roland, 2 Howard, 381; 15 Condensed Reports, 211.
The Act of June 30, 1834, (4 Stats. at Large, 740,) vested the ultimate title of the United States to the reservation therein described, in the half-breeds of the Sac and Fox Indians, and this title must prevail against a subsequent patent, unless those claiming under the patent can show that it issued pursuant to some better title than that under the Act of Congress ; of this, the recitals in the patent are not competent evidence.—Marsh v. Brooks, 8 Howard, 223; 17 Condensed Reports, 565.
The treaty of 1804, (7 Stats. at Large, 84,) between the United States and Sac and Fox Indians, protected the title of a settler on the Indian lands, under a Spanish permit, who, at the date of the treaty, had had open and notorious occupation of the land for such a length of time as to raise a presumption that the Indians had notice of the claim at the date of the treaty.--Marsh v. Brooks, 14 Howard, 513; 20 Condensed Reports, 310.
By treaty between the United States and several tribes of Indians, in the Territory of Kansas, the latter ceded certain lands to the United States, on condition that a part of the same should be held in trust by the United States, to be sold at public auction for the benefit of such Indians.
No. 638. Circular to the United States Registers and Receivers in Mississippi, Louisiana, Alabama and Arkansas.
GENERAL LAND OFFICE,
June 7, 1847. Gentlemen :-After an examination of the instructions from this Office of the 22d of April, 20th November, 1845, 16th February and 24th July, 1846, and of the proceedings at the local offices, in the reception of certificates of Choctaw Indian claims, I am of opinion that, instead of said certificates being treated virtually as cash in the payment of lands, they should be regarded as liable to location only. The Secretary of the Treasury concurring in this view of the matter, it is hereby ordered:
1st. That hereafter the aforesaid Choctaw certificates are to be satisfied by location, and such certificates are no longer to be treated as money.
When assigned however to a pre-emptor, they may be located on the tract to which his claim may be fully established.
In all other cases the certificates must be confined in the location to lands 66 subject to entry at private sale” at the usual minimum of $1 25 per acre, and no selection must be admitted on any lands reserved, or withdrawn from market for any purpose.
2d. The application for the land selected in satisfaction of a certificate must be endorsed on the certificate, dated and signed by the party owning it, and if before the expiration of thirty days from the date of selection, no pre-emption declaration is filed, and no valid adverse claim appears, the Register will append, under the application, his certificate that the location is correct.
3d. The proceedings are to be altogether distinct and separate from the
Afterwards, by Act of Congress, all the lands in the Territory, to which the Indian title had been extinguished, were made subject to the laws of pre-emption.
Held, that the provision does not include the lands thus reserved by the treaties for public sale for the benefit of the Indians.-(Opinion of Attorney-General, August 12, 1854, vol. 6, p. 658.)
Relation of Indians to citizenship.
Indians are not citizens of the United States, but domestic subjects.—(Opinion, July 5, 1856, vol. 7, p. 746.)
The general statutes of naturalization do not apply to Indians; but they may be naturalized by special act of Congress, or by treaty.-16.
Indians are not capable of pre-empting the public lands of the United States.-Ib.
Half-breed Indians are to be treated as Indians in all respects so long they retain their tribal relations.--16.
Indians and half-breed Indians do not become citizens of the United States by being declared electors by any one of the States.-16.
Query, whether half-breed Indians may become citizens by voluntarily leaving their tribal connection, and without any special provision of law in their behalf.- 1b.
A treaty with the Indians, extinguishing their title to land, takes effect as to third parties, that is, pre-emptors, town occupants, &c., from and after its ratification.(Commissioner's letter to Register and Receiver, Omaha, Nebraska Territory, February 10, 1857.)
As between the United States and the Indian tribes, the treaties by which Indian lands were ceded to the United States took effect, as expressed by the AttorneyGeneral in his opinion of 12th August, 1854, "from the day on which they were respectively concluded and signed," and the Indian titles were at those periods extinguished. But such treaties did not take effect, so as to confer rights upon third parties until after the ratification thereof, and hence the lands so ceded to the United States were not pre-emptible till after that time.-(Commissioner's letter to Messrs. Headly and Carr, at Atchison, Kansas Territory, November 4, 1857.)
sales--no patent, certificate nor receipt to be issued, and no commissions will consequently hereafter be allowed on this business.
The patents will be based upon the surrendered Choctaw certificates where the locations endorsed thereon are found to be regular and the papers complete.
4th. At the end of each month succeeding the consummation of one or more locations by Choctaw certificates, the Register will make a separate return to the General Land Office of said certificates, with all the requisite evidence of transfer and location, and of pre-emption, where such cases occur, accompanied by a monthly abstract in the form C, herewith.
You are, therefore, requested to consider the instructions heretofore issued as modified, accordingly, and will be pleased to acknowledge the receipt of this circular.
FORM C, No. 1. Register's Monthly Return of Locations consummated at the Land Office at for
the month ending , in virtue of Choctaw Indian Certificates, issued under the Act of 23d August, 1842, (United States Stats. at Large, vol. 5, p. 513, ch. 187.)
Designation of tract located in satisfaction of Choctaw Certificate.
Circular to the United States Land Officers in Mississippi, Louisiana, Alabama and Arkansas.
GENERAL LAND OFFICE,
August 19, 1847. Gentlemen :-By the 3d article of the circular dated 7th June, 1847, providing for the location of Choctaw certificates, the proceedings are required to be “altogether distinct and separate from the sales, no patent certificate nor receipt to be issued,” &c.
This rule relates to the proceedings requisite to satisfy by location the area of the Choctaw certificate. But as the pre-emption law grants a claimant the right to a “ quarter-section, although its contents may be greater than one hundred and sixty acres, it is deemed proper, on mature consideration of the matter, that, when a pre-emptor applies to locate such a 6 quarter-section,” the excess should be paid for in money, and it is hereby ordered accordingly.
The like course will be pursued in the location of tracts not claimed by pre-emption, when they exceed the area of the certificates, provided said tracts are subject to entry at private sale at $1 25 per acre.
In such cases the Receiver will issue his receipt for — dollars, in full for acres of the
quarter of section - township , range , being an excess in said quarter over the area located by virtue of Choctaw certificate No. — , in favor of
giving the Choctaw's name,) which receipt he will number and account for as usual, but no certificate of purchase corresponding in number will be issued by the Register for the excess, the transaction being sufficiently identified by his certificate of location.
The Register will observe the following forms in the location of said certificates :
I, A. B., of county, State of , assignee of giving the Choctaw's name] do on this day - - apply to locate the within Choctaw certificate No. on the - -, containing acres, in full satisfaction of the same.
A. B. After the expiration of thirty days, if no valid adverse claim appears, the Register will consummate the location by a certificate in the following form : I hereby certify that the within Choctaw certificate is located on the
as above applied for and agreeably to the acts under which it was issued.
In cases where there is an excess paid for, the Register will add to this certificate : that the - - acres in said tract, exceeding the area of the Choctaw certificate, are fully paid for per Receiver's receipt, No. —
No. 639. Circular relative to the location of half-breed Dacotah or Sioux scrip, issued under the Act of Congress, approved July 17, 1854. (No. 243.)
General LAND OFFICE,
March 21, 1857. Gentlemen :--The Commissioner of Indian affairs, by letter of the 25th ultimo, has advised this Office that scrip has been prepared for six hundred and forty persons, as Dacotah or Sioux half-breeds or mixed-bloods, under the Act of Congress of July 17, 1854, above mentioned ; that five pieces of scrip will be issued to each person, as follows; two for forty acres each; one for eighty acres, and two for one hundred and sixty acres each, making an aggregate for each one of four hundred and eighty acres, desig. nated thus, for example, in the first case : No. 1 A, forty acres; No. 1 B, forty acres; No. 1 C, eighty acres ; No. 1 D, one hundred and sixty acres; No. 1 E, one hundred and sixty acres. Blank forms of these five pieces are sent herewith, for your information, so that you may have a proper idea of the original pieces of scrip when they are presented for location.
This scrip, as declared on its face, is locatable upon the following described classes of lands, viz :
Upon the Sioux half-breed reservation, which is situated wholly in the two land districts of Red Wing and Faribault, in Minnesota ; that portion of said reserve situated in the former being in townships 111 to 113, inclusive, ranges 10 to 15 west ; that in the latter being in townships 108 to 110, ranges 9 to 15.
1st. The scrip may be located by the half-breed, upon any land within this reserve upon which, at the date of the Act of July 17, 1854, he was an actual bona fide settler.
2d. Upon any land within said reservation which, at the date of said Act, was not so occupied by a half-breed, or any other person who may have gone into said reservation under authority of law.