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Ladiga v. Roland. 2 H.

and the selection could have been so made, and was so made, as to include her improvement within the selection; that in such case the treaty itself located the plaintiff; and if the government, with a knowledge of such selection and location, exposed the land to sale, or reserved it for other purposes, such sale or disposition could not prejudice the right of the plaintiff. All which charges the court refused to give, and in lieu of them charged the jury: that notwithstanding the plaintiff was the head of a Creek family, duly enrolled as such by the authorized agent of the government, and entitled to select a half section under the second article of the treaty of the 24th March, 1832; and that although after the land ceded by the treaty aforesaid had been surveyed, she could have selected, and did select, the half section in dispute, which included her improvement, and of which selection she duly notified the government; yet the refusal of the locating agent to recognize her right, and to set apart the land by a designation of it opposite her name upon the roll, as in other cases of location, coupled with the subsequent sale and grants of the same land to the defendants by the United States, whether right or wrong, devested the plaintiff of all right to said land, and vested in the defendants in this action titles paramount, which the plaintiff could not gainsay or dispute. To which refusals of the court to give the charges asked by the plaintiff, and to the charge given in lieu of them by the court, the plaintiff excepted, and the judgment of the county court having been affirmed by the supreme court of Alabama, this writ of error was brought.

Co.ze, for the plaintiff in error.

No counsel contrà.

*

[ * 588 ] BALDWIN, J., delivered the opinion of the court.

Both parties claim the land in controversy under the United States, in virtue of the treaty of Washington, made on the 21th March, 1832, between the United States and the chiefs of the Creek tribe of Indians. The decision of the supreme court of Alabama was against the title set up by the plaintiff, the case is therefore properly brought here under the 25th section of the Judiciary Act of 1789. [The articles of the treaty are set forth in the statement of the case, ante, p. 212.] By an inspection of the second article, it will be seen that there are three distinct classes of selections to be made from the ceded lands, for the benefit of the Indians, after the lands are surveyed.

11 Stats. at Large, 85.

Ladiga v. Roland. 2 H.

1. The United States engage to allow ninety principal chiefs to select one section each.

2. And every other head of a Creek family to select one half section each, which tracts shall be reserved from sale for their use for the term of five years, unless sooner disposed of by them. A census is to be taken of these persons, and the selections are to include the improvements of each person within his selection.

3. And twenty sections shall be selected under the direction of the President, for the orphan children of the Creeks, and divided, retained, or sold, for their benefit, as he may direct.

By article third, these tracts may be sold by the persons selecting them, to any persons, as the President may direct, and a title shall be given by the United States, on the completion of the payment of the consideration. The fourth article stipulates, that at the end of five years, those entitled to these selections, who are desirous of remaining, shall receive patents; and by article fifth, all intruders shall be removed from these selections, for five years after the treaty, or until the same are conveyed to white persons. By article sixth, twenty-nine sections more may be located, and patents shall issue to the Creeks to whom the same may be assigned by the tribe. The fifteenth article makes the treaty obligatory on the parties, when ratified by the United States.

* The engagements of the treaty then are, to allow the [ * 589 ) chiefs and heads of families to select, for their own use, and reserve from sale for five years, the lands selected, that they may be sold and conveyed with the approbation of the President, and titles to be given by the United States, on payment of the purchasemoney, and at the end of five years to give patents to all who are entitled to select and desirous of remaining, and to remove intruders from their selections, during that time, till they are conveyed to white persons.

The lands to be selected for the orphans are placed under the exclusive direction of the President, as to their location and disposition, and are not embraced in the third or fourth articles, which are confined to selections made by the Indians themselves; these are expressly reserved from sale for five years, whereas the selections for orphans may be made and the lands sold at any time the President directs.

No authority is given to the President to direct the selection of the twenty sections for orphans, on or out of those made by the chiefs or the heads of families, or those sections which the tribes may assign under the sixth article; all the lands so selected or located are placed beyond the power of any officer, consistently with

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VOL. XV.

Ladiga v. Roland. 2 H.

the obligatory engagements of the treaty on the United States. In directing the selections for orphans, the treaty did not intend, and cannot admit of the construction, that they might be made on lands selected according to the first part of the second article. The provisions of the treaty were progressive; that relating to orphans is entirely prospective." It is a principle which has always been held sacred in the United States, that laws by which human action is to be regulated look forward, not backward ; and are never to be construed retrospectively, unless the language of the act should render that indispensable. No words are found in the act which renders this odious construction indispensable.” 2 Pet. 434. The last clause in this article cannot have been intended to annul or impair a title which was valid under the first clause, and guaranteed from intrusion under the fifth article for five years, unless sooner sold. S. P. 9 Wheat. 479.

Thus taking the treaty, and applying it to the evidence given at the trial, the instructions prayed of the court, and those given to the jury, it will not be difficult to decide in which party is the right of this case.

The plaintiff " proved substantially the following facts." (For the facts proved upon the trial, see the statement of the reporter.]

From the evidence, it appears that the plaintiff claimed [ * 590 ) under the * first, and the defendants under the second

clause of the second article of the treaty; that the plaintiff was the head of a family within the description, and had complied with all the requisites of the treaty, had selected the tract whereon her improvements were, where she resided before, at the time of the treaty, and until her expulsion therefrom by military force, on the frivolous pretence that she was not the head of a family, her children having married and left her, and none but her grandchildren lived with her. The defendants claimed under the second clause of the second article, relating to orphans' selections, by two patents dated in 1837, each for a quarter section, being the two halves of the half section selected by the plaintiff, which patents issued pursuant to a sale made by the agent appointed by the President, and affirmed by him in November, 1836, five months before the expiration of five years from the ratification of the treaty, and while the land was expressly reserved from sale. The defendants gave no other evidence of title.

This sale was a direct infraction of the solemn engagements of the United States in the treaty. Though approved by the President, if the plaintiff had previously selected it according to the stipulations of the treaty, in such case the sale was a nullity, for the want of any

Ladiga v. Roland. 2 H.

power in the treaty to make it. The President could give no such power, or authorize the officers of the land-office to issue patents on such sales; they are as void as the sales, by reason of their collision with the treaty. The only remaining inquiry is into the plaintiff's title. No other objection has been made to it, than the refusal of the locating agent or his deputy to recognize her right under the treaty, or to set apart the land so located by her opposite her name on the roll, as in other cases, solely for the reason he assigned. We cannot seriously discuss the question, whether a grandmother and her grandchildren compose a family, in the meaning of that word in the treaty; it must shock the common sense of all mankind even to doubt it. It is as incompatible with the good faith and honor of the United States, and as repugnant to the Indian character, to suppose that either party to the treaty could contemplate such a construction to their solemn compact, as to exclude such persons from its protection, and authorize any officer to force her from her home into the wilds of the far west. Such an exercise of power is not warranted by the compact, and the pretext on which it was exercised is wholly unsanctioned by any principle of law or justice.

Having a right by the treaty to select the land of her residence ; * having selected and been driven from it by [ * 591 ) lawless forces, her title remains unimpaired. She has not slept on her rights, but from 1832 to 1837 has made continuous and repeated applications to the government officers to assert her rights to said land, and through them to the government itself in 1837. She has never abandoned her claim, but has insisted on her rights under the treaty.

In our opinion, the plaintiff not only has a right to the land in question under the treaty, but one which it protects and guarantees against all the acts which have been done to her prejudice; and we are much gratified to find in the able and sound opinion of the supreme court of Tennessee, on the Cherokee treaty of 1819, and the supreme court of Alabama on this treaty, a train of reasoning and conclusions which we very much approve, and are perfectly in accordance with our opinion in this case. These cases are reported in 2 Yerger, 144, 432 ; 5 Yerger, 323; 5 Porter, Alabama, 330, 427.

The judgment of the supreme court of Alabama is therefore reversed.

17 Stats. at Large, 195.

Pollard's Lessee v. Files. 2 H.

Lessee of John POLLARD, WILLIAM POLLARD, John Fowler, and

HARRIET his Wife, HENRY P. ENSIGN and PAEBE his Wife, GEORGE HUGGINS and Louisa his Wife, Joseph Case and Eliza his Wife, Plaintiff in Error, v. Joseph F. Files, Defendant.

2 H. 591. It is the settled doctrine of this court, that the country west of the Perdido River was not

acquired from Spain as part of West Florida. But though we hold the Spanish authorities could not make valid titles to lands there, after

the acquisition of Louisiana by the United States, yet incipient titles acquired from those authorities might be, and to some extent have been, respected and confirmed by the United States ; and such a title of the plaintiff in error, existing when the act of congress of 1824, (4 Stats. at Large, 66,) granted certain lands to the city of Mobile, it was within the exceptions of that act; and the subsequent confirmation, by congress, of the plaintiff's title, made it valid.

ERROR to the supreme court of the State of Alabama, in an action of ejectment brought by the plaintiff in error. The material facts appear in the bills of exceptions, which were in substance as

follows: [ * 594 ] * The plaintiffs gave in evidence a Spanish grant, of

which the following is a translation:

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Mr. Commandant: William Pollard, an inhabitant of this district, before you, with all respect represents: That he has a mill established upon his plantation, and that he often comes to this place with planks and property from it, and that he wishes to have a place propitious or suitable for the landing and safety thereof; and that, having found a vacant piece at the river side, between the canal which is called John Forbes and Company's and the wharf at this place, he petitions you to grant him said lot on the river bank, to give more facility to his trading; a favor he hopes to obtain of you. Mobile, 11th December, 1809.

WILLIAM POLLARD.

Mobile, 12th December, 1809. I grant the petition; the lot or piece of ground he prays for, on the river bank, provided it be vacant.

CAYETANO PEREZ.

They relied also upon an act of congress for the relief of William Pollard's heirs,' and a patent, issued in pursuance thereof, under date of March 14, 1837.

The plaintiff then gave in evidence that the premises [ * 595 ] sued for * were situated between Church street and North

Boundary street, and immediately in front of lots known under the Spanish government as water lots, and that the said lot

16 Stats. at Large, 680.

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