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?
Page 57 U. S. 204
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
Page 57 U. S. 205
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
Page 57 U. S. 206
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
Page 57 U. S. 207
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. "
Page 57 U. S. 208
"2. The said district court erred in rendering judgment in favor
of the said Patrick Molony against the said Henry Chouteau. "
Page 57 U. S. 220
MR. JUSTICE WAYNE delivered the opinion of the Court.
It is necessary to make a statement of the facts of the case
Page 57 U. S. 221
from the pleadings, in order that the opinion which we shall
give may be fully understood.
It is a suit for the recovery of land, but not according to the
form of the proceedings in ejectment. It is a petition according to
the course of pleading allowed in the courts of Iowa, which has
been adopted by the district court of the United States, setting
forth in detail the facts upon which the petitioner claims the
ownership of the land.
The petitioner, Henry Chouteau, states that he is the owner of
several tracts of land, and that they are wrongfully withheld from
him by the defendant, Patrick Molony. It is admitted that Molony
purchased the lands from the United States, and that he has a
patent for them. But the validity of the patent is denied, upon the
ground that the land had been granted to Julien Dubuque by the
authorities of Spain, before Louisiana had been transferred by
France to the United States.
Dubuque's claim is said, by the petitioner, to be a purchase
from the Fox Indians of a large tract of land situated in what is
now the Dubuque Land District.
It is described as bordering on the Mississippi River, extending
from the Little Makoketa River to the mouth of the Musquabinenque
Creek, now called Tete des Morts. The purchase, it is said, was
made at Prairie du Chien, from the chiefs of the Fox Indians, on
the 22d September, 1788. In proof of it, an instrument in writing,
in French, is produced, with a translation into English.
It is further stated that Dubuque paid the Indians for the land
in goods when the writing was executed. The petitioner then states
that the chiefs of the Fox Indians, a few days afterwards, assented
to the erection of monuments, and that they were erected at the
mouths of the rivers just mentioned, as evidence of the upper and
lower boundaries of the tract of land.
It is also said that Dubuque occupied the land from the time it
was sold to him; that he made improvements on it, cleared an
extensive farm, constructed upon it houses and a horse mill; that
he cultivated the farm and dug lead ore from the land, which he
smelted in a furnace constructed for that purpose. This land was in
the Spanish province of Louisiana; Dubuque resided on this land
from 1788 to his death in 1810. Upon his first settlement there, he
employed ten white men as laborers, who removed from Prairie du
Chien to enter his service; that the white inhabitants who resided
on the land were almost entirely persons who had been inhabitants
of Prairie du Chien before Dubuque made his settlement, and that
other persons from that town entered into his service in the
interval between the date of his contract with the Indians and the
time when he
Page 57 U. S. 222
applied to the Governor of Louisiana, the Baron de Carondelet,
for the confirmation of the sale of the Indians to him. It also
appears that Dubuque, from the time he made his settlement until
the province of Louisiana was transferred to the United States, did
not permit anyone to carry on business on the land without having
first obtained his consent, and that he drove forcibly from it a
person named Guerien, who came there with goods to trade.
It seems, too, that Dubuque was a man of enterprise; that,
during his residence upon this land, he exercised great influence
over the Indians on both sides of the Mississippi River, and that
the Winnebagoes on the east of it, and the Foxes on the west of it,
were in the habit of consulting with him upon their more important
concerns.
It will be remembered that Dubuque's settlement on the land
began with the date of his bargain with the Fox Indians, which was
the 22d of September, 1788. Eight years afterwards, or to be
precise, on the 22d of October, 1796, Dubuque presented to the
Baron de Carondelet, at the City of New Orleans, his petition for a
grant to him of the land which he alleges he bought from the Fox
Indians, by his contract with them of the 22d of September, 1788,
and their subsequent assent to the erection of the monuments upon
the Makoketa and Tete des Morts, as designations of the boundary of
the land on the Mississippi River. The governor referred his
petition to Andrew Todd, an Indian trader, who had received a
license for the monopoly of that trade, for Todd to give to him
information of the nature of Dubuque's demand. Todd replied that he
had acted upon the reference of the memorial, saying that as to the
land for which he asked, nothing occurred to him why it should not
be granted if you deem it advisable to do so; with the condition
nevertheless that Dubuque should observe his Majesty's provisions
relating to the trade with the Indians, and that he should be
absolutely prohibited from doing so unless he shall have Todd's
consent in writing.
Upon this answer of Todd, Governor Carondelet makes this
order:
"Granted as asked, under the restrictions expressed in the
information given by the merchant Andrew Todd."
The contract with the Indians, Dubuque's petition to the
governor, the reference of it to Todd, Todd's return of it with his
written opinion, and the governor's final order, are here
annexed.
The exhibit referred to in the petition, and filed therewith,
and marked A, is in the words and figures following, to-wit:
"
Exhibit A. Conveyance from Foxes to
Dubuque"
"Copie de conseil tenu par Messrs. les Renards, c'est a dire,
le
Page 57 U. S. 223
chef et le brave de cinque villages avec l'approbation du reste
de leur gens, expliquee par Mr. Quinantotaye, depute par eux, en
leur presence et en la notre, nous soussignes, scavior, que les
Renards permitte a Julien Dubuc, appele par eux la petite nuit, de
travailler a la mine jusqu'a qui lui plaira, des s'en retirer sans
lui specifier aucun terme; de plus, qu'il lui vende et abandonne
toute la cote et contenu de la mine trouve par le femme Peosta, que
sans qu'aucuns blancs ni sauvages, ni puissent pretendre sans le
consentment du Sr. Julien Dubuc; et si en cas ne trouve rien
dedans, il sera metre de cherche ou bon lui semblera, et de
travailler tranquillement, sans qu'aux qu'un ne puisse le nuire, ni
portez aucune prejudice dans ses travaux; ainsi nous, chef et
brave, par la voie de tous nos villages, nous sommes convenu avec
Julien Dubuque, lui vendant et livrant de ce jour d'hui comme il
est mentionnee ci-dessus, en presence de Francois qui nous attende,
qui sont les temoins de cette piece, a la Prairie du Chien, en
plein conseil le 22 7br., 1788."
"BLONDEAU"
"sa"
"ALA X AUSTIN"
"marque"
"AUTAQUE"
"sa"
"BAZIL X TEREN, temoin"
"marque"
"marque"
"BLONDEAU DE QUIRNEAU"
"tobague"
"JOSEPH FONTIGNY, temoin"
The exhibit referred to in the petition, and filed therewith,
and marked B, is in the words and figures following, to-wit:
"
Exhibit B. -- A Translation of A."
"Copy of the council held by the Foxes, that is to say, of the
branch of five villages, with the approbation of the rest of their
people, explained by Mr. Quinantotaye, deputed by them in their
presence, and in the presence of us, the undersigned, that is to
say, the Foxes, permit Mr. Julien Dubuque, called by them the
Little Cloud, to work at the mine as long as he shall please, and
to withdraw from it, without specifying any term to him; moreover,
that they sell and abandon to him all the coast and the contents of
the mine discovered by the wife of Peosta, so that no white man or
Indian shall make any pretension to it without the consent of Mr.
Julien Dubuque; and in case he shall find nothing within, he shall
be free to search wherever he may think proper to do so, and to
work peaceably without anyone hurting him, or doing him any
prejudice in his labors.
Page 57 U. S. 224
Thus we, chief and braves, by the voice of all our villages,
have agreed with Julien Dubuque, selling and delivering to him this
day, as above mentioned, in presence of the Frenchmen who attend
us, who are witnesses to this writing."
"At the Prairie due Chien, in full council, the 22d of
September, 1788."
"BLONDEAU"
"ALA AUSTIN, his x mark"
"AUTAQUE"
"BAZIL TEREN, his x mark"
"marque"
"BLONDEAU DE X QUIRNEAU Witnesses"
"tobague"
"JOSEPH FONTIGNY"
The exhibit referred to in the petition, and filed therewith,
and marked H H, is in the words and figures following, to-wit:
"
Exhibit H H. -- Petition of Dubuc to Carondelet
&c."
"A son excellence le BARON DE CARONDELAIS: "
"Le tres humble suplyent de votres excellence, nomme Julien
Dubuque, aiant faites une abbitation sur les frontier de votres
gouvernements, au millieux des peuples sauvages, qu'il sont les
abiteurs du pays a achetee une partye de terre de ces indients avec
les mines qu'il quontient, et par sa parsaverances a surmonter tous
les optacles tous contenzes que densgerenzes est parvenue approi
bien des travences a etre paysibles possesseures d'unes partye de
terre sur la rives occidentalle du Mississippi, a quil il a donnee
le nom des mines d'Espagnes, en memoir du gouvernements aqui il
appartenais. Comme le lieux de l'abitation n'est qu'un point, et
les diferentes mines qu'il travailles sont et parts et a plus de
trois lieux de distences les unes des autres, le tres humbles
supplyant prit votres excellences de vouilloir bient lui accorder
la paysibles possessions des mines et des terres, qui ai a dire,
depuis les cautes d'eau aux de la petites rivier Maquanquitois
jusque au quantes de Mesquabysnanques, ce qu'il formes environt
sept lieux sur la rives occidentalle du Mississippi, sur trois
lieux de profondeure, que le tres humbles supliant anzes esperer
que vos bontee vousdrats bien lui accorder sa demandes et prit
settes meme bonti qu'il fait le bonneur de tous de sugaits, de me
pardonner mon stille, et de vousloir bient aprouver la pure
smplicitee de mon coeur au defaux de mon elloquences. Je prie de
ciel de tous mon pouvoir possibles qu'il vous conserves et qu'il
vous combless de tous ses bientfait; et je sui et serez toutes ma
vie, de votres excellences le tres humbles et tres auxbeissents, et
tres soumis servitteur."
"J. DUBUQUE"
Page 57 U. S. 225
"
Order to Todd"
"NUEVA ORLEANS, 22 de October de 1796"
"Informe el comerciante Dn. Andres Todd, sobre la naturaleza de
esta demanda."
EL BARON DE CARONDELET.
"
Information of Todd"
"S'OR GOB'OR: Compliendo con el superior decreto de V. S. en que
me manda informar sobre la solicitud del individuo interesado en el
antecedente memorial, debo decir, que en quanto a la tierra que
pide, nada se me ofrece, en que V. S. se la conceda, si lo halla
por conveniente, con la condicion sin embargo de observara el
concesionario lo prevenido por S. M. acerca de la treta con los
Indios, y que esta se le prohibira absolutamente a menos que
notenga mi consentimiento por escrito."
"Na. Orleans, 29 de Octubre de 1796. ANDREW TODD"
"
Order of Carondelet to Dubuc"
"NUEVA ORLEANS, de Noviembre de 1796"
"Concedido como se solicita baxo las restricciones que el
comerciante Dn. Andres Todd expresa en su informe."
"EL BARON DE CARONDELET"
"
Certificate that H H is a true copy of the original
paper withdrawn"
"
by plaintiff, by leave of court"
"The foregoing two pages have been prepared by me in pursuance
of an order of court to that effect, and is a true copy of
Dubuque's petition, the interlocutory orders of the Baron de
Carondelet and Andrew Todd, and the final order of the Baron de
Carondelet."
"Witness my hand, this 9th January, 1852."
"T. S. PARVIN,
Clerk"
The exhibit referred to in the petition, and filed therewith,
and marked C, is in the figures and words following, to-wit:
"
Translation of H H."
"To his Excellency the BARON DE CARONDELET: "
"Your Excellency's very humble petitioner, named Julien Dubuque,
having made a settlement on the frontiers of your government, in
the midst of the Indian nations, who are the inhabitants of the
country, has bought a tract of land from these Indians, with the
mines it contains, and by his perseverance has surmounted all the
obstacles, as expensive as they were dangerous, and, after many
voyages, has come to be the peaceable possessor of a tract of land
on the western bank of the Mississippi, to which [tract] he has
given the name of the
Page 57 U. S. 226
'Mines of Spain,' in memory of the government to which he
belonged. As the place of settlement is but a point, and the
different mines which he works are apart, and at a distance of more
than three leagues from each other, the very humble petitioner
prays your Excellency to have the goodness to assure him the quiet
enjoyment of the mines and lands, that is to say, from the margin
of the waters of the little river Maquanquitois to the margin of
the Mesquabysnonques, which forms about seven leagues on the west
bank of the Mississippi, by three leagues in depth, and to grant
him the full proprietorship
* thereof, which the very humble
petitioner ventures to hope that your goodness will be pleased to
grant him his request. I beseech that same goodness which makes the
happiness of so many subjects, to pardon me my style, and be
pleased to accept the pure simplicity of my heart in default of my
eloquence. I pray Heaven, with all my power, that it preserve you,
and that it load you with all its benefits, and I am, and shall be
all my life, your Excellency's very humble, and very obedient, and
very submissive servant."
"J. DUBUQUE"
"NEW ORLEANS, October, 22, 1796"
"Let information be given by the merchant Don Andrew Todd on the
nature of this demand."
"THE BARON DE CARONDELET"
"SENOR GOVERNOR: In compliance with your superior order, in
which you command me to give information on the solicitation of the
individual interested in the foregoing memorial, I have to say
that, as to the land for which he asks, nothing occurs to me why it
should not be granted, if you deem it advisable to do so, with the
condition, nevertheless, that the grantee shall observe the
provisions of his Majesty relating to the trade with the Indians,
and that this be absolutely prohibited to him, unless he shall have
my consent in writing."
"New Orleans, October 29, 1796 ANDREW TODD"
"NEW ORLEANS, November 10, 1796"
"Granted as asked, under the restrictions expressed in the
information given by the merchant Don Andrew Todd."
"THE BARON DE CARONDELET"
The defendant in this suit demurred, and for causes of demurrer
says:
1. Admitting all the facts of the petition to be true, the
plaintiff is not entitled to recover.
Page 57 U. S. 227
2. As it appears by the exhibits to the petition that the
plaintiff claims under an unconfirmed Spanish title, he has no
standing in a court of law.
3. That it appears from the plaintiff's own showing that he
rests his title upon an incomplete Spanish grant, and that the
defendant is in possession under a complete title from the United
States.
It appears, then, that the petitioner claims under the Indian
instrument of writing, termed by him a sale and in virtue of a
confirmation of it into a grant by the Governor of Louisiana, the
Baron de Carondelet, dated the 10th November, 1796. We shall
consider the case, as it was argued by all of the counsel, as
presenting but one question.
Was the grant which the Baron de Carondelet made to Julien
Dubuque a complete title, making the land private property, and
therefore excepted from what was conveyed to the United States by
the Treaty of Paris of the 30th April, 1803?
Our inquiry begins with the examination of that paper introduced
by the petitioner as the Indian contract of sale to Dubuque.
After reciting that the paper is a copy of the council held by
the Foxes and the braves of the five villages, with the approbation
of the rest of their people, these words are found in that
paper:
"The Foxes permit Mr. Julien Dubuque, called by them the Little
Cloud, to work at the mine as long as he shall please, and to
withdraw from it without specifying any time to him; moreover, that
they sell and abandon to him all of the coast or hills and contents
of the mine discovered by the wife of Peosta, so that no white man
or Indian shall make any pretension to it without the consent of
Mr. Julien Dubuque, and in case he shall find nothing within, he
shall be free to search wherever he may think proper to do so, and
to work peaceably, without anyone hurting him or doing him any
prejudice in his labors."
From these terms it is plain that Dubuque was treating with the
Indian council for a mine, the mine of Peosta, with all the coast
or hill, and the contents of that mine, with the privilege to open
other mines, protected in doing so from all interferences in the
event that he should not find ore in the Peosta mine. The words,
that they sell and abandon to him all the coast and the contents of
the mine discovered by the wife of Peosta are the only words from
which it can be implied that they were selling land. Admitting that
they do so, the words "all the coast" of the mine Peosta cannot be
enlarged to mean more than the land which covered its ramifications
and the land contiguous to them, which was necessary for the
operations of the miners and for their support. We say so because
such were
Page 57 U. S. 228
the allowances under the mining ordinances of Spain. We shall
see hereafter how that was determined by the Spanish ordinances
regulating the mines. But to make it more certain that the Indians
meant to sell a mine, and that Dubuque was bargaining for a mine,
the contract of sale conveying it to him, with the extended
privilege to open other mines if that bought should turn out to be
deficient in ore, the council conclude their paper thus:
"We, the chiefs and braves, by the voice of all of our villages,
have agreed with Julien Dubuque, selling and delivering to him this
day, as above mentioned, in the presence of the Frenchmen who
attend us, who are witnesses of this writing."
There are no words in this paper, except the words "all the
coast" of the mine of Peosta, conveying any other land, either as
to locality, quantity, or boundary. When it is remembered too that
this paper or contract was written by Frenchmen, and that one of
them explained to the Indians what it meant or what the paper
contained, and that it was witnessed by other Frenchmen, some of
whom could read and write, it is hard for us to suppose that they
meant by it to convey to Dubuque the large tract of land which he
afterwards claimed, or that they did not honestly, fairly, and
fully write only that which the Indians meant to do. At all events,
if the words of the paper are doubtful as to what the Indians meant
to sell, as the copy of the council is written in a language which
they could neither read nor fully understand, it will be but right
to hold it as an uncertainty, and not to permit their bargainee,
Dubuque, or his alienees, to give it a fixed meaning in their own
favor.
But let it be admitted that the words of the copy of this Indian
council are obscure and ambiguous, so as to express its meaning
imperfectly, and that a resort may be made to exterior
circumstances connected with the transaction to ascertain its
intention. There are no such proofs in the case -- nothing of the
kind to guide us to a different conclusion than that which the
paper expresses. Dubuque, the interested party, is made to say, in
the plaintiff's petition, that a few days after the Indian sale was
executed, the chief, in the presence of Dubuque, assented to the
erection of monuments at the mouth of the Little Makoketa and at
the mouth of the Tate des Morts as evidence that the former was the
upper and the latter the lower end of the Mississippi River
boundary line of the large tract, and that the monuments were
actually erected. With the exception of the erected monuments, the
same is repeated in Dubuque's memorial to Governor Carondelet for a
grant, but with this remarkable addition for the first time, that
the tract from the points mentioned on the river was to a depth of
three leagues. This depth is not in the copy of the Indian council.
It was not
Page 57 U. S. 229
stipulated for by Dubuque, nor in any way mentioned by or to the
chiefs when they assented to the erection of monuments. It will be
seen at once that it was necessary for him to give depth to the
tract when he applied to the governor for a grant, in order to give
certainty to his previous declaration that he had bought the land
from the Indians. Without having a given depth, the tract could not
have been surveyed as to quantity or boundaries. On that account it
would, under the Spanish law, as well as our own, have been void
for its uncertainty. Indeed, we cannot think otherwise than that
the statement in the petition in this case is contradictory to
Dubuque's petition for a grant of the land, and that the first must
be taken as the fullest extent of any arrangement between Dubuque
and the Indians subsequently to their sale to him of the Peosta
mine, with a privilege to search elsewhere if that mine should
fail. The erection of monuments within certain distances upon the
river was consistent with the privilege to search for other mines.
In the absence of all words from which it can be inferred that a
sale of land was meant, the monuments, as points mentioned on the
river, can have no other reference than to the privilege to search
for mines. This, in our view, is the sound interpretation of the
Indian contract, and the statement made of it in the petition in
this suit.
It would certainly be a novelty, even in the looseness with
which grants of land were made in Louisiana, if a grantee or one
claiming under him was permitted by his own declaration to amend
and enlarge a specification defective in the particulars of
quantity and boundaries.
Our interpretation of the paper, given by the Fox Indians to
Dubuque, will be much strengthened, if it needs it, by a brief
statement of what were the rights of the Indians in those lands and
to the mines.
Spain, at all times or from a very early date, acknowledged the
Indians' right of occupancy in these lands, but at no time were
they permitted to sell them without the consent of the King. That
was given either directly under the King's sign manual, or by
confirmation of the governors representing him. As to the mines,
whether they were on public or private lands, and whether they were
of the precious or baser ores, they formed a part of what was
termed the royal patrimony. They were regulated and worked by
ordinances from the King. These ordinances were very many,
differing, and contradictory. It is very difficult, though aided by
the best commentaries upon them, to determine in all instances how
far the older ordinances were repealed by those subsequently made,
or how much of both of them remained in force. As to the rights of
the Crown, however,
Page 57 U. S. 230
there can be no uncertainty. By the law of the Partida, law 5,
title 15, Partida 2, Rockwell 126, the property of the mines was so
vested in the King that they were held not to pass in a grant of
the land, although not excepted out of the grant; and though
included in it, the grant was valid as to them only during the life
of the King who made it, and required confirmation by his
successors.
The law 11, title 28, Partida 3:
"The returns from the port, salt works, fisheries, and
ironworks, and from the other metals, belong to the emperors and
Kings, and all these things were granted to them that they might
have wherewith an honorable establishment to defend their lands and
Kingdoms, and to carry on war against the enemies of the faith, and
that they might have no need to load their people with great or
grievous burdens."
Rockwell 126. Rockwell also says, by the law 8, title 1, book 6,
of the Ordenamiento Real, we have not seen the original, copied in
law 2, title 13, book 6, Collection of Castile, that all mines of
gold, silver, or any other metal whatsoever, and the produce of the
same, were declared to be the property of the Crown, and no one was
to presume to work them except under some especial license or grant
previously obtained, or unless authorized by immemorial
prescription. This rule was afterwards moderated by law 1, title
13, book 6, Collection of Castile, so far as to permit any person
to dig or work mines in his own land or inheritance, or with the
permission of the proprietor in that of any other individual; the
miner retaining for himself, after deducting expenses, one-third of
the produce, rendering the other two-thirds to the King. Rockwell
126. Subsequently the profitless return of the mines in the Spanish
dominions induced Philip 2d, acting with the council and chief
accountants of the mines, to reserve all grants which had been made
of them, whether they were in private or in public ground. The
object of this proceeding was to throw open to all of his subjects
the right to search for mines both in public and private grounds,
giving to the owner of the latter a compensation for damages and a
third part of the produce. Law 4, title 13, book 6, Collection of
Castile, Rockwell 126. By a second ordinance of Philip, all
persons, natives and foreigners, were permitted to search for
mines. It was declared that the finders of them should have a right
of possession and property to them, with a right to dispose of them
as of anything of their own, provided they complied with the rules
of the ordinance and paid to the Crown the seignorage required.
These privileges were afterwards extended to the Indians by name,
as may be seen by law 1, title 19, book 4, Collection of the
Indies. Rockwell 128-387. Such were
Page 57 U. S. 231
the regulations of Spain in respect to the rights of the Indians
in lands and mines before Louisiana became a part of her dominions,
from the cession of it by France in 1763.
What were the regulations of France in respect to mines in her
colonies, we need not inquire into, as the transaction we have
before us happened after France had parted with the province, and
after Spain had legislated new ordinances upon the subject of
mines, which were applicable to all of her dominions, as well those
in North as in South America. We mean the ordinances entered in the
General Land Office of the Indies, at Madrid, the 25th of May,
1783. In chapter 5 of these ordinances, the King declares that
mines are the property of his royal crown; that without separating
them from his royal patrimony, he grants them to his subjects in
property and possession, in such manner that they may sell,
exchange, pass by will, either in the way of inheritance or legacy,
or in any other manner to dispose of all their property in them,
upon the terms they themselves possess them, to persons legally
capable of acquiring. The grant depended upon two conditions: that
the proportions of metal reserved were paid into the royal
treasury, and that the mines were worked subject to the ordinances.
To all the subjects of the King's dominions, "both in Spain and the
Indies, of whatever condition or rank they may be," were granted
the mines of every species of metals, but foreigners were not
permitted to acquire or work mines as their own property, unless
they were naturalized, or did so expressly under a license. The
right of the Indians to work the mines upon their own account was
at one time questioned. It was determined that they could do so.
Law 14, title 19, book 4, Collection of the Indies, Rock. 137. And
the mines discovered by Indians were declared to be, in respect to
boundaries, on the same footing, without any distinction, as those
worked or discovered by Spaniards. Besides the other privileges
secured by this ordinance to the owners of mines upon the public
lands, they had the right to use the woods on mountains in the
neighborhood of them, to get timber for their machines, and wood
and charcoal for the reduction of the ores. Rockwell 82, ยง 12, c.
13. Besides the privileges just stated, they were exempted from a
strict compliance with the ordinance in respect to the registry of
their mines. Indeed, every indulgence was given to them. Much care
was taken to preserve for them their property in mines, and to give
them the means of working them. With these rights and privileges it
is much more natural to construe the contract of the Foxes with
Dubuque into a sale and a purchase of mines, than into a transfer
of lands.
We will now consider Dubuque's petition to Governor
Page 57 U. S. 232
Carondelets the reference of it to Todd for information on the
nature of the demand; Todd's reply, and the governor's final order.
Dubuque makes his purchase from the Indians the foundation of his
prayer for a grant, and the inducement for the governor to give it.
He asks the governor to accord to him the peaceable possession of
the mines and lands, which is to say, from the hills above the
little river Maquanquitois as far as the hills of Musquabinenque,
which forms seven leagues on the western bank of the Mississippi,
by three leagues in depth. We do not doubt that Dubuque meant to
ask for lands as well as mines, and that his object was to get a
grant for this large body of land. But the true point here is not
what he meant to ask for, but what he had a right to ask for under
his contract with the Indians, and what the governor meant to
grant, and could grant under that contract. Mining was the motive
which induced Dubuque to make his settlement among the Indians. It
had been his pursuit and occupation for eight years before he
petitioned the governor; the governor referred the petition to
Andrew Todd for information on the nature of the demand. Todd
replies,
"I have to say that, as to the land for which he asks, nothing
occurs to me why it should not be granted by your lordship, if you
find it convenient, with the condition, nevertheless, that the
concessionario shall observe the provisions of his majesty
as to the trade with the Indians, and that this be absolutely
prohibited to him unless he have my consent in writing."
The governor's order is granted as asked, or conceded as
petitioned for, under the restrictions which the merchant, Mr.
Andrew Todd, expresses in his report.
We have here, then, three things to note. First, land is
described out of the contract of the Indians with Dubuque; next,
that it is to be granted upon a condition; and third, that it is
conceded as asked, under the restrictions expressed in the report
of Todd. "Granted as asked," is the governor's order. It cannot be
said that this is referable alone to the quantity of land asked for
by Dubuque, and not to his statement that he had bought that
quantity from the Indians, and that its boundaries were coincident
with his description of them. There is no such description in the
Indian sale to Dubuque. It is a misstatement of a fact. Admitting
that the chiefs of the Fox Indians assented to the erection of
monuments at the mouth of the Little Makoketa and at the mouth of
the Tete des Morts, and that it was done to mark a boundary; when
it is found that nothing was said by them or by Dubuque at that
time descriptively of a tract of land which could be surveyed, the
inference is that the monuments were marks within which and from
which Dubuque was permitted to search for mines, and to
Page 57 U. S. 233
work them in the event that the mine of Peosta did not yield
ore.
It cannot be presumed that the governor had not read the
petition before he gave his order upon Todd's information; or that
when giving, it was not his intention to confer upon Dubuque the
benefit of his purchase from the Indians. He referred the petition
to Todd for information. It was a reference out of the usual course
of proceeding when applications were made for grants of land. Todd
had neither agency nor office, or knowledge in such matters. The
officials of the land office were not called upon. In every other
grant made by the Baron Carondelet, the applications for them were
so referred. Notwithstanding the very large grants which were made
by him, under all the circumstances of each case, whether pressing
or otherwise, gratuitous or for a consideration, he scrupulously
adhered to all the forms and the essentials which custom, usage,
and the law had imposed upon the granting of lands. The cause for
his reference of Dubuque's petition to Todd is obvious. We find it
in the petition in this suit. Dubuque had undertaken to interfere
with others who attempted to trade with the Indians. It is said
that he had not permitted anyone to carry on that trade on the land
from the time he had made his purchase from the Indians, and that
he had driven from it forcibly a person who had, without his
consent, landed goods upon it with an intention to sell them to the
Indians. This, it appears from Todd's report, he had no right to
do. The Indian trade was regulated by ordinances from the King.
Todd had obtained the privilege to carry it on, and to exclude
others from doing so without his consent. From his report it may be
inferred that Dubuque had done so, its language being "that this
trade be absolutely prohibited to him, unless he shall have my
consent in writing." The governor recognizes Todd's right to give
that consent. His order is, granted as asked, under the
restrictions expressed in the information given by the merchant,
Andrew Todd. This is a very novel condition to be annexed to a
grant of land in full proprietorship, if the governor meant to give
such a grant. Does it not rather imply that the governor meant to
permit him to continue in the quiet enjoyment of the mines, and to
work them, with the use of the lands, as the Indians had permitted
him to do for eight years, notwithstanding what had been Dubuque's
irregular interference and appropriation of the trade with the
Indians. With such a condition, it was revocable by the governor
upon any imputation that he had violated it. It would not have been
right to recall the order without proof of the transgression of it;
but if that could be a subject of inquiry at all, it shows that
though Dubuque asked for lands and
Page 57 U. S. 234
mines, that the governor had not made an unconditional grant of
lands.
It is scarcely possible that such a reference of Dubuque's
petition would have been made; that the subject of Indian trade
should have been introduced into the affair by Todd; and that the
governor should have recognized it as a cause for qualifying the
terms in which grants of land were made, and that every official
agency in making grants of land should have been disregarded, if it
had been the intention of the governor to make to Dubuque a grant
of the land as property, without any reference to his declaration
that he had bought it from the Indians, and to the fact stated in
the petition, that he was then working the mines "three leagues
apart from each other."
The law for granting lands was that the grants were to be made
with formality, in the name of the King, by the governor-general of
the province; that when the order to grant was given, that a
surveyor should be appointed to fix the boundaries, and that the
order itself should be registered in the land office, with the
memorials and other papers, whatsoever they might be, which had
induced the governor to make the grant. The practice of the
governors, including the Baron de Carondelet, corresponded with all
of the requirements just mentioned. Nothing of the kind was done in
this case. The whole proceeding was kept from the proper office in
New Orleans, where, by law and usage, an entry of it should have
been made. Dubuque did not ask for a survey; he took with him the
papers. The first notice given of the existence of them came from
Dubuque himself, after the transfer of Louisiana to the United
States, when the richness of the lead mines on the upper part of
the Mississippi had attracted the attention of the public and of
Congress. Rumors had reached the government at Washington that
Dubuque claimed the richest of them, and that speculators were
trying to get from him an interest in them. At that time, it became
necessary to explore the upper Mississippi and its sources, with
the view of obtaining general information for military and
legislative purposes, and more definite knowledge of what were the
boundaries of Louisiana. Lieutenant, afterwards our distinguished
General Pike, was detailed, with a sufficient exploring force, for
that purpose. Among other things, he was charged, when he arrived
at what were called the Dubuque mines, to make particular inquiries
about them, and into Dubuque's claim. He had an interview with
Dubuque at his residence, some six or seven miles from the mines,
but did not make an inspection of them, as Dubuque could not
furnish him with transportation to their locality, and he then had
been attacked with fever. He proposed however, to Dubuque,
Page 57 U. S. 235
several questions in writing, and we have the paper, with the
answers, signed by both of them. They are curious and reserved upon
the part of Dubuque, and may find a place here without interfering
with the part of the argument which we are now upon:
"What is the date of your grant of the mines from the savages?
Answer. The copy of the grant is in Mr. Soulard's office at St.
Louis. What is the date of the confirmation by the Spaniards? The
same answer as to query first. What is the extent of your grant?
The copy of the grant is at Mr. Soulard's office at St. Louis. What
is the extent of the mines? Twenty-eight or twenty-seven leagues
long, and from one to three broad. Lead made per annum? From 20 to
40,000 pounds. The answers to the other questions are equally
indefinite, and all were so excepting as to the place where the
grant could be found."
1 Appendix to Pike's Expedition 5. These answers, however, were
communicated to Mr. Gallatin before the commissioners for adjusting
land claims had made their report, and they serve to show that when
he made his report to the President upon the Dubuque claim, that he
had done so with his usual care and caution. Whatever was then in
Mr. Soulard's office at St. Louis, connected with it, he had
obtained. His report is not liable to the censure which was cast
upon it in the argument, for if it be defective in clerical
particulars, his conclusion is sustained both by knowledge and
principle.
We return to the point which we left to give the extract from
Pike. It was that there were not upon Dubuque's petition any of the
customary forms, or required proceedings, which had always been
observed by the Spanish governors in making grants of lands. They
were not only omitted by the governor, but were not asked for by
Dubuque; or if he did ask, there was not a compliance with the
request. The papers were kept by him without any action upon them
until after the United States had acquired Louisiana.
This conduct varies so much from the ordinary action of persons
under like circumstances, that it may very properly be mentioned
with the other incidents of this case, which have led us to the
conclusion that the governor's order was not meant to concede to
him more than the quiet enjoyment and peaceable possession of the
mines, and such lands as the mining ordinances permitted to be used
for working them. The objection with us is not that Dubuque had not
caused a survey to be made, but that he had not obtained, that the
governor had not given, an order for such purpose. We think it
could not have been done by Soulard or any other official Spanish
surveyor. No one of them would have ventured to stretch a chain
upon the land with a view of separating it from the
Page 57 U. S. 236
public domain, without special authority to do so from the
governor. Such an order was the uniform accompaniment of a grant,
and without it a concession was incomplete: though, when given, if
circumstances such as were mentioned in the argument of this case
interfered with its execution, it did not lessen the completeness
of the title, if the description of the land was such that it could
be carried into a survey. There ought not to have been in this
case, any apprehension of Indian interference with a survey, after
Dubuque's residence of more than eight years among them, if their
understanding had been for all of that time that they had sold to
him the land. His relations with them are represented to have been
friendly and influential in their more important concerns; and if,
as is stated, he kept all intruders from the land in its whole
extent, claiming it as his property, and not permitting anyone to
come upon it to trade with the Indians, and keeping that trade for
himself -- all of this with the acquiescence of the Indians -- it
is not probable that fears of their opposition to it prevented him
from getting an order of survey, or from having run from the
monuments the three lines which would have comprehended his
description of the land. It is certain that he had no order for a
survey. It is equally certain, as it had not been given by Governor
Carondelet, that he could not have obtained it from his successor,
Gayoso de Lemos. It will not do in such cases to indulge
conjecturally, as to the motives of Dubuque for such conduct, but
sometimes historical facts clear up difficulties which cannot be
explained in any other way. Governor Carondelet's commission had
been recalled, and his successor, Gayoso, appointed, before the
former had given his order upon Dubuque's petition. He was then
only holding over until the arrival of his successor from Natchez.
Gayoso lost no time; perhaps urged to it by very recent larger
grants which is predecessor had made, and which were complained of,
in announcing that in respect to the quantity to be granted, he
would enforce the regulations of O'Reilly, not only in Opelousas,
Attacapa, and Nachitoches, but throughout the province. From that
moment, Dubuque's claim was, at all events, if he had any rightful
claim for land from his Indian contract, reduced to a league
square, unless it could be shown that it had been already confirmed
by Governor Carondelet; and this course was preferred in the
assertion of title to it before the tribunals of the United
States.
In our construction of the muniments of title of this case, we
have considered them, as he does, as one instrument, and so they
were treated in the argument -- that each might aid to explain the
other, and that the truth might be obtained from
Page 57 U. S. 237
the whole of them in regard to this transaction. Our conclusion
is Dubuque's contract with the Fox Indians was a sale to him of the
Peosta mine, with its allowed mining appendages, with the privilege
to search for other mines in the event that ore was not found in
that mine, and that the order of Governor Carondelet, upon his
petition, was not meant to secure to him the ownership of the lands
described in his petition.
The real importance of this case, the interests involved, and
the notoriety which has been given to the Dubuque claim for more
than forty years, in Congress and out of it, do not permit us to
stop this opinion with the conclusion just announced. Hitherto the
case has been considered in connection with the documents upon
which the plaintiff relies, and as if Governor Carondelet had
official authority to make a grant of the land upon the petition of
Dubuque. We will now present another view of it. Dubuque prays for
a concession of what was then Indian land, which had been in the
occupancy of the Indians during the whole time of the dominion of
Spain in Louisiana, and which was not yielded by them until it was
bought from them by treaties with the United States. It is a fact
in the case that the Indian title to the country had not been
extinguished by Spain, and that Spain had not the right of
occupancy. The Indians had the right to continue it as long as they
pleased, or to sell out parts of it -- the sale being made
conformably to the laws of Spain, and being afterwards confirmed by
the King or his representative, the Governor of Louisiana. Without
such conformity and confirmation no one could, lawfully, take
possession of lands under an Indian sale. We know it was frequently
done, but always with the expectation that the sale would be
confirmed, and that until it was, the purchaser would have the
benefit of the forbearance of the government. We are now speaking
of Indian lands, such as these were, and not of those portions of
land which were assigned to the Christian Indians for villages and
residences, where the Indian occupancy had been abandoned by them,
or where it had been yielded to the King by treaty. Such sales did
not need ratification by the governor, if they were passed before
the proper Spanish officer, and put upon record.
The Indians within the Spanish dominions, whether Christianized
or not, were considered in a state of tutelage. In the Recopilacion
de las Leges de las Indias, a part of the official oath of the
Spanish governors was that they would look to the welfare,
augmentation, and preservation of the Indians. Book 5, c. 2. Again:
Indians, although of age, continue to enjoy the rights of minors,
to avoid contracts or other sales of their property -- particularly
real -- made without authority of the
Page 57 U. S. 238
judiciary or the intervention of their legal protectors.
Solerzanos Politica Indiana, 1, 209, ยงยง 24, 42. Indians are
considered as persons under legal disability, and their protectors
stand in the light of guardians. 46, 51. The fiscal in the
audiencia were their protectors, but in some cases they had special
protectors. When Indians dispose of their landed property or other
thing of value, the sale is void unless made by the intervention of
the authorities, or of the protector-general, or person designated
for the purpose. C. 29, 42. Many other citations of a like kind
might be given from the King's ordinances for the protection of the
Indians. They were protected very much by similar laws when
Louisiana was a French province, excepting in this: that the power
to confirm an Indian sale of land, as to the whole or a part of it,
or to reject it altogether, was exercised by the French governors
of the province.
Nor were these laws of protection disregarded. They were brought
into operation very soon after General O'Reilly took possession of
the province, in 1769. He acted not only upon Indian sales of land
made after the cession of the province by France, but upon such as
had been made before. Considering himself as representing the King,
when called upon to relinquish the title of the Crown in favor of
such purchasers, he rejected them altogether when not made in
compliance with the laws for the protection of the Indians, and
diminished the quantities of such sales when the purchasers could
show from any cause whatever that they had an equitable claim upon
the Indians for remuneration. The first sale of the kind to which
his attention was called was one from Rimeno, the chief of the
Attacapas village, as early as 1760, to Fuselien de la Clare,
afterwards claimed by Morgan & Clark. O'Reilly did not think
that the sale had been completed so as to pass the title to it
under the French law, though it had been executed before the
governor. De la Clare then petitioned for a grant of one league to
front upon the Teche, by a league in depth, making the sale to him
from the Indians, of two leagues in front, from north to south,
limited on the west by the River Vermilion, and on the east by the
River Teche, the foundation of the equity of his claim for a grant.
Governor O'Reilly received the application and granted a league in
front by a league in depth. In the same manner all other larger
purchases from the Indians were afterwards reduced to one league
square. It became the common understanding that no larger
confirmation of an Indian sale of land would be made, and no one of
them was ever confirmed for more, by either of the Spanish
governors of Louisiana, including Salcedo, the last of them. This
of Dubuque is the only case in which it is claimed to have been
done. In Florida, larger Indian sales
Page 57 U. S. 239
of land were confirmed, upon the ground that the governors of
that province acted in such a matter upon a different authority
from the King. But both in Florida and Louisiana it was so well
understood that an Indian sale of land, before it could take effect
at all, needed the ratification of the governor, that it was
frequently inserted in the act of sale.
See claims of
purchasers of Indian lands by Stephen Lynch, Joseph and John Lyon.
Such had been the law of Louisiana, or rather the administration of
it by the governors, for more than eighteen years, when Dubuque
alleges that he bought the land from the Fox Indians. Such it had
been for twenty-six years when he presented his petition to the
Baron Carondelet. It is true that the governors had the same powers
to grant the public lands of the Crown, to which a title and
instant possession could be given to the grantee; but it is also
true, in their action upon the sales of Indian lands still in their
occupancy, that they were bound by the same laws, usages, and
customs, and by those laws especially which had been made for the
protection of the Indians, and by the oath which they took to look
to the welfare, augmentation, and preservation of the Indians.
Such are our views of the law relating to the powers of the
governor in respect to sales of land by the Indians. If we thought
then, as we do not, that the order of Governor Carondelet upon the
petition of Dubuque was a grant of the ownership of the land, we
should be obliged to decide that it was an unaccountable and
capricious exercise of official power, contrary to the uniform
usage of his predecessors in respect to the sales of Indian lands,
and that it could give no property to the grantee. It is not meant
by what has just been said that the Spanish governors could not
relinquish the interest or title of the Crown in Indian lands and
for more than a mile square; but when that was done, the grants
were made subject to the rights of Indian occupancy. They did not
take effect until that occupancy had ceased, and whilst it
continued it was not in the power of the Spanish governor to
authorize anyone to interfere with it.
It has been intimated that the action of the governors of
Louisiana upon the sales of Indian lands, especially in the
reduction of them to a league square, was the consequence of
O'Reilly's regulation, limiting grants of land in particular
districts to a league square. This may have been so as regards
quantity, but the principle upon which they acted upon Indian sales
of land is to be found in those laws of Spain which made them
officially the protectors of the Indians.
But it will be said at this point of the case, as it was said in
the argument, if the governor's order was not a grant for lands,
that
Page 57 U. S. 240
it gives to Dubuque nothing, as he had already the occupancy
under the Indian purchase. The error in the statement is, the
assertion that he had the right to occupancy, and in the
supposition that the opposers of the grant contend that the
governor meant to give him that right. Not so. The last, we have
just said, the governor could not give, and that the Indian sale
could not give it to a purchaser until the sale had been ratified.
But the privilege to work the mines in lands still in the occupancy
of the Indians, he could give, because the mines were a part of the
royal patrimony of the Crown, and the King had directed that they
might be searched for and worked in all of his dominions by his
subjects, both Spaniards and Indians. When, then, Dubuque
represented to him that he had bought mines and lands from the Fox
Indians, and asked for the enjoyment and peaceable possession of
them, and the governor wrote "granted as asked for," he meant no
more than this: as you say that you have bought the mines, with the
permission of the Indians to work them, you shall also have
mine.
The view taken of this case relieves us from the consideration
of several points which were made in the argument of it;
particularly from that of the effect of the words "peaceable
possession," found in the petition of Dubuque to Governor
Carondelet, to which it was contended his final order had a direct
reference. We admit with pleasure that it was shown by a learned
and discriminating appreciation of those words in grants for land,
that they were more frequently than otherwise a grant of ownership;
but they cannot do so in a case where the order or grant is given
with direct reference to a fact in the petition for it which does
not exist, or where a grant is given upon an Indian sale of land
contrary to what we think the laws of Spain permitted to be done.
The order given upon the petition of Dubuque, had it been intended
to be a grant of ownership, would not have been binding upon the
conscience of the King of Spain, and only such as are so are
conclusive against the United States under the treaty transferring
Louisiana.
Nor is it necessary for us to notice the reference which was
made in the argument to the treaty made by General Harrison with
the Fox Indians, further than to state that it is no more than a
declaration that the Indians, in selling to the United States their
land, did not mean to sell parts of it which they had sold before
to others. It may have had a reference to this claim of Dubuque,
but not having been so expressed, it cannot be inferred.
We cannot leave this case without a reflection occurring from
our investigation of it, and which is not favorable to the
statement made by Dubuque that he had bought the land from the Fox
Indians.
Page 57 U. S. 241
Dubuque's mines, as they were called, are on the west bank of
the Mississippi, a little more or less than seventy miles below
Prairie du Chien, where he made his contract with the Indians. They
are so near to the City of Dubuque that they may be said to be
contiguous. In the year 1780 the wife of Peosta, a warrior of the
Kettle chief's village, discovered a lead mine on these lands, and
other mines were found soon afterwards. The principal mines are
situated upon a tract of one league square, immediately at the Fox
village of the Kettle chief, extending westward. This was the seat
of the mining operations of Dubuque. The Kettle chief's village was
on the bank of the Mississippi River, below the little river
Makoketa, and was at the time when Dubuque settled there, a village
of many lodges. School-craft.
If it was not the largest of the Fox or Outagami Indians, it was
not inferior to any other village than that of the Foxes and Sacs
on the bank of the Mississippi River, near Rock Island. It had been
for a long time an Indian village when Dubuque settled there. It
continued as such all the time that Dubuque resided there until his
death -- that is, from 1788 to 1810 -- and its chief survived
Dubuque for ten years. Can it be presumed that, under the contract
with Dubuque, the Indians meant to sell him that village, and all
the lands for miles above and below it, with all of the mines upon
the land directly adjoining it? And yet such must be the result if
that were so; for, carry Dubuque's description of his purchase into
a survey, and it takes in the Kettle chief's village. We cannot
believe that the Indians did make such a sale, or that they were so
ignorant of their topography as not to know that a line extended
from the monuments on the Makoketa and the Tete des Morts for three
leagues west, with a base equal to the Mississippi boundary, would
not have included their village. We make no other commentary than
this -- that time, if it does not obliterate the offenses and
weaknesses of men, disposes us to recollect them in connection with
their merits, and if we speak of them at all, to do so
forbearingly.
We will now close the case with an additional remark. This claim
was presented to Congress in the year 1812. It had been before the
commissioners for adjusting land claims in the Territory of
Louisiana, as early as 1806. It has been repeatedly before both
houses of Congress, but with such differing opinions concerning it,
that no confirmation of it could be obtained, although the
commissioners had returned it as a valid claim. It was before the
Senate again in 1845. It was then reported upon, and again in 1846.
Doc. March 30, 1846. That is an able paper, but besides conclusions
drawn from the decisions
Page 57 U. S. 242
of this Court which we do not think applicable, and others which
were made without reference to the laws of Spain, which prevailed
in Louisiana, we think it remarkable that the report, though
containing frequent allusions to Dubuque's contract with the
Indians, and extracts from it, does not set it out entire as one of
the papers upon which the claim was rested. The petition of Dubuque
to the governor, his reference of it to Todd, Todd's reply, and the
governor's order, are the papers upon which the report was made.
The same documents were placed before the commissioners in 1806,
without the Indian contract.
See Public Lands, American
State Papers, vol. 3, 580. It does not surprise us that a correct
view was not taken of it then, or that the committee of public land
claims in the Senate should have viewed it differently in 1846 from
that now taken by this Court. The petitioner in this suit has the
merit of having put his case upon everything in any way connected
with the claim of Dubuque fairly, fully, and openly. Still if
success does not follow his expectation, he cannot complain of it,
for the purchase from Dubuque was an adventure to buy the half of
the land, with a full knowledge of all of the papers and the
circumstances under which Dubuque claimed.
The judgment of the district court is affirmed.
Order
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 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.
* "Peaceable possession" is the proper translation of the
original.