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No. 651. Rules and regulations to be observed in the execution of conveyances of
lands which have been or shall be assigned in severalty to Indians within the Territory of Kansas, and for which patents shall be issued in conformity with the 11th section of the Act of Congress, entitled "An act making appropriations for sundry civil expenses of the Government, for the year ending the thirtieth of June, eighteen hundred and sixty," approved March 3, 1859, (No. 358.)
Individual Indian reserves are divided into two classes, those which are, and those which are not, included within the boundaries of a tribal reservation. The former are inalienable except to Indians by birth, members of the tribe to which the reservee belongs; the latter are alienable under the following conditions :
1. The deed or instrument of conveyance must be executed in the presence of two subscribing witnesses, and acknowledged before the agent, within the limits of whose agency the reservee resides, and, when presented for approval, must be accompanied by the following certificates, viz:
1st. A certificate signed by two of the chiefs of the tribe to which the reservee belongs, setting forth that the grantor is the identical individual to whom the land was originally granted, or his (or her) sole surviving heir; that he or she, as the case may be,) is competent to manage his (or her) affairs, and to dispose of his or her property, and that they think it advisable that the land should be sold. And in case the original reservee shall have died leaving more than one heir, the identity and competency of all such heirs must be set forth in the certificate.
2d. A certificate from the agent, for the tribe to which the reservee belongs, that the contents, purport, and effect of the deed of conveyance were explained to and fully understood by the grantor or grantors; that the consideration specified therein is a fair price for the land ; that the same has been paid to the grantor or grantors, in his presence, in gold or silver coin of the United States, and that the conveyance is in every respect free from fraud or deception.
2. Incompetents will be permitted to make sale of their land in the same manner as those of the competent class, except that their incompetency must be stated in the certificate of the chiefs, and the certificate of the agent must set forth that the purchase-money has been paid to him for the use of the grantor or grantors, and that he holds the same subject to the order of the Commissioner of Indian Affairs.
3. If the reservee does not reside within the bounds of an Indian agency, the deed of conveyance may be executed before a justice of the peace, or other officer having legal jurisdiction in the premises, whose official character must be properly authenticated. If the grantor or grantors should be known to such officer, he must certify that he (or she) is fully competent to dispose of his (or her) property, and manage his or her) business affairs; that the consideration specified was a fair price for the land at the date of the sale; that the same was paid to the grantor or grantors, in his presence, in gold or silver coin of the United States, and that the entire transaction is free from fraud or deception. If the aforesaid facts are not known to such officer, they must be verified by the affidavits of at least two credible persons who are cognizant of these facts, whose veracity must be certified by such officer, and the testimony and all papers pertaining to the conveyance, must be properly authenticated under the seal of a court of competent jurisdiction.
The value of the land described in the deed must be appraised by at least two disinterested persons of integrity and sound judgment, who, after a full inspection of the premises, will, under oath, set forth the market price thereof, and the character of such appraisers for veracity should be certified by a proper officer.
4. A diagram prepared by a competent surveyor, or an authenticated copy of the official plat of survey, indicating the land intended to be alienated, must be furnished for the use of the Indian Office.
5. No reseryee will be allowed to sell more than three-fourths of the land assigned to him (or her) under the treaty provisions, except in special cases, where circumstances to be determined by the Secretary of the Interior may seem to require a relaxation of the rule.
6. No sale or conveyance which does not substantially conform to the foregoing regulations, will receive the approval of the Department.
DEPARTMENT OF THE INTERIOR,
Office Indian Affairs, December 17, 1859. The foregoing rules and regulations, designed for the government of the respective parties in the execution of deeds of conveyance pertaining to the alienation of lands assigned in severalty to Indians within the Territory of Kansas, are respectfully submitted to the Secretary of the Interior, with a recommendation that the same may be approved.
A. B. GREENWOOD, Commissioner.
DEPARTMENT OF THE INTERIOR,
December 19, 1859. The aforesaid rules and regulations are hereby approved, as recommended by the Commissioner of Indian Affairs.
J. THOMPSON, Secretary.
No. 652. Neither a decree of the courts, nor the survey, nor the patent, in case of
lands held in California, under a Mexican grant, is conclusive on any body but the Government, and the patentee. The rights of third parties are expressly saved by the law.
September 29, 1859. Sir :-Certain citizens of Butler County, California, have sent in their petition to the General Land Office, praying that no patents be issued for the ranchos called “Flugge” and “Hernandez.' These were tracts of land in California, granted by the Mexican Government before the conquest. The grants were declared good by the Commissioners appointed
Where there was a grant of land in California, subject to the condition that the grantee should build a house upon it, and have it inhabited within a year from the date of the grant; and also, that he should obtain a judicial possession and measurement or. survey of it, the evidence shows sufficient reasons for a non-compliance on the part of the grantee.— United States v. Reading, 18 Howard, 1.
The court again decides, as in Fremont v. United States, 17 Howard, 560, that a mere omission to comply with these conditions would not necessarily amount to a forfeiture, unless there were circumstances which showed an intention to abandon the property.--16.
Although the title did not become definitive until the grant was approved by the departmental assembly, yet, immediate interest passed by the grant from the Governor, whose duty it was, (and not that of the grantee,) to submit the case to the departmental assembly, and if they should reject it, then to lay the case before the Supreme Government of the Republic.-16.
Where an imperfect Spanish title to land in Missouri was confirmed by the Commissioners, but the claim required a survey, to ascertain its limits and boundaries, evidence cannot be received, that the survey was erroneously made, by showing possession by the confirmee, of land in a different place than that where the survey placed his land._Stanford v. Taylor, 18 Howard, 409.
In the case of an imperfect Spanish title to land in Louisiana, a confirmation by Congress is inoperative, unless the title of survey under it will enable the court to ascertain the specific boundaries of the land. If, before the survey in such a case, an entry is made, and a patent taken out for land which conflicts with a subsequent survey of the confirmed concession, the patentee has the better title.—Ledon v. Black, 18 Howard, 473.
Where there was a grant of land in California, in 1843, with three boundaries, and the quantity stated, and in 1845, a new grant was made, which was approved by the departmental assembly, subject to the condition that within four months a map of the land should be made; this was a condition subsequent, the non-compliance with which did not work a forfeiture of the grant, but only left the land liable to be denounced.- United States v. Vaca, 18 Howard, 556.
Where there was a grant of land in California, made by the Governor to the Secreto investigate them. The same decree was made afterwards by the District Court. An appeal was taken to the Supreme Court but it was dismissed.
A person who claims land in California, under a title from Mexico, is entitled to have a patent for it issued out of the General Land Office here, whenever he shows that his claim has been finally confirmed, by the Commissioners, by the District Court, or by the Supreme Court, if he at the same time accompanies that proof with a survey, certified and approved by the Surveyor-General of California. The claims now under consideration have been finally confirmed, and the proper certificate of the Surveyor-General, has been produced. These proceedings are conclusive on you. They put the right of the claimants to a patent on grounds, which you have no authority or power to contest. The 13th section of the Act of March 3, 1851, is too plain to admit of dispute.
When the survey covers lands belonging to other persons, (as is alleged to be the case here,) their remedy is to petition the district judge, for an tary of the Government, and neither the petition nor the patent stated the quantity, but the concession and direction by the Governor to the proper officer, to issue the patent, limited the quantity to eleven square leagues; this concession and direction constitute a part of the evidence of title, and are sufficient to make a good grart for that amount.-- United States v. Larkin, 18 Howard, 557.
On the 26th November, 1835, the Governor of California gave an order that the petitioner should have a tract of land, without specifying the boundaries, which was done by an order having the formalities of a definitive title, on the 27th. This latter document must govern the case. The decree of 1824, and the regulations of 1828, forbid the colonization of territory comprehended within twenty leagues of the boundaries of any foreign State, and within ten leagues of the sea coast, without the consent of the supreme Executive power. This restriction did not prohibit grants of land within those limits, to natives of the country.- Arguello v. United States, 18 Howard, 539. See also, United States v. Cruz Cervantes, 18 Howard, 553.
Where a claimant of land in California produced documentary evidence in his favor, copied from the archives in the office of the Surveyor-General, and other original grants by Spanish officers, the presumption is in favor of the power of those officers to make the grants.-- United States v. Peralta, 19 Howard, 343.
1. The regulations for the colonization of the Territories of the Government of Mexico, made 21st November, 1828, in pursuance of the act of the general Congress, August 18, 1824: Provided, ist. That the governors of the territories should be empowered to grant vacant lands, among others, to private persons who may ask for them, for the purpose of cultivating and inhabiting the same. 2d. That every person soliciting lands shall address to the Governor a petition, expressing his name, country and religion, and describing, as distinctly as possible, by means of a map, the land asked for. 3d. The Governor shall proceed to obtain the necessary information, whether the petition contains the proper conditions required by the law of the 18th August, 1824, both as regards the land and the petitioner, in order that the application may be at once attended to; or if it be preferred, the municipal authority may be consulted whether there be any objection to the making of the grant. 4th. This being done, the Governor will accede or not to such petition, in conformity to the laws on the subject. 5th. The definitive grant asked for being made, a document, signed by the Governor, shall be given to serve as a title to the party interested, wherein it must be stated that the grant is made in exact conformity with the provisions of the law, in virtue of which possession shall be given. 6th. The necessary record shall be kept, in a book provided for the purpose, of all the petitions presented and grants made, with maps of the lands granted, and a circumstantial report shall be forwarded, quarterly, to the Supreme Government.- United States v. Combuston, 20 Howard, 59.
2. Where there was no evidence with respect to a grant of land in California, that any one of these preliminary steps had been taken, this court cannot confirm the claim.-Ib.
3. The decisions of this court in cases of claims to land in Louisiana and Florida, are not applicable where precise and recent regulations exist, directing the manner in which land shall be granted.-16.
injunction, and if he grants it, the patent will be stayed, until the injunction is dissolved. Nothing of the kind has been done. The patents must issue.
But neither the decree of the courts, nor the survey, nor the patent, is conclusive on any body but the Government and the patentee. The rights of third parties are expressly saved in the act of Congress. If therefore, there be any ground for the complaint made in the petition from Butler county, those who claim a title adverse to the patentees have still a chance to establish it in the proper courts of the State.
There is nothing in this case which authorizes me to interfere. The Attorney-General has a certain supervisory control over the investigation of these California land claims, while the contest upon them is between the United States and Mexican grantees. But his power is gone when the Government ceases to have an interest and private parties alone are concerned. I am, most respectfully yours, &c.,
J. S. BLACK. Hon. Jacob Thompson, Secretary of the Interior.
4. There are also strong grounds of suspicion with respect to the bona fides of the grant in question ; but as the claimant may not have had an opportunity of producing evidence in the court below, the case will be remanded to that court for further proceedings.- 1b.
5. As the Act of Congress passed on the 3d of March, 1851, does not specify the time within which an appeal must be made to this court from the district courts of California, the subject must be regulated by the general law respecting writs of error and appeals. Either party is at liberty, therefore, to appeal from such a decree, within five years from the time of its rendition. United States v. Pacheo, 20 Howard 261.
6. Under the sixty-third rule of this court, an appellee, in a case from California, may docket and dismiss according to that rule; but a new appeal may be taken at any time within five years, or it may be that the record may be filed by the appellant at the same term at which a certificate or record had been filed by the appellee, and the case dismissed.-16.
7. After a case has been thus docketed and dismissed at the instance of an appellee who is a claimant of land, if a patent should be taken out, it will still be subject to be reviewed by this court at any time within the five years above mentioned. Ib.
8. Where a petitioner files a claim to land in California, before the board of commissioners created by Congress, the intervention of rival claimants is a practice not to be encouraged.--United States v. Fossat, 20 Howard, 413.
9. Where there is no natural boundary or descriptive call for the termination of lines of a tract of land, and the quantity of land called for in the grant is “one league of the larger size, a little more or less," the survey must only include a league. The words “a little more or less” must be rejected.--I.
10. The grant is for one league of land, to be taken within the southern, western and eastern boundaries designated therein, and to be located at the election of the grantee or his assigns, under the restrictions established for the location and survey of private land claims in California by the executive department of this Government.--16.
The public authorities of California under the laws of Mexico, had power to make grants of mission lands.-- United States v. Ritchie, 17 Howard, 525 ; 21 Condensed Reports, 656.
The evidence is satisfactory that Alvarado, the Governor of California, granted a tract of land to the extent of eleven leagues, to John A. Sutter, in 1841. Although the original grant has not been produced, yet there is sufficient proof that it once existed and was destroyed by fire. A draft of the grant prepared by the Governor is found in the archives, and the grant was recorded in the county registry of deeds ; and this, together with the other evidence in the case, shows that it was genuine, and also the maps which accompanied it. Although the map was incorrect in its lines of latitude, yet it can be located by reference to natural objects. But another grant purporting to be issued by Micheltorena in 1845, for the surplus of the former grant, being an additional quantity of twenty-two leagues, does not stand in the