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THE UNITED STATES, PLAINTIFFS IN ERROR, v. JEHIEL BROOKS AND OTHERS

December 1, 1850

THE UNITED STATES, PLAINTIFFS IN ERROR,
v.
JEHIEL BROOKS AND OTHERS, DEFENDANTS.



THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiana. The facts are very fully set forth in the opinion of the court, to which the reader is referred. It was argued by Mr. Crittenden (Attorney-General), for the United States, and Mr. Walker, for the defendants.

The opinion of the court was delivered by: Mr. Justice Wayne delivered the opinion of the court.

Mr. Crittenden made the following points:––

I. That the first supplementary article of the treaty does not make a grant or reservation in favor of the Grappes of four leagues of land, but the true meaning and import is simply that the Grappes shall have their right, whatever it may be, to the four leagues of land stated as being reserved to them in 1801, in the preamble; and there was, therefore, error in the refusal of the court to give the first instruction prayed for.

This, it is contended, is the true construction. The language of the second supplementary article, relating to the donation to Edwards, is very different in its terms, and imports a present grant. 'There shall be reserved to Larkin Edwards, &c., one section of land.'

II. That the recital of the reservation to the Grappes, in 1801 does not relieve the defendants from producing the primordial title on which they must rely, and the court, therefore, erred in refusing to give the second instruction prayed for, and in charging as it did on this point under the second head of the charge as given.

The law of Louisiana, borrowed from the civil law, is against the court below. The 2251st article of the Code declares that 'recognitive acts do not dispense with the exhibition of the primordial title, unless its tenor be there specially set forth.' In this case its tenor is not set forth, and the primordial title must therefore be produced. The recognitive act is no proof of the contents of the primordial, even when the latter is fully set forth, unless it also be shown that the latter is lost. 1 Evans's Pothier, §§ 742, 743, p. 443; Brooks v. Norris, 6 Rob. (La.), 181.

But had the Spanish authorities in 1801 any power to authorize and sanction the reservation? That they had no such power has been decided many times in this court, in the case of the Perdido boundary. The country embraced within the limits of Louisiana, west of the Mississippi, stretched far beyond even the Sabine, and it was not until the treaty with Spain of 1819, that the United States relinquished their claim to it, and ceded what lay west of that river to Spain. The United States claimed it from the first. In the act of 20th February, 1811 (2 Stat. at L., 641), to authorize the people of the Territory of Orleans to form a state government, the Sabine is declared to be the western boundary of the new state. Besides, it is to be remembered, that the fourteenth section of the act of 26th March, 1804 (2 Stat. at L., 287), declares that all grants, and every act and proceeding subsequent to the treaty of St. Ildefonso, of whatsoever nature, towards the obtaining of any grant, title, or claim to land in Louisiana, under whatsoever authority transacted or presented, shall be null and void.

In addition to all that, it may here be mentioned that the Caddoes themselves never claimed Rush Island, or ever used it in any way. It was occupied by whites, and was never intended by the Caddoes to be included in the treaty or given to the Grappes.

III. That by the law of Spain the Caddo Indians had no primitive title to any land, and had no power to alienate without consent of the Spanish authorities; and these authorities at Natchitoches had no right to sanction the donation mentioned in the preamble and supplementary article. Mitchel et al. v. The United States, 9 Pet., 714. The Spanish officers at Natchitoches had no control over the Caddoes, the territory they inhabited being within the jurisdiction of the post of Nacogdoches. See 2 Martin's History of Louisiana, 202, 203, 261, 262; see also House Doc. No. 49, 1st Session, 24th Congress.

IV. That there was error in the court refusing to give the fourth instruction prayed for, because the matters therein mentioned were part of the history and public archives of the country, on which it was the duty of the court to inform the jury. See the state papers above referred to.

V. That the court erred in refusing to give the fifth instruction prayed for, and in charging as in the third point of the charge given.

VI. That if there is no title in Brooks, there can be none in the purchasers under him.

VII. That the court erred in not admitting as evidence in the cause the letter of General Cass to Mr. Garland, of the 17th of March, 1836, and the memorial of the Caddoes to the Senate of the United States, of the 19th of September, 1837, and the report of the House and depositions therein, and in the case of Brooks v. Norris; and in admitting copies of the affidavits of David, Trichel, and D'Ortlont.

Mr. Walker's points were as follows:––

1. Defendants' title rests upon a grant by treaty to the Grappes, a bona fide sale by them to Jehiel Brooks, and a bona fide sale of part of the land by him to the other defendants. The treaty of 1st July, 1835, being ratified and confirmed by the President and Senate, becomes the supreme law, and cannot be set aside by the courts, on any ground whatever, not even upon an allegation of fraud. Const. U. S., art. 6, § 2; Story on Const., 684, 686; Foster & Elam v. Neilson, 2 Pet., 254, 306, 307; 6 Id., 711, 738; 3 Peters Dig., 654, 655, Nos. 1, 4, 6, 8, 11, and 12; 1 Kent, 286, 287; 6 Cranch, 136, 139.

2. The boundaries of the Indian lands ceded to the United States by the treaty are fixed therein, and cannot now be disputed by either party thereto, nor can they be altered but by the consent of both parties; the right of the Indians to the lands ceded is admitted by the treaty, and by the general policy of the government in treating with them. Story on Const., 379 et seq., §§ 532, 535; 12 Pet., 516, 725; 14 Id., 13, 14.

3. The boundaries cannot be varied by parol proof, because,––

1st. The United States are parties to the treaty, which is in writing, and cannot be varied or contradicted by them. 2 Peters Dig., 234 et seq., Nos. 898, 903, 904, 909, 921, 922, 933.

2d. The treaty is part of the supreme law of the land, and cannot be varied or contradicted by parol proof. 2 Peters Dig., 153, No. 35; 161, No. 128; 172, No. 238.

4. The treaty, by its terms, declared that the Caddo Indians had previously donated the lands in dispute to the Grappes, the defendants' vendors, and confirmed that donation to them; which treaty having the force of a law, it is equal in dignity and effect to a complete grant by the United States, and they cannot go beyond that grant. 9 Pet., 746; Johnson v. McIntosh, 8 Wheat., 571; 6 Pet., 342; 2 Hows., 344.

5. The motives that induced the President and Senate to ratify the treaty containing this grant, or the reasons, if any, that should have influenced them to reject that part of the treaty, are not proper subjects of inquiry in any court, but all such acts must be received as conclusive on all subjects within the scope of their power. 6 Cranch, 129, 131; Story on Const., 567.

6. Congress cannot, by legislation in any form, divest a citizen of rights acquired under a treaty, or previous act of Congress. 6 Cranch, 132, 133, 135.

7. Brooks is a bon a fide purchaser from the Grappes, who acquired a good legal title under the treaty, which title cannot be questioned by the grantors of his vendors. 6 Cranch, 133, 134; Story on Const., 567.

8. Fraud cannot be charged on Brooks, as United States commissioner, in negotiating the treaty, without charing the same on the President and Senate, for he was their agent, and they made his act their own by their confirmation of the treaty. Story on Const., 557.

9. Congress have not authorized the inquiry of fraud to be made, but expunged it from the House resolutions, 38. Resolution of Congress, 30th August, 1842 (5 Stat. at L., 584.)

10. The fact of Brooks having been commissioner to negotiate the treaty did not disqualify him from purchasing long afterwards, and when his functions had ceased, land reserved in said treaty, and such purchase is no evidence of fraud in negotiating the treaty. 2 Peters Dig., 357; 3 Wash. C. C., 556 et seq.

11. The question of fraud was, however, submitted by the court to the jury, and decided in favor of the defendants, as appears by the record.

12. Report of commissioners, Doc. 1035, and record of Brooks v. Norris, not admissible. 1st. The depositions not taken in any suit nor in any issue joined before any judicial tribunal, nor any other tribunal having power to try or decide title to property. 1 Phil. Ev., 14 (and note 42), 378, 394, and 395; Const. U. S., art. 1, § 1; art. 2, § 1; art. 3, §§ 1 and 2; 2 Peters Dig., 164, No. 153. 2d. Consent to read the testimony in Brooks v. Norris does not bind the parties to admit the testimony in this suit, which is between different parties, both plaintiff and defendants. 10 Mart. (La.), 91, 92; 6 Pet., 340, 341; 2 Peters Dig., 229, No. 837; Id., 230, No. 850.

This is another chapter in our dealings with Indians, and it illustrates our character and theirs in such transactions. The case will be better understood from its history, than by the discussion of points which it suggests. After the narrative, our conclusion will be brief.

The case is brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiana.

It was a petition filed by the United States in consequence of the passage of the following joint resolution of both houses of Congress, on the 30th of August, 1842:––

'Resolved, &c., That the District Attorney of the United States for the Western District of Louisiana be, and is hereby, directed to institute such legal proceedings in the proper court as may be necessary to vindicate the right of the United States to Rush Island, which is alleged to have been improperly included in the limits of the lands ceded by the Caddo Indians to the United States, by the treaty of the 1st July, 1835, and reserved by said treaty in favor of certain persons by the name of Grappe.' (5 Stat. at L., 584).

The facts in the case were these:

On the 28th of January, 1835, the President of the United States received the following letter from the Caddo Indians:––

'To His Excellency the President of the United States.

'The memorial of the undersigned, chiefs and head men of the Caddo nation of Indians, humbly represents:––

'That they are now the same nation of people they were, and inhabit the same country and villages they did, when first invited to hold council with their new brothers, the Americans, thirty years (sixty Caddo years) ago; and our traditions inform us that our villages have been established where they now stand ever since the first Caddo was created, before the Americans owned Louisiana. The French, and afterwards the Spaniards, always treated us as friends and brothers. No white man ever settled on our lands, and we were assured they never should. We were told the same things by the Americans in our first council at Natchitoches, and that we could not sell our lands to any body but our great father the President. Our two last agents, Captain Grey and Colonel Brooks, have driven a great many bad white people off from our lands; but now our last-named agent tells us that he is no longer our agent, and that we no longer have a gunsmith or blacksmith, and says he does not know what will be done with us or for us.

'This heavy news has put us in great trouble. We have held a great council, and finally come to the sorrowful resolution of offering all our lands to you, which lie within the boundary of the United States, for sale, at such price as we can agree on in council one with the other. These lands are bounded on one side by the Red River, on another side by Bayou Pascagoula, Bayou and Lake Wallace, and the Bayou Cypress; and on the other side by Texas.

'We have never consented to any reservation but one, to be taken out of these lands, and that was made a great many years ago. The Caddo nation then gave to their greatest and best friend, called by them Touline, but known to all the white people by the name of Francois Grappe, and to his three sons then born, one league of land each, which was to be laid off, commencing at the lowest corner of our lands on the Red River, (as above described,) and running up the river four leagues, and one league from that line back, so as to make four leagues of land. We went with our friend and brother Touline (otherwise Grappe) before the Spanish authority, and saw it put down in writing, and gave our consent in writing, and the Spanish authority ratified our gift in writing. But, before the Americans came, our brother's house was burned, and the writings we have mentioned were consumed in it. Touline (otherwise Grappe) was a half-blood Caddo; his father was a Frenchman, and had done good things for his son when a boy. When he grew to be a man, he returned among us, and continued near to us till he died. He was always our greatest counsellor for good. He was our French, Spanish, and American interpreter, for a great many years; our brother now is dead, but his sons live.

'We, therefore, the chiefs and head men of the Caddo nation, pray that the United States will guarantee to the sons now living of our good brother, deceased, Touline (otherwise Grappe), the whole of our original gift,–four leagues to him and to them; and your memorialists further pray, that your Excellency will take speedy measures to treat with us for the purchase of the residue of our lands, as above described, so that we may obtain some relief from our pressing necessities; and your memorialists, as in duty bound, will ever pray,' &c.

This letter was signed by twenty-four chiefs.

Upon the back of this memorial, the President made the following indorsement.

'The President incloses to the Secretary of War the memorial of the Caddo chiefs, for his consideration, whether it will not be proper to appoint a commissioner, to obtain a complete cession of their lands to the United States. There will be about half a million of acres, it is supposed. Care must be taken in the instructions that no reservations shall be made in the treaty; and, if the request [for one of their friends] in the memorial be adopted at all, it must be in a schedule, which may be confirmed or rejected by the Senate, without injury to the treaty.

'January 28th, 1835.

'P. S. Will it not be well to ask an appropriation to cover this expense?

A. J.'

On the 39th of May, 1835, Jehiel Brooks, the Indian agent, commenced a negotiation with the Caddo Indians for the cession of their land, which continued until the 1st of July, when the following treaty was made, which was ratified by the Senate on the 26th of January, 1836, and proclaimed by the President on the 2d of February, 1836.

'Andrew Jackson, President of the United States of America, to all and singular to whom these presents shall come, greeting:––

'Whereas a treaty was made at the agency-house in the Caddo nation and state of Louisiana, on the 1st day of July, 1835, between the United States, by their commissioner, Jehiel Brooks, and the chiefs, head men, and warriors of the Caddo nation of Indians; and whereas certain supplementary articles were added thereto, at the same time and place; which treaty, and articles supplementary thereto, are in the words following, to wit:––

'Articles of a Treaty made at the Agency-House in the Caddo Nation and State of Louisiana, on the 1st day of July, in the year of our Lord 1835, between Jehiel Brooks, Commissioner on the part of the United States, and the Chiefs, Head Men, and Warriors of the Caddo Nation of Indians.

'Article 1st. The chiefs, head men, and warriors of the said nation agree to cede and relinquish to the United States all their land contained ...


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