Now, what rights did the treaty of 1830
confer upon your petitioners? That treaty conveyed the lands now being allotted
to the members of the Choctaw and Chickasaw nations, to the Choctaw Nation, in
fee simple to them and their descendants. What did this language mean? The
Assistant Attorney-General for the Department of the Interior, in the test case
of Joe and Dillard Perry, rendered under date of February 21, 1905, after an
unusually elaborate consideration of the case—the Assistant Attorney-General
and his three assistants sitting as a board of review—construes it as follows:
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The treaty right (referring to the
treaty of 1830) was to the Choctaw and Chickasaw nations and their
descendants. Descendants is a term of wider significance than heirs or
legitimate issue, and includes those springing from an ancestor, whether
legitimate issue or not. |
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Descendants, as defined by Bouvier,
vol. 1, P. 550, are those who have issued from an individual, including his
children, grandchildren, and their children to the remotest degree.
(Ambler’s Reports, p. 327; 2 Brown’s Chancery Cases, chap. 30, p. 230; 1
Roper on Legacies, p. 115.) |
Let us analyze the language used in the
treaty and made the operative words of grant in the patent. The grant was:
To the Choctaw Nation, in fee simple, to
them and their descendants, to inure to them while they shall exist as a nation
and live on it.
The grant was not limited exclusively to
the nation, but was exclusively limited in fee simple to the Choctaw Nation and
their descendants to inure to them. To whom did it inure? To them, the
descendants of those persons then comprising the nation. What does the word
“inure” mean, and for what purpose is it here employed? It means:
1. “To pass into use.”
2. “To take or have effect.”
3. “To serve to the use or benefit of.”
(Bouvier and Universal Dictionary.)
And it was employed for the purpose of
passing the estate to the descendants to serve to the use or benefit of them.
Now, let us rewrite this section and
insert in lieu of the word “inure “these words of definition:
The grant would then read:
To
the Choctaw Nation, in fee simple, to them and their descendants, to take or
have effect as to them while they shall exist as a, nation and live on it.
Or,
To
the Choctaw Nation, in fee simple, to them and their descendants, to pass into
use for them while they shall exist as a nation and live on it.
Or—
To
the Choctaw Nation, in fee simple to them and their descendants, to serve to the
use or benefit of them while they shall exist as a nation and live on it.
The word “descendant” meaning:
A
person who is descended from another; anyone who proceeds from the body of
another, however remotely.
And the word “inure” meaning:
1. “To take or have effect as to them.”
2. “To pass into use for them.”
3. “To serve to the use or benefit of them.”
We thus determine beyond question the
true meaning and intent of this language.
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Again the word “-descendant “is
not employed in legal phraseology as a technical word used in connection
with governments for the purpose of defining their national acts and powers. |
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Nowhere in legal phraseology is the
word “descendant” one of the technical legal words employed in a grant
to vest in the now existing individual absolute indefeasible title. The
accepted universal technical legal words employed being “heirs,”
“successors,” and “assigns.” |
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The word “descendant” not being
one of the accepted technical legal words employed in vesting title in fee
simple in a now existing person, it must be construed in accordance with its
true meaning and given the full import of that meaning. |
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Thus the word “descendant” here
is used for the sole purpose of fixing the rights in a communal estate of
persons yet unborn whose rights in such estate attach simultaneously with
their birth and become vested. |
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Where
a treaty admits of two constructions one restrictive as to the rights that
may be claimed under it and the other liberal, the latter Is to be
preferred. (Shanks v Dupont 3 Pet, 242) Such is the settled rule of this
court. |
So said Mr. Justice Swanye in delivering
the opinion of the court in the case of Hauenstein v. Lynham (100
This being the settled rule of the
Supreme Court of the United States, certainly a reasonably liberal construction
of the word ‘descendant” would include not only the children, but the
grandchildren and the great-grandchildren, and so on to the remotest degree,
even though the more remote descendants were not possessed of as great a quantum
of Indian blood as was the ancestor.
Nor could it have been the intention of
the contracting parties that only legitimate issue, as defined and recognized in
civilized communities to-day, should take under the grant.
The people comprising the Choctaw Nation in 1830 were living in a state of nature. The living together of a man and woman constituted a valid marriage The abandonment of the wife by the husband constituted a valid divorce, and the issue of such unions were possessed of all their natural rights. (Robertson’s History of America, book 4; Wall v. Williamson, 11th Alabama, 839; Johnson v. Johnson’s administrator, 9th Missouri Reports p. 88.)
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The rule prevailing at the time the
treaty was signed must continue to the time of the distribution of the
property A court can not have one rule for one period of time and another
for another period of time. The white wife and her children born between
1838 and 1860 were as much Indians within the intent of the treaty as any
full-blooded Indians in the Six Nations; and what was the rule during that
period of time must continue to be the rule up to the time of the judgment
or the satisfaction of it; that is to say, the children of white mothers and
Indian fathers affiliated with the tribe must be reckoned as Indians. The
court must look upon the community and its members as such and can not turn
aside into the genealogy of individuals or be turned aside by the
peculiarities of Indian laws and customs. This is not a question of Indian;
citizenship or tribal custom or communal ownership in Indian property, but
simply a question of contract and of the intent of those who entered into
it. (Second vol. 40 U. S. Court of Claims, p. 456, |
Thus, under the treaty of 1830, the
above-quoted terms of which have never been changed or altered by any subsequent
treaty with the