Doe on Demise of Eu-Che-Lah v. Welsh

• Decision Date: 30 June 1824
• Citation: 10 N.C. 155
• Court: North Carolina Supreme Court
• Parties: DOE ON DEMISE OF EU-CHE-LAH v. WELSH.—From Buncombe.

10 N.C. 155

DOE ON DEMISE OF EU-CHE-LAH

v.WELSH.—From Buncombe.

SUPREME COURT of NORTH CAROLINA

JUNE TERM, 1824

Cherokee Indians in possession of lands within the limits of North Carolina, reserved under the treaties of 1817 and 1819, made by the United States and the Cherokee Nation, are to be considered as purchasers of the land. The exercise of power by the commissioners of the United States is legitimate; and, moreover, the stipulation in these treaties, having been recognized by several acts of the Legislature of North Carolina, passed since, she must be considered as assenting to them. A grant of the land to the Indian in possession is not necessary, for it is not claimed under those laws which point out the manner of acquiring title to vacant lands in this State, and title may be complete in some cases without grant; e. g., the University holds escheated lands under an act of Assembly.

EJECTMENT. The plaintiff's lessor, a Cherokee Indian, claimed title to the land in dispute, under treaties between the United States of America and the Cherokee Nation, made in 1817 and 1819.*

The plaintiff's lessor, to bring himself within the provisions of the treaties, gave in evidence the following documents:

1. A commission from James Monroe, President of the United States, to Col. Robert Houston, dated 12 March, 1819, constituting him an agent on the part of the United States to run the boundary

lines of the lands ceded by the Cherokees, and to run off andlocate the Indian reservations in Tennessee.

2. A certificate from Colonel Meigs, Indian agent, that the lessor of the plaintiff had enrolled himself according to the provisions of the treaties.

3. A certificate and survey made by Colonel Houston and Robert Armstrong, surveyor, of 640 acres, the land now in dispute, for and and on his account, dated 27 September, 1820.

4. A letter from the Secretary of War of the United States to Colonel Houston, inclosing the commission, and containing the following clause: "In addition to the duty required of you by the commission, you are requested to lay off also the tracts reserved in North Carolina and the Alabama Territory."

Defendant was proved to be in possession of the land described in the declaration, claiming under a purchase from North Carolina, and

it was also found that the lessor of the plaintiff at the ratification of the treaty of 1819 was not living on the lands contained within the lines of his survey, nor within a mile and a half or two miles of it; but he had on it a field cleared and fenced, a crib within the enclosure where he housed his corn, and a hut.

Nash, J., who presided, directed the jury that if they were satisfied that the facts stated in the documentary evidence before them were true, that the plaintiff was seized of such a title as would enable him to support an action of ejectment; that it was not essential to the validity of his title that the land should have been laid off to him by the officer of the United States in an exact square; nor was it necessary for him to show that at the ratification of the treaty of 1819 he was living upon the land. If he had an improvement upon it it was sufficient, though he Was living at another place.

The jury found a verdict for the plaintiff, and a motion fora new trial on the part of the defendant having been refused, from the judgment rendered he appealed.

TAYLOR, C. J. Although this controversy is, in reality, between the plaintiff, a Cherokee Indian, on the one side, and the State of North Carolina on the other, who should certainly renounce all claim to the purchase money in the event of the defendant's being evicted; yet it is very gratifying to remark that throughout the whole progress of the business the faith of the State remains unpledged, her honor inviolate; for not the slightest inference can be drawn from any of the acts passed on the subject that she intended to sell the Indian reservations, or to confer that power upon the commissioners. The two acts confine the sale expressly to the lands acquired by treaty from the Cherokees, and are silent as to the lands reserved to the Indians. These, on the contrary, are recognized; the general reservations are protected from the purchase, lease, and cultivation of white men, under a heavy penalty; and the special ones to the two Indians called Major Walker and the Big Bear explicitly acknowledged to belong to them absolutely. 1819, ch. 997; 1820, ch. 1060; 1821, ch. 32; 1822, ch. 12; 1823, ch. 11; 1820, ch. 1062.

If the General Government had a constitutional right to make these two reservations, they had an equal right to make the whole, for the same principles apply to all. It will follow that as the commissioners were constituted for a particular purpose, and with a limited and circumscribed authority to sell the lands which were acquired by treaty, their

selling the lands which were reserved was an excess of authority, neither in law nor reason obligatory upon the State, their principal. But as these observations relate solely to the defendant's title, the weakness of which, however obvious, will not enable the plaintiff to recover without showing a possessory right in himself, it becomes necessary to examine the several foundations on which that right has beenrested and the arugments by which it has been opposed. As to the nature of the Indian title in general, it will be necessary to make a few remarks for the sake of tracing some peculiar features which have been impressed upon it at different periods by the Legislature of this State in its intercourse with some of the tribes living within its limits.

It was a principle uniformly asserted by Great Britain that the ultimate dominion of newly discovered countries not known to Christian people belonged to the discoverer; and all the colonial charters, from the first granted to Cabot by Henry VII. down to the last, of Georgia, by George II., were made while the country was yet occupied by Indians. Most of these contain a grant of the soil as well as the powers of government, and they all proceed on the principle that the crown alone had a right to grant the soil; that the Indians had ceased to have any other than the temporary right of occupancy, and that a good title might be acquired by individuals under these grants, subject to the Indian right, and to be enjoyed when that right should be extinguished. 8 Wheat., 543. While the title remained in the crown no one was permitted to purchase from the Indians, nor was any title acquired from them deemed valid without the confirmation of the crown. The Indians were allowed to occupy and hunt on the lands, and to be governed by their own laws, but could not sell or lease without the consent of the government. When they retreated farther west, which sometimes happened from the scarcity of game or the constantly advancing settlement of the whites their lands reverted to the crown in full dominion, or became vested in possession in those individuals to whom they had been previously granted. This Indian right, consisting of the usufruct more than the ownership of the soil, was rather tacitly submitted to than expressly acknowledged, for in the charters it is not noticed. The lands are granted by boundaries, including many tribes, and in the charter to the lordsproprietors in this State, though the boundaries extend to the South Sea, comprehending many nations, they or their rights are not noticed.

In the treaty of Utrecht (9th State Papers) the five nations were described as subjects of Great Britain; and in a proclamation issued in 1763 all purchases of lands made from the Indians were declared void unless made by treaties held under the sanction of government. In the treaty of 1763, by which Great Britain acquired from France the sovereignity of the Canadas, many nations of Indians were included in the

boundaries. As most of the powerful and maritime nations of Europe were animated with a spirit of discovery and settlement of new countries, it became essential to their peace to adopt some principle by which their rights should be reciprocally acknowledged. The exclusive dominion over the soil of the Indians after their temporary occupancy should cease, and the right of purchasing from them such ownership as they were acknowledged to have, was accordingly claimed by each and acquiesced in by all, and may thenceforth be considered as incorporated in the law of nations.

Writers on the law of nature have maintained the justice of this principle in furthering the designs of Providence, and tending to the increase and civilization of the human race. Montesquieu L., 10; Vattel. They argue that every nation is under a natural obligation to cultivate the land that has fallen to its share, since otherwise the whole earth, which is destined to feed its inhabitants, would not yield an adequate supply if large tracts of fertile land were peopled only by hunters and shepherds; that however right this might have been in the first ages of the world, when the spontaneous productions of the earth were more than sufficient for its few inhabitants, it cannot now be justifiable, when the great multiplication of the human race in some countries has rendered it essential to their subsistence that the forests should be cleared andcultivated. The unsettled habitation of savages in those extensive tracts of country over which they wander, but cannot cultivate, must be inconsistent with the views of nature, while other nations are confined within a small compass, which no degree of skill or labor will render sufficiently productive. The only obligation which justice imposes on other nations is that they leave the natives a sufficiency of land.

It is not intended to inquire into the force of this reasoning, but only to show the nature of the claim to Indian lands set up by Great Britain, and the condition in which it was transferred to the lords proprietors. Perhaps if such weighty reasoning could not be given, dominion would be...