CLAIMS UNDER THE TREATY WITH THE CHEROKEES. The sum of sixty thousand dollars constitutes the whole amount which can be paid by the United States for the claims of citizens for services rendered the Cherokee nation by the treaty of 1836. Claims under the treaty must be for services of a lawful nature, and performed at the instance and request of the acting authorities of the nation. ATTORNEY GENERAL'S OFFICE, April 20, 1837. SIR: In the letter of Messrs. Lumpkin and Kennedy, commissioners under the treaty of 1836 with the Cherokees, enclosed to me in your communication of the 23d ultimo, the following questions are stated, on which you ask my opinion: 1. As to the limits imposed by the treaty, on the gross amount to which claims for professional services rendered to the Cherokees by citizens of the United States may be allowed? 2. What constitutes a just claim under the treaty for such services? and 3. To constitute such a claim, is it necessary that the claimant should have been employed by the authority of the nation? I. In answer to the first of these questions, I have the honor to inform you, that, after maturely considering the statement of Mr. Schermerhorn, one of the commissioners who negotiated the treaty, and the arguments of Mr. Hansell, in behalf of himself and the other claimants, I am of opinion that the sum of sixty thousand dollars constitutes the whole amount which can be paid by the United States, under this treaty, for the c'aims of citizens of the United States for services rendered to the Cherokee nation; and that, if this sum is insufficient to meet the whole amount of the just claims of such persons, they must resort, for the balances which may be due to them respectively, to the Cherokee nation. The tenth article of the treaty provides as follows: "The United States also agree and stipulate to pay the just debts and claims against the Cherokee nation, held by the citizens of the same, and also the just claims of citizeus of the United States, for services rendered to the nation; and the sum of sixty thousand dollars is appropriated for this purpose: but no claims against individual persons of the nation shall be allowed and paid by the nation." The appropriation of the sum of $60,000, in the above clause, is expressly and solemnly made; and such a construction must be given to the clause, and to the whole treaty, as to give some reasonable effect to this appropriation. But it is impossible to give any such effect to it, except by treating it as the limit to which the United States were to go in paying the claims embraced in it. If the full amount of the just claims referred to, even though they should exceed $60,000, is yet to be paid, the appropriation of that sum was worse than an idle waste of words; it was calculated to produce ambiguity and dispute, where it was perfectly easy to avoid both by simply omitting the specific appropriation. As we have no authority to reject this appropriation, the only remaining question under this head is as to the claims embraced in it. Here, it must be admitted, there is a serious ambiguity in the language. The appropriation adinits of two constructions: it may apply to all the debts and claims spoken of in the clause-that is to say, the just debts and claims against the Cherokee nation held by citizens of that nation, as well as the just claims of citizens of the United States for services rendered. But, if this had been intended, the more accurate and natural ex pression would have been, "and the sum of $60,000 is appropriated for these purposes;" because, the just claims of the citizens of the United States are enumerated in the clause as a second class of cases, and the strict grammatical construction of the phrase "for this purpose," confines it to this latter class. I construe the clause as though the phraseology had been, "and also the just claims of citizens of the United States for services rendered to the nation, for which purpose the sum of $60,000 is appropriated." This, I think, is the precise grammatical effect of the language used; and, in a case of doubt, the grammatical construction should be preferred, unless plainly repugnant to the probable intent. In the present case, the grammatical construction will produce no injustice; whereas, the extension of the appropriation to both classes of cases enumerated in the clause might do great injustice. It is, moreover, in accordance with the statement of Mr. Schermerhorn, who informs us that the sum of $60,0 0 was named in the first draught of the article, exclusively with reference to the last description of claims. It is true this gentleman also thinks that, although this peculiar appropriation was intended to meet the claims of our citizens for services rendered to the Cherokee nation, it does not necessarily limit the amount to be allowed and paid to $60,000, in the aggregate, provided the just claims shall actually exceed that sum: an opinion from which, as already stated, I wholly dissent. But, the information given by him as to the origin of the appropriation may well be resorted to, where the language is obscure, for the purpose of settling the construction. II and III. In answer to the second and third questions, I can only observe that, in my opinion, the claim, to be a just one under the treaty, must be for services of a lawful nature, performed at the instance and request of the acting authorities of the nation. I am, sir, &c., &c., To the SECRETARY OF WAR. B. F. BUTLER. CONSENT REQUISITE TO A SALE OF INDIAN RESERVES. A general approval endorsed on an Indian's petition for authority to alienate his reserve, under the treaty with the Ottowas, &c., of the 29th August, 1821, is a valid consent-such having in 1822 been the mode adopted by the President for the exercise of his supervision. ATTORNEY GENERAL'S OFFICE, April 22, 1837. SIR: I have attentively considered the case of John Thorn, as stated by the Commissioner of the General Land Office, in the communication enclosed in your letter of the 9th ultimo. It appears to me that, under the circumstances stated by the Commissioner, the conveyance to McKinstry, and consequently that from McKinstry to Thorn, ought to be supported. Many of the Indian treaties are so framed as to preclude the execution of a conveyance by the Indian, even with the President's consent, until after the designation of the particular tract to which the grantor is entitled. This, however, is not the case with the treaty of the 29th of August, 1821, with the Ottowas, Chippewas, and Pottawatomies; the tracts to be granted under that treaty being located with sufficient precision in the treaty itself, as to enable the parties to judge of their situation and value; and there being no restraint on the power of alienating the interest acquired by the parties, except that it be done with the consent of the President. Whether it was expedient to give such permission before the actual designation of the tract to which Chaudonai and Daze were entitled, or not, was a question of discretion, to be settled exclusively by the Presi dent. The petition to President Monroe, on the 8th of August, 1822, by these Indians, is explicitly for permission to sell and convey in fee simple one of the two sections of land granted to Chaudonai, adjoining to the tract granted to J. B. La Leme, and also the section of land granted to Daze. The President, after causing the substance of the petition to be endorsed thereon, subjoins to such endorsement the words, "Approved— James Monroe." It appears from the Commissioner's letter, that at that time no formal regulation had been prescribed by the President in relation to the manner of conveying Indian reservations; and even were it otherwise, this express certificate of approbation by the President would probably be an adequate permission, within the meaning of the treaty; because, the whole matter being left to the President, he would at all times possess the power to dispense with his own regulations. It is not now usual to grant a general permission to sell, but the permission given by President Monroe was no doubt in conformity with the practice then observed in such cases; and though certainly not well adapted to protect the interests of the Indian grantor, we cannot, for that reason, deny its validity. I have the honor to be, with great respect, your obedient servant, To the Hon. LEVI WOODBURY, Secretary of the Treasury. PRE-EMPTIONS. A failure to pay for a pre-emption before a public sale of the lands in which it is situated, for feits the right, and, consequently, the right to select eighty acres elsewhere; it may be saved, however, by a tender of payment in due time. A tender for the original tract and for the tracts selected, with a condition that the first shall not be received without the latter, is a good tender, provided all the tracts are liable to be se lected; otherwise, not. A pre-emptor may float a tract returned as a regular half-quarter section, and two pre-emptors may float tracts that do not in the aggregate exceed 160 acres. He may select subdivisions of fractions where the land district contains no regular half-quarters, but, in such cases, should be confined to those containing the least excess over eighty acres. Where the district contains regular half-quarters, the two floats cannot take fractions which, united, amount to over 160 acres. Designating a tract before the coming in of a plat, so as to enable the proper officer to locate, is sufficient. Error in description is not fatal, if the tract be identified. ATTORNEY GENERAL'S OFFICE, April 27, 1837. SIR: In the case of Brown, Reynolds, and others, brought before you by appeal from the decision of the Commissioner of the General Land proved by the President, it shall be valid; and where the purchase has been made from the actual reservee for a fair consideration, honestly paid, the contract, on being approved by the President, will convey the whole right of the reservee to the purchaser, and will entitle the latter to a pa. tent from the United States. But fraud vitiates every transaction; and every instrument which has been obtained thereby is considered, in the jurisprudence of civilized countries, as utterly null and void. If, therefore, the contract has been obtained by fraud, it would be set aside, on complaint of the party aggrieved, and proof of the facts, by any court of equity having competent jurisdiction, although approved of by the President; and, as the legal title remains in the United States until the issuing of the patent, which is an executive act, the President, when he has good reason to suspect that any such contract has been obtained by fraud, may lawfully withhold the patent until a judicial investigation can be had; or, if the proof of fraud presented to him be satisfactory, he may deny the patent to the fraudulent grantee, and issue it to such purchaser as shall comply in good faith with the provisions of the treaty, without subjecting the injured party to the delay and vexation of a suit. The cases in which the late President reversed the contracts which he had previously approved, as mentioned by the commissioners, were undoubtedly of this latter description; and I do not doubt his authority to do so. Both classes of cases stated by the commissioners are grossly fraudulent, and the principles above stated apply to them with their utmost force. The evidence in each of these cases should be fully reported to the President, with the opinion of the commissioners as to its credibility and weight, so as to enable him to decide on the proper disposition to be made of each case. I am, sir, very respectfully, your obedient servant, The Hon. J. R. POINSETT, B. F. BUTLER. Secretary of War. PAY OF ACTING QUARTERMASTER GENERAL. The acting quartermaster general is entitled to receive the pay and emoluments of quartermaster general during the period of his service in that capacity, where the office is really or effectually vacant The proviso of the 5th section of the act of the 4th of July, 1836, to authorize the appointment of additional paymasters, and for other purposes, commented on and explained. ATTORNEY GENERAL'S OFFICE, SIR: In your letter of the 29th of March last, enclosing a communication from the Second Comptroller, you ask my opinion on the question proposed by him as to the right of Major Cross, of the army, to claim and receive the pay and emoluments of quartermaster general for the period during which he acted in that capacity. The state of the case, as it appears in the acts of Congress, and the communication of the Second Comptroller, and other documents before me, is as follows: By the act of the 14th of April, 1818, the quartermaster general is entitled to the rank, pay, and emoluments of a brigadier general. General The same principle, in my judgment, should be applied by the General Land Office to cases arising under the land laws. 3. A tender of payment for the tract occupied and cultivated, and for certain other tracts claimed as accruing floats, though coupled with the condition that the sum applicable to the primary tract shall not be received by the land officers unless the claimants are also allowed to purchase the tracts designated by them under their floating rights, and with a refusal to pay for the tract occupied and cultivated, unless the others can also be purchased by the parties, ought, in my opinion, to save the rights of the parties making the tender to all the tracts referred to; provided it shall appear that the tracts designated under the floating rights were liable to be purchased under such rights, at the time when the tender was made. But I think that parties making a tender in this way incur the duty of showing that the tracts claimed as accruing floats were really such as they had a legal right to purchase under the law; and that if it turns out that they had no right to claim such tracts, the whole tender will be vitiated. In other words, the party making a tender in this form does it at his own peril; and if it proves to be bad in part, it must, as a consequence of the character he has given it, be bad for the whole. The above principles, when applied to the case before me, would seem to place the claim of Messrs. Brown and Reynolds to the tracts designated by them as accruing floats, on the same footing on which it stood when they made the tender of payment; and to reduce the whole case to the question whether or not they were at that time entitled to select the tracts so designated by virtue of their floating rights. The district land officers think their claim to those tracts was illegal and void, for certain reasons specified in their letter to the Commissioner; to the sufficiency of which reasons you have called my attention in the second of the above questions. 1. On recurring to that letter, I find that the claims of Messrs. Reynolds and Brown to the tracts designated under their floating rights were rejected by the land officers because the tract selected by each contained more than eighty acres; those officers being of opinion that the law on this point was imperative, and that it left with them no discretion to allow such a claim. The Commissioner of the General Land Office, in his letter of the 7th of September, 1836, makes the following observations on this objection: "From the last survey of this township, it would appear that the tract claimed by Brown may not contain so much as eighty acres; but as the west line of lot A is not continued in the last plat, (the half-mile line, as was done in the former plat,) the contents cannot be correctly ascertained until the surveyor general makes such subdivision. "It has been decided by this office, as pre emptors frequently select tracts on which to locate their floats containing less than eighty acres, and are thus deprived of part of the number of acres to which they were entitled under the law, in cases where a claimant selects a half quarter of a section on which to locate his float, which contained a few acres more than the eighty mentioned in the law, to permit such location to be per fected." Where the tract selected, though it may contain a few more acres than eighty, is yet returned in the surveys as a half-quarter section, I have no doubt the pre-emptor should be allowed to purchase it. The first section |