US SUPREME COURT DECISIONS

By a treaty made between the United States and the Creek tribe of Indians, east of the Mississippi River, on 24 March, 1832, it was stipulated.

1. That ninety principal chiefs of the tribe should be allowed to select one section each. chanrobles.com-red

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2. That every other head of a Creek family should be allowed to select one-half-section each, and that these tracts should be reserved from sale, for their use, for the term of five years, unless sooner disposed of by them.

3. That twenty selections should be made, under the direction of the President, for the orphan children of the Creeks, and divided and retained or sold for their benefit as the President should direct.

In making the selections for the orphan children, the President had no authority under the treaty to choose any land embraced by the two preceding clauses. A grandmother, living with her grandchildren, was the head of a Creek family, and had a right to make a selection, and the sale of her selection under the authority of the President was a nullity.

On the 24 March, 1832, a treaty was made between the United States and the Creek tribe of Indians, east of the Mississippi River.

The articles of this treaty which bear upon the present case are as follows:

"Article I. The Creek tribe of Indians cede to the United States all their lands east of the Mississippi River."

"Art. II. The United States engages to survey the said land as soon as the same can be conveniently done after the ratification of this treaty, and when the same is surveyed to allow ninety principal chiefs of the Creek tribe to select one section each, and every other head of a Creek family to select one-half-section each, which tracts shall be reserved from sale for their use for a term of five years, unless sooner disposed of by them. A census of these persons shall be taken under the direction of the President, and the selections shall be made so as to include the improvements of each person within his selection if the same can be so made, and if not then all the persons belonging to the same town, entitled to selections, and who cannot make the same, so as to include their improvements, shall take them in one body in a proper form. And twenty selections shall be selected under the direction of the President for the orphan children of the Creeks and divided and retained or sold for their benefit as the President may direct. Provided however that no selection or locations under this treaty shall be so made as to include the agency reserve."

"Art. III. These tracts may be conveyed by the persons selecting the same to any other person for a fair consideration in such manner as the President may direct. The contract shall be certified by some person appointed for that purpose by the President, but shall not be

Page 43 U. S. 583

valid till the President approves the same. A title shall be given by the United States on the completion of the payment."

"Art. IV. At the end of five years, all the Creeks entitled to these selections and desirous of remaining shall receive patents therefor in fee simple from the United States."

"Art. V. All intruders upon the country hereby ceded shall be removed therefrom in the same manner as intruders may be removed by law from other public land until the country is surveyed and the selections made, excepting, however, from this provision those white persons who have made their own improvements and not expelled the Creeks from theirs. Such persons may remain till their crops are gathered. After the country is surveyed and the selections made, this article shall not operate upon that part of it not included in such selections. But intruders shall, in the manner before described, be removed from the selections for the term of five years from the ratification of this treaty or until the same are conveyed to white persons."

"Art. VI. Twenty-nine sections in addition to the foregoing may be located, and patents for the same shall then issue to those persons, being Creeks, to whom the same may be assigned by the Creek tribe."

"Art. XV. This treaty shall be obligatory to the contracting parties as soon as the same shall be ratified by the United States."

Sally Ladiga claimed to be the head of a Creek Indian family, and as such entitled to a reservation of land. Being ejected, she brought an action of trespass quare clausum fregit to try her title, in the Circuit Court of Benton county, State of Alabama, and recovered. But the case having been carried to the Supreme Court of Alabama, the judgment was reversed. Upon the certificate of the supreme court being produced in the circuit court, on the second trial, judgment was given for the defendant, which judgment was subsequently affirmed in the supreme court of the state.

To review this judgment the present writ of error was brought.

The facts of the case and ruling of the court are set forth in the following bill of exceptions.

"Be it remembered that upon the trial of the above entitled cause the plaintiff claimed title to the land in controversy under and by virtue of the treaty made and concluded between the United States of America and the Creek tribe of Indians east of the Mississippi River on 24 March, A.D. 1832, the plaintiff introduced the following witnesses, viz.: Chr. A. Green, John Goodwyn, Horatio

Page 43 U. S. 584

Griffin, Benjamin Pope, Thomas C. Henderson, John Boyd, Thomas E. Montgomery, and Matthew M. Houston, by whom she proved substantially the following facts: "

"1. That said plaintiff, at the date of treaty aforesaid, to-wit, on 24 March, 1832, and long anterior to that period, and from thence to the present time, was and is the head of the Creek Indian family residing in and having an improvement upon the E half of section 2, township 14, range 8 E &c., in the district of land subject to sale at Mardisville, in the State of Alabama, which land is situate in Benton County, and is the same sued for in this action."

"2. That the said land at the commencement of this suit and ever since has been and is worth three thousand dollars and more. That the rents and profits of the same since the institution of this suit have been worth more than two thousand dollars. That the rents and profits have been received by defendants, who had the possession of said land at and before the commencement of this suit, and from thence until the present time."

"3. It was further proved by said witnesses that at no time was there any other Indian improvement on the said land, and that the improvement and residence of the plaintiff alone was embraced in said half-section by the legal lines of survey, and that plaintiff had lived there for many years and raised a numerous family of children."

"4. It was further proved by the production of the census roll taken by order of the government of the United States of the heads of families of the Creek tribe, in conformity with the second article of the treaty aforesaid, that the plaintiff was duly enrolled by the agent of the United States charged with this duty, as one of the heads of families belonging to the said Creek tribe, and as entitled to land under said treaty, her identity being shown by the witnesses."

"5. That in 1834, the government, by agents charged with this duty, located the Indians. That the formula of location, as practiced by said agent, consisted in calling the Indians belonging to the respective Indian towns together, and in the presence of the chiefs and head men in the town, the agent would call over the names registered by the enrolling agent as being the heads of families in that town. That the persons whose names were so registered would appear and answer to their names and their identity and residence and also their improvements, would be proved &c., pointed out by the chiefs and head men so assembled, and the agent would then designate by figures and letters, the land opposite the name of each reservee

Page 43 U. S. 585

on said census roll, to which he supposed them entitled under the treaty."

"6. That upon the agent's coming into the Tallasahatchee Town of Indians for the purpose of making the locations aforesaid, the plaintiff appeared before him, and being identified as the same whose name was enrolled on the census list of said town, claimed the land in dispute, on which her improvement, at the date of the treaty aforesaid, was situated, and which she then informed him she had selected as her reservation -- there being no other improvement, location, or conflicting claim thereto at that time. That the deputy locating agent who located the town to which she belonged, not regarding her the head of a family by reason of her children's having married and left her and none but orphan grandchildren residing with her, refused to recognize her rights under the treaty or set apart the land so by her selected opposite her name on the roll, as in other cases. That from the date of the treaty aforesaid until the year 1867, she made continual and repeated applications to the government officers to assert her rights to said land, and through them to the government itself, until, in 1837, she was forced to leave the country and emigrate to Arkansas by the armed troops in the employ and under the directions of the government. That she never had abandoned her claim, but insisted on her right under the treaty, to enforce which this action was brought. M. M. Houston, who was the locating agent, testified as to the reasons which induced him to refuse a recognition of plaintiff's right."

"The defendant then introduced a patent or grant from the United States, signed by the President, Martin Van Buren, dated 21 December, 1837, which, after reciting that by virtue of the treaty aforesaid of 24 March, 1832, between the United States and Creek tribe of Indians, the United States agreed that twenty sections of land should be selected, under the direction of the President, for the orphan children of said tribe and divided and retained or sold for their benefit, as the President might direct, and that the President, in making such selection, had included section 2, township 14, range 8 east, and divided the same into quarter sections, and said tract having been sold pursuant to instructions, Canton, Smith, and Heifner had become the purchasers of the southeast quarter of said section, which purchase had been sanctioned and approved by the President on 3 November, 1836 -- gave and granted to said Canton, Smith, and Heifner, the said southeast quarter, to them, their

Page 43 U. S. 586

heirs &c., forever as tenants in common, and not as joint tenants, which grant, being properly attested, was read to the jury. Another patent or grant from the government of the United States, similar in all its form to that above named and containing like recitals, bearing the same date and properly authenticated, conveying the northeast quarter of said section to Richard de Marcus Roland, was offered and read to the jury. And this being all the testimony, the plaintiff's counsel asked the court to charge the jury as follows: "

"1. That if they believed from the evidence that the defendants were in possession of the land sued for at the institution of this suit and continued to hold the same adversely, receiving the rents and profits thereof, and that if from the evidence the jury were further satisfied that the plaintiff, at the date of the treaty made and concluded at the City of Washington between the United States of America and the Creek tribe of Indians east of the Mississippi River, to-wit, on 24 March, 1832, was the head of a Creek Indian family, and that the United States enrolled her name under the provisions of the treaty aforesaid, requiring a census to be taken &c., as the head of a Creek family, and that said plaintiff, before and at the time of the ratification of said treaty and from thence until she was forced to leave the country by the United States, possessed said lands sued for, having an improvement and residence upon the same, and if the jury believe from the testimony that said plaintiff did select the said half-section, including her improvement, and that such selection was so made without conflicting with the rights of any other Indian or the rights or duties of the government reserved, secured, or prescribed by the treaty aforesaid, and if the proper officers of the government were duly notified of such selection by the said plaintiff, and that she had never forfeited her rights by a voluntary abandonment of the lands sued for, but had been compelled by force or coercion on the part of the United States to emigrate from the country and leave the land, then the plaintiff is entitled to recover in this action."

"2. The plaintiff asked the further charge that under the second article of the said Creek treaty of 24 March, 1832, each head of a Creek Indian family, after the land ceded by said treaty had been surveyed, was entitled to select a half-section of land so as to include their improvement if the same could be made, and if the jury believed from the proof that the plaintiff was the head of a Creek family and entitled to a selection under the treaty, and that

Page 43 U. S. 587

after such survey she could select and did select the half-section in dispute, and in a reasonable time notified the government of such selection, and had never voluntarily abandoned said land, then plaintiff in such case acquired a vested right to said land, inchoate but sufficient under the laws of this state, coupled with possession, to maintain this action, and that such right could not be defeated by the subsequent disposition of the same by the United States to the defendants."

"3. The plaintiff asked the court further to charge the jury that if the plaintiff was entitled to select a half-section of land, under the treaty aforesaid, as the head of a Creek family, duly enrolled as such, and the selection could have been so made and was so made as to include her improvement within the selection, that in such case the treaty itself located the plaintiff, and if the government, with a knowledge of such selection and location, exposed the land to sale or reserved it for other purposes, such sale or disposition could not prejudice the right of the plaintiff. All which charges the court refused to give, and in lieu of them charged the jury:"

" That notwithstanding the plaintiff was the head of a Creek family, duly enrolled as such by the authorized agent of the government and entitled to select a half-section under the second article of the Treaty of 24 March, 1832, and that although, after the land ceded by the treaty aforesaid had been surveyed, she could have selected and did select, the half-section in dispute, which included her improvement and of which selection she duly notified the government, yet the refusal of the locating agent to recognize her right and to set apart the land by a designation of it opposite her name upon the roll, as in other cases of location, coupled with the subsequent sale and grants of the same land to the defendants by the United States, whether right or wrong, divested the plaintiff of all right to said land and vested in the defendants in this action titles paramount which the plaintiff could not gainsay or dispute. To which refusals of the court to give the charges asked by the plaintiff, and to the charge given in lieu of them by the court the plaintiff excepts, and now here tenders this bill of exceptions, which is signed and sealed by the court, and ordered to be made a part of the record of this cause, which is accordingly done."

This opinion of the court of Benton county being, as has been said, affirmed by the Supreme Court of the State of Alabama, the present writ of error was brought to review it. chanrobles.com-red

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