Although this controversy is, in reality, between the Plaintiff, a Cherokee Indian, on the one side, and the State of Nortli-Carolina on the other, who should certainly renounce all claim to the-purchase-money, in the event of the Defendant’s being, evicted; yet it, is very gratifying to remark, that, throughout the whole progress of the business, the faith of the State remains unpledged j her honour inviolate. For not' the slightest inference can be drawn, from any of the acts passed on the subject, that she intended to sell the Indian reservations, or to confer that power upon the commissioners •, the two acts confine the sale expressly to the lands acquired by treaty from the Cherokees, and are silent as to the lands reserved to the Indians. These, on the contrary, are recognized; the general reservations are protected from the purchase, lease and cultivation of white men, under a heavy penalty; and the special ones to the two Indians, called Major Walker and. the Big Bear, explicitly acknowledged to belong to them absolutely__(1819, c. 997. 1820, c. 1060. 1821, c. 32. 1822, c. 12. 1823, c. 11. 1820, C. 1062.,
If the General Government bad a constitutional right 4o make these two reservations, they fiad an equal right to -make the whole, for the same principles apply to all. It will follow, that as the commissioners were constituted for a particular purpose, and with a limited and circumscribed authority to sell the lands winch were acquired, by treaty, their selling the lands which were reserved, was an excess of authority, neither in law nor reason obligatory upon the State, their principal But as these observations relate solely to the. defendant’s title, the weakness of which, however obvious, will not enable the *159Plaintiff to recover, without shewing a possessory right in himself, it becomes necessary to examine the several' foundations on which that right has been rested, and the arguments by which it lias been opposed. As to the pa-ture of the Indian title in general, it will be necessary to make a few remarks, for the sake of tracing some peculiar features, which have been impressed upon it at different periods by the Legislature of this State, in its intercourse with some of the tribes living within its limits.
It was a principle uniformly asserted by Great-Britain, that the ultimate dominion of newly discovered countries, not known to Christian people, belonged to the discoverer ; and all the colonial charters, from the first granted' to Gabot by Henry vn, down to the last, of Georgia, by Geo. ii,' were made while the country was yet occupied by Indians. Most of these contain a grant of the soil, as well as the powers of govcrmfient, ond they all proceed on the principle, that the Crown alone had a right to grant the soil — that the Indians had ceased to have any other than the temporary right of occupancy — and that a good title might be acquired by individuals under these grants, subject to the Indian right, and to he enjoyed when that right should be extinguished. (8 Wheat. 543). "While the title remained in the Crown, no one was permitted to purchase from the Indians, nor was any title acquired from them, deemed valid, without the confirmation of the Crown. The Indians were allowed to occupy and hunt on the lands, and to be governed by their own laws 5 but could not sell oi- lease without the consent of government. When they retreated farther west, w hich sometimes happened from the scarcity of game, or the constantly advancing settlement of the whites, their lands reverted to the Crown in full dominion : or became vested in possession in those individuals to whom they had been previously granted. This Indian right, consisting of the usufruct, more than the ownership of the soil, was rather tacitly submitted to, than expressly acknowledged; for *160in tlio charters it is not noticed. The lands are granted by boundaries, including many tribes, and in the charter to the lords proprietors m this state, though the boundaries extend to the South Sea, comprehending many nations, they or their rights are not noticed.
In the treaty of Utrecht (9th State Papers') the five nations were described as subjects of Great-Britain ; and in a proclamation issued in 1763, all purchases of lands made from the Indians were declared void, unless made by treaties held under the sanction of government. In the treaty of 1763, by which Great-Britain acquired from France the sovereignty of the Canadas, many nations of Indians were included in the boundaries. As most of the • powerful and maritime nations of Europe were animated with a spirit of discovery and settlement of new countries, it became essential to their peace, to adopt some principle by which their rights should be reciprocally acknowledged. The exclusive dominion over the soil of the Indians, after their temporary occupancy should cease, and the right of purchasing from them such ownership as they were acknowledged to have, was accordingly claimed by each, and acquiesced in by all, and may thenceforth be considered as incorporated in the law of nations.
Writers on the law’ of nature have maintained thejus-tice of this principle in furthering the designs of Providence, and tending to the increase and civilization of the human race. (Montesquieu L. 10. Vattel). They argue, that every nation is under a natural obligation to cultivate the land that has fallen to its share, since otherwise, the whole earth, which is destined to feed its inhabitants, would not yield an adequate supply, if large tracts of fertile land were peopled only by hunters and shepherds : that however right this might have been in the first ages of the world, when the spontaneous productions of the earth were more than sufficient for its few inhabitants, it cannot now be justifiable, when the great multiplication of the human race, in some countries, has rendered *161it essential to their subsistence, that the forests should be cleared and cultivated. The unsettled habitation of savages in those extensive tracts of country over which they wander, but cannot cultivate, must be inconsistent with the views of Nature, while other nations are confined within a small compass, which no degree of skill or la-bour will render sufficiently productive. The. only obligation which justice imposes on other nations, is, that they leave Use natives a sufficiency of land.
It is not intended to enquire into the. force of this reasoning ; but only to shew the nature of the claim to Indian lands set up by Great-Britain, and the condition ia which it was transferred to the lords proprietors. Perhaps if such weighty reasons could not be given, dominion would be claimed on the credit of the superiority which European nations possess over the nations of the new world; for to that must be referred the conquest of the civilized nations of Peru and Mexico On this principle Cesar acted, when, forgetting the passions as well as the rights of mankind, he complained that the Britons, after having sent him a submissive message to Gaul, pretended to fight for their liberties, ami to oppose his descent on their island.*
However extensive the right was, which passed by the charter to the lords proprietors, it appears, that at a very early period after the settlement of the state, 1717, reservations of land were made to the Indians by treaty j and to the Tusearoras, tiie only powerful nation with whom the whites then had intercourse, a grant was made of lands, in consideration of their agreeing to relinquish their claims to other lands which had before been allotted to them. Afterwards, an. individual obtained a grant for the same lands, and an act of the Legislature subsequently passed, 1726, confirming all grants for lands within the Indian boundary, and permitting the grantees *162to enter, upon the Indians deserting the same. Yet it was held, that a title set up under this grant, could not prevail against the original grant to the Indians, although they had ceased to live upon the land, since the grant contained no condition of residence, and was made by persons having power to convey to persons capable of taking and holding lands. (2 L. Hep. 451.) The Legislature has, indeed, since that time, 1778, passed acts declaring, that lands granted to the Indians shall revert to the State, upon the natives becoming extinct, or entirely abandoning the possession ; but there is no instance of their having revoked a grant made to them. On the contrary, the prevalent policy before the revolution, was, to consider them as persons capable of being treated with, and of holding property as a tribe or nation. Their rights of property, though much circumscribed by the repeated cessions they have made by treaty, were respected as to what remained, and much solicitude is shewn, in repeated enactments, to restrain the cupidity of the whites.
In pursuance of this policy, the people of this State, when they threw off their colonial dependence, and de-, clared the soil to be the property of the community, were not unmindful of Indian rights, “provided always, that this declaration of right, shall not prejudge any nation or nation of Indians from enjoying such hunting-grounds as may have been, or hereafter shall be secured to tiiem, by any former or future legislature of this state.5’ Sec. 25.
Since the treaty of peace, by which the territorial limits of the State were acknowledged, in as full soveieignty as they formerly belonged to the mother country, it has been the invariable object of the United States, and of this State, to regulate their intercourse with the Indians not by any speculative notions of right, which they might have exercised without violating any admitted principle, but by the dictates of a just, humane and liberal uolicy. As to the United States, it is sufficient to refer to the *163treaty of Grenville, 1795, by which, “ the Indian tribes arc quietly to enjoy their lands $ hunting, planting and dwelling thereon as long as they please, without any molestation from the U. States ; but, that when their tribes, or any of them, are disposed to sell their lands, they are to be. sold only to the.United States ; that until such sale, the United States will protect all the said Indian nations in the quiet enjoyment of their lands, against all the citizens of the United States, and against all other white persons who intrude on the same, and that the said Indian tribes again acknowledge themselves to be under the protection of the United States, and of no other power whatever.”
Of tiie policy of this State, the act of 1783, c. 185, under which the Plaintiff claims title, affords a conclusive 'example. By this act, it is declared, that the Cherokee Indians shall have and' enjoy all the tract of land therein described, and that it is reserved to them and their nation forever. ■ The effect of this grant was, to vest the land in the nation in fee-simple : it conveyed to them a specific and definite right, according to which, they could no longer be considered as tenants at sufferance, but as bolding under the faith of the State, and the guarantee ef the declaration of rights. It is true, that no individual had a distinct portion allotted him, which he might protect from aggression, and on that account, the Legislature has made it penal to trespass on the land ; but the right of the Legislature to make the grant, cannot be doubted; and it is not less clear, that it must enure to the benefit of the tribe as long as they subsist upon it, and their title is not surrendered by their own consent.
If this grant required confirmation, it has received it in the most ample manner, by the treaty of Hopewell, 1785, made under the authority of the United States, and by the treaty of Holstein. 1791, by which the lands not ceden by the Cherokee Nation, are solemnly guaranteed to them.
*164In this siate of things, the two treaties were made, under which the Plaintiff claims the land described in the declaration, as ha\ ing been set off and allotted to him, and located according to the terms of the treaties, 1817, and 1819»
The 8th article of (he first treaty provides, that a reservation of six hundred and forty aeres of land shall be given to every head of an Indian family residing on the east side of the Mississippi river, the register of whose names is to be filed in (he office of the Cherokee agent. The land is to be laid off in a square, including their improvements, which are to be as near the centre thereof as practicable, in which they will have a life estate, \v ith a reversion, in fee, to their children, reserving to their vvidow tier dower: by the second article of the latter f reaty, it is provided, that a reservation of six hundred and forty acres of land shall be allowed to each head of any Indian family residing within the ceded territory, who chuscs to become a citizen of the United Slates in the' manner stipulated in said treaty.,
The only manner stipulated in the treaty of 1817, is, that the Indians who wish to become citizens, shall register their names in the office of the Cherokee agent.— This has been done by Plaintiff, as appears from tie- certificate of the Indian agent, and the six hundred and forty acres have been surveyed and laid off for him.
The following objections have been made to the Plaintiff’s recovery:
1st. That the commissioners, who made the treaty, had no authority to make reservations to the Indians, hut only to extinguish their title; when that is done, the land reverts to the State, by force of its ancient seisin, and that the government of the United States is restrained, by the. constitution, from granting the territory of, or dismembering a State.
2nd. That, supposing the commissioners had this power, they have not executed it, but only agreed to do so; *165the contract was intercepted by the paramount right of tiie state.
3rd. That the land is not laid off in a square of six hundred and forty acres, to include the improvements, Which are to be as near the centre of it as possible.
4th. That Armstrong made the surveys without proper authority.
5th. That his plat was not returned to tiie general government.
• 1. The first objection is founded on the assumption, that the treaty has first extinguished the title of the Indians to the whole lands granted them by the act of 1783, and then assigned part of it to the Plaintiff; but, a just construction of the treaty, will not, in my apprehension, warrant this conclusion : it extinguishes all the Indian title, except to those lands which were reserved; the very term, “ reservation,” imports, in common acceptation, something kept back, or not surrendered. The Plaintiff docs not derive his title from the treaty, but from the act of 1783, which gave the whole land to him, in common with the rest of the nation; his claim in severalty, is alone derived from the treaty, and the location made according to it. As well might it be said, that if a grant were made to three persons, as tenants in common, of one hun" dred acres of land, and they agree to sell the land to a fourth person, reserving ten acres to one of them, to be laid off by metes and bounds, that he held the land under the surrender, and not under the original grant.
As the United States have alone the power of making treaties, their acts, within the limits of their authority, must be obligatory on the State, their constituent. They might unquestionably have extinguished the Indian title to the whole tract, in which case, the right to the whole, would have reverted to the state: why then, may they not, extinguish the title to a part ? The stipulations of a treaty are equally binding on both parties; and it was not to have been expected, that an acquisition so valúa? *166blc, could have been made to the State, without some equivalent. The reservations are more entitled to respect, s i 7 since they further the policy of the State, in leading .the £e,v Indians that remain, to an agricultural and civilized life.
According to this view' of the case, any opinion on the power of the United States, to grant away any part of the territory of the State, would be extra-judicial: that ques-ton would arise if the grants had been made out of other lands, the title to which did not previously subsist in the Indians, or if the cession liad been made by one treaty, and the reservation by a subsequent one.
2. The words of the treaty are, “ do agree to allow a reservation of six hundred and forty veres of land, to each head of a family formerly residing within the ceded territory.”' — (1819, Art. 2d.) The words, do hereby allow or reserve, would have been more technical, but treaties and legislative acts are to be construed in good faith, according to the intention of the parties making them. The reservations were allowed by the treaty, in words of sufficient import, not of an}' particular six hundred and forty acres, to any individual, for that depended upon the future acts of enrolment and the location; by these acts, the general reservations became particular ones, according to the case of liidherford v. Green’s heirs. --(2 Wheat. 197.) By the act of 1782, it was provided, “that 25,000 acres shall be allotted to Gen. Green, his heirs and assigns, within the bounds of the lands reserved for the use of the army, to be laid off by commissioners.” It was contended against the General’s title, that the words gave nothing; that they indicate an intention to give in future, but create no present obligation on the State; nor present, interest in General Green. But it was held by the Court, that it was a present donation, not of any specific laud; but of 25,000 acres within the territory set apart for the officers and soldiers, and that ‘ when the survey and allotment, had marked out the land. *167it became a particular gift of the land contained in the survey. The words of the treaty arc quite as strong as J if they were in the present tense, and were evidently intended to be used in the same sense.
3. If the Plaintiff claims title under the treaty of 1819, art. 2, this objection fails in its" application, for that provides simply for an allowance of six hundred and forty acres of land to those who become'citizens, according to the 5th article of the treaty of 1817. It makes no sort of provision for the manner in which the land shall be located ; but confines that to special reservations for those Indians whose names are inscribed on the list annexed to the treaty. But if the claim is founded on the first treaty, it does not furnish an objection to the title. The survey was to be made by the State, through its agent, the United States. If laid off in a different shape from that specified in the treaty, the Indian might have excepted to it, but it is not competent for the State to do so, after the Indian has accepted of it. It was not to be expected, that the Indian could control and direct the manner in which the lands were run, and it would bo a most unjust act, to deprive them of the land, because the surveyor, the officer of the government, had departed from the shape specified in the treaty. It has been often decided that purchasers from the State shall not be injured by the mistakes of those who are appointed by the State to lay off and survey the land entered.
4. The first treaty provides, that the lands ceded by the Indians by the first and second articles, shall bo run by a commissioner or commissioners, appointed by the President oftlie United States, 1817, art. 11, and the lands ceded by the first article of the treaty, 1819, art. 5, are to be run by a commissioner, appointed by the President; but the treaties are silent as to the persons by whom the lines of reservation are to be run. If, therefore, they are run under the authority of the United States, I think the treaty may be substantially executed'without a com*168mission from the President. It is true, that his cotnmission to Mr. Houston, authorises him to lay off the reservations in Tennessee, as well as to run the line of the cession. The act of running the lines then of the reservations, if not otherwise provided for by the treaty or by law, seems to me to come within the power and duty of the Secretary at War, as prescribed by law. (2 Ü. S. L. 32). It is a reasonable presumption, that he w as entrusted with this duty by the President, more especially as the Secretary at War was the person by whom the treaty of 1819 was made, and he must have been apprised of the necessity of laying off the reservations. To require proof of the President’s authority to the Secretary for every act done in the course of his multifarious duties, ■would be a strictness not to bo foreseen or calculated upon in the ordinary transaction of business.
5. A general title to the land, vested by the treaty in those who should comply with the condition of becoming citizens, in the manner prescribed. This became a special and definite title, to six hundred and forty acres, as soon as- the survey was completed and returned. The surveyor’s plat of the land claimed, has been exhibited in the present case, and by that, the Plaintiff has been enabled to ascertain and identify the tract allotted to him.
The validity of his title cannot be affected by the neglect of the surveyor to return a copy of the plat to the general government.
Upon the whole case, my opinion is, that the reservation was rightfully and constitutionally made, and that the Plaintiff has proved a good title to the land described iri the declaration, and moreover, that the State commissioners exceeded the limits of their authority in selling the said land to the Defendant.
It is admitted, that the lands in question lie within the limits of North-Carolina, and also within the boundaries of those lands which were set apart for the nation of Cherokee Indians by. that State, before *169the cession of Tennessee to the United States. It is also admitted, that the Cherokee nation lived upon those lands, and other adjoining lands, both while this State was a Colony, and after that time.
In the examination of this case, it would be useless to enquire, with what justice it was that the King of England seized upon these lands, and declared himself sovereign thereof, without regarding the rights of the inhabitants whom he found in possession of them; because those rights formed no item in the title now relied upon, either for the Plaintiff or Defendant. This subject will he found to be ably and satisfactorily discussed and elucidated by the Chief-Justice of the United States, in Johnson v. McIntosh (o Wheat. 543).
"While this State was a Colony, the British Monarch not only claimed and exercised acts of sovereignty over it, but he, or those to whom he granted it, claimed a right to the soil itself.
By the Declaration of Independence, which gave to North Carolina, as well as the other States, their freedom and independence, all right to sovereignty and soil was transferred from the British Crown to the State pf North-Carolina, and the first step consequent thereon, was, the adoption by her of her present constitution.
In the 26th section of the bill of rights, it is declared, “ that this declaration of rights shall not prejudge any nation of Indians from enjoying such hunting-ground as may have been, or hereafter shall be secured to them by any former or future Legislature of this State.” After that time, in the year 1778 (N. Rev. c. 137) the Legislature passed a law prohibiting all persons from hunting on their grounds ; and also in the year 1783, they passed another law, by which they reserved to them and their nation forever, their lands, by metes and bounds, forbidding purchases to be made from them, and denouncing penalties against all persons who should make entries on their lands. The constitution and these laws, were gua*170rantees of the nation’s rights by the State of North-Carolina.
By the Articles of Confederation, of which the State of North-Carolina became a member';, it is declared, in art. 9, “ that the United States in Congress assembled, shall have the sole and exclusive right and power of regulating the trade, and managing all affairs witli the Indians, not members of any of the States : provided that the legislative right of any State, within its own limits, be not infringed or violated.”
In the year 1785, commissioners were appointed by Congress, who made the treaty of Hopewell. By this treaty, the Gherokees are declared to be under the protection of the United States, and the boundaries of their grounds are agreed upon.
By the 8th sec. of the 1st art. of the constitution of the United States, Congress areempowez'cd to regulate commerce with foreign nations, and among the several States, and wjth the Indian tribes. In the year 1791, another treaty was made with them, under the authority of the United States, by William Blount. By this tz'eaty, they are also declared to be under the protection of the United States, and new boundaries are marked out and agreed upon for their lands. Citizens of the United States are foi-bidden to hunt upon their lands, and all their lands not then ceded, were solemnly guaranteed to them.
The next treaty was made in the year 1817, by Andrew Jackson, Joseph M’Minn and B. Meriwether, commissioners on behalf of the United States. By this treaty, 640 acres of land whs given to every head of an Indian family who wished to become a citizen of the United States, out of the ceded lands, to be laid off in a square, including theii* improvements, which improvements were to bo as near the centre as possible, in which they were to have a life estate, with a revez'sion to their children.
Another treaty was made by the Secretary of War on behalf of the United States, in the year 1819. In this *171treaty, the same reservation of lands is agreed upon to each head of an Indian family residing within the ceded territory, who ciiuse to become citizens of the United States, in the manner stipulated in the former treaty of 1817. In the same year, but afterwards, the Legislature passed another law, prescribing the mode of surveying and selling the lands lately acquired by treaty from the Cherokee Indians. No clause in this act relates to the land reserved for Indians who might become citizens of the United States under the two last treaties j by this law, the Legislature seems to sanction and adopt the provisions and stipulations of the treaties of 1817 and 1819, they accept of the land ceded by those treaties, they speak of them as acquired by the treaties, and proceed to direct the mode in which they shall be disposed of; and there is no dissatisfaction expressed, nor is there any reason to believe that any was felt, at the stipulation in the treaty by which a portion of the lands were reserved for certain Indians; and when it is remembered that the United States gave to the Indians, out of lands belonging to the United' States, an equivalent for the lands ceded by them, perhaps it will not appear that there was much room for dissatisfaction.
By an act passed in the year 1820, any person is forbidden to buy or cultivate any of the lands reserved to the Cherokee Indians by the treaties of 1817 and 1819j this expression of the public will is strongly corroborative of the Plaintiff’s right under those treaties.
The Legislature, by another act, passed in 1821, gave authority to any white man who shall have purchased from this State at the sales made by commissioners' under the act of the General Assembly, lands reserved for the Cherokee Indians, to purchase or extinguish the right of the Indians to whom said lands were reserved. By this act, the right of the Indians under the treaties, is unquestionably acknowledged.
In the year 1822, another act was passed, which pro*172vides for the sale of lands lately acquired by treaty from the Cherokee Indians, which have been surveyed and ^ remain unsold.
jn f|,e following year, the Legislature passed another law respecting the reservations of certain Indians in the lands lately acquired by treaty from the Cherokee nation. By this act, commissioners are appointed to contract with them for lands, which the commissioners may believe they have a right to under the treaty; and by the 5th and last section in that act, it is declared, that when the commissioners appointed by this act shall adjudge, that a title claimed by an Indian to a reservation under the above-mentioned treaty, is not a good and valid title, where the land so claimed has been sold under the authority of the State, and the purchaser has been sued for the same, it shall be the duty of the Governor to employ able counsel to appear on belialf of such purchaser. This act, as well as those preceding it, recognizes the title of the Indians to the lands reserved for them under the treaties. But. the Legislature, by the last clause, guarded against pretended Indian claims, that might be attempted to be made under the treaty, not sanctioned by it. But if the claim now set up by the Plaintiff, is one of that sort, it has not been made appear to this Court.
It appears, that the lessor of the Plaintiff, has elected to become a citizen of the United States, by enrolling himself under Col. Meigs, Indian agent, according to the provisions of the treaty.
It appears, that a commission issued from James Mon-roc, President of the United States, to RobertHouston, to survey the lands reserved for the Indians within the State of Tennessee, but not those reserved for the Indians in North-Carolina. Of course, that commission can have no bearing on the case. A letter from the Secretary of War to Robert Houston^ was given in evidence, au-thorising him to survey the lands reserved for the Indians in North-Carolina. I am not prepared to say that, *173that is a lega! authority for making the survey. However it appears, that the Defendant is in possession of the land contained in the Phiint.iSF’s declaration. Of course, he is in posscssioiyif the Plaintiff's improvements, and the land adjoininglhereto, to which the Plaintiff has a right under the. treaty'.
I do not pretend to say< that the Plaintiff has any right to recover in this case, upon any title which he or his nation had before the treaties of 1817 and 1819. Before that time, their right was a national right, no individual had any distinct right to any particular part, hut they all had a right, to the. whole. That national right was the subject of contract when the treaties were made : It was the consideration for which the United States lands were given on tiie west side of the Mississippi, and the general relinquishment of it, was the consideration for which certain reservations were made by the same treaty, (one of which the lessor of the, Plaintiff has acquired title to, and holds it, not as one of the Cherokee tribe, but as a citizen of the United States under (ho treaty.j
It has been objected, that their, title lias not been evidenced by a grant. This objection would be. good, if the land in dispute was claimed under those laws which point out the. manner of acquiring title to vacant lands in this State. But that mode is not pointed out by the treaties under which the Plaintiff claims; his title is the treaty, which treaty is recognized by Nortli-Carolina. It is not an uncommon thing in this State, to claim title directly under ■an act of Assembly. The trustees of the University claim title, to the escheated lands in this State under an act of the Legislature $ no grant was ever made to them.
It has been said, in argument, that the commissioners had no authority to give away the Indian lands — that the present case, is one. of a gift to the Plain iff. When it is remembered, that, the possession and use of the lands were guaranteed to the Cherokee nation, both by this State and the Congress of the United States, and that the Indians *174gave up the possession of those lands, with the exception of the reserved lands, for lands beyond the Mississippi; and that if those reservations liad not been made, a greater' tuiantity of lands would have been insisted on byjbe Indians, in addition to those which liat’e been given them west of (ho Mississippi. 1 say, when these things are kept in view, we must consider the Plaintiff as a purchaser of the land $ and that lie claims it under a legitimate exercise, of power by the commissioners, acting under the authority of the United States. And that the. stipulations in the treaties of 18IT and 1819, have been acknowledged and recognized by the State of North-Carolina, in the several acts of Assembly which she lias passed from the year 1819, up to the present time.— From all these considerations, i think, the rule for a new trial should be discharged.
Henderson, Judge, assented.