US SUPREME COURT DECISIONS

On the 22d of September, 1788, the tribe of Indians called the Foxes, situated on the west bank of the Mississippi, sold to Juien Dubuque a permit to work at the mine as long as he should please, and also sold and abandoned to him all the coast and the contents of the mine discovered by the wife of Peosta, so that no white man or Indian should make any pretension to it without the consent of Dubuque.

On the 22d of October, 1796, Dubuque presented a petition to the Baron de Carondelet for a grant of the land which he alleged that he had bought from the Fox Indians, who had subsequently assented to the erection of certain monuments for the purpose of designating the boundaries of the land.

The governor referred the petition to Andrew Todd, an Indian trader, who had received a license for the monopoly of the Indian trade, who reported that as to the land, nothing occurred to him why the governor should not grant it if he deemed it advisable to do so, provided Dubuque should be prohibited from trading with the Indians unless with Todd's consent in writing.

Upon this report the governor made an order, granted as asked, under the restrictions expressed in the information given by the merchant Andrew Todd.

This grant was not a complete title making the land private property, and therefore excepting it from what was conveyed to the United States by the Treaty of Paris of April 30, 1803.

The words of the grant from the Indians do not show any intention to sell more than a mining privilege, and even if the words were ambiguous, there are no extrinsic circumstances in the case to justify the belief that they intended to sell the land.

The governor, in his subsequent grant, intended only to confirm such rights as Dubuque had previously received from the Indians. The usual mode of granting land was not pursued. Dubuque obtained no order for a survey from Carondelet, nor could he have obtained one from his successor, Gayoso.

By the laws of Spain, the Indians had a right of occupancy, but they could not part with this right except in the mode pointed out by Spanish laws, and these laws and usages did not sanction such a grant as this from Carondelet to Dubuque.

Moreover, the grant included a large Indian village, which it is unreasonable to suppose that the Indians intended to sell.

This was an action brought by petition in the nature of an ejectment by Chouteau, a citizen of Missouri, to recover seven undivided eighteenth parts of a large body of land containing nearly one hundred and fifty thousand arpents, and including the whole City of Dubuque. Molony claimed under a patent from the United States. The documents upon which Chouteau's claim was founded are set forth in extenso in the opinion of the Court, and as that opinion refers to Mr. Gallatin's report, it may be proper to give a history of the claim so that his report may be introduced. A large portion of the argument in behalf of the plaintiff in error consisted of reasons to show that Mr. Gallatin was mistaken. The following is the history of the case as given by Mr. Cormick.

History of the Claim. In a case so free from doubt, the question arises why did Congress assume that Dubuque's title was worthless, and sell the land? chanrobles.com-red

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The answer to this question is Mr. Gallatin, while Secretary of the Treasury, became prejudiced against the land titles of Upper Louisiana, and so much prejudiced against this particular title that he construed it with reference not to the grant itself, but to his preexisting prejudices; that he made a report adverse to the claim and utterly misdescribed the document upon which that claim is based; that Congressmen, when the question came up before them, referred, as was natural, to Mr. Gallatin's report to see what it said about the title, and finding it there described as the grant of a mere personal permission of occupancy, revocable at will, they naturally concluded it was a fraudulent effort to obtain property, which the claimants knew they had no right to.

On the 3d of November, 1804, a treaty was made by General William Henry Harrison, Governor of the Indiana territory, of which the present States of Missouri and Iowa were then a part, with the Sac and Fox Indians. An additional article was inserted to prevent the land granted to Dubuque from being considered as receded by the treaty. The Indians then acknowledged the validity of the grant. See 22 of Senate Doc. 350 of 1st Sess. 28th Cong.

On the 17th of May, 1805, Julien Dubuque and Auguste Chouteau, as his assignee of a portion of the land, jointly filed their claim.

On the 20th of September, 1806, a majority of the Board of commissioners, John B. C. Lucas, dissenting, pronounced the claim to be a complete Spanish grant, made and completed prior to the first day of October, 1800.

In 3 Green's Public Lands 588 will be found the translation of the title, which seems to have been the translation relied on by the Board, as well as by Mr. Gallatin. It is in the following words, namely:

(These documents are inserted in the opinion of Court with some change of phraseology. There was much controversy during the argument as to the proper translation.)

"On the 11th of April, 1810, the United States agent laid before the Board of commissioners, in pursuance of section 6 of Act of 2 March, 1805, 2 statutes at Large 328, a list of documents, which list embraces this claim, pertaining to lead mines and salt springs in the Territory of Louisiana. 3 Green's P.L. 603."

"In 1810, Mr. Gallatin, instead of reporting to Congress the action of the board relative to the claim, himself made an ex parte official report against it. 1 Clark's Land Laws, 958."

"On the 19th of December, 1811, the following entry was made on the minutes of the Board of commissioners, namely: "

" December 19th, 1811. Present, a full board. On a question's

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being put by John B. C. Lucas, commissioner, Clement B. Penrose and Frederick Bates, commissioners, declined giving an opinion. It is the opinion of John B. C. Lucas, commissioner, that the claim ought not to be confirmed."

"2 Green's P.L. 552."

The claimants were not parties to this last proceeding. It seems to have originated between the dissenting commissioner and the Secretary of the Treasury, who were under the impression that the sixth section of Act of 2 March, 1805, which required the government agent

"to examine into and investigate the titles and claims, if any there be, to the lead mines within the said district, to collect all the evidence within his power with respect to the claims and value of the said mines, and to lay the same before the commissioners, who shall make a special report thereof, with their opinions thereon, to the Secretary of the Treasury, to be by him laid before Congress,"

&c., thereby authorized the Board, by an ex parte proceeding, to reverse their own decision made more than five years before.

Dubuque continued in possession of the land till his death in 1810. During his life, he had exercised great influence over the neighboring Indians. But that influence had been much enhanced by the liberal presents he had made them. He died insolvent. That portion of the tract which he had not sold to Auguste Chouteau was sold after his death by order of court to pay his debts. In the meanwhile, the last war with England was approaching, and English emissaries were on the frontiers inciting the savages to hostilities against our people. Our government was not then, as it now is, sufficiently strong to protect the frontiers.

In the latter part of 1832, the claimants thought the time had come when they might safely attempt the enjoyment of their rights as the assignees of Dubuque to the profits which might be realized from the lead mineral contained in the land. They accordingly employed an agent to lease to miners the right to dig on the land for lead. On the 5th of January, 1833, the following order was issued by the Major General of the United States army:

(This was an order to remove the settlers by force.) See p. 28, Sen.Doc. 350, 1st Sess. 28th Cong.

In pursuance of this order, a military detachment was sent from Fort Crawford, and the claimants' tenants were driven off at the point of the bayonet and their dwellings burnt.

The claimants at that time all lived in the State of Missouri, mostly at St. Louis. One of them, on his own behalf and as agent for the others, went to Galena, in Illinois, to institute legal proceedings. He could not sue for the land because, after chanrobles.com-red

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Missouri had come into the Union as a state, there was no court which had jurisdiction of a suit brought for the recovery of the land. The federal government had in the meanwhile leased much of the land to lead diggers, and a considerable portion of the mineral dug on the land was taken to smelting furnaces at Galena to be converted into lead. But much of the mineral then smelted at Galena was from land not embraced in this grant. The agent for the claimants, in order to test the question of title, brought suit for a lot of mineral which had been brought to Galena. But he was not at the trial able to identify it, and a nonsuit was taken. The agent then came to Washington and petitioned for redress during many successive sessions of Congress. Certain citizens of Kentucky had in the meanwhile, by intermarriage and by inheritance, become interested in the claim, and on their own account presented a memorial in January, 1837. Several memorials were also presented to the executive. Various bills were reported for the relief of the claimants, some of which passed in one house, and were never reached in the other, and others were voted down in the house in which they originated.

An act of Congress was passed the 2d of July, 1836, for the laying off the towns of Fort Madison and Burlington, in the County of Des Moines, and the towns of Belleview, Dubuque, and Peru, in the County of Dubuque, Territory of Wisconsin, and for other purposes. The Towns of Dubuque and Peru, the lots of which were required by this act to be sold, are situated on the land embraced by the grant on which this suit is based. What is now the State of Iowa, constituted, on the 2d of July, 1836, a part of the Territory of Wisconsin.

On the 3d of March, 1837, an act amendatory of the foregoing was passed. The manner in which the town lots are to be sold is somewhat varied from the manner specified in Act of 2d of July, 1836, 5 Stat. 178, 179.

(Then followed an enumeration of the reports of committees in each branch of Congress, and the acts passed, under one of which Malony claimed title.)

Mr. Gallatin's report was a succinct statement of the facts in the case, upon which he made the following remarks:

"I. Governor Harrison's treaty adds no sanction to the claim; it is only a saving clause in favor of a claim, without deciding on its merits, a question which indeed he had no authority to decide."

"II. The form of the concession, if it shall be so called, is not that of a patent, or final grant, and that it was not considered as such, the commissioners knew, as they had previously received a list procured from the records at New Orleans, and

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transmitted by the Secretary of the Treasury, of all the patents issued under the French and Spanish governments, in which this was not included, and which also showed the distinction between concession and patent, or complete title."

"III. The form of the concession is not even that used when it was intended ultimately to grant the land, for it is then uniformly accompanied with an order to the proper officer to survey the land, on which survey being returned the patent issues."

"IV. The governor only grants as is asked; and nothing is asked but the peaceful possession of a tract of land on which the Indians had given a personal permission to work the lead mines as long as he should remain."

Upon the whole, this appears to have been a mere permission to work certain distant mines without any alienation of or intention to alienate the domain. Such permission might be revoked at will, and how it came to be considered as transferring the fee simple, or even as an incipient and incomplete title to the fee simple, cannot be understood.

It seems also that the commissioners ought note to have given to any person certificates of their proceeding, tending to give a color of title to claimants. They were by law directed to transmit to the Treasury a transcript of their decisions in order that the same might be laid before Congress for approbation or rejection.

On the trial of the cause in the district court, the plaintiff admitted that the defendant was a purchaser under the government of the United States, and that patents had been regularly issued to him for the land in question.

The defendant demurred, and specified the three following causes of demurrer, namely:

1. That, admitting all the facts stated in the petition to be true, the plaintiff is not entitled to recover.

2. That, as appears by the exhibits to said petition, the plaintiff claims under an unconfirmed Spanish title.

3. That it appears from the plaintiff's own showing that he rests his title on an incomplete Spanish grant, and that defendant is in possession under a complete title from the United States.

A judgment final was rendered by the court below in favor of the defendant on this demurrer. The assignments of error were:

"1. The said district court erred in deciding that the said petition of the said Henry Chouteau, and the matters therein contained, were not sufficient in law to maintain the said action of the said Henry Chouteau. "

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"2. The said district court erred in rendering judgment in favor of the said Patrick Molony against the said Henry Chouteau. "

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