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Johnson & Graham's Lessee v. McIntosh, 21 U.S. 8 Wheat. 543 543 (1823)

Johnson & Graham's Lessee v. McIntosh

21 U.S. (8 Wheat.) 543

 

Syllabus

A title to lands under grants to private individuals made by Indian tribes or nations northwest of the River Ohio in 1773 and 1775 cannot be recognized in the courts of the United States.

Discovery the original foundation of titles to land on the American continent as between the different European nations by whom conquests and settlements were made here.

Recognition of the same principle in the wars, negotiations, and treaties between the different European powers.

Adoption of the same principle by the United States.

The exclusive right of the British government to the lands occupied by the Indians has passed to that of the United States.

Foundation and limitation of the right of conquest.

Application of the principle of the right of conquest to the case of the Indian savages. Nature of the Indian title, as subordinate to the absolute ultimate title of the government.

Effect of the proclamation of 1763.

Titles in New England under Indian grants.

This was an action of ejectment for lands in the State and District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians and by the defendant under a grant from the United States. It came up on a case stated upon which there was a judgment below for the defendant. The case stated set out the following facts:

1st. That on 23 May, 1609, James I, King of England, by his letters patent of that date, under the great seal of England, did erect, form, and establish Robert, Earl of Salisbury, and others, his associates, in the letters patent named and their successors into a body corporate and politic by the name and style of "The Treasurer and Company of Adventurers and Planters of the City of London for the first Colony in Virginia," with perpetual succession and power to make, have, and use a common seal, and did give, grant, and confirm unto this company, and their successors,

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under certain reservations and limitations in the letters patent expressed,

"All the lands, countries, and territories situate, lying, and being in that part of North America called Virginia, from the point of land called Cape or Point Comfort all along the seacoast to the northward two hundred miles, and from the said Cape or Point Comfort all along the seacoast to the southward two hundred miles, and all that space and circuit of land lying from the seacoast of the precinct aforesaid up into the land throughout from the sea, west and northwest, and also all the islands lying within one hundred miles along the coast of both seas of the precinct aforesaid, with all the soil, grounds, rights, privileges, and appurtenances to these territories belonging and in the letters patent particularly enumerated,"

and did grant to this corporation and their successors various powers of government in the letters patent particularly expressed.

2d. That the place called in these letters patent Cape or Point Comfort is the place now called and known by the name of Old Point Comfort, on the Chesapeake Bay and Hampton Roads, and that immediately after the granting of the letters patent, the corporation proceeded under and by virtue of them to take possession of parts of the territory which they describe and to form settlements, plant a colony, and exercise the powers of government therein, which colony was called and known by the name of the Colony of Virginia.

3d. That at the time of granting these letters patent and of the discovery of the continent of

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North America by the Europeans, and during the whole intermediate time, the whole of the territory in the letters patent described, except a small district on James River, where a settlement of Europeans had previously been made, was held, occupied, and possessed in full sovereignty by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory and the absolute owners and proprietors of the soil and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever, and that in making settlements within this territory and in all the other parts of North America where settlements were made under the authority of the English government or by its subjects, the right of soil was previously obtained by purchase or conquest from the particular Indian tribe or nation by which the soil was claimed and held, or the consent of such tribe or nation was secured.

4th. That in the year 1624, this corporation was dissolved by due course of law and all its powers, together with its rights of soil and jurisdiction under the letters patent in question were revested in the Crown of England, whereupon the colony became a royal government with the same territorial limits and extent which had been established by the letters patent, and so continued until it became a free and independent state, except so far as its limits and extent were altered and curtailed by the Treaty of February 10, 1763, between Great Britain and France and by the letters patent granted by the King of England

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for establishing the Colonies of Carolina, Maryland, and Pennsylvania.

5th. That sometime previous to the year 1756, the French government, laying a claim to the country west of the Alleghany or Appalachian Mountains on the Ohio and Mississippi Rivers and their branches, took possession of certain parts of it with the consent of the several tribes or nations of Indians possessing and owning them, and with the like consent established several military posts and settlements therein, particularly at Kaskaskias, on the River Kaskaskias, and at Vincennes, on the River Wabash, within the limits of the Colony of Virginia, as described and established in and by the letters patent of May 23, 1609, and that the government of Great Britain, after complaining of these establishments as encroachments and remonstrating against them, at length, in the year 1756, took up arms to resist and repel them, which produced a war between those two nations wherein the Indian tribes inhabiting and holding the countries northwest of the Ohio and on the Mississippi above the mouth of the Ohio were the allies of France, and the Indians known by the name of the Six Nations or the Iroquois and their tributaries and allies were the allies of Great Britain, and that on 10 February, 1763, this war was terminated by a definitive treaty of peace between Great Britain and France and their allies by which it was stipulated and agreed that the River Mississippi, from its source to the Iberville, should forever after form the boundary between the dominions of

Page 21 U. S. 547

Great Britain and those of France in that part of North America and between their respective allies there.

6th. That the government of Virginia, at and before the commencement of this war and at all times after it became a royal government, claimed and exercised jurisdiction, with the knowledge and assent of the government of Great Britain, in and over the country northwest of the River Ohio and east of the Mississippi as being included within the bounds and limits described and established for that colony, by the letters patent of May 23, 1609, and that in the year 1749, a grant of six hundred thousand acres of land within the country northwest of the Ohio and as part of Virginia was made by the government of Great Britain to some of its subjects by the name and style of the Ohio Company.

7th. That at and before the commencement of the war in 1756 and during its whole continuance and at the time of the Treaty of February 10, 1763, the Indian tribes or nations inhabiting the country north and northwest of the Ohio and east of the Mississippi as far east as the river falling into the Ohio called the Great Miami were called and known by the name of the Western Confederacy of Indians, and were the allies of France in the war, but not her subjects, never having been in any manner conquered by her, and held the country in absolute sovereignty as independent nations, both as to the right of jurisdiction and sovereignty and the right of soil, except a few military posts and a small territory around each,

Page 21 U. S. 548

which they had ceded to France, and she held under them, and among which were the aforesaid posts of Kaskaskias and Vincennes, and that these Indians, after the treaty, became the allies of Great Britain, living under her protection as they had before lived under that of France, but were free and independent, owing no allegiance to any foreign power whatever and holding their lands in absolute property, the territories of the respective tribes being separated from each other and distinguished by certain natural marks and boundaries to the Indians well known, and each tribe claiming and exercising separate and absolute ownership in and over its own territory, both as to the right of sovereignty and jurisdiction and the right of soil.

8th. That among the tribes of Indians thus holding and inhabiting the territory north and northwest of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia, as described in the letters patent of May 23, 1609, were certain independent tribes or nations called the Illinois or Kaskaskias and the Piankeshaw or Wabash Indians, the first of which consisted of three several tribes united into one and called the Kaskasias, the Pewarias, and the Cahoquias; that the Illinois owned, held, and inhabited, as their absolute and separate property, a large tract of country within the last mentioned limits and situated on the Mississippi, Illinois, and Kaskaskias Rivers and on the Ohio below the mouth of the Wabash, and the Piankeshaws another large tract of country within the same

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limits, and as their absolute and separate property, on the Wabash and Ohio Rivers, and that these Indians remained in the sole and absolute ownership and possession of the country in question until the sales made by them in the manner herein after set forth.

9th. That on the termination of the war between Great Britain and France, the Illinois Indians, by the name of the Kaskaskias tribes of Indians, as fully representing all the Illinois tribes then remaining, made a treaty of peace with Great Britain and a treaty of peace, limits, and amity, under her mediation, with the Six Nations, or Iroquois, and their allies, then known and distinguished by the name of the Northern Confederacy of Indians, the Illinois being a part of the confederacy then known and distinguished by the name of the Southern Confederacy, and sometimes by that of the Western Confederacy.

10th. That on 7 October, 1763, the King of Great Britain made and published a proclamation for the better regulation of the countries ceded to Great Britain by that treaty, which proclamation is referred to and made part of the case.

11th. That from time immemorial and always up to the present time, all the Indian tribes or nations of North America, and especially the Illinois and Piankeshaws and other tribes holding, possessing, and inhabiting the said countries north and northeast of the Ohio east of the Mississippi and west of the Great Miami held their respective lands and territories each in common, the individuals

Page 21 U. S. 550

of each tribe or nation holding the lands and territories of such tribe in common with each other, and there being among them no separate property in the soil, and that their sole method of selling, granting, and conveying their lands, whether to governments or individuals, always has been from time immemorial and now is for certain chiefs of the tribe selling to represent the whole tribe in every part of the transaction, to make the contract, and execute the deed, on behalf of the whole tribe, to receive for it the consideration, whether in money or commodities, or both, and finally to divide such consideration among the individuals of the tribe, and that the authority of the chiefs so acting for the whole tribe is attested by the presence and assent of the individuals composing the tribe, or some of them, and by the receipt by the individuals composing the tribe of their respective shares of the price, and in no other manner.

12th. That on 5 July, 1773, certain chiefs of the Illinois Indians, then jointly representing, acting for, and being duly authorized by that tribe in the manner explained above, did by their deed poll, duly executed and delivered and bearing date on that day, at the post of Kaskaskias, then being a British military post, and at a public council there held by them for and on behalf of the said Illinois nation of Indians with William Murray, of the Illinois country, merchant, acting for himself and for Moses Franks and Jacob Franks, of London, in Great Britain, David Franks, John Inglis, Bernard Gratz, Michael

Page 21 U. S. 551

Gratz, Alexander Ross, David Sproat, and James Milligan, all of Philadelphia, in the p\Province of Pennsylvania; Moses Franks, Andrew Hamilton, William Hamilton, and Edmund Milne of the same place; Joseph Simons otherwise called Joseph Simon and Levi Andrew Levi of the Town of Lancaster in Pennsylvania; Thomas Minshall of York County in the same province; Robert Callender and William Thompson, of Cumberland County in the same province; John Campbell of Pittsburgh in the same province; and George Castles and James Ramsay of the Illinois country, and for a good and valuable consideration in the said deed stated grant, bargain, sell, alien, lease, enfeoff, and confirm to the said William Murray, Moses Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz, Michael Gratz, Alexander Ross, David Sproat, James Milligan, Andrew Hamilton, William Hamilton, Edmund Milne Joseph Simons, otherwise called Joseph Simon Levi Andrew Levi, Thomas Minshall, Robert Callender, William Thompson, John Campbell, George Castles, and James Ramsay, their heirs and assigns forever, in severalty, or to George the Third, then King of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of the grantees, their heirs and assigns, in severalty, by whichever of those tenures they might most legally hold, all those two several tracts or parcels of land situated, lying, and being within the limits of Virginia on the east of the Mississippi, northwest of the Ohio, and west of the Great Miami, and thus butted

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and bounded:

Beginning for one of the said tracts on the east side of the Mississippi at the mouth of the Heron Creek, called by the French the River of Mary, being about a league below the mouth of the Kaskaskias River, and running thence a northward of east course in a direct line back to the Hilly Plains, about eight leagues more or less; thence the same course in a direct line to the Crab Tree Plains, about seventeen leagues more or less; thence the same course in a direct line to a remarkable place known by the name of the Big Buffalo Hoofs, about seventeen leagues more or less; thence the same course, in a direct line to the Salt Lick Creek, about seven leagues more or less; then crossing the Salt Lick Creek, about one league below the ancient Shawanese town in an easterly or a little to the north of east course in a direct line to the River Ohio, about four leagues more or less; then down the Ohio by its several courses until it empties into the Mississippi, about thirty-five leagues more or less; and then up the Mississippi, by its several courses, to the place of beginning, about thirty-three leagues more or less; and beginning for the other tract on the Mississippi at a point directly opposite to the mouth of the Missouri and running up the Mississippi by its several courses to the mouth of the Illinois, about six leagues more or less; and thence up the Illinois, by its several courses, to Chicagou or Garlic Creek, about ninety leagues, more or less; thence nearly a northerly course, in a direct line, to a certain remarkable place, being the ground on which a

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battle was fought about forty or fifty years before that time between the Pewaria and Renard Indians, about fifty leagues more or less; thence by the same course in a direct line to two remarkable hills close together in the middle of a large prairie or plain, about fourteen leagues more or less; thence a north of east course, in a direct line, to a remarkable spring known by the Indians by the name of "Foggy Spring," about fourteen leagues more or less; thence the same course in a direct line to a great mountain, to the northwest of the White Buffalo Plain, about fifteen leagues more or less; and thence nearly a southwest course to the place of beginning, about forty leagues more or less:

To have and to hold the said two tracts of land, with all and singular their appurtenances, to the grantees, their heirs and assigns, forever in severalty or to the King, his heirs and successors, to and for the use, benefit, or behoof of the grantees, their heirs and assigns, forever in severalty, as will more fully appear by the said deed poll, duly executed under the hands and seals of the grantors and duly recorded at Kaskaskias on 2 September, 1773, in the office of Vicerault Lemerance, a notary public, duly appointed and authorized. This deed, with the several certificates annexed to or endorsed on it, was set out at length in the case.

13th. That the consideration in this deed expressed, was of the value of $24,000 current money of the United States and upwards, and was paid and delivered, at the time of the execution of the deed, by William Murray, one

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of the grantees, in behalf of himself and the other grantees, to the Illinois Indians, who freely accepted it and divided it among themselves; that the conferences in which the sale of these lands was agreed on and made and in which it was agreed that the deed should be executed were publicly held for the space of a month at the post of Kaskaskias, and were attended by many individuals of all the tribes of Illinois Indians, besides the chiefs, named as grantors in the deed; that the whole transaction was open, public, and fair, and the deed fully explained to the grantors and other Indians by the sworn interpreters of the government and fully understood by the grantors and other Indians before it was executed; that the several witnesses to the deed and the grantees named in it were such persons and of such quality and stations, respectively, as they are described to be in the deed, the attestation, and the other endorsements on it; that the grantees did duly authorize William Murray to act for and represent them in the purchase of the lands and the acceptance of the deed, and that the two tracts or parcels of land which it describes and purports to grant were then part of the lands held, possessed, and inhabited by the Illinois Indians from time immemorial in the manner already stated.

14th. That all the persons named as grantees in this deed were, at the time of its execution and long before, subjects of the Crown of Great Britain and residents of the several places named in the deed as their places of residence, and that

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they entered into the land under and by virtue of the deed and became seized as the law requires.

15th. That on 18 October, 1775, Tabac and certain other Indians, all being chiefs of the Piankeshaws and jointly representing, acting for, and duly authorized by that nation in the manner stated above, did, by their deed poll, duly executed and bearing date on the day last mentioned at the post of Vincennes, otherwise called post St. Vincent, then being a British military post, and at a public council there held by them for and on behalf of the Piankeshaw Indians, with Louis Viviat, of the Illinois country, acting for himself and for the Right Honorable John, Earl of Dunmore, then Governor of Virginia, the Honorable John Murray, son of the said Earl, Moses Franks and Jacob Franks, of London, in Great Britain, Thomas Johnson, Jr., and John Davidson, both of Annapolis, in Maryland, William Russel, Matthew Ridley, Robert Christie, Sr., and Robert Christie, Jr., of Baltimore Town, in the same province, Peter Compbell, of Piscataway in the same province, William Geddes, of Newtown Chester in the same province, collector of his Majesty's customs, David Franks and Moses Franks, both of Philadelphia in Pennsylvania, William Murray and Daniel Murray, of the Illinois country, Nicholas St. Martin and Joseph Page, of the same place, Francis Perthuis, late of Quebec, in Canada, but then of post St. Vincent, and for good and valuable consideration, in the deed poll mentioned and enumerated, grant, bargain, sell, alien, enfeoff, release, ratify, and

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confirm to the said Louis Viviat and the other persons last mentioned, their heirs and assigns, equally to be divided, or to George III, then King of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of all the above mentioned grantees, their heirs and assigns, in severalty, by whichever of those tenures they might most legally hold, all those two several tracts of land in the deed particularly described situate, lying,

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and being northwest of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia and on both sides of the Ouabache, otherwise called the Wabash, which two tracts of land are contained respectively within the following metes and bounds, courses and distances, that is to say, beginning for one of the said tracts at the mouth of a rivulet called Riviere du Chat, or Cat River, where it empties itself into the Ouabache or Wabash, by its several courses, to a place called Point Coupee, about twelve leagues above post St. Vincent, being forty leagues, or thereabouts, in length, on the said river Ouabache, from the place of beginning, with forty leagues in width or breadth on the east side, and thirty leagues in breadth or width on the west side of that river, to be continued along from the place of beginning to Point Coupee. And beginning for the other tract at the mouth of White River where it empties into the Ouabache, about twelve leagues below post St. Vincent, and running thence down the Ouabache by its several courses until it empties into the Ohio, being from White River to the Ohio, about fifty-three leagues in length, more or less, with forty

Page 21 U. S. 557

leagues in width or breadth on the east side and thirty in width or breadth on the west side of the Ouabache, to be continued along from the White River to the Ohio, with all the rights, liberties, privileges, hereditaments, and appurtenances to the said tract belonging, to have and to hold to the grantees, their heirs and assigns, forever in severalty or to the King, his heirs and successors, for the use, benefit, and behoof of the grantees, their heirs and assigns, as will more fully appear by the deed itself, duly executed under the hands and seals of the grantors, and duly recorded at Kaskaskias, on 5 December, 1775, in the office of Louis Bomer, a notary public, duly appointed and authorized. This deed, with the several certificates annexed to or endorsed on it, was set out at length.

16th. That the consideration in this deed expressed was of the value of $31,000 current money of the United States and upwards, and was paid and delivered at the time of the execution of the deed by the grantee, Lewis Viviat, in behalf of himself and the other grantees, to the Piankeshaw Indians, who freely accepted it and divided it among themselves; that the conferences in which the sale of these two tracts of land was agreed on and made, and in which it was agreed that the deed should be executed were publicly held for the space of a month at the post of Vincennes or post St. Vincent, and were attended by many individuals of the Piankeshaw nation of Indians besides the chiefs named as grantors in the deed; that the whole

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transaction was open, public, and fair, and the deed fully explained to the grantors and other Indians by skillful interpreters, and fully understood by them before it was executed; that it was executed in the presence of the several witnesses by whom it purports to have been attested, and was attested by them; that the grantees were all subjects of the Crown of Great Britain, and were of such quality, station, and residence, respectively, as they are described in the deed to be; that the grantees did duly authorize Lewis Viviat to act for and represent them in the purchase of these two tracts of land and in the acceptance of the deed; that these tracts of land were then part of the lands held, possessed, and inhabited by the Piankeshaw Indians from time immemorial, as is stated above; and that the several grantees under this deed entered into the land which it purports to grant and became seized as the law requires.

17th. That on 6 May, 1776, the Colony of Virginia threw off its dependence on the Crown and government of Great Britain and declared itself an independent state and government with the limits prescribed and established by the letters patent of May 23, 1609, as curtailed and restricted by the letters patent establishing the Colonies of Pennsylvania, Maryland, and Carolina and by the Treaty of February 10, 1763, between Great Britain and France, which limits, so curtailed and restricted, the State of Virginia, by its Constitution and form of government, declared should be and remain the limits of the state and should bound its western and northwestern extent.

Page 21 U. S. 559

 

18th. That on 5 October, 1778, the General Assembly of Virginia, having taken by arms the posts of Kaskaskias and Vincennes, or St. Vincent, from the British forces, by whom they were then held, and driven those forces from the country northwest of the Ohio, east of the Mississippi, and west of the Great Miami, did, by an act of assembly of that date, entitled "An act for establishing the County of Illinois and for the more effectual protection and defense thereof," erect that country, with certain other portions of territory within the limits of the state and northwest of the Ohio into a county, by the name of the County of Illinois.

19th. That on 29 December, 1783, the State of Virginia, by an act of assembly of that date, authorized their delegates in the Congress of the United States, or such of them, to the number of three at least, as should be assembled in Congress on behalf of the state and by proper deeds or instruments in writing under their hands and seals, to convey, transfer, assign, and make over to the United States, in Congress assembled, for the benefit of the said states, all right, title, and claim, as well of soil as jurisdiction, which Virginia had to the territory or tract of country within her limits, as defined and prescribed by the letters patent of May 23, 1609, and lying to the northwest of the Ohio; subject to certain limitations and conditions in the act prescribed and specified, and that on 1 March, 1784, Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Monroe, then being four of the delegates

Page 21 U. S. 560

of Virginia to the Congress of the United States, did, by their deed poll, under their hands and seals, in pursuance and execution of the authority to them given by this act of assembly, convey, transfer, assign, and make over to the United States, in Congress assembled, for the benefit of the said states, all right, title, and claim, as well of soil as jurisdiction which that state had to the territory northwest of the Ohio, with the reservations, limitations, and conditions in the act of assembly prescribed, which cession the United States accepted.

20th. That on 20 July, 1818, the United States, by their officers duly authorized for that purpose did sell, grant, and convey to the defendant in this action, William McIntosh, all those several tracts or parcels of land, containing 11,560 acres, and butted, bounded, and described, as will fully appear in and by the patent for the said lands, duly executed, which was set out at length.

21st. That the lands described and granted in and by this patent are situated within the State of Illinois and are contained within the lines of the last or second of the two tracts described and purporting to be granted and conveyed to Louis Viviat and others by the deed of October 18, 1775, and that William McIntosh, the defendant, entered upon these lands under and by virtue of his patent and became possessed thereof before the institution of this suit.

22d. That Thomas Johnson, one of the grantees

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in and under the deed of October 18, 1775, departed this life on or about 1 October, 1819, seized of all his undivided part or share of and in the two several tracts of land described and purporting to be granted and conveyed to him and others by that deed, having first duly made and published his last will and testament in writing, attested by three credible witnesses, which he left in full force and by which he devised all his undivided share and part of those two tracts of land to his son, Joshua Johnson and his heirs, and his grandson, Thomas J. Graham, and his heirs, the lessors of the plaintiff in this action, as tenants in common.

23d. That Joshua Johnson and Thomas J. Graham, the devisees, entered into the two tracts of land last above mentioned under and by virtue of the will, and became thereof seized as the law requires. That Thomas Johnson, the grantee and devisor, during his whole life and at the time of his death, was an inhabitant and citizen of the State of Maryland; that Joshua Johnson and Thomas J. Graham, the lessors of the plaintiff, now are and always have been citizens of the same state; that the defendant, William McIntosh, now is and at and before the time of bringing this action was a citizen of the State of Illinois, and that the matter in dispute in this action is of the value of $2,000 current money of the United States and upwards.

24th. And that neither William Murray nor any other of the grantees under the deed of July 5, 1773, nor Louis Viviat nor any other of the

Page 21 U. S. 562

grantees under the deed of October 8, 1775, nor any person for them or any of them ever obtained or had the actual possession under and by virtue of those deeds or either of them of any part of the lands in them or either of them described and purporting to be granted, but were prevented by the war of the American Revolution, which soon after commenced, and by the disputes and troubles which preceded it, from obtaining such possession, and that since the termination of the war and before it, they have repeatedly and at various times from the year 1781 till the year 1816 petitioned the Congress of the United States to acknowledge and confirm their title to those lands under the purchases and deeds in question, but without success.

Judgment being given for the defendant on the case stated, the plaintiffs brought this writ of error.