The acts of assembly of North Carolina, passed between the years
1783 and 1789, invalidate all entries, surveys and grants of land
within the Indian territory which now forms a part of the territory
of the State of Tennessee. But they do not avoid entries commencing
without the Indian boundary and running into it so far as respects
that portion of the land situate without their territory.
The act of North Carolina of 1784 authorizing the removing of
warrants which had been located upon lands previously taken up, so
as to place them upon vacant lands, did not repeal, by implication,
the previously existing laws, which prohibited surveys of land
within the Indian boundary. The lands to which such removals are
made must be lands previously subjected to entry and survey.
Page 22 U. S. 674
MR. JUSTICE JOHNSON delivered the opinion of the Court.
This is one of those cases which not unfrequently occur in
which, for want of the scrutinizing eye of the party interested to
maintain a judgment below, the court there is made to appear to
have given a decision very different from that actually rendered.
But whatever may be the opinion of this Court independently of the
record, we are concluded by the bill of exceptions, and must decide
according to those questions which the record presents.
The parties are citizens of the same state, but jurisdiction is
given to the courts of the United States by the fact of their
claiming title to the land in controversy under grants from
different states, to-wit, the states of North Carolina and
The facts stated in the bill of exceptions, taken in connection
with the laws of the two states and public treaties, sufficiently
exhibit to this Court that the grant from the State of North
Carolina under which the plaintiff made title, although commencing
in and embracing a tract of country over which the Indian title had
been extinguished, yet extended into and included a large body of
land over which the Indian title existed at the time of the survey,
but has since been extinguished. Had the case, then, set forth that
the land covered by the defendant's grant lay within the country
which was subject to the Indian title at the time of Danforth's
grant and bore date subsequent to the extinguishment of the Indian
title, it would
Page 22 U. S. 675
probably have exhibited a true view of the case which the court
below was called on to decide.
But so far from exhibiting this state of the case, the facts
admitted not only do not confine the controversy to the tract of
country that lay within the Indian boundary, but, taken in their
literal meaning, expressly admit the contrary.
The words of the admission are, "that the defendant was in
possession of the land claimed by the plaintiff." And when we come
to inquire what land the plaintiff claims in the suit, we find it
to be the whole 100,000 acres,
"the beginning corner of which, and a portion of the land
covered thereby, lay in a tract of country to which the Indian
title had been extinguished prior to making the survey and issuing
Here, then, we have the parties, contrary to all the probable
truth of the case, contending about a title to land lying without
the Indian boundary at the time it was surveyed for the plaintiff
But we must take the case as we find it on the record and decide
It appears, then, that the plaintiff's grant was rejected in the
court below, and not permitted to be read to the jury. This
rejection could only be sustained upon the ground that it was
wholly void or wholly inadmissible in that cause. For if the grant
was good but for an acre of the land claimed in the action, the
court could not have withheld it from the jury.
As to lands surveyed within the Indian boundary, this Court has
never hesitated to consider all
Page 22 U. S. 676
such surveys and grants as wholly void; but as the total
rejection of the grant, according to the case stated, goes to its
validity as to that part of the land also which lay without the
Indian boundary, there must be found some other ground for
sustaining the decision than that which invalidates surveys
executed in the Indian territory.
In the present case there can be but two such grounds supposed
to exist -- either that there was no law authorizing the survey in
any part of the land granted, although without the Indian boundary,
or that the whole was affected by the illegality of that part which
extended within that boundary.
It was in the first of these alternatives that the Court held
the case under advisement from the last term. In the case of
1 Wheat. 155, this Court threw out the
suggestion that a grant of land must have some sanction created by
statute. As relates to the present subject, it did not appear that
any law had been passed subsequent to the extinction of the Indian
title, by which this recent purchase was authorized to be taken up
But the Court, upon consideration, is satisfied that under the
laws and practice affecting the lands in question, the extension of
the county line subjected the lands purchased of the Indians, to
the general land laws of the state. By the 3d section of the act of
1777, entries are permitted within any county of the state, and the
creation of counties has always, in that state, been held
Page 22 U. S. 677
to bring the vacant lands within the county under the operation
of that act.
On the second alternative, it was contended in argument that the
survey was not in its inception invalid; that it was good as to
part because out of the Indian boundary, and as to the residue was
made good under the general provisions of the laws of North
Carolina in favor of removed warrants; that at most it was only
suspended by the Indian title, and attached legally and effectually
to the soil as soon as the interposing title of the Indians was
In the two cases of Preston v. Browder
decided in this Court in 1816, 1 Wheat.
14 U. S. 115
14 U. S. 155
inviolability of the Indian territory is fully recognized. It was
the law of the land, as adjudged in the case of Avery v.
decided in the North Carolina Court of Conference in
1802. Indeed, the State of North Carolina appears to have been
sedulous in her efforts to prevent encroachments upon the Indian
hunting grounds, and her laws are express and pointed in
invalidating entries and grants made within such reservations.
But the present grant commences in a tract of country over which
the Indian title was extinct, and whatever might be the state of
right were the beginning corner within that boundary and a portion
of the land beyond it, we see nothing in the laws of North Carolina
or Tennessee to avoid a grant in the whole when it commences
legally, and only covers in part the lands on which surveys are
prohibited. For that part, therefore, which
Page 22 U. S. 678
lies without the boundary the grant must be held valid, and this
alone entitles the plaintiff to a reversal. But as the cause must
be again tried below, and the question on its validity as to the
residue, as presented by the bill of exceptions, has been argued
fully and must arise again, we will now consider it.
The points made by the plaintiff's counsel are stated by himself
1. That the State of North Carolina had a right to issue the
grant in question, and the court erred in not suffering it to be
2. That the grant was good as to that part of the land to which
the Indian title was extinguished.
3. That the grant, being founded on a removed warrant, was good
for the whole land.
To the first and second of these positions we have expressed our
assent, and only the third remains to be disposed of.
This rests upon the sixth section of the Act of North Carolina
of 1784 entitled, "an act to prevent the issuing of grants,"
By this section the right is given to remove warrants which have
been located upon lands previously taken up, so as to place them
upon vacant lands, and the supposed operative words in the present
instance are these:
"shall be at full liberty to remove his or their warrants to any
other lands on which no entry or entries have been previously
specially located, and the surveyor or surveyors are hereby
authorized and required to survey and make return thereof in like
manner as for other returns and surveys as by law directed. "
Page 22 U. S. 679
Reference was had to the act of 1786 and the cession action the
same subject, but they add nothing to the provisions of the act of
The effort is to construe this act as virtually repealing the
previously existing laws that prohibit surveys of land within the
Indian boundary, and as opening the whole state to the right of
We are of opinion that there are several considerations which
repel this construction.
It is obvious that the lands to which such removals are
authorized must be lands previously subjected to entry and survey;
otherwise the absurdity occurs of a reservation in favor of entries
and surveys which the existing laws have declared to be
Again, "the surveyors are authorized and required to survey and
make return in like manner as for other surveys and returns is by
law directed." But does any law authorize or enjoin a survey of the
Indian country? or shall this act be construed to enjoin as a duty
that which an existing act prohibits under a penalty?
These considerations remove all doubt on the correct
construction of the law respecting removed warrants, but if doubts
did exist, the general policy and course of legislation of the
state would forbid such a construction. The purport of the law is
to authorize removals to that land only which might be at the time
legally entered and surveyed by other warrants.
Page 22 U. S. 680
We are of opinion that there is error in the judgment of the
court below in refusing to let the grant be read to the jury.