Christian Indians. cannot advise you to issue any instructions to the marshal of Minnesota which would require him to change his residence. The law passed by the territorial legislature can add nothing to the obligations you were placed under by those of Congress. The representatives of the Territory cannot define the duties of the federal officers, or take away from them any privilege or immunity given by the law of Congress. I am, most respectfully, yours, &c., Hon. JACOB THOMPSON, Secretary of the Interior. J. S. BLACK. CHRISTIAN INDIANS. In the treaty with the Delawares, a provision was inserted, that there shall be confirmed by patent to the Christian Indians, subject to such restrictions as Congress may provide, a quantity of land equal to four sections, upon certain conditions, which were complied with. No restrictions were imposed by Congress, and the Christian Indians, desiring to sell the land, made application for a patent. Held, that, 1. A patent for the four sections of land mentioned in the first article of the treaty with the Delawares should be issued to the Christian Indians in the common form. 2. Such patent will enable the patentees to hold the land, not by the original title of the Delawares, but as absolute owners in fee under the United States. 3. The rights which patentees would otherwise have to alien their lands may be restricted by act of Congress after the patent shall issue as well as before. 4. No such restriction can be rightfully made if it would have the effect of invalidating the title of a bona fide purchaser by a legal conveyance from the patentee. 5. The title of the Christian Indians will not be vested in the individuals comprising the tribe called by that name, as tenants in common, but in the tribe itself, or nation. 6. No private person can procure a conveyance from the tribe, or even negotiate with it for that purpose, without making himself an offender against the act of Congress of June 30, 1834. 7. The tribe may part with its lands by a treaty or convention, pursuant to the Constitution and the law. Christian Indians. ATTORNEY GENERAL'S OFFICE, May 14, 1857. SIR: The treaty made on the 6th of May, 1854, between the United States and the Delaware Indians, extinguished the title by which that tribe had previously held the lands they occupied. But the 13th article, after reciting that the Christian Indians live in the country and have some improvements, provides that "there shall be confirmed by patent to the said Christian Indians, subject to such restrictions as Congress may provide, a quantity of land equal to four sections, to be selected in a body from the surveyed land, and to include their present improvements." (10 Stat. at Large, 1051.) This was upon the condition that the Christian Indians, or the United States for them, should pay to the Secretary of the Interior, for the use of the Delawares, the sum of two dollars and fifty cents per acre for the land. The stipulated price has been paid by the United States, but Congress has not imposed any "restrictions." The Christian Indians find it their interest to sell, and having made arrangements to do so, are applying for a patent. The questions put by you on this case are: 1, Whether the Christian Indians are entitled to a patent in the usual form; 2, Whether they will hold under the patent by the usual Indian title; and, 3, Whether they can alienate without the consent of the Government. The right to have a patent is given to the Christian Indians by the express terms of the treaty. Their application for a patent is, therefore, the demand of a right; and I need not say to you that rights are never to be withheld. When it comes to be issued, I see no reason for departing from the common and customary form which is followed in other cases, since the treaty itself does not require any variance. Congress might have imposed restrictions and made it your duty to insert them; but not having done so, there is no authority elsewhere to supply the omission. The treaty gives the land, subject to such restrictions as Christian Indians. Congress shall see fit to impose; Congress sees fit to impose no restrictions; therefore, a patent with no restrictions is a literal execution of the treaty. In saying this, however, I must be understood as speaking only of the form of the patent, whatever that form may be. I think that Congress, even after the patent is issued, may impose such restrictions upon the patentee's right of alienation as shall seem necessary to protect them from fraud, provided no intervening right be injuriously affected thereby. But if a patent in the usual form, without restrictions, be given, and the patentees legally convey their right under it to other persons, an act of Congress subsequently passed cannot retroactively impair the title of the purchaser without violating a fundamental principle of legislation. To the second question I have to reply, that after these lands shall be confirmed to the Christian Indians by patent they will not hold them by the usual Indian title. The usual Indian title was in the Delawares. It was extinguished by the first article of the treaty, and an absolute title vested in the United States. The United States will convey their right to the Christian Indians by the patent, and they will hold, like any other purchaser, from the Government. In the United States v. Brooks, (10 Howard, 442,) a title was decided to be absolute when the reasons in favor of such decision were not so strong as they are in this case. The gravest of your questions remains to be answered. Can these Christian Indians sell the lands thus acquired? The right of alienation is incident to an absolute title. If the patent is not to a nation, tribe, or band, called by the name of the Christian Indians, but to the individual persons included within that designation, then all those persons are patentees, and all hold as tenants in common. No conveyance can be made but by the lawful deed of all. If any one refuses or is unable to consent, he cannot be deprived of his interest by an act of the others. Some of these persons being children, and some, perhaps, being under other legal disabilities, it will be impossible for any Christian Indians. purchaser to get a good title if they are tenants in com mon. But I think the patent will vest the title in the tribe. You have mentioned no fact to make me believe that their national or tribal character was ever lost or merged into that of the Delawares. They are treated as a separate people, wholly distinct and different from the Delawares. The land, therefore, belongs to the nation or band, and can be disposed of only by treaty. No private person ever could make a lawful purchase of land from any Indian nation residing within the territory and under the protection of the United States. (6 Pet., 559; 9 Pet., 745-6.) To prevent it, the act of Congress "to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers," was passed on the 30th June, 1834, which makes every purchase, grant, lease, or other conveyance from a nation or tribe of Indians, altogether void, unless it be made by treaty, pursuant to the Constitution. (4 Stat. at Large, 730.) Another provision of the statute goes further still, and inflicts a penalty of one thousand dollars upon any person not authorized by the Government who shall attempt to negotiate a treaty, directly or indirectly, with any nation or tribe of Indians for the purchase of their lands. This law will cover the present case, and will protect the Christian Indians against any sale made by them to a private person. I cannot think that it applies merely to those Indian tribes who hold their lands by the original Indian title. The words are broad enough to include a tribe holding lands by patent from the United States, and the purpose of the statute manifestly requires it to receive that construction. To avoid the possibility of being misunderstood, I will briefly restate the propositions which I mean to affirm. 1. A patent for the four sections of land mentioned in the thirteenth article of the treaty with the Delawares should be issued to the Christian Indians in the common form. 2. Such patent will enable the patentees to hold the land, Case of Jacob Richardson, Collector at Oswego. not by the original title of the Delawares, but as absolute owners in fee under the United States. 3. The right which the patentees would otherwise have to alien their lands may be restricted by act of Congress after the patent shall issue, as well as before. 4. No such restriction can be rightfully made if it would have the effect of invalidating the title of a bona fide purchaser by a legal conveyance from the patentees. 5. The title of the Christian Indians will not be vested in the individuals comprising the tribe called by that name as tenants in common, but in the tribe itself, or nation. 6. No private person can procure a conveyance from the tribe, nor even negotiate with it for that purpose, without making himself an offender against the act of Congress of June 30, 1834. 7. The tribe may part with its lands by a treaty or convention pursuant to the Constitution and the law. I am, very respectfully, yours, &c., Hon. JACOB THOMPSON, Secretary of the Interior. J. S. BLACK. CASE OF JACOB RICHARDSON, COLLECTOR AT OSWEGO. 1. The act of 1797, which provides that when the estate of a deceased debtor to the United States is insufficient to pay all his debts, the debt due to the Government shall be first satisfied, does not create any lien upon the debtor's property, but merely points out a mode of distribution. 2. The priority of the United States, therefore, cannot reach back over any valid lien, whether it be general or specific. 3. Where a collector of customs executed a mortgage upon his real estate to indemnify his sureties, and then died insolvent, and in debt to the United States, the mortgage to the sureties is valid and effectual against the United States. ATTORNEY GENERAL'S OFFICE, SIR: Jacob Richardson, late collector for the port of Oswego, N. Y., died in 1854, insolvent, and largely indebted |