This Court decided, in
49 U. S. 8 How.
223, that the recitals in a patent for land referring to titles of
anterior date were not of themselves sufficient to establish the
titles thus recited.
Page 55 U. S. 514
The titles themselves being now produced, it is decided that a
permit, given by the Lieutenant-Governor of Upper Louisiana in 1799
to a person to form an establishment on the Mississippi, followed
by actual possession and improvement, entitled the occupant to 640
acres, including his improvements, although the Indian title was
not then extinguished.
It was not the practice of the Spanish government to make
treaties with the Indian tribes defining their boundaries, but to
prevent settlements upon their lands without special permits. Such
permits, however, were usual.
The construction of the treaty between the United States and the
Sac and Fox Indians must be that the latter assented to an
occupancy which was as notorious as their own.
The Act of Congress approved April 29, 1816, 3 Stat. 328,
confirming certain claims to land confirmed this one, although the
Recorder of Land Titles, in his report, made in 1815, had added
these words, "if Indian title extinguished." These words were
surplusage.
This case was before this Court at January term, 1850, and is
reported in
49 U. S. 8 How.
223.
The children and heirs of Thomas F. Reddick (the defendants in
error) were the plaintiffs in the court below, having brought their
action by writ of right, according to the practice of the courts in
Iowa, to recover 640 acres of land upon the right bank of the
Mississippi River.
The acts of Congress and the patent to Reddick are set forth in
8 How., to which the reader is referred. But the plaintiffs having
offered additional evidence, it may be proper to bring the whole
into one view. In the former trial, the plaintiffs relied on the
recitals in the patent to Reddick to prove the title of Tesson; but
this Court having decided that those recitals were insufficient,
the evidence produced upon the trial of the present suit in the
District Court was the following:
Plaintiffs' Evidence
1. The plaintiffs proved that Louis Honore Tesson settled on the
land in controversy in 1798, and on 30 March, 1799, obtained from
the Spanish government a written permit to settle thereon, which is
recited at length in the record.
2. That Tesson had possession, and inhabited, cultivated, and
had houses and orchards and fields on said lands in 1798, 1799,
1800, and until 1805, and that all his right under the permit and
settlement passed by mesne conveyances to said Thomas F
Reddick.
3. That said Reddick duly presented and proved before the
Recorder of Land Titles at St. Louis his claim and claim of title
from Tesson to said land, and that said Recorder, by his report
dated November 1, 1815, reported on said claim his opinion, as
follows: "Granted 640 acres, if Indian rights extinguished."
Page 55 U. S. 515
4. The Act of Congress, approved April 29, 1816, 3 Stat. 328,
ch. 155, "for the confirmation of certain claims to land in the
Western District of the State of Louisiana, and in the Territory of
Missouri."
5. That on 17 May, 1838, a patent certificate (No. 1157) was
delivered, by the Recorder of Land Titles at St. Louis to Edward
Brooks, one of the original plaintiffs, for the land referred to in
the report of November 1, 1815.
6. A patent of the United States issued to Thomas F. Reddick,
described as assignee of Joseph Robidoux, assignee of Louis Honore
Tesson, for the lands in controversy, dated 7 February, 1839.
7. They also proved, that they, the plaintiffs, were the heirs
and legal representatives of said Reddick and that the defendants
were in possession of the land in controversy at the commencement
of the suit, and rested their case.
Defendants' Evidence
The defendants then gave in evidence:
1. The treaty between the United States and the Sac and Fox
Indians, 7 Stat. 229, made at Washington on 4 August, 1824, by the
first article whereof these Indians ceded to the United States all
their right and title to the lands claimed by them between the
Mississippi and the Missouri Rivers and a northerly line running
from the Missouri, at the entrance of the Kansas River, north 100
miles to the northwest corner of the State of Missouri, and thence
east to the Mississippi, but with the understanding
"that the small tract of land lying between the Rivers Des
Moines and Mississippi, and the section of the above line between
the Mississippi and the Des Moines, is intended for the use of the
halfbreeds belonging to the Sac and Fox nations, they holding it,
however, by the same title, and in the same manner, that other
Indian titles are held."
2. The Act of Congress approved June 30, 1834, 4 Stat., ch. 167,
p. 740, "to relinquish the reversionary interest of the United
States in a certain Indian reservation lying between the Rivers
Mississippi and Des Moines."
3. That the land in controversy is included within the interior
boundary lines of the Sac and Fox halfbreed reservation referred to
in the treaty of 1824 and act of Congress of 1834.
4. The Act of Congress of July 1, 1836, 6 Stat. 661, by which
the United States relinquished to the heirs of said Thomas F.
Reddick their right in the lands embraced in said patent, but
reserving any older or better claim not emanating from the United
States and providing that in case said lands should be included in
any reservation theretofore
Page 55 U. S. 516
made under treaty with any Indian tribe, Reddick should be
authorized to make another location on unappropriated lands.
5. That the 640 acres of land referred to in said Act of
Congress of July 1, 1836, lie within the exterior boundary lines of
said Sac and Fox halfbreed reservation, made by the Treaty of
August 4, 1834.
6. That the land in controversy is worth more than $2,000.
The defendants then rested their case.
The plaintiffs then prayed the court to instruct the jury:
1. That under the treaty with France of 30 April, 1803, and the
several acts of Congress passed in pursuance thereof for settlement
of titles in the Territory of Missouri, Tesson and Reddick, as his
assignee, had a valid subsisting interest in the land in
controversy at the date of the report made by the Recorder which
was not divested by the reservation in the treaty with the Sac and
Fox Indians or the Act of Congress of 30 June, 1834.
2. That the claim of Tesson and of Reddick, as his assignee, as
reported, was substantially confirmed by the Act of Congress
approved April 27, 1816.
3. That the patent, taken in connection with other evidence,
conveyed to the plaintiffs a fee simple title to the land in
controversy, and overrides the title set up by defendants.
These instructions were given by the Court.
The defendants then prayed the court to instruct the jury:
1. That under the report of the Recorder of Land Titles given in
evidence by the plaintiffs, they are not entitled to recover the
land, unless their title thereto has been confirmed by an act of
Congress. This instruction was given by the court.
2. That the true construction of the Act of Congress of 29
April, 1816, given in evidence by the plaintiffs, does not confirm
their title to the lands sued for, if the Indian title to the same
was not at that time extinguished.
3. That the Treaty of August 4th, 1824, with the Sac and Fox
Indians, is a recognition by the United States, at the date of said
treaty, of the Indian right to the lands in controversy, the same
being within the Sac and Fox halfbreed reservation.
4. That the Indian title to the land in controversy was not
extinguished prior to 4 August, 1824.
5. That the plaintiffs have shown no right to recover the land
in controversy in this suit.
The first of these instructions, prayed for by the defendants,
was given by the court, but the second, third, fourth, and fifth
instructions, as prayed, were refused to be given.
The defendants, by their counsel, excepted to the rulings
and
Page 55 U. S. 517
decisions of the court in giving the instructions prayed for by
the plaintiffs, and in refusing to give the second, third, fourth,
and fifth instructions, prayed for by the defendants.
The jury, under these instructions, found a verdict for the
plaintiffs, and a bill of exceptions brought these several rulings
before this court for review.
Page 55 U. S. 521
MR. JUSTICE CATRON delivered the opinion of the Court.
This case was before us in 1850, and is reported in 8 Howard. We
then held that as the patent to Reddick's heirs of 1839 was younger
than the treaty of 1824, and the confirming act of 1836, by which
the title of the United States was
prima facie vested in
the Sac and Fox halfbreeds, the patent could not prevail. Nor could
its recitals be relied on to give it legal effect from an earlier
date than it had on its face.
The judgment was then reversed, and the cause remanded for
another trial, and an intimation given, that probably additional
evidence might be adduced on a subsequent trial, which would
establish an earlier and better title in the plaintiffs than that
of the halfbreeds. That trial has taken place, and the case is now
before us, with the evidence to which the recitals in the patent of
Reddick's heirs to some extent refer. This evidence consists of a
permit given by the LieutenantGovernor of Upper Louisiana to Louis
Honore Tesson, to establish himself at the head of the rapids of
the River Des Moines (being a great rapid in the River Mississippi)
and having formed his establishment, he was assured that then it
would be the duty of the GovernorGeneral of Louisiana, residing at
New Orleans, to procure for said Honore, a concession of sufficient
space to render the establishment available and useful to the trade
of the country in peltries, and so that said Honore might exercise
an oversight of the Indians, and keep them in the fidelity which
they owed to His Catholic Majesty; the object being to increase the
trade with the Indians on that border, and in which said Honore was
permitted to be a participant, and to trade with the Indians in
that part of His Majesty's dominions; nor were any rival traders to
be allowed to deal with the Indians, except such as had a passport
for that purpose, signed by the LieutenantGovernor. This
stipulation was made in March, 1799. Honore was then in possession
of the land in dispute, and had improvements on it; and he improved
it further under the permit of 1799, and continued there until
1805. He had houses, orchards, and fields.
Thos. F. Reddick's claim was regularly derived by assignments
from Honore. Reddick's heirs, claimed a league square, on the
assumption that the permit to settle and inhabit, entitled Honore
to this quantity. But the Recorder at St. Louis, acting as
Commissioner, rejected the claim for a league square, and properly,
as we think; there being only a promise of title in future, but no
concession of land, in the LieutenantGovernor's permission to
Honore to establish himself, and occupy the premises, and trade
with the Indians. As, however, Honore held actual possession, and
had improved the land in an expensive
Page 55 U. S. 522
and substantial manner, he was beyond question entitled to six
hundred and forty acres, including his improvements, under our acts
of Congress securing this quantity to actual settlers, had the land
laid within that part of Louisiana to which the Indian title was
extinguished, at the time when the occupancy existed. Being
uncertain whether Honore was entitled, by reason of his
inhabitation and cultivation within territory to which the Indian
title was not extinguished, the Recorder, in his tabular statement,
granted the six hundred and forty acres, "if Indian rights
extinguished." And this expression has embarrassed the title for
more than thirty years. There were many claims in the Recorder's
report and tabular statement, in which this one is found, and by
the Act of April 29, 1816, all of them were confirmed without
exception, and without any notice having been taken of the
Recorder's remark, referring to an existing Indian title to the
land. That the Sacs and Foxes did claim the country generally,
where this land lies, is not controverted; nor was their claim
ceded to the United States till 1824. And this raises the question
whether, according to Spanish usage, whilst that power governed
Louisiana, an existing Indian claim to territory precluded
inhabitation and cultivation under a permit to inhabit and
cultivate a particular place designated in the permit, and which
was in the Indian country. Spain had no treaties with any of the
Indian tribes in Louisiana, fixing limits to their claims, so far
as we are informed. The Indians were kept quiet, and at peace with
Spanish subjects, by kind treatment and due precautions, which did
not allow obtrusion on lands claimed by them, without written
permits from the Governor, but that such permits were usual, cannot
be doubted. The County of St. Charles lies in the fork of the
Mississippi and Missouri Rivers; it was settled, and the Village of
St. Charles established there, twenty years and more before we
acquired Louisiana, and yet, by the Treaty of November 3, 1804,
this section of country was ceded to the United States by the Sac
and Fox tribes, extending from the Missouri River, opposite to the
mouth of the Gasconade, to the Janfilione, or "North 2 rivers," as
now known, which empties into the Mississippi, in the County of
Marion, in the State of Missouri. This country was as solemnly
ceded, as was the country north of that cession, by the treaty of
1824, and which treaty is here set up in opposition to Reddick's
title. The treaty of 1804 was duly ratified by the Senate of the
United States, and apparently sanctioned, retrospectively, the Sac
and Fox claim to the old County of St. Charles, in like manner that
the treaty of 1824 recognized an existing Indian claim to the
halfbreed tract, where the land in dispute lies.
Page 55 U. S. 523
And again in 1808, the Osages ceded to the United States all the
land east of a line running from Fort Clark on the Missouri River,
situate a few miles below the mouth of the Kansas; thence, due
south to the River Arkansas, and down the same to the Mississippi;
up the same to Sullivan's line; then west to the northwest corner,
being a point one hundred miles due north of the mouth of the
Kansas River; and with this line south to the north bank of the
Missouri opposite the mouth of the Kansas. Sullivan's line was run
in 1816, in execution of the Osage treaty of 1808, and is the
northern boundary of the halfbreed tract, and the line referred to
in the treaty of 1824 with the Sacs and Foxes, and which the Osage
treaty of 1808 included.
This treaty had every sanction that a ratification by our Senate
could give it, and is a recognition of an Indian title in the
Osages to nearly all the territory now embraced in the State of
Missouri and the greater part of Arkansas, and of an Osage right to
the land claimed by Reddick up to November, 1808; and yet the
county and Town of St. Louis, the seat of government in Upper
Louisiana during the existence of the Spanish colonial government
there, the post of New Madrid, the County, Town, and post of St.
Charles, were all within the cession made by the Osages; and within
which cession, lay a great mass of Spanish orders of survey and
grants, in regard to which this country has been legislating and
adjudicating for nearly fifty years, without any one ever supposing
that such concessions were affected by these loose Indian
pretensions set up to the country at a time when the concessions
were made; pretensions that the Spanish government notoriously
disregarded, further than a cautious policy required. If permits to
inhabit and cultivate were given in so many other instances,
regardless of Indian claims, no reason exists why Honore Tesson,
could not lawfully improve the land in dispute under his permit,
and in view of this notorious state of facts, the treaty of 1804
with the Sacs and Foxes, by an additional article, declared that
nothing in that treaty contained should affect the claim of any
individual (or individuals, if more than one) who had obtained
grants of land from the Spanish government beyond the boundary
lines of the country then ceded to the United States, on lands
claimed by the Sacs and Foxes, but not ceded by that treaty,
provided that such grants had at any time been made known to the
said Indian tribes and recognized by them. That the large,
valuable, and notorious improvements were made by Honore, at a
place where the Sacs and Foxes themselves resided at the time, is a
historical fact. He resided there as notoriously as they did. His
claim to this property was transferred to Reddick, and was
Page 55 U. S. 524
occupied for twentyfive years under Tesson and Reddick, and his
heirs before the treaty of 1824 was made. It was held and improved
by authority of the Spanish government, and claimed as individual
property, to which the Indian right of possession did not extend;
of this the Indians never complained, nor do they now complain; no
halfbreed owner and Indian descendant is defending this suit; it is
defended by trespassers, showing no color of claim under the
halfbreeds, or any one else; shelter is sought under the assumption
that Honore's permit and inhabitation were neither known or
recognized by the Sacs and Foxes, and that therefore, the
additional article of the treaty of 1804, cannot protect the title
of Reddick. We concur with the opinion of Mr. Attorney General
Grundy, in his report of 1839 on Reddick's title, to the Secretary
of the Treasury (Opinions of AttorneyGen. 1230) that it must be
presumed that the Indians both had knowledge and assented to
Honore's claim, and we are furthermore of opinion that the Indian
tribes and the halfbreeds who claim under them must be held to
knowledge and to consent that Honore took and held rightful
possessions from the fact of his open and notorious actual
occupancy, and holding for himself in their midst. This is the
settled rule in other cases, and no reason is seen why it should
not apply in this case. The reasons are quite as strong, and the
rule quite as necessary in its application here, as it was in the
case of
Landes v.
Brant, 10 How. 375, where we enforced the rule. We
are therefore of opinion that the supposed Indian right of
occupancy did not affect the confirmation by Congress in this case,
and that the remark of the recorder, "If Indian rights
extinguished" was surplusage, and which remark Congress properly
disregarded.
That the confirmation of 1816 carried the title with it, if the
confirmation was valid, has so often been decided by this Court,
that it is not open to discussion; nor is it disputed here on
behalf of the defendants below. The confirming act of 1816,
however, ordered that a patent should issue according to a survey
afterwards to be made, in all cases confirmed by the act. This has
been done. The patent recites the necessary facts to connect the
confirmation with the patent, and gives date to it by relation, as
a legal title, from 29 April, 1816, according to the boundaries set
forth in the patent; and as this ruling covers all the instructions
that were given in the court below, and all such as were refused,
we order that the judgment be
Affirmed.
Order
This cause came on to be heard on the transcript of the
Page 55 U. S. 525
record from the District Court of the United States for the
Southern District of Iowa and was argued by counsel. On
consideration whereof it is now here ordered and adjudged by this
Court that the judgment of the said District Court in this cause be
and the same is hereby affirmed with costs.
