Danforth's Lessee v. Thomas

*156 Todd, J., delivered the opinioñ of the court as follows: , • This was an action of ejectment brought by. the plaintiff in error against the defendant in error: On £ke trjaj die cause in the circuit cogrt, it appeared from evidence that the land in controversy was situate in the tract of country lying south óf Holston and French broad river, and between the rivers Tennessee and Big Pigeon, the Indian title.to Which, was extinguished' by the treaty óf. Holstoft. The plaintiff claimed by virtue of a grant, issued' by the state of North. Carolina, bearing date the th of December, 1791. The defendant claimed under a grant from the state of Tennessee’, bearing daté the 2d of January, 1809. The defendant, by his Counsel, objéctéd to the grant under Which the plaintiff cláiméd title being admitted in evidence, on the. ground that it was for land which the laws of North Carolina had prohibited from being eftteféd, surveyed, or granted. The court sustained the objection, and prohibited the grant from going in eyidéhce-to the jury; whereupon a verdict ¿nd judgment was rendered in favour of the -defendant A bill of exceptions was taken, to the' opinion of the court, and the cause was. brought up to-this court. by ■prfit.of error. The correctness of the opinion of the circuit court depends on the sound construction of the act of the general ássembly of the state of North Carolina, ípassed in 1783, c. 2. s. 5 and 6, whereby the lands, within certain limits therein' designated, (including the lands in controversy') are reserved for the Ché *157 pekee Indians,; and the citizens prohibited from enter-; jpg. and surveying lands within those limits. It is contended, on the part of the plaintiff, that this act cannot be construed, nor did the legislature mean to give the Indians a' right of property in the soil, but merely the use and enjoyment of it. That the succeeding legislatures, by the acts of 1784, 1786, and 1789, have changed this reservation for the use of the Indians, and given unlimited access, for tne purposes of making entries and surveys “ to all lands not before specially located,” and io 44 all vacant lands” within the limits of the state. Consequently, locations could be made, and grants issued to perfect titles of lands, lying within the limits of the Indian reservation. Whether the legislature had the power, or intended to give the Indians a right of property in the soil, .or merely the use and enjoyment of it, need not be inquired into, nor decided, by this court; for it is perfectly clear, that the 5th section of the act of 1783, c. 2., prohibits all persons from making entries. pr surveys for any lands within the bounds set apart for'the Cherokee Indians, and declares all such entries and grants thereupon, if any should be made, utterly void: They had the power, and have declared, unequivocally, an intention, to prohibit entries from being made within thosé reservations. The several acts of .1784, 1786, and 1789, although, they contain general expressions, which, if taken singly, might seem to sanction entries and surveys for 44 all lands not before specially located,” or to 44 all vacant lands;” yet, when taken together, these gene *158 ral expressions must be controlled by the restrictions and prohibitions as to the reservations for the Indian tribes. The reasoning used in the case of Preston v. JBrowder, applies with equal, if not greater, propriety, to this case. And, although at different periods different sections of these reservations have been subjected to appropriation by entries and surveys, it has been in consequence of the several treaties with the Indians, by which the boundaries of the reservations have been .altered, and the . Indian claim, extinguished; but it is believed, that the mere ear-. tinguishment of the Indian title did not subject the land to appropriation, until an act of .the legislature authorized. or permitted it. Whatever doubts this court might entertain on this subject, were they now construing these laws upon the first impression, that doubt would be removed on a view .of the case, of Avery v. Strother, in the Reports in Conference, p. 43i;, decided bythe judges of the supreme court'of North Carolina. This is a decision directly in point’, made by.the supreme court of the state, construing the laws brought into the view of this court, and is decisive of this case. And; as this court have been uniformly disposed to pay great respéct to the decisions of the state, courts respecting titles to real estate, this decision has its full influence on the present question; and, therefore, the judgment of the circuit court is unanimously affirmed with costs. Judgment affirmed.