McKeon v. Tillotson. mortgaged reservations, and from the Tuscaroras the reservation owned by them, procured the appointment of commissioners on the part of the State of Massachusetts, and on the part of the United States, to hold a treaty with said nations, and which was held on January 15, 1838, and which treaty was approved of, and proclaimed by the president of the United States April 4, 1810. By the terms of this treaty, these commissioners being present, the chiefs of the Seneca nation agreed to sell, and Ogden and Fellows agreed to purchase, the title of the nation to said four reservations, and a deed therefor having been first read and explained to said Indians, was made and executed by them, bearing date January 15, 1838, whereby, for the consideration of two hundred and two thousand dollars therein expressed, to them in hand paid, they granted, bargained, sold, released and confirmed unto said Ogden and Fellows, and to their heirs and assigns forever, as joint tenants, and not as tenants in common, and the commissioner on the part of the State of Massachusetts, and the commissioner on the part of the United States, certified and declared at the foot thereof that they respectively approved of the same. A similar treaty in all respects, containing a similar deed from the Tuscarora nation to Ogden and Fellows, for their reservation, was made and concluded at the same time, and certified and approved by the said. commissioners in the same manner. Neither of these treaties contained any stipulations or agreements of anything to be done or performed on the part of the United States. All that was done on the part of the agent of the United States was to certify and declare that the said deed then executed in his presence, being fairly and perfectly understood by the said Indians, and that he approved of the same. There is not a word in either of these treaties in reference to the possession of said reservations, or anything implying that the United States was to deliver the same to the grantees named in the conveyances recited therein, or assumed any obligations or duties in relation thereto.. These were the only treaties made at that time to which Ogden and Fellows could in any sense be deemed parties, or had any right or pretense to assert any interest in the fulfillment of. At the same time, to wit, on January 15, 1838, a treaty was made between the McKeon v. Tillotson. United States and several tribes of New York Indians, including the said Seneca and Tuscarora nations, and which was amended by the Senate of the United States, on June 11, 1838, concerning the removal of said tribes to certain lands west of the State of Missouri, and lands owned by them in the western States. Article 10 of said treaty related exclusively to said Seneca nation. By this article the said Seneca nation agreed with the United States to remove to their new home in the west within five years, and to continue to reside there. The said article then recites that at the time of making said treaty, Ogden and Fellows had purchased from the Seneca nation the right and title of said nation to certain lands in the deed of conveyance annexed to the treaty mentioned, for the price of two hundred and two thousand dollars; the treaty then declares that the nation agreed that said sum should be paid to the United States, which agreed to receive the sum, to be disposed of as follows: the sum of one hundred thonsand dollars to be invested in safe stocks. and the increase thereof was to be paid to said Indians annually, at their new homes, and the sum of one hundred and two thousand dollars was to be paid to the owners of the improvements on said lands, according to an appraisement to be made, on said Indians severally relinquishing their respective possessions to said Ogden and Fellows. Article 14 of said treaty related to the Tuscarora nation, and by it said nation agreed to accept the country set apart for them in the Indian Territory, and to remove there within five years and to continue to reside there. It is recited that at the making of that treaty, Ogden and Fellows had purchased all the title and claim of said nation in and to the lands mentioned in the deed annexed. That the consideration of said lands had been secured by said Ogden and Fellows to their satisfaction, therefore the United States assented to said sale and conveyance and sanctioned the same. It is difficult to perceive from these references to the provisions of these treaties-and they are all which relate to said nation of Indians, or the lands sold and conveyed by them to said Ogden and Fellows-any grounds for the equities and claims set up by the defendant in his answer against the the United States. It is very clear that the United States McKeon v. Tillotson. made no agreement whatever with Ogden and Fellows, or with the defendant, or that by reason of anything contained in those treaties that government owed to them, or either of them, any duty whatever, If there has been any breach of duty, or violation of contract on the part of the United States, it has been with these tribes of Indians, and not with Ogden and Fellows, or their associates. A reference to the circumstances under which the treaty of 1842 was negotiated, and to its provisions, will furnish as little color for the claims set up by the defendant. This treaty is between the United States of America and the Seneca nation of Indians, and was made on May 20, 1812, and approved and proclaimed by the president on August 26, 1842. It recites the making of the treaty of 1838, proclaimed to have been duly ratified on April 4, 1840, and that on the date of that treaty, May 20, 1842, an indenture had been made and executed by and between the Seneca nation and said Ogden and Fellows, in the presence of and with the approbation of a commissioner on the part of the United States, and in the presence of and with the approbation of a commissioner on the part of the State of Massachusetts; which indenture is set forth in full, and recites the indenture between the same parties of January 15, 1838; and that divers questions had arisen between the chiefs of said nation and Ogden and Fellows; and that the provisions contained in said indenture remain unexecuted; and that said parties have mutually agreed to settle, compromise, and finally terminate all such questions and differences on the terms and conditions therein specified; among which are, that the said nation, notwithstanding the indenture of January 15, 1838, might continue in the occupation and enjoyment of the whole of said two reservations, the Cattaraugus and the Allegany, with the same right and title in all things which they had immediately preceding its execution. In consideration whereof and of the agreements therein contained, the said nation released and conveyed unto said Ogden and Fellows the said Buffalo and Tonawanda reservations. The indenture contained other provisions not necessary particularly to mention, except those of article fifth, which were, that the possession of the two reservations, thereby confirmed to Ogden and Fellows, were to be surrendered and delivered up to them, McKeon v. Tillotson. as follows: the unimproved lands within one month after the filing of the report of the arbitrators, as provided for therein, and the improved lands within two years after the said report should have been filed. The seventh article provided, that that indenture should be in lieu of and as a substitute for that of January 15, 1838. The United States, taking into consideration the premises, stipulated and agreed with the said Seneca nation: 1. That the United States consented to the several articles and stipulations contained in said indenture between said nation and Ogden and Fellows; 2. The United States further consented and agreed, that any number of said nation who should remove from the State of New York, under the provisions of the treaty of April 4, 1840, should be entitled, in proportion to their relative numbers, to all the benefits of said treaty; 3. The United States further consented and agreed, that the tenth article of said last mentioned treaty should be deemed to be modified in conformity with the provisions of said indenture of May 20, 1842, so far as that the United States would receive and pay the sum stipulated to be paid as the consideration money of the improvements therein specified, and would receive, hold and apply the sum to be paid, and the securities to be given for the lands therein mentioned, as provided for in such indenture. These are all the stipulations, agreements or undertakings contained in said treaty, on the part of the United States, or affecting that government. It is seen that they are made only with the Indians, and that they are the only parties thereto. The provisions fall far short of establishing the propositions contained in the defendant's answer, in reference to the duty of the United States to remove said Indians, to give the possession of their lands to the defendant. As these treaties are referred to and made part of the defendant's answer, as the foundation of his claim against the United States, they have received a careful examination and dissection or the purpose of ascertaining what duties or obligations arise therefrom, on the part of the United States, to the defendant. It is difficult to perceive what obligations the United States incurred by these treaties, for the violation of which the defendant has any claim for damages. As well might that claim be interposed by any McKeon v. Tillotson. other citizen of the United States, and and as well might any other debtor to that government, claim that his debt was discharged and satisfied by the failure of the United States to fulfill its treaty stipulations with the Indians. The United States, therefore, assumed no duty to the defendant, in reference to the removal of the Indians from their lands, conveyed to Ogden and Fellows, or to put the defendants and his associates into the possession thereof, and consequently no claim for damages can exist on the part of the defendant against the United States, for the omission to discharge a duty or obligation which never had an existence. It is further alleged that the defendant and his associates were greatly damaged by reason of their being compelled to accede to the terms of the treaty of 1842. That treaty was made by the United States with the Seneca nation, and when duly ratified and proclaimed, became the supreme law of the land, binding upon the defendant and all other citizens. But it is manifest that it is not of the terms of the treaty of 1842 that the defendant complains, but of the provisions of the indenture made by and between Ogden and Fellows and the Seneca nation, to which the United States assented by that treaty. The United States were not parties to that indenture, and assumed no obligation in reference to it, to the defendant. It was an arrangement between the defendant and his associates, represented by Ogden and Fellows, and the Indians; it is to be presumed they would not have entered into it if they had not deemed it for their interest so to do. The recitals declare the reasons why it was made,-that questions and differences had arisen between the Indians and Ogden and Fellows, in relation to the indenture of January 15, 1838, not referring to any differences which had arisen between either of the parties thereto and the United States. It also recited that the provisions of said indenture remained unexecuted. We have seen that the only parties thereto were the Indians, and the said Ogden and Fellows, and this recital is to be understood that the same remained unexecuted by them. But what is conclusive upon the claims here set up by this defendant, is that said indenture declares that the parties thereto have mutually agreed to settle, compromise and finally terminate all such questions and |