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United States. Office of Indian Affairs / Annual report of the Commissioner of Indian Affairs, for the year 1892
61st ([1892])

Decision of Supreme Court on validity of Indian conveyances,   pp. 741-743 PDF (1.5 MB)


Page 742

742         SUPREME COURT ON INDIAN CONVEYANCES. 
This case turns upon the question whether the act of Congress prohibiting
Indian lands from being conveyed, except by permission of the President,
is 
satisfied by his approval indorsed upon a deed thirteen years after its execution,
and after the death of the grantee and the sale of the land by his administrator.
(1) A preliminary question is made by the defendant in error, as to the juris-
diction of this court. By Revised Statutes, section 709, our authority to
review 
final judgments or decrees of the highest courts of a State extends to all
cases 
S'where is drawn in question the validity of a treaty or statute of, or an
authority 
exercised under, the United States, and the decision is against their validity."
The argument of the defendant in this connection is that as the title to
the 
lands did not pass by the treaty, which contained only an agreement to convey,
the proviso ceased to be operative when the patent was issued in 1843: that
the 
same restriction upon alienation contained in the patent was one which the
su- 
preme court of Illinois had considered; and that their construction, that
no 
title passed from Robinson and Horton for want of permission of the President
of the United States, could not be reviewed by this court. There are two
suffi- 
cient answers to this contention. First, the proviso in the treaty did continue
by 
its express terms to be operative, so long as the land was owned by the grantees
or their heirs, and the object of carrying this proviso into the patent was
merely 
to apprise intending purchasers of the restrictions imposed by the treaty
upon 
the alienation of the lands. Second, the case raised the question of the
validity 
of an authority exercised under the United States, viz, the authority of
the 
President to approve the deed thirteen years after its execution, and the
decis- 
ion of the supreme court of Illinois was against its validity; so that the
case is 
directly within the words of the statute. 
(2) So far as the main question is concerned, we know of no reason why the
analogy of the law of principal and agent is not applicable here, viz, that
an act 
in excess of an agent's authority, when performed, becomes binding upon the
principal, if subsequently ratified by him. The treaty does not provide how
or 
when the permission of the President shall be obtained, and there is certainly
nothing which requires that it shall be given before thedeed is delivered.
(Doe 
v. Beardsley, 2 McLean, 412.) It is douibtless, as was said by the supreme
court 
of Mississippi in Harmon v. Partier (12 S. and M., 425, 427), "a condition
pre- 
cedent to a perfect title'" in the grant e; but the neglect in this
case to obtain 
the approval of the President for thirteen years only shows that for that
length 
of time the title was imperfect, and that no action of ejectment would have
lain 
until the condition was performed. Had the grantee the day after the deed
was 
delivered sent it to Washington and obtained the approval of the President,
it 
would be sticking in the bark to say that the deed was not thereby validated.
A 
delay of thirteen years is immaterial, provided, of course, that no third
parties 
have in the meantime legally acquired an interest in the lands. 
If, after executing this deed, Robinson had given another to another person,
with the permission of the President, a wholly different question would have
arisen. But, so far as Robinson and his grantees are concerned, the approval
of the President related back to the execution of the deed and validated
it from 
that time. As was said by this court in Cook v. Tullis (18 Wall., 332, 338),
"the 
ratification operates upon the act ratified precisely as though authority
to do 
the act had been previously given, except where the rights of third parties
have 
intervened btween the act and the ratification. The retroactive efficacy
of the 
ratification is subject to this qualification. The intervening rights of
third per- 
sons can not be defeated by the ratification." (See also Fleckner v.
Bank of the 
of the United States, 8 Wheat., 338,363.) In Ashley v. Eberts (22 Ind., 55)
a sim- 
ilar act of the President approving a deed was held to relate back and give
it 
validity from the time of its execution, so as to protect the grantee against
a 
claim by adverse possession which arose in the interim between its date and
the 
confirmation. "Otherwise," said the court, "a mere trespasser,
by taking 
possession after a valid sale and before its consummation, would have power
to 
defeat a bona fide purchaser." This case was approved in Steeple v.
Downing 
(60 Ind., 478, 497). In Murray v. Wooden (17 Wend., 531), a conveyance of
land 
by an Indian which, subsequent to its date, had been ratified by a certificate
of 
approbation of the surveyor-general in the form prescribed by law, was held
to 
be inoperative upon the ground that, previous to the granting of such certifi-
cate, the Indian had conveyed to a third person, and the deed to such person
had 
been approved in the mode prescribed by law previous to the indorsement of
the 
certificate of approbation of the deed first executed. This wa3 a clear case
of 
rights intervening between the execution of the first deed and its approval.
In 
Smith v. Stevens (10 Wall., 321) the right to convey the lands reserved for
the bene- 
fit of the Indians was expressly vested in the Secretary of the Interior,
upon the re- 


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