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RIGHTS OF INDIAN RESERVEES.
The reservees under the Creek treaty of 1814, and the act of 1817, have not power to lense
their lands; the renting for a term of years and removal from the Sate may be regarded as
an abandonment of their reservations. On their abandonment, the title becomes immediately ves'ed in the United States by operation of law, and is to be then created as if ihen for the first time acquired by a treaty.
ATTORNEY GENERAL'S OFFICE,
May 23, 1837. Sır: In compliance with your request, I proceed to state my opinions on the questions proposed in the communication of the Commissioner of the General Land Office, bearing date the 20th of August last, and some time since referred to this office.
Inquiries having been made of the General Land Office respecting the light in which abandoned Creek reservations, originally confirmed under the first article of the treaty of the 9th of August, 1814, and the act of Congress for the execution thereof of the 3d of March, 1817, are regarded by the government, the Commissioner proposes the following questions:
“1. What circumstances are to be considered as constituting an abandonment of a reservation; by what proof must those circumstances be established; and by whom is the decision to be made, as to the reservation having reverted to the United States in consequence of such abandonment thereof hy the reservee?
“ 2. If it is decided that the reservation has been thus abandoned, can the land be considered as being liable to entry by floating claims before the officers for the district have been officially apprized of such decision, and the community have been notified by them that such tracts are subject to location or sale?"
I. The first of these questions embraces several particulars, which I will notice in their order.
1st. The first article of the treaty of 1814 provides," where any possession of any chief or warrior of the Creek nation, who shall have been friendly to the United States during the war, and taken an active part therein, shall be within the territory ceded by these articles to the United States, every such person shall be entitled to a reservation of land within the said territory, of one mile square, (to include his improvements,) as near the centre thereof as may be, which shall inure to the said chief or warrior, and his descendants, as he or they shall continue to occupy the same, who shall be protected by and subject to the laws of the United States; but upon the voluntary abandonment thereof, by such possessor, or his descendants, the right of occupancy or of possession of said lands shall devolve to the United States, and be identified with the right of property ceded hereby.” The act of 1817, so far as regards the tenure on which the reservations are to be held, is in substance the same as the treaty. The tract reserved to the friendly Indian is to be held by him and his descendants “ so long as he or they shall continue to occupy the same," and no longer.
Those circumstances, and those only, by which the party ceases to occupy the reservation, should be considered as constituting an abandonment thereof. I cannot particularly define them in advance, further than to say that they must be voluntary and unequivocal; leaving no reasonable doubt either as to the intention of the party, or as to the fact itself.
In the case of Peter Random, mentioned in the letter of the Commis. sioner, who is said to have occupied and cultivated his reservation until 1833, and then to have leased it for twenty years, by a formal written lease, reserving rent, and removed to Louisiana, where he now resides,-1 should think there could be no doubt, if such are the facts, that his ocrupancy had ceased, and that he had voluntarily abandoned his reservation. In my judgment, the reservee has no power to make a lease; nor do I think that he can, without a manifest violation of the words, object, and spirit of the treaty, be regarded as an occupant of the reservation, after he has ceased to have any direct personal connexion with the use and enjoy. ment of the land. For a full exposition of my views as to what is neces. sary to constitute the occupancy of land, I refer to my recent opinion in the case of Adams and Lapsley.
2d. The circumstances constituting a cesser of occupation, and an abandonment of the reservation, must, like all other facts necessary to be proved in judicial proceedings, be established by competent and credible evidence, to be produced to any tribunal in which the question shall arise for investigation and decision.
3d. I consider the words of the treaty as creating what is technically called a collateral limitation; and as giving to the Indian descendants a qualified in heritable estare, determinable on the cesser of occupation, and the voluntary abandonment of the premises. This would be the legal effect of the words used in the treaty, were they found in a private instrument; and this construction is agreeable to the nature of the case and the spirit of the treaty. It, will, therefore, follow that 10 judicial proceedings or actual entry on the part of the United States will be necessary to vest the estate in the United States. In this respect, these cases are to be distinguished from those in which an estate is granted on a condition, the breach of which renders the estate liable to be defeated, but does not di. vest it until entry by the grantor or his heirs. But where, as in the present instance, words of limitation are used, the estate of the grantee determines the moment the event arises, and at the same moment vests, by operation of law, in the grantor or his heirs; consequently, if the posses, sion be vacant, the United States may immediately take possession and sell; and if occupied, the occupant must be treated precisely like every other occupant of the public lands who has entered without authority.
II. Whenever the estate of the Indian reservee shall have determined, the land becomes a part of the public domain; and from the time when the fact is known to the officers of the land district, it will be their duty to treat it as such. Its liability to entry for floating claims, or for other purposes, will, from that time, be the same as if it had then for the first time been ceded to the United States. This general principle, in connexion with the usage of the office, and the course which the actual state of things in the district, including the reservation at the time when the tract reverts, may require, will, I presume, furnish a sufficient answer to the second of the above questions. I am, very respectfully, your obedient servant,
B. F. BUTLER. Hon. Levi WOODBURY.
DEPOSITES OF MONEYS IN HANDS OF DISBURSING OFFICERS.
Under the order of the Treasury Department, approved by the President on the 5th of Octo
ber, 1833, disbursing officers may legally keep the public moneys entrusted to them on deposite in the banks heretofore selected by the treasury, and which now have the public
money. Disbursing officers may legally make special deposites of their funds in non-specie-paying
banks, if so directed by the President, where they will agree to receive the funds in that Any bank not restrained by its charter, or other statutory enactments, nor by judicial process,
from receiving special deposites, is competent to enter into a contract for the safe-keeping
and return of a special deposite in such way and on such terms as may be agreed on. Payment by disbursing officers to the credit of the United Sta'es must be made to the Treas
urer, or to some specie-paying bank.
ATTORNEY GENERAL'S OFFICE,
May 26, 1837. Sır: In your letter of the 20th instant, after calling my attention to the second section of the act of March 3d, 1809, by which it is provided that certain agents of the government for the disbursement of public moneys “shall, whenever practicable, keep the public money in their hands, in some incorporated bank, to be designated for the purpose by the President of the United States ;” and to the actiou of the Secretary of the Treas. ury, approved by the President, in relation to such moneys, as well as under the deposite act of the 23d of June last, you propose for my opin. ion, by desire of the President, the following questions:
“1. Can disbursing officers of the government, under the provisions of the acts and regulations referred to, legally keep the public moneys in their hands, on deposite in any specie paying banks? and if so, what action, if any, is necessary on the part of the Èxecutive to authorize it?
"2. Can disbursing officers, under the provisions of the act of 1809, legally make special deposites of their funds in non specie-paying banks ? and if so, what measures, if any, will it be advisable to adopt to render the banks liable for the safety of their deposites.
“3. In many cases, disbursing officers and others are required to pay balances in their hands into bank, to the credit of the Treasurer of the United States, that they may be credited in their account with the sum deposited, on a warrant issued as required by law. Can these officers be required to make the deposites with collectors of the customs or receivers of public moneys, to the credit of the Treasurer, so as to receive a credit in their accounts with the government?. And can the collectors of the customs and receivers be legally required to receive such deposites, and become responsible for the amount to the United States? or must they be paid into some public depository which redeems its notes in specie, or be paid to the Treasurer in this city ?”
In answer to the first of these questions, I have the honor to inform you that, in my opinion, the provisions of the act of the 23d of June last were not intended to apply, and do not apply, to public moneys drawn out of the treasury, and placed in the hands of disbursing officers for ex. penditure; and, consequently, that the act of 1809 has not been repealed or affected by those provisions. I think, however, that the act of June 23d, 1836, regulating, as it does, the deposites of the public money in the treasury, should be resorted to by the President as a guide for the exercise of the discretionary power vested in him by the act of 1809; and that, so far as circumstances may permit, he should conform to it in any directions he may give concerning moneys in the hands of disbursing agents. It was in accordance with this principle that the order of your department, approved by the President on the 5th of October, 1833, was issued. Under that order, and until it shall be revoked or modified, I think the disbursing officers may legally keep the public moneys intrusted to them, on deposite in the banks heretofore selected by the treasury, and which now have the public money; but it may be questioned whether the events which have recently occurred, and which have led to the discontinuance of those banks as depositories for the treasury, do not require some modification of such order. Notwithstanding the suspension of specie payments by the incorporated banks, the President may still desig. nate such a bank as a depository for disbursing officers, if, in his judg. ment, it shall be practicable to employ it for that purpose; because it is not positively required, as an indispensable requisite, by the act of 1009, that the bank should pay its notes in specie on demand. In this respect the act of 1809 differs from that of 1836. But when and how far it may be expedient for the President to act on this distinction, is a matter on which this office has no authority to advise.
In reply to the second question, I have the honor to state, that I think disbursing officers may legally make special deposites of their funds in non-specie paying banks, if so directed by the President, and if the banks agree to receive such funds in that way. Any bank, not restrained by its charter or other statutory enactments, or by some judicial process, from receiving special deposites, will be coinpetent to enter into a contract for the safe-keeping and return of a special deposite, in such way and on such terms as may be agreed on; and the district attorney of the United States, in the district where the bank proposed to be employed for this purpose is situated, will, no doubt, be able to give the information and advice which will be necessary to the settlement and execution of a proper
In my opinion, the payments referred to in the third question must be made to some specie paying bank employed as a depository under the act of June last, or to the Treasurer of the United States in this city, and cannot be required to be made to the collectors or receivers; nor can those officers be compelled to receive them, nor, if received by them, would their sureties be responsible therefor. I am, sir, &c., &c.,
B. F. BUTLER. To the SECRETARY OF THE TREASURY.
MANDAMUS AGAINST THE POSTMASTER GENERAL.
The circuit court of the District of Columbia are not invested with authority to issue a man
damus against the Postmaster General to compel him to execute an act of Congress in : particular way.
ATTORNEY GENERAL'S OFFICE,
May 30, 1837. SIR: It appears by your letter of the 27th instant, and the paper enclosed therein, that application has been made by William B. Stokes and others to the circuit court of the District of Columbia for
the county of Washington, for a writ of mandamus, to be directed to the Postmaster
General of the United States, directing him to execute a certain act of Congress in the mode specified in such application; and that, in accordance therewith, the court has granted a rule upon the Postmaster General to show cause why such writ should not issue. In answer to your call for my opinion and advice as to the jurisdiction of the court to entertain this procedure, and to issue the writ applied for, I have the honor to inform you that I am clearly of opinion that no such jurisdiction is possessed by it.
In the case of McIntyre vs. Wood, (7 Cranch's Reps. 504,) a similar question was brought up for decision in the Supreme Court of the United States, upon a division of opinion in the circuit court for the district of Ohio, upon a motion for a maudamus to the register of a land office at Marietta, commanding him to grant final certificates of purchase to the plaintif? for certain lands in that State. The Supreme Court decided that the circuit court had no power to issue such a writ; the judges being of opinion that the power conferred by the judiciary act of 1798, on the circuit courts, to issue the writ of mandamus, is exclusively confined to those cases in which it may be necessary to the exercise of their jurisdiction. They considered the constitutional provisions concerning the judicial power of the United States broad enough to authorize the delegation to the circuit court of a power to issue writs of mandamus in cases where some ministerial act is necessary to the completion of an individual right arising under laws of the United States; but as the acts of Congres delegated no such power, the conclusion was inevitable that it could not be exercised. The principle of this decision was recognised in the subse. quent case of McClung vs. Silliman, (6 Wheaton's Reps. 598,) and has never, to my knowledge, been called in question.
Unless, therefore, some power in relation to the writ of mandamus has been delegated to the circuit court for the county of Washington, beyond that possessed in such cases by other circuit courts of the United States, the point must be regarded as settled by the highest judicial authority. I have carefully examined the acts of Congress organizing the court and regulativg its jurisdiction; but, though it possesses some powers not delegated to the other circuit courts, I do not find that it has ever been authorized in express terms, or by any general grant of power, to issue a writ of mandamus to an executive officer of the United States. In this respect, I think its jurisdiction the same with that of the other courts; and, consequently, that it cannot rightfully entertain the procedure referred to.
I am, sir, &c., &c.,
B. F. BUTLER. To the PosTMASTER GENERAL.
POWER OF SECRETARY OF THE TREASURY TO REMIT FINES.
After a fine has been imposed by a collector of customs for a violation of the revenue laws,
and collected and distributed under the acts of March 3, 1797, and July 14, 1832, or either of them, the Secretary of the Treasury is not authorized to remit it.
ATTORNEY GENERAL'S OFFICE,
June 2, 1837. Sır: It appears from your letter of the 23d of November last, that "a fine of $50 was incurred by J. H. Pease, under the 9th section of the act