struction of this clause, opinions were given in the year 1820 by one of my predecessors, (Mr. Wirt,) and adopted by the then Secretary of the Treasury, that locations made before the survey of the public lands were utterly void, and that patents could not issue on them. In his opinion in the case of Mr. Bates, dated October 10, 1825, Mr. Wirt lays it down that, in order to ascertain what lands were in 1815 authorized to be sold, we must look to the act of the 3d of March, 1811, providing for the final adjustment of land claims in the Territories of Louisiana and Orleans. The proviso of the 10th section of that act interdicted the sale of any tract of land the claim to which had been duly presented to the recorder for investigation by the Commissioner, till after the decision of Congress thereon. This proviso was rendered permanent by the 3d section of the act of February 17th, 1818; and by the act of 26th of May, 1824, claimants to lands within the State of Missouri and Territory of Arkansas were authorized to institute judicial proceedings to try the validity of their claims. During the pendency of a claim which had been submitted to the district court of Missouri, under the act of 1824, Mr. Wirt held, in the case of Bates, that locations on lands thus claimed were irregular, and that the certificates thereof having improvidently issued, patents ought not to be granted until the final decision should be had on the claim by the Judiciary. In a subsequent opinion, dated October 22d, 1828, he held that a sale of land excepted from sale by these acts was void, for want of authority, and that the issuing of a patent would not cure its invalidity. The only doubt I have felt as to the soundness of these principles, and of the conclusions to which they lead, when applied to the present case, arises from the provision in the 11th section of the act of May 26th, 1824, that if in any case it should so happen that the lands decreed to any claimant shall have been sold by the United States, or otherwise disposed of, the party interested shall be compensated by being allowed to enter a like quantity in any land office in the State of Missouri, &c. It appears to me, however, that the sale or other disposition here referred to is one that has been lawfully made, in the manner and by the officers prescribed by law, and that the heirs of Mackay, in the present case, are entitled to a patent for the full amount of their claim. 2d. In the case of Mordecai Bell, whose claim to 350 arpents is confirmed by the act of July 4th, 1836, I am of opinion that the tract of 6.28 acres included in the survey, and previously confirmed by the old board of commissioners, must be regarded as clearly held by a prior title; but that Bell's claim will be valid for the residue, notwithstanding the survey includes two tracts located and another located and patented under the New Madrid law. These cases must stand on the same ground as those noticed in the case of Mackay's heirs, because the lands embraced in the act of 1836 are equally reserved from sale. 3d. In the case of Peter Chouteau, whose claim is also confirmed by the act of July 4th, 1836, but the survey of which is found to be comprehended within the limits of the tract claimed by the inhabitants of the town of St. Charles, under the acts of the 10th of June, 1812, the 26th of May, 1824, and the 27th of February, 1831, I think it probable that his claim will be found to be superior to that of the inhabitants of St. Charles; but as the orignal title on which the latter rely is not before me, I am not able to express a decided opinion on this point. 4th. In answer to the 4th question proposed by the Commissioner, I have the honor to state that the mere fact that a sale had been made by the officers of the United States, prior to the act of July 4th, 1836, of lands covered by claims confirmed by that act, will not, of itself, be sufficient to exclude the land sold from the survey for the confirmed claim. The sale must have been made by authority of law, as above explained in the case of Mackay's heirs, before it can with propriety be excepted. 5th. In respect to the several cases arising under the act of July 4th, 1836, I refer to my opinion of the 6th instant for the grounds on which I have come to the conclusion that patents are not to be issued under that act, except for the new locations made under the 2d section of the act. I am, sir, very respectfully, your obedient servant, Hon. LEVI WOODBURY, Secretary of the Treasury. B. F. BUTLER. No. 1019.-(Lib. E, p. 194.) The head of a Choctaw family, who in due time signified to the agent his intention to remain and become a citizen of the United States, his residence, or a valid excuse for non-residence, is entitled to a grant pursuant to the treaty of 1830. Claims under the treaty are paramount to pre-emption and other claims. The War Department should exercise its discretion so as not to interfere with settlers' rights, whenever it can be done con sistently with the provisions of the treaty. The reserve must be bounded by sectional lines, and include all, or at least a part, of the reservee's improvements. ATTORNEY GENERAL'S OFFICE, August 17, 1838. SIR: Pursuant to the request contained in your letter of the 11th of June last, I have looked into the case of Jubal B. Hancock vs. James Parker and others, as exhibited in the various documents transmitted with your communication. I find that the parties are at issue in respect to several questions of¦ fact, concerning which a great mass of testimony has been taken by the respective parties, and which have been very elaborately discussed by their counsel. But as the Attorney General has no authority to decide questions of fact, or to express any opinion thereon, and as no statement of the facts supposed by the Department to be established by the evidence has been laid before me, I can only state some general considerations which have occurred to me, leaving it to the Department to apply them to the facts of the case, if it shall think them applicable. Assuming that Hancock was a Choctaw head of a family within the meaning of the treaty of 1830; that he signified his intention to remain and become a citizen of the United States, to the agent, in due time; and that he resided upon some part of the lands claimed by him, as required by the treaty, or was prevented from so residing by circumstances beyond his control, and involving no fault on his part; and then it will follow that a grant should be issued to him pursuant to the treaty. The essential provisions of the treaty are paramount to any rights claimed under the pre-emption laws or in any other way, and must be substantially carried into effect. The regulations adopted for the purpose of carrying the treaty into effect have not, however, any such inflexible character, and though very proper that they should be generally adhered to, may be modified in any way, not inconsistent with the treaty, which justice may require. Cases of interfering claims occurring under the treaty itself may frequently require such a modification; and where persons have made settlements and valuable improvements, with the expectation of acquiring titles under the pre-emption laws, and without having actual notice that a claimant under the treaty was entitled to the land so improved, or notice of such circumstances as were sufficient to put such settler on inquiry, I think they should be regarded as having equitable claims on the justice of the Department; and that, in the exercise of a sound discretion, the reservation of the Indian claimant should, so far as the treaty will permit, be located in such a way as, if possible, to save the settler the benefit of his improvements. The only points connected with the subject which are inflexibly fixed by the treaty, and which cannot be varied to protect actual settlers, are that the reservation should be bounded by sectional lines of survey, and shall include the improvement of the reservee, or some portion of it. So that these. conditions are complied with, I think the Department, where improvements have been made without notice, and under such circumstances as would otherwise entitle the party to purchase under a pre-emption law, should endeavor so to locate the reservation as not necessarily to interfere with the improvements of the settler. I am, sir, very respectfully, your obedient servant, Hon. J. R. POINSETT, Secretary of War. The papers are herewith returned. The foregoing is copied from the opinion as recorded, book E, pages 194 and 195, one of the opinion books in the Attorney General's office. RICHARD KEY WATTS, Clerk. INDEX то OPINIONS AND INSTRUCTIONS. Abandonment- A. It is abandonment for an Indian to remove and lease his reservation, P. 121, No. 78. On abandonment, the title vests in the United States, P. 121, No. 78. When the fact of such abandonment becomes known to the oflicers of the land district, the Under the Creek treaty of 1814 and the act of 1817, the renting of reservations for twenty Abandoned, claim- No objection to a valid one, P. 117, No. 77. Accounts-For keeping and rendering accounts, see Forms. Settlement of surveyor's accounts, P. 935, No. 924. To be rendered quarterly, P. 765, No. 728. Accumulation of land in Mississippi-P. 87, No. 58. Doubt whether a pre-emption can exist to an accumulation of land in the Mississippi, P. Of land on the banks of a river belongs to the party entitled to that which was bounded Acts, authentication of official-P. 2, No. 3. Seal of office necessary to authenticate the Mayor of Albany's official, P. 2, No. 3. No particular law should be construcd "as an insulated act, upon its own letter," but as The United States cannot affect the laws of the several States in regard to the inheritance Words of a grantor, in a doubtful case, should be construed most favorably for the Construction of the several acts granting salt springs, P. 154, No. 98. The three per cent. given to Ohio by compact, is to be calculated on the nett proceeds of Construction of the laws in relation to the Miami canal, P. 179, No. 117; P. 197, Laws in relation to the Western reserve school lands, P. 197, No. 131. confirmatory-P. 24, No. 21; P. 106, No. 69; P. 174, No. 112; P. 217, No. 152. Where the title is inchoate, the patent must issue in pursuance of the act, P. 174, No. 112. Confirmation of entries and sales, P. 106, No. 69; P. 217, No. 152. |