within the provisions of the act of the 3d March 1819, or of that of the 24th May, 1828, extending the former act to cases where patents have issued, or shall issue, or of the act of May, 1824, authorizing the correction of errors in the entry of lands.

The provisions of these acts do not seem to me to be applicable to the case of Mr. Hendricks. If the objection to the exercise of this power were derived merely from the use of the term "purchasers" in the several acts, it might be said, and perhaps with truth, that in a large sense of that term, but one which is recognised by law-writers, the Canadian volunteer, or his assignee, is a purchaser. The difficulty is more pervading. The provisions of these laws seem to contemplate exclusively entries made by purchasers, using that term in its limited sense, by directing the application of the money paid on the entry. Thus the act of 1819 declares that the purchaser shall be at liberty to withdraw the entry so erroneously made, and that the moneys which had been paid shall be applied to the purchase of other lands, &c., or credited in payment for other lands, &c. So the act of 1824 relates to the cases of purchasers at private sale, to those where payments have been made, where such payments have not been forfeited, where the purchasers have not taken the benefit of the act of 1821, for the relief of purchasers, &c., which was confined to money purchasers.

I had supposed for a moment that the provision in the act of 1824 which authorizes the correction of the error, "in all cases of an entry hereafter made of a tract of land not intended to be entered, by a mistake of the true numbers of the tract intended to be entered," &c. might have been extended to the case under consideration, but, on examining the patent, it appears to be dated in 1822, and pursuing the provisions to its close, it is found that it also looks to the correction of the error by a "transfer of the payment from the tract erroneously entered to that intended to be," &c.; thus showing in this provision, as well as in those which precede it, Congress had in view the correction of errors in entries made on purchases of which money was the consideration.

It is very probable that if such a case as that we are considering had been in the view of Congress, the provisions of these acts might have been extended to them, but, under the existing laws, I do not think that you are authorized to make the required correction.

I am,

&c.

JNO. MACPHERSON BERRIEN.

8

No. 41.-(Ops. Aty. Gen.; G. L. O. p. 63.)

A negro could not take a reservation under the Cherokee treaties of July, 1817, and February, 1819, although the husband of an Indian woman.

Reservations under those treaties are "clogged" by the condition of personal occupancy, and are not alienable. The title reverts to the United States on the removal of the reservee. The estate to be taken by children of a reservee is a remainder in fee, (not a reversion,) subject to the dower of the mother, and is liable to be defeated by the determination of the precedent estate, by removal of the reservee.

A survey of section 16, in fraud of said treaties, does not divest the title of the United States, and, consequently, does not give the State a right to select another section in lieu thereof. Where a part of section 16 is disposed of, the State is not bound to select the residue. If not so, may take equivalent on other sections.

The act of selection of a section in lieu of section 16, is that by which the tract becomes appropriated for school purposes.

The selection cannot put aside a valid pre-emption under act of 1829.

OFFICE OF THE ATTORNEY GENERAL U. S,

August 12, 1830. SIR: I have received and considered your communication of the 10th instant. The following is the first in the order of your inquiries :

"Is the claim of Peter Johnson, or of his assigns, to the reservation of section No. 16, valid in law, under the circumstances stated by Mr. Compton in his letter?"

According to the statement of Mr. Compton, certain persons who allege themselves to be the assignees of Peter Johnson, claim title to a part of this section, on the ground that it was surveyed for Peter Johnson as an Indian reservation, under the treaties between the United States and the Cherokees, of July, 1817, and of February, 1819. These treaties stipulate to give a reservation of six hundred and forty acres to each head of an Indian family residing on the east side of the Missisippi river, in which he shall have a life estate, with a reversion (remainder) in fee simple to the children of such family, and with a proviso, that if any of the heads of families for whom reservations may be made shall remove therefrom, the right shall revert to the United States.

In the statement to which I am referred, it is said that Peter Johnson is a negro slave; that his wife, though an Indian, is not believed to be a Cherokee; and that he has long since ceased to occupy the land, having removed from the part of the country in which it lies.

Upon these facts I should think it very clear that the claim of Peter Johnson's assignees could not be sustained. It would seem to me that his title was originally invalid, having been obtained by fraud; that the terms used in the treaties, "head of an Indian family," cannot apply to a negro slave, although married to an Indian woman; that it is void for this additional reason, if the fact be so, that his wife, though an Indian, is not a Cherokee, who alone were the beneficial objects of the treaties; and, finally, that, as the life estate of Peter Johnson, if it had been valid in its origin, was obviously unaccompanied by the power of alienation, because expressly clogged by the condition of personal occupancy of the premises, it will follow that whatever right he acquired reverted to the

United States by the express provisions of the treaty, on his removal. Your inquiry does not extend to the claim of the children of Johnson. It may, however, be proper to remark that the estate which they would have derived under the treaties, if their father and mother had been within the provisions of those compacts, would have been a remainder, not a reversion, as it is called in the treaty, in fee, to take effect after the death of the father, and subject to the dower of the mother, which would have been defeated by the determination of the precedent estate consequent upon the removal of Johnson from the land. This inquiry is not, however, important, so far as the assignees are concerned, who, according to the statement, are assignees of the life estate only.

Your next question is: "If that (Peter Johnson's) claim be not valid, can the commissioners of Jackson county be lawfully permitted to select any other section in lieu of section No. 16?”

I apprehend not: by the express provisions of the compact with Alabama, such alternate selection was only to be allowed when section No. 16, which was first set apart for the use of schools, had been "sold, granted, or disposed of." A survey made in fraud of the treaties referred to above by him who could derive no title under it, or who, if he did, has forfeited it by removal, does not divest the right of the United States, or take from them the power to grant the stipulated section in terms of the compact.

Your third question is: "If the claim be valid as to the part of section No. 16 which has been surveyed as an Indian reservation to Peter Johnson, is it lawful to make up the deficiency from any other section, requiring the part not surveyed or reserved to be detained as school fund for the township?"

I have already stated that I do not think this claim is a valid one. But if it were, the present inquiry must, it appears to me, be answered in the negative. The commissioners cannot, I apprehend, be compelled to receive any portion of section No. 16, unless the United States are in a condition to grant the whole. The terms used in the compact seem to be applicable to the section in its totality. If this is not so, I know nothing to prevent the commissioners from taking the equivalent of the lands, "granted, sold, or disposed of," from different sections, at their option, which was not, I think, within the contemplation of the parties to the compact.

You ask, finally, "if the selection of a section, or part of one, must be made from any other section than that specially reserved for school purposes, viz: No. 16; can it be lawfully done to the exclusion of a preemption right under the act of 29th May, 1830 ?"

Immediately after the passing of the act to which you have referred me, persons coming within its provisions had an inchoate pre-emption right to the land which they occupied, to the extent of a quarter section, which was capable of being perfected by entry and payment in terms of the act. But it was provided that this should not delay the sales of the public lands beyond the time appointed for that purpose in the President's proclamation; and the settler or occupant who wished to avail himself of its provisions, was required to do so before the day appointed for the commencement of the sales of land, including the tract or tracts on which the right of pre-emption was claimed. It was, moreover, declared

that the right of pre-emption should not extend to any land which is reserved by act of Congress, or by order of the President, or which may have been appropriated for any purpose whatever.

Here is the grant of a privilege, with the limitation of time within which it must be claimed, and a restriction of the object to which it shall extend; within these limits and restrictions it cannot, I apprehend, be interfered with by the claim in question. The section No. 16 is the only one which is specifically reserved for the use of schools. If that has "been sold, granted, or disposed of," the commissioners are at large within the township, or at any rate among the sections contiguous to No. 16, having, in this event, an alternative right of location on any section which they may select. But it is only by the act of selection, in terms of the compact, that the selected section becomes appropriated to the use of schools; and if, when this is about to be made, the inchoate right of the settler or occupant under the act of the 29th May, 1830, is in existence, and capable of being perfected according to the provisions of that act, I should believe that, to the extent of the right of such settler or occupant, the land would not be liable to selection for the use of schools. I am, &c.

JNO. MACPHERSON BERRIEN.

The SECRETARY of the Treasury.

No. 42.-(Ops. Aty. Gen.; G. L. O. p. 72.)

Relinquished and reverted lands not subject to pre-emption under act of 29th May, 1830. Where a first settler rented his improvement to another, the landlord, and not the tenant, is entitled to pre-emption.

The object of the law was to secure the improvement to the party making the expenditure. The privilege is granted to the two first actual settlers only.

Proof and entry may be made at any time, within the life of the act, of lands subject to private sale at its passage.

Claim not forfeited, although entered by a bona fide purchaser at private entry, without notice. Patent may issue for land thus sold if claim is not made within the year.

TREASURY DEPARTMENT, August 26, 1830.

SIR In reply to your several letters of the 3d, 6th and 12th instant, I would observe, that relinquished lands, or lands which have reverted to the United States for non-payment, are considered to be excluded from the operation of the act of the 29th May last, and are only liable to be entered upon the terms and by the persons particularly described by the act of the 31st March last.

The several other points contained in your letter are answered in the enclosed copy of the opinion of the Attorney General.

Respectfully,

S. D. INGHAM, Secretary of the Treasury.

The COMMISSIONER of the General Land Office.

ATTORNEY GENERAL'S OFFICE, August 23, 1830. SIR: I have to acknowledge the receipt of your letter of the 20th instant, and proceed to the consideration of the several questions which it proposes.

These inquiries arise under the "act to grant pre-emption rights to settlers on the public lands," passed on the 29th May, 1830, and the first is as follows:

"In cases where the first settler rented his improvements to another person, who is entitled to the right of pre-emption conferred by the act, the landlord or the tenant ?"

I am of the opinion that the right of pre-emption belongs to the landlord. That a lessee cannot dispute the title of his lessor, and that the possession of the former is to be considered the possession of the latter, are settled principles of law, founded in justice and policy. They seem to me to point very clearly to the conclusion which I have stated; and if the object of pre-emption laws be, as I suppose it is, to compensate the occupant for the labor and expense incurred in making his settlement, this consideration will lead us to the same result. This opinion is strengthened by the provision in the third section, which declares, "that all assignments and transfers of the right of pre-emption given by this act prior to the issuing of patents, shall be null and void."

Your second inquiry is in these words: "In cases where more than two persons are settled on the same quarter section, does the act confer a right of pre-emption on any beyond that number?"

I think not. The question seems to be satisfactorily answered by the second section of the act. It provides that "if two or more persons be settled upon the same quarter section, the same may be divided between the two first actual settlers," &c.; and further declares that "the said settlers shall each be entitled to a pre-emption of eighty acres of land elsewhere," &c.

Thus, the act manifestly considers "the two first actual settlers" as the only persons entitled to pre-emption rights, divides the quarter section exclusively between them, and provides for them alone, an alternate location, to make up the deficiency which has been incurred by the division. The question relates to pre-emptive rights, derived from this act, and from no other source; and the answer is, that these are terms limited to the two first actual settlers. None others are provided for.

The three remaining questions may be most advantageously considered in connexion. It is difficult to form a satisfactory opinion concerning them. They are as follows:

"Does the act confer upon the pre-emptioner such an unqualified right to the land occupied as to preclude the entry and purchase of it by any other person, while the act continues in force; or would it be lawful to require him to give notice of his claim at any reasonable time before the expiration of the act?

"When application is made by any person not claiming a pre-emption right to enter and purchase land, is it lawful for the land officers to permit the entry, and receive the purchase money, without first ascertaining whether there may be a settler on the land entitled to pre-emption?"