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which power was vested in the political and military government, since tiroyal order of the 24th of August, 1774; that with a view to the good the service, and for the better fulfilment of what is contained in the star ticle of the royal ordinance respecting the Intendants of New Spain, the powe of granting and distributing all kinds of lands be restored to, and m the particular province of, the Intendant of this Province, with inhibition: other authorities, in conformity to the legal provisions of the laws; cols quently, the power of making such grants, heretofore vested in the Gover ment, is repealed and abolished, and shall henceforth abide in the Inte dancy."
This authority was considered conclusive by the counsel for the Unit States, but was overruled by the court. In 9th Peters, 740, the objectis disposed of in the following terms: "It is next contended that the pow to grant lands in West Florida, was not vested in the Governor, but confided exclusively in the Intendant; this is clearly proven to be settled law of the Province, as to royal lands which were the property the Crown, and is admitted by the counsel for the petitioner. But the verse is, we think, equally apparent as to Indian lands, until their right been abandoned, and the land become annexed to the royal domain t process in the nature of an office at common law." I do not find the gr of power to the Intendant limited to "crown lands," but in the language the ordinance of 1798, it is extended to "all kind of lands." Whate power the King possessed over crown or Indian lands, was conferred on: Intendant. Hence, Governor Folch had no "faculties conferred on him our lord, the King, and in his royal name, to confirm and ratify to Jo Forbes & Co. the cession of two pieces of land," &c. In support of the c tinction made by the court, between crown lands and Indian lands, re ence is made to White's Compilation, pages 25, 40, 42, 43, 79, 215. Its be found, on examination, that the several laws referred to by the co except that found at page 215, were made a century before the royal of of 1798, and consequently, if they contain principles inconsistent with last ordinance, they must so far be repealed by it. I find, too, on referr to my brief, in the case of Arredondo, 6 Peters, that every one of these la were referred to by me for the purpose of sustaining the Indian right to: village of Alachua, which had been granted to the petitioner by the Inten of Cuba, and that they were, on that occasion, overruled by the c The reference to White's Compilation, 215, which I excepted in the ab remarks, is the 31st article of the regulations of the Indendant Mora based upon the ordinance of 1798. Now it is very evident that Mor could not, if he would, have repealed the ordinance of the King, confer on him this high trust and confidence. But the article itself shows r clearly that, in the estimation of this high officer of the crown, his jurisd tion extended over the Indian lands. It is expressed in the following ter "Indians who possess lands within the Government, shall not in any . ner be disturbed; on the contrary, they shall be protected and support and to this the commandants, syndics, and surveyors, ought to pay" greatest attention to conduct themselves in consequence." This artic the regulations of Morales, the Intendant of Louisiana and West Flord the common understanding of intelligent men, will not support the p sition that the Governor of West Florida had jurisdiction over the Ind lands after the ordinance of 1798, giving power to the Intendant over “ * kind of lands."
But the question very naturally arises, what were Indian lands in Florida under the laws and government of Spain? The question is fully answered in the very laws referred to by the court, for the purpose of susaining the jurisdiction of the Governor, and which I have above enumeated. Those laws will show most distinctly that the Indian lands were imited to those on which their farms and villages were located, and that o the extent of one league around those villages, they had, as Spanish subects, in virtue of their habitation and cultivation, an absolute, indefeasible ight, which they were capable of conveying in fee simple. Before the oyal order of 1798, to render such a sale valid, it required the approval of he Governor, but after that time, as I conceive, it required the approval of he Intendant. If these laws are not sufficiently expressive of this right, a eference to the decisions of the supreme court of Louisiana, will place it eyond the possibility of doubt.
In the case of Martin vs. Johnston, 5th Martin's Reports, page 658, which nvolved the Indian rights to land in Louisiana, the court remarked, "the act, as given to the world in all the laws enacted on the subject, is, that the King of Spain, in taking possession of his dominions in America, disrerarded the original rights of the lords of the soil, and declared himself the overeign of the country. As some compensation, however, for that usuration, he assigned to the former proprietors such extent of land as they vanted; and particularly took care to secure to them, by law, such tracts s he considered were sufficient for the purpose of cultivation and the pasurage of their cattle. In the title 12 Book 4th of the Recopilacion de los ndias, treats of the manner in which lands shall be disposed of generally; he law 13, among other dispositions, provides, that the Indians "shall be mainained in the possession of the lands which had hitherto been allotted to them, nd shall receive an additional quantity which they may want." On the egulations concerning the lands and villages of the Indians, the whole 3d itle, book 6, may be referred. The law 8th of that, however, particularly ays, "the seats on which the villages of the Indians shall be placed shall e such as are well provided with water, arable lands and woods, and to vhich there may be easy access, and they shall have a common of one eague in extent, where their cattle may graze without being mixed with hose of the Spaniards."
In the case of Reboul vs. Nero, 5th Martin, 490, it was decided that under he laws of Spain the Indians were permitted to occupy a specified spot, and he law gave them a right to one league around it. In the case of Maes vs. Gilliand's heirs, et al, 7th Martin, 314, it was decided that Indian tribes vere entitled, by settlement under the Spanish Government, "to the quantity of land contained in a square league." Now if the claim of Mitchell and others had been for a tract of land to the extent of one league around an Indian village, it would have been "Indian lands." The Indians would have had a right to sell it, and whether the sale had been confirmed by the Governor or Intendant, would have been a matter of little importance to the Government. But instead of that it was for 1,250,000 acres, sold by the Indians, when there was not an Indian village, hut, or field upon it. A further evidence of the limitation of the Indian right to a league around their villages, is found in the decision of the Supreme Court of Louisiana, in the case of Spencer's heirs vs. Grimball, 6th Martin N. S. 367: in speaking of the plaintiff in that case the court observed, "they have contended that by the local usages existing in Louisiana, the Indians were entitled to
more than a league; and the evidence they offer of these usages, it assent of the Governor to a sale by which much more was sold ty tribe. Respect is certainly due to the official acts of the officers of the i Government, and in the absence of proof to the contrary, we shot inclined to consider them prima facie correct. But in relation to thes ject matter before us, we have the law itself, which clearly limits the qua to which the Indians were entitled. Now for us to say, a violation of law was an evidence of an usage which controlled it, would be to ple laws at the mercy of those who owed them obedience." The appl of this rule of law, and this rule of decision, must have been fatal k claim of the petitioners in the case of Mitchell and others.
But it is contended that in Florida the Indian right was not thus lim that by the treaty of Picolata, in 1765, a boundary was established bet the Indians and the British Government, which was afterwards recog and continued by the Spanish authorities, and that the land claim Mitchell, being within the Indian boundary, was not crown land subj be granted by the Intendant. On this point the decision of the court Li case of Mitchell is in direct opposition to the decision in the case of ′′; dondo, in 6th Peters, and the case of Clark, 8th Peters. In the cas Arredondo, the Intendant of Cuba had granted to the petitioner 2. acres of land within this Indian boundary, including the Indian villag Alachua. It was contended for the United States in that case, that the belonged to the Indians, and was not subject to the granting power of Crown. The court decided otherwise, and confirmed the claim d petitioner.
In the case of Mitchell and others, the counsel for the United & referred to the decision in the case of Arredondo, to show that the h within that boundary were not Indian lands, but crown lands, subject # grant of the Intendant. In 9th Peters, 742, the court disposes of the er tion in the following terms: "the counsel for the United States press argument the decision of this court in the case of Arredondo as an af ance of the right of the Intendant of the province, or of Cuba, to m Indian lands. In that case the lands granted had been in the possess and occupation of the Alachua Indians, and the centre of the tract was Indian town of that name. But the land had been abandoned, and be any grant was made by the Intendant, a report was made by the Attor and Surveyor General, on a reference to them, finding the fact of aband ment, on which it was decreed that the land had reverted to, and become part of the royal domain." Now in both these cases the land claimed admitted to be within the same Indian boundary. In one case the grant made by the Intendant, of an Indian village, on the ground that it hadbe abandoned, and in the other case a sale was made by the Indians of and uncultivated lands, on which there were no fields or villages, and both claims were confirmed by the court. If the Indian right to the vil in the case of Arredondo, became forfeited by abandonment, could the In right have existed in the case of Mitchell, where there had never been occupancy? If the Intendant had a right to grant an Indian village beca it ceased to be occupied, would he not have had the same right to grant wild lands which had never been occupied by the Indians? But if the inc sistency of these two cases could in any manner be reconciled, still the c of Clark remains to be disposed of. In that case the grant was made wit the Indian boundary, by the Governor of East Florida, where there was
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pretence of abandonment by the Indians; and although the fact that the land was within the Indian boundary distinctly appeared on the record, without taking the least notice of it, the court confirmed the claim. In two of these cases the court has sustained the power of the officers of the crown to grant lands within this boundary, and in one of them they have positively denied that right, and confirmed an Indian sale for 1,250,000 acres of land, ratified by Governor Folch, on the ground that they were Indian lands, that they were not crown lands, and therefore not subject to be granted by the Intendant. In the case of Arredondo the grant professed to have been made in consequence of the abandonment of the village by the Indians, and the court has considered the proceedings of the Intendant as a judicial decree. (9th Peters, 743.) Thus considered, it is high authority for the position we assumed in the argument, that the Indian right was confined within the limits of one league around their villages. It corresponds with the nature of that right as defined by the laws of Spain, and is in strict accordance with the decisions of the supreme court of Louisiana. If the Intendant had regarded the Indian right as extending over all the lands within the Indian boundary, how could he have decreed that a village within that boundary became annexed to the royal domain by the abandonment of the Indians? A possession of a part of the land within that boundary, if their right extended over the whole, would, according to all legal decisions on the subject, have been possession of the whole.
Much the greater number of the claims now depending in our Territorial courts are for land within this Indian boundary, when there is no pretence that they were abandoned by the Indians. How those claims will be regarded by the court, I cannot undertake to express an opinion. I have thus given you some of the leading questions decided, in order that you may determine for yourself how far the cases yet depending in court are embraced by those decisions, and that you may be advised of the utter impossibility of proving by the laws and ordinances of Spain the negative proposition, that the officer had no power to make a grant, while, under the rule adopted by the court, the grant itself is regarded as evidence of that authority. It is admitted by all, that these claims are cases of special and limited jurisdiction, and that the only power of the court to pass judgment upon them, is conferred by the several acts of Congress on the subject. Now, if those acts have been properly construed; if, in the language of the court, "the authority of the officer making the grant, or other evidence of claim to lands, formed no item in the title it conferred, that the United States never made that a point in issue between them and the claimants, to be even considered, much less adjudicated." (9th Peters, 727.) If Congress, by directing, at page 873, of the Land Laws, that every petition presented to the court "shall be constructed according to the rules of a court of equity," intended that the pettioner should not be required to make out his case by producing the authority under which his grant was made, when that authority is put in issue by the answer of the United States, expressly denying such authority. If it was the intention of Congress that the grant should be received as evidence of the authority of the officer by whom it was made, then it would seem that there is little more to be done in those cases than for the court to ascertain that a grant was made, (and this according to the decision in the case of Mitchell, may as well be done by the production of a copy as an original,) and on that grant to enter a decree of confirmation.
If this was really the intention of Congress, much delay, expense and convenience to the claimants and to the Government, might have been, an still may be, avoided by the passage of an act confirming all grants of eve description.
The claims contained in abstracts numbered 3 and 4, and sufficient scribed by the caption of the abstracts, and the remarks made on each de They will therefore require no special report.
The claims depending in the superior court at Jacksonville, amour to 30,396 acres, are not different in character from those contained in abstracts numbered from 1 to 4 inclusive, and must be decided by the sa principles. Such will be the case of those for which petitions have e filed in the court at St. Augustine, but which have not yet been placed the docket for trial.
A number of the cases contained in each abstract have been argued. submitted to the court for decision, and there are many others in that st tion which do not appear in either of the abstracts, because after their ment and submission they were discontinued on the docket. It is presur they will be decided, and that the appeals will be taken to the next ter the Supreme Court of the United States.