Opinion of Commissioner Kennedy in the case of Looney Riley, an applicant for the value of a reservation, under the treaty of the 29th Dec[ember] 1835, and the supplement thereto, 1838 [?] May [?]

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OPINION OF COMMISSIONER KENNEDY, IN THE CASE OF LOONEY RILEY, AN APPLICANT FOR THE VALUE OF A RESERVATION, UNDER THE TREATY OF THE
29TH DEC. 1835, AND THE SUPPLEMENT THERETO.

Looney Riley presents his petition to this Board, and states that he was the head of an Indian family, and as such, took a reservation under the treaties of
1817 and
1819, and was in possession of his reservation on the first day of
January, 1820; and that he was dispossessed by a Writ issued by one of the Circuit Judges of the State of Tennessee, and that he afterwards instituted an action to recover the possession of his reservation, which suit was determined against him, and therefore, he says, he is entitled under the Treaty of
1835, to payment from the United States, for the value of his reservation as unimproved land.
Good faith in the fulfilment of its engagements has always been, and I trust always will be, a prominent trait in the character of the Government of the United States. That Government never imposes on any of its officers, or agents, the task of resisting a claim against it, which is legal and just, but it does require of them to examine, carefully, all claims presented against it, and if any of those claims, shall on examination, appear to be unjust and illegal, to fearlessly reject them.
Claims to a large amount are presented to this Board, against the United States, and before we allow them, it is necessary to examine, first, what engagements have the United States made with these claimants, and also what kind of evidence is offered in support of these claims. What did the United States guarantee to the Reservees under the treaties of
1817 and
1819? and what did they guarantee to any of these Reservees? By the 8th article of the Treaty of
1817, the United States agreed to give a reservation of 640 acres of land, to each and every head of an Indian family, residing on the East side of the Mississippi river, on the lands that were then, or might be thereafter surrendered to the United States, in which the Reservee was to have a life estate for himself, with a reversion in fee to his children, and a right of dower to his widow; Provided, that if any of the heads of families for whom reservations might be made, should remove therefrom, then and in that case, the right was to revert to the United States. Here was a proposition made on the part of the U. States to any head of an Indian family residing on the territory then surrendered, or that might thereafter by the terms of that Treaty be surrendered to the United States by the Cherokee Nation, that if he would enrol [enroll] his name with the Cherokee Agent for a reservation, and continue to reside on the land so reserved, and become a citizen of the U. States, that he should have a life estate in six hundred and forty acres of land, and after his death it should descend to his children as an inheritance in fee simple. Then if the head of an Indian family accepted of this proposition and complied with its terms, he had in him, a legal estate which could only be divested by the Reservee voluntarily abandoning the land he had so selected for his residence, the United States having so vested in the Reservee, a legal title for life to 640 acres of land. What covenant of warranty did they make with the Reservee, or what contract, either express or implied, did they enter into with him, to keep him in the peaceable possession and quiet enjoyment of the same? Did the United States make any contract or agreement with the Reservee, other or different from what they make with every other purchaser of a parcel of the public domain, for which he receives a grant, in the usual form? -- When the United States gave a Reservee a title to 640 acres of land to include his improvements, did they enter into any obligation to guard him against the tortuous acts of individual wrong-doers? If a ruffian should expel the Reservee from his house of his land, did the United States bind themselves to put him back into possession, or to punish the wrong-doer, except through the agency of the courts of justice, where the land was situated? Did they engage to staRd [stand] at the back of the Reservee with a file of soldiers, or surround him with a guard to keep off intruders and trespassers? or did they leave him to the protection of the laws of the States, in which he resided, and of United States, as they did all other Grantees in whom they had vested a legal title to a tract of land, which they had sold and conveyed to him, or them; in other words was the Indian Reservee, who had become a citizen of the United States, in any better situation than other citizens of the United States, who held land by grants from the United States? In as good a situation the Indian Reservee certainly was, but he was in no better one, I am convinced. If he has been evicted by an older or better title than the one he derived from the U. States, then he has a fair and legitimate claim for remuneration, but if a wrong-doer, or trespasser, has dispossessed him, or an intruder has trespassed on his lands, and he did not claim the protection of the laws, which every citizen may claim, as a matter of right; or if by the unskilful [unskillful] management of his cause, the State Court in which it was pending, made an erroneous decision in his case, the United States did not undertake to warrant him against any of these contingencies, more especially as the Courts of the United States were always open to him, and of their protection he could at all times have availed himself. It is said by the Counsel of the claimant, that the Indian was ignorant of his rights and of the proper remedy when these rights were invaded; but the answer to that is, the United States made no stipulation in favor of the ignorant Indian in these treaties, more than for the ignorant white man. The ignorance of the Indian might have been a good reason with him in determining him not to take a reservation, and become a citizen of the United States; but after he had taken a reservation, he was placed in the same situation with other Grantees of the United States; to all such the legal maxim applies: that ignorance of the law affords no ground of relief, in civil more than it does in criminal cases; but the ignorance of the Reservees who took reservations under the treaties of
1817 and
1819, is a more gratuitous assumption; a great many of these Reservees were white men, who took reservations in right of their Cherokee wives, many of them were mixed bloods, of which the Reservee Looney Riley was one, and withal very intelligent, well informed persons. -- Although some of these Reservees were ignorant, as it is believed they were, will any one seriously contend that the United States came under any obligation to protect the ignorant Reservee more than they did to protect the intelligent one? Vigilance on the part of the Reservee to defend his rights & possession, was the condition on which he held his reservation, just as much as it is the condition on which the white man holds his granted land, and without any distinction whether they were ignorant or otherwise.
If Looney Riley has complied with the terms of the Treaty of
1817 and
1819, by registering his name for a reservation, and if on the place selected he was found residing on the
first day of January, 1820, he had in him a vested legal title for life in the tract of land he had chosen, with a right of dower to his widow, and if he continued to reside on the land until the time of his death, it would descend to his children, in fee simple, and being so vested, with such a title to such an estate, the question for our determination is, did the laws of the State of Tennessee oblige him to abandon that tract of land, of which he was possessed, and to which he had obtained the title already stated, so as to give him a claim against the United States for the unimproved value of the Reservation, under the 13th article of the Treaty of
1835, made between the United States and the Cherokees East.
It is contended that because a Judge of one of the Circuit Courts of the State of Tennessee issued a Writ directed to the Sheriff of the county, where the petitioner resided, by which he was turned out of possession, that therefore the laws of the State, compelled him to abandon his reservation. Is this correct reasoning? Certainly not. The counsel for the claimant say that the law by which the Judge issued the Writ was unconstitutional; it was in fact, no law, for an unconstitutional law is no law at all, -- it is absolutely void -- and so the Courts are bound to declare it. All then that Looney Riley had to do, on that supposition, was to apply to the Courts of the State and they would have restored him to his possession; but the fact is, there was no law constitutional or otherwise which authorised [authorized] the Judge to issue any such Writ, against the claimants; the act of the Judge was without any lawful authority, in issuing it; he was a wrong-doer; the Sheriff, in executing it, was a wrong-doer ; and both could have been sued by Riley, as trespassers; and had he applied to a Courrt [Court] of Chancery, in a proper manner, that court would have enjoined these unlawful proceedings and kept him in possession of his reservation, as appears by the opinion of the Supreme Court, in the case of Coody vs. Martin S. Gilleland. But if claimant Riley, with his arms folded, did not apply to the proper tribunal for redress, can he now pretend, that any obligation is imposed thereby on the United States to pay him the value of the land he lost by his own negligence? As a proof that the laws of the State of Tennessee did not oblige any Reservee to abandon his reservation, let us look at the fact, that many of these Reservees are now in the full enjoyment and quiet possession of their reservations, under the protection of the very laws, which it is contended obliged Looney Riley to abandon his, and several of the Reservees were, after they had been dispossessed by the wrong-doers, restored to their possessions and rights, by the very laws so loudly complained of. Wiley Tuten and Mouse Paine were both dispossessed of their reservations, they both applied to the courts, and by aid of the laws of the State of Tennessee, they were both restored to the possession and enjoyment of what they had so lost, and now under the protection of these very laws, hold and enjoy the same. And can it be successfully contended, that the same laws protect one Reservee and oblige another to abandon his reservation? Our whole authority to award payment to a Reservee as far as the present case is concerned, is found in the following words, in the Treaty of
Dec., 1835, article 13th: "All such reservees as were obliged by the laws of the States in which their reservations were situated, to abandon the same, or purchase them, from the States, shall be deemed to have a just claim against the United States." Does this not mean such reservees as were necessarily and unavoidably compelled to abandon their reservations? and therefore the Reservees in the State of Georgia, it is believed, necessarily and unavoidably abandoned their reservations in that State, and therefore the Reservees had a just claim on the United States for the value of their reservations, according to the terms of the Treaty. But did the laws of the State of Tennessee do so? The difference between the laws of Tennessee and Georgia is plain and palpable -- the laws of Georgia, for one moment or one instant never recognized the rights of the Reservees; the doors of her courts were never open to the claim of Reservees, nor could a claimant under any circumstances have maintained his right to his reservation in the courts or by the laws of that State. Not so in Tennessee, her laws did expressly recognize the right of the Reservee, if his reservation had been well taken, under the treaties of
1817 and
1819, and her laws did expressly forbid her citizens from interfering with the rights of the Reservees under these treaties, and her courts were at all times open to the reception of claims for redress, whenever the rights of the Reservees were violated.
The laws of the State of Georgia expressly denied that any Indian had any right to take a reservation, within the chartered limits of that State, under the provisions of the treaties of
1817 and
1819; the laws of the State of Tennessee on the contrary expressly recognized his right to do so, and only required proof that he had done so, according to the terms and stipulations of those treaties; and that he had not abandoned his rights; and whenever these two things were shown by the Reservee, the laws of Tennessee threw around him all the protection that is offered to one of her own citizens in similar circumstances. Can it then be said with truth, that the laws of Tennessee obliged any Reservee to abandon his reservation? I think it cannot be so said; therefore it is my opinion that he has no claims against the United States on that ground.
But, it is said on the part of the claimant, that it was the intention of the contracting parties to the Treaty of
1835, to settle all controversies between the Indians, and individuals claiming the same lands under any other title or claims, and to put down all Legislation between the Reservee and all such individuals in future; and that it was the intention of the contracting parties, that whenever the Reservees were out of possession by any means, & others in possession, the reservations were to be paid for by the United States; and the Reservee must go back and regain his nation, and forever cease to be a citizen of the United States. This is said to be the true and proper construction of the Treaty, in the 13th article thereof. This position is believed to be wholly untenable, and the reasoning by which it is attempted to be supported, is more plausible than solid. In the first twelve articles of the Treaty of
1835, the Cherokee Nation surrendered to the United States all the lands East of the Mississippi, which it held as a Nation; but the lands which individuals, who had formerly belonged to the Cherokee Nation, held as reservations in that territory, which, by former treaties, had been ceded to the United States, the Cherokee Nation neither did or had power to surrender, for these reservations being vested in individuals who had ceased to be members of the Cherokee Nation, neither of the contracting parties, had any thing to do with them, and in these twelve articles the United States had stipulated all that was to be done on the part of the United States, in consideration for the territory so surrendered by the Cherokee Nation.
In the 13th article of the Treaty the contracting parties undertake to make a final settlement of another matter in controversy then existing between them; which was, the just claims that individuals of the Cherokee Nation then had on the United States, on account of reservations granted to these individuals under former Treaties between the United States and the Cherokees. The first question to be asked on the part of the United States, in order to settle that matter, was, what just claims, have any individuals of your Nation, arising under former Treaties, due by us, respecting these reservations? Why says the Cherokees, you have sold some of these reservations and received the price of the same, and it is now in your Treasury. The United States reply, if we have done that we will pay you for your reservations. What next; why, says the Cherokees, altho' [although] you have not sold them, you have them in possession, and the Reservees or their heirs, have not got the benefit of them; the United States answer, we will not pay for them, but we will confirm them, and make the land sure to them, and they shall have a grant for them. Now let it be kept in rememberance [remembrance], that these two classes of reservations provided for, grew out of Treaties previous to the Treaty of
1817 and in neither of these two classes of cases, is the case of Looney Riley to be found. Then come another class; by the Treaty of
1835, in the 13th article, the Cherokees may be supposed to have said, there still remains another class, who have just claims on you for remuneration. Well, says the United States, who are they? why, says the Cherokees, by the laws of some of the States, in which reservations have been taken, the States do not recognize the validity of the reservations, and the Reservees had no possible method of keeping possession of their reservations, or of regaining the possession when they were lost; these reservees are literally obliged to abandon their reservations, and give up all claim to the same; and in other States, the Reservees, have, in order to quiet their title, been under the necessity of purchasing them from the States, and have had to pay large sums of money to secure their titles, and free them from Legislation. Well, says the United States, if any of the Reservees have been obliged by the laws of the States to abandon their reservations, we will pay them for the land they have lost; and where the Reservees have paid money to secure their titles, we will refund that money with interest. The question then is, does Looney Riley's fall within any of the before mentioned classes of cases, enumerated in the 13th article. It does not in the first class, because it is evident that the United States did not sell Riley's land; nor does it fall within that of the Reservee who is not to receive payment, but have his reservation confirmed to him; besides both these classes of cases grew out of Treaties prior to
1817, nor does it fall within that class, where the Reservees had purchased from the State, and if it does not fall within the claims provided for, we have no power or authority to pay the claimant, whatever hardship there may be in his case.
Suppose a Reservee in the State of Georgia to have had possession from the time he registered his name; and his reservation was in all things taken according to the provisions of the Treaties of
1817 &
'19; and by the Treaty he was a person entitled to take a reservation; suppose all these things and then suppose an action of Ejectment to be instituted against him by a person to whom the State of Georgia had sold the land; could the Reservee have defended himself in the Geergia Courts? He could not; the Georgia Judge, by the Laws of that State, must have decided the cause against him, and the Reservee, after taking the cause to the highest Court in that State and having a decision against him should have moved the Court to allow him a Writ of Error to the Supreme Court of the United States as he derived his Title under a Treaty with the United States. Even that would not have been allowed him, for the Laws of Georgia provided that in a case of that kind, the Clerk should not certify the record. Then surely the Laws of Georgia did oblige the Reservee to abandon his reservation. Then let us contrast the case under consideration with that, which would have been done, and what was actually often done in the Courts of Tennessee in similar cases? Suppose a reservee to have been in possession of his reservation in the State of Tennessee, and to be able to shew [show] satisfactorily that he had in all things taken his reservation according to the provisions of the Treaties of
1817 &
'19; and suppose such an one to have been sued by some one who had purchased a part or the whole of his reservation at the Land Sales in Tennessee -- would the plaintiff ever have succeeded in the Courts of Tennessee in Evicting such a Reservee? no, never, but on the contrary, repeatedly have the Courts in Tennessee restored the possession to the Reservee, who had been evicted by a wrong doer. Hence, observe the marked and essential difference between the Laws of Georgia and Tennessee on this subject. The Laws of Georgia did necessarily and individually oblige the Reservee to abandon. The Laws of Tennessee did no such thing, but on the contrary protected the Reservee in his possession whenever that protection had properly been sought for and he was legally entitled to it. But it is said that Looney Riley instituted an action of Ejectment to recover the possession of his land, and in that action he was unsuccessful; and, therefore it is contended that the Laws of Tenuessee obliged him to abandon his reservation. But why was it that he was unsuccessful in Court; because, it is said, the Court decided the law of the case erroneously. Then the fault was not in the Law, but in the Judge, who did not understand the Law. And did the United States when they granted to the Reservee his reservation annex a warrantee to his grant that every Judge who might be called on to decide a cause respecting his lands, should decide it correctly; or in case of his committing an error in judgment, did they promise to pay him for his land? Is not the very meaning of the proposition enough to shew [show] its absurdity? But how, or in what did the Judge who tried Riley's case, err; he decided that Looney Riley, at the time of the treaties of
1817 and
'19, was a single man, and not the head of an Indian family; that therefore he had no right to take a reservation, as that right was only conferred on the heads of Indian families, and let it be remarked that whether the Judge did nor did not err in that decision, he still dedided [decided] nothing against the rights of Reservees in general, he only decided that Riley's reservation was not well taken, because he had not a right to take it; but he did not decide that if the reservation had been well taken, that the Reservees would not be entitled to hold it; he did not decide as a Georgia Judge would have under the laws of that State, that it was immaterial how taken; for no reservation was good or would be supported by the laws of that State. But if the Tennessee Judge did err, the cause went to the highest court in that State, and was decided the same way and for the same reason. Why then was not the cause taken to the Supreme Court of the United States, by writ of error? there was no law of the State of Tennessee forbidding the Clerk to make out the Record and send it up in such a case, therefore to have prevented the cause from going there -- and surely land said to be worth seventy-five dollars for each acre would have justified an appeal to the Supreme Court of the United States. But how does it appear that in fact the Court did err in deciding that Riley had no right to take a reservation; because it is said the Court afterwards decided differently and acknowledged the error in this case; and why then did not Riley sue again and recover his land. Because it is said that the statute of limitation would have barred him; & does this impose any obligation on the United States to pay him the value of his land? Did they ever warrant his title against his own [unclear text: lasches ] . In view of this whole case, can it be said, that the laws of the State of Tennessee did necessarily and unavoidably, or that they did at all, oblige the claimant to abandon his reservation. I say no; and I cannot agree to allow him compensation for its value as unimproved land. And indeed it is a very grave question, and well worthy of consideration, whether the children of Looney Riley, when their father's life estate has expired and their right shall accrue, shall not come and assert their claim to this land, and if they do this in proper time, no statue of limitation will bar them.
Although the Court may have erred in deciding that Riley had no right to a reservation, because he was not the head of a family at the date of the treaties of
1817 and
1819, yet there is another ground on which it is doubtful whether he was entitled to take a reservation. Caleb Starr says, that he paid Looney Riley seventy-five dollars, for an improvement he had about three miles from the place he now claims as his reservation, and he paid Looney Riley's mother $870 for her improvements on the land which Riley now claims for his reservation, or which includes a part of it. Certainly no person is entitled to be paid for the improvements, but the emigrating Indian, and when any any [any] one did receive pay for his improvements, there was an express and implied agreement on his part to emigrate, and if so, then he had no right to take a reservation; so that Riley acted in bad faith in first selling his improvement, and then registering for a reservation the same place on which his mother had made improvements, and received payment therefor, and that with his full knowledge.

(Copy.)

Attorney General's Office,
May 26th, 1838.
Sir, --
Pursuant to the request contained in your letter of the 22d [22nd] instant, I have perused the opinion of Mr. Kennedy, one of the Commissioners under the Cherokee Treaty, in the case of Looney Riley, and have the honor to state, that in my opinion, the views taken in that paper, and the conclusion to which it comes, are correct.

I am, Sir, very respectfully, your ob't [obedient] servant, (signed)
[Signed] B. [Benjamin] F. Butler
Hon. J. [Joel] R. Poinsett, Secretary of War.