In 1824, the United States made a treaty with the Sac and Fox
Indians in which there was a reservation of a certain tract of land
for the use of the half-breeds, who were to hold it by the same
title, and in the same manner, that other Indian titles were
In 1834, Congress relinquished all the right and title of the
United States to the above land, and vested the title in the
half-breeds, who, at the passage of the act, under the Indian
title, had a right to the same.
In 1840, proceedings were commenced in the District Court of Lee
County, Iowa, for a partition of the tract among the respective
In 1841, the land was divided into one hundred and one shares,
there being that number of original half-breeds who were entitled
The complainants represented that their grantor was entitled to
one and two thirds shares; that he resided in Wisconsin, and had no
notice of the partition; that his shares were allotted to another
person, and that the proceedings ought to be set aside as
The record of the proceedings in partition was, by agreement of
parties, made evidence before this Court; but, not being produced,
it is impossible to decide whether or not the charge of fraud is
sustained. Moreover, all the parties interested are not before the
court; nor is it made out that the shares claimed were allotted to
the alleged persons.
The facts in the case are fully stated in the opinion of the
MR. JUSTICE McLEAN delivered the opinion of the Court.
This case is brought before us by a writ of error to the
district court for the District of Iowa.
In an Indian treaty made the 4th of August, 1824, between the
United States and the Sac and Fox tribes of Indians for a large
cession of territory within the limits of the State of Missouri and
elsewhere, there was reserved the small tract of land lying between
the Rivers Des Moine and Mississippi, and the section of the line
of the treaty between the Mississippi and the Des Moine, which is
intended for the use of the half-breeds 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.
On the 30th of June, 1834, Congress passed an act relinquishing
all the right and title of the United States to the above land, and
vested the title in the half-breeds, who, at the passage of the
act, under the Indian title, had a right to the same.
Page 58 U. S. 581
In 1840, Josiah Spalding and others commenced proceedings in the
District Court of Lee County, Iowa, for a partition of the tract
among the respective owners, against Euphrasine Antaga and others.
Notice was given by publication in a newspaper, and, after some
delays, partition was made by the consent of parties.
The complainants, in their bill, represent that Elizabeth
Cardinell, alias Elizabeth Antaga, was a half-breed of the Sac and
Fox nation of Indians, and the sister of Euphrasine Antaga, and in
her lifetime was entitled to one full original share in the above
tract. That in the year 1833, the said Elizabeth Cardinell died,
leaving St. Paul, Eustace, Eli, Pierre, and Julien Cardinell, her
children and only heirs. That these children were all half-breeds,
born before the 4th of August, 1824, and were entitled, in their
own right, each to a share in the land. That after the 30th of
June, 1834, and before the 14th day of April, 1840, all of the said
heirs died, except Julien Cardinell, who became the owner of the
shares of his mother and brothers.
In 1841, the land was divided into one hundred and one shares,
among persons claiming to be the owners. Samuel Marsh, William E.
Lee, and Edward C. Delevan were trustees for certain claimants,
called the New York Company, and were made defendants to the
petition for partition; and they claimed one share under Eustace
Cardinell, and two-thirds of a share under Elizabeth Antaga, by the
heirs of Eli and Eustace Cardinell. But the trustees filed no title
papers or exhibits, showing their right to the one and two-thirds
shares claimed by them, and to which Julien was entitled.
The complainants further represent, that when the petition for
partition was filed, Julien was a resident of Prairie du Chien, in
the Territory of Wisconsin, a distance of more than two hundred
miles from the half-breed tract, and that he had no notice &c.
That the consent to the decree was a fraudulent device by the
parties, and is consequently void. That Marsh, Lee, and Delevan had
no right to the one and two-thirds shares claimed; that they drew
the said shares under the agreed plan of division, without right
The complainants allege that they claim under a deed of
conveyance from Julien Cardinell, dated 25th of February, 1848, and
by descent, the one and two-thirds shares. These shares, it is
alleged, were disposed of by Marsh, Lee, and Delevan, to Mason the
defendant, in 1852, who now claims them; that he is now in
possession of the land, enjoying the rents and profits, and refuses
to account, &c. Other allegations of fraud are made, of which
Mason had notice &c., and the complainants pray that the decree
of partition may be set aside and annulled, as fraudulent
Page 58 U. S. 582
and void, and that a repartition may be had, and that the
complainants may be allowed their interest in the land &c.
The defendant demurs to the bill, and also answers, not waiving
his demurrer, &c.
He admits that Elizabeth Cardinell was a half-breed, but denies
that the children, whose names are stated in the petition, were
half-breeds of the Sac and Fox nations, their father being a white
man. He admits the death of the persons stated by the complainants
in their petition, and that Marsh, Lee, and Delevan, as trustees
&c., claimed one share under Eustace Cardinell, and two-thirds
of a share under Elizabeth Cardinell, called Antaga, through Eli
and Eustace Cardinell, heirs &c. But he denies that the
trustees ever drew or received the said one and two-thirds of a
share or any portion thereof, as set forth in the petition, or in
any other manner, and he denies the allegations of fraud,
"The parties agreed to the following facts: that Elizabeth
Cardinell was a half-breed of the Sac and Fox nations of Indians,
and died in 1826, leaving Julien Cardinell, and his four brothers,
St. Paul, Eustace, Eli, and Pierre, her children, whose father was
a white man. Julien was born in 1821, and his brothers prior to the
year 1824. All the children of the said Elizabeth were living on
the 30th of June, 1834, and all, except Julien, died unmarried
before 1840, leaving no children. In 1848, Julien conveyed to Coy
and Brace, by a deed which is to be produced in court. Coy died in
1849, leaving the present plaintiff as his widow, and a family of
children. Brace died about the same time, leaving also a widow and
children, who reside in Iowa."
"The title of the half-breeds of the Sac and Fox nations of
Indians appears by the Treaty of August, 1824, and the Act of
Congress of June 30, 1834. It is admitted that there were one
hundred and one true original half-breeds who were entitled to
"The record of the partition suit is to be regarded as in
evidence, and either party may use any portion of it in the supreme
court, whether the same is used in the district court or not; but
the following facts are admitted to be true, unless contradicted by
the record. The suit for partition was commenced in the spring of
1840. Legal notice thereof was given by publication, and no other
service was made on any of the defendants in that suit. The case
would have regularly come up for hearing in October, 1840, but was
postponed till April following, to give more abundant time for all
persons interested to appear and present their claims. Marsh, Lee,
and Delevan were defendants in that suit; they claimed upwards of
sixty shares, and among
Page 58 U. S. 583
them were the one and two-thirds shares, as set forth in the
petition in this suit. In the judgment of partition, forty-one
shares were allowed them. Elizabeth Cardinell is the same person as
Elizabeth Antaga, and is a sister of Euphrasine Antaga."
"The defendant in this suit has become a purchaser of the
interests owned by Marsh, Lee, and Delevan, as will be more fully
shown by their deed to him. More than $100,000 of the purchase
money remains unpaid. Marsh, Lee, and Delevan are not residents of
the State of Iowa."
"At the time of the partition, Julien Cardinell was absent from
the Territory of Iowa, residing in Prairie du Chien, more than two
hundred miles distant. The country at that time was new. He was
ignorant and illiterate. There was no guardian appointed for him,
nor any person present in court to represent his rights. There is
no exhibit on record tending to show that Marsh, Lee, and Delevan,
or either of them, had any right to the shares of the said Julien,
or to any interest derived from either of his brothers, or from his
mother. The half-breed tract contains about 120,000 acres of land.
Keokuk is a large town situated on the tract."
"The claimants in the tract are very numerous, amounting to
several hundreds. It would be impracticable to make them all
parties. In the partition suit no one but Marsh, Lee, and Delevan
laid claim to any share under any of the Cardinells, with the
exception of one-half of one share, which was drawn by Ebenezer D.
"The whole tract was divided, but no part was set off to the
said Julien, and no mention is made of his rights in said record.
He had no guardian and no notice, except the constructive notice by
newspaper publication in Iowa."
The bill prays that the decree of the district court, on the
ground of fraud, may be declared void, so far as the rights of the
complainants are affected, and that a repartition of the land may
be ordered. But there is no evidence of fraud unless it be inferred
from the facts admitted. The facts in regard to the partition suit
are admitted, unless contradicted by the record; but the record of
that proceeding is not before us, and without it we are unable to
determine the extent of the admissions. If there were evidence of
fraud in the partition, we could not take jurisdiction of that
proceeding, as the parties interested are not before us; and for
the same reason, the district court had no jurisdiction of this
part of the case.
The answer denies that the one and two-thirds shares claimed
were allowed to Marsh, Lee, and Delevan, and there is nothing in
the admission of facts which disproves the answer in this respect.
The defendant admits that the trustees claimed these
Page 58 U. S. 584
shares, but it is not admitted that they were allowed to them in
the partition. The evidence does not identify and establish, as
against the defendant, the right claimed by the complainant. The
decree of the circuit court, which dismissed the bill, is
This cause came on to be heard on the transcript of the record,
from the District Court of the United States for the District of
Iowa, and was argued by counsel. On consideration whereof, it is
now here ordered, adjudged, and decreed by this Court that the
decree of the said district court in this cause be and the same is
hereby affirmed, with costs.