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2d Session.

No. 98.

WILLIAM SAWYER AND OTHERS.

MAY 2, 1862.-Referred to the Committee of Claims, and ordered to be printed.

Mr. EDGERTON, from the Committee on Private Land Claims, made the following REPORT.

The Committee on Private Land Claims, to whom was referred the petition of William Sawyer and others, report:

By the third article of the treaty of October, 1818, with the Miami Indians, the United States agreed to grant to several persons, members of the Miami tribe, and their heirs, certain tracts of land described in the said treaty, and among them the following:

"To Joseph Richardville, and Joseph Richardville, jr., two sections of land, being one on each side of St. Mary's river, and below the reservation made on that river by the treaty of Greenville, in 1795."

On the 23d of October, 1826, another treaty was made with the Miamies, the seventh article of which provides "that the United States shall purchase of the persons named in the schedule hereunto annexed" the land therein mentioned, being the same land granted. by the treaty of 1818, "and shall pay the price affixed to their names, respectively." Among the claims designated was this claim of Richardville, and is as follows: "The two sections on the St. Mary's granted to Joseph Richardville, and Joseph Richardville, jr., to be conveyed by Joseph Richardville, there being no such person as Joseph Richardville, jr., for these two last-named sections, three thonsand dollars are to be paid to Joseph Richardville."

In compliance with this provision, on the 28th day of August, 1827, Joseph Richardville executed and delivered his deed to the United States, which deed was without a seal. Under this conveyance the United States proceeded to sell the land, the last being sold on the third of December, 1849.

In 1844, one R. Breckinridge, of Fort Wayne, Indiana, presented a deed in favor of himself and one William H. Coombs, from a halfbreed Indian, calling himself Joseph Richardville, jr., which deed was executed on the 28th of September, 1843, and by which the grantor undertook to convey, for one thousand dollars, his interest in the lands previously conveyed by Joseph Richardville. Failing to obtain the President's approval, Breckinridge made no further efforts

to obtain the land; but in February, 1845, Charles Sweetzer addressed a letter to President Tyler, stating that he was employed by the creditors of Joseph Richardville, jr., who was much indebted, to obtain an equitable lien on two sections of land, referring to the same land deeded to the United States by Joseph Richardville, and to Breckinridge and Coombs, by them an calling himself Joseph Richardville, jr.

At the September term of the court of common pleas of Mercer county, Ohio, Madison Sweetzer obtained a judgment against Joseph Richardville, jr., for six thousand five hundred and thirty-two dol lars and eighty cents. This judgment was obtained on a promissory note, with a power of attorney, from Richardville, authorizing the confession of judgment against him on the note. An execution was issued on this judgment and placed in the hands of the sheriff of Mercer county. At the spring term, 1847, the sheriff made return that he had sold the two sections to Madison Sweetzer for $1,973 50. The court confirmed the sale, and ordered the sheriff to make a deed for the same to the purchaser.

On the third of July, 1855, Madison Sweetzer filed a declaration in the circuit court of the United States for the northern district of Ohio in an action of ejectment, and on the 15th day of March, 1856, obtained a judgment against the defendants. These defendants, with others occupying said land, now come to Congress and ask that their titles may be confirmed by buying in and extinguishing the title of Madison Sweetzer.

It is a little remarkable that the leading members of the Miami tribe should sign a treaty solemnly declaring that there was no such person as Joseph Richardville, jr., had there been such a person living at the time, and that the father should make such a deed for the entire land, knowing that his son was yet living and entitled to one-half. It may be proper to state that Joseph Richardville died in 1832 or 1833, and nothing was heard of Joseph Richardville, jr., till 1844. The deed of Joseph Richardville to the United States was recorded in Mercer county in 1827. Can it be supposed that young Richardville would have slumbered on his rights for seventeen years while the land was being sold by the United States? There are many things calculated to throw suspicion on this case, even had the identity of Joseph Richardville, jr., been clearly established, among which may be mentioned the purchase of Breckinridge, the judgment of Sweetzer without the sifting of a trial, the small amount paid for the land, &c.

But aside from all this, the committee find insuperable objections to granting the prayer of the petitioners. By the treaty of 1826 the United States agreed to purchase this land, and, in fulfilment of this treaty obligation, the United States paid to Joseph Richardville, on the 28th day of August, 1827, the stipulated price of three thousand dollars, and received from Joseph Richardville a deed. The committee do not deem it necessary to inquire into the validity of the deed; for by the stipulations of the treaty the United States was to be the purchaser, and no person could obtain title, and there

by deprive the United States of its rights under this treaty, and Congress can hardly be expected to treat both the deed and the treaty as nullities.

In article sixth of the treaty of 1818 is the usual provision to guard the Indians against the superior knowledge and the cupidity of the whites.

The several tracts of land which, by the third article of this treaty, the United States engaged to grant to the persons therein mentioned, shall never be transferred by the said persons or their heirs without the approbation of the President of the United States."

The title of Sweetzer is not derived from the grantee or reservee, but rests on a judicial sale and sheriff's deed, and therefore it is claimed that the approval of the President is not necessary to the validity of the title. It is true the courts have gone very far, and, in the opinion of the committee, too far, in evading the above salutary provision of our Indian treaties.

In the case of Fielding Lowry vs. Peter Godfrey et al., 4th McLean's Reports, Judge McLean says: "Lands reserved to Indians under a treaty which vests in them the title, but which restricts them from conveying it except with the consent of the President of the United States, descend under the laws of the State, and may be made responsible for the payment of debts."

Attorney General Mason, in his opinion given in the case relating to the estate of John B. Bourie, following the decision in Lowry vs. Weaver, says: "Where the reservees shall have died, and sales are made under an order of court granted pursuant to the laws of the State in which the lands are situated, the President's consent is not necessary to their validity."

These are extreme cases, and arose in the settlement of the estates of deceased grantees. In the opinion of the committee, the provision in our Indian treaties requiring the approval of the President is a wholesome and necessary one; that it is superior to State laws or the decisions of State courts, and justice and humanity require that it shall not be evaded either in letter or spirit. In this view we are sustained by the late William L. Marcy. In his opinion on the Bourie case, given to President Polk, he says: "In regard to the within cases, it appears to me that on the death of Bourie the lands which he held under the treaties of October, 1826, became the property of the heirs, with the right to sell the same with the consent of the President of the United States. I do not conceive that the right of the heirs can be defeated by the State laws, under which an attempt has been made to sell the same to raise a fund to pay the creditors of Bourie. The land is, in my opinion, the property of the heirs, and neither directly nor indirectly can it be sold for the benefit of the creditors of Bourie; on his death it vested in them; and I respectfully suggest that the President should withhold his assent to the deeds given by Breckinridge, the commissioner of the court of probate."

To this opinion the President signified his approval, as follows: "I approve the foregoing decision of the Secretary of War, 1st August, 1845.

"JAMES K. POLK."

This opinion of Secretary Marcy is sound and just, and is applicable in every respect to this case. The opinion of the Attorney General on the Bourie case was given after this opinion of Secretary Marcy; but the President adhered to his original views, and refused his as sent to the sales. The committee are of opinion that this claim of Sweetzer originated in fraud, and that the relief asked for by the petitioners ought not to be granted.

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