Statement of the case. with sufficient surety to pay to Sebre Howard and Selah Chamberlain all such sums as may come into the hands of said company, which shall hereafter be found to be rightfully applicable to the payment of their claims, if they shall be established as liens on said road. And the appellants to recover their costs in this court. ACTION ACCORDINGLY. UNITED STATES v. STONE. 1. The United States may properly proceed by bill in equity to have a judicial decree of nullity and an order of cancellation of a patent issued by itself, ignorantly or in mistake, for lands reserved from sale by law, and a grant of which by patent was therefore void. 2. The southern boundary of Camp Leavenworth is the line as established by the surveyor, McCoy, A. D. 183, for such extent as it was adopted by the subsequent surveys of Captains Johnson and Hunt, A. D. 1839, 1854, and by the Government of the United States. The Secretary of the Interior, in 1861, transcended his authority when he ordered surveys to be made north of it. 3. The treaty of 30th May, 1860, between the United States and the Delaware Indians, conferred a right to locate grants only on that portion of the Delawares' lands reserved for their "permanent home" by the treaty of 6th May, 1854, and did not authorize their location on that portion of those lands which, by that treaty, were to be sold for their uses. THE United States, by treaty with the Delaware Indians, in 1818, agreed to provide for them a country to reside in; and in 1829, by supplementary treaty, agreed that the country in the fork of the Kansas and Missouri Rivers, extending "up the Missouri To Camp Leavenworth," should be conveyed and secured to them as their said home. A Senate resolution of 29th May, 1830, ratifying this treaty, provided that the President should employ a surveyor to run the lines, to establish certain and notorious landmarks, and to distinguish the boundaries of the granted country, in the presence of an agent of the Delawares, and to report to the President his proceedings, with a map; and Statement of the case. that, when the President was satisfied that the proceedings had been concurred in and approved by the agent of the Delawares, he should also approve of the same by his signature and seal of office, and cause a copy to be filed among the archives of the Government. In 1827,-more than two years prior to this supplemental treaty,—Colonel Leavenworth, by orders of the Government, had selected a site for a "permanent cantonment" on the same bank of the Missouri; which site has always since been in the occupancy of the United States as a military post, and is the "Camp Leavenworth" referred to in the supplemental treaty above mentioned. The precise limits or extent of this cantonment, as originally fixed, if any were fixed, did not appear. The region at that time was wild; and the cantonment was one for shelter, rather than for defence. Pursuant to the Senate resolution, one McCoy, a surveyor, made a survey in the summer of 1830, and made a report also of it, with a plat, in compliance with his instructions. His plat was now produced. In his report, McCoy says: "In the treaty no provision was made for a military reserve at Cantonment Leavenworth. It has been thought desirable that a tract of six miles on the Missouri River, and four miles back, should be secured for this object. Accordingly, the survey about the garrison has been made with a view to such a reservation, as will be seen by reference to the plat. In this arrangement the Delaware chief, to whom the whole was fully explained on the ground, has cordially acquiesced.” . No copy, however, of this report, with any map approved by the agent of the Delawares, or with the signature and seal of the President as provided for in the Senate resolutions, was found in the War Office. It did not appear that search was made in the State Department. There was, however, a copy without the President's signature or seal of office found in the War Office, and filed among its documents, directed to the Secretary of War. The next survey of the military tract about Fort Leavenworth was made by Captain A. R. Johnson, in 1839, under orders, and a map of the survey filed in the War Depart Statement of the case. ment. By this map, the southern boundary of the military tract appears as originally fixed by McCoy, in 1830, but the western boundary was somewhat changed by taking a natural boundary, instead of a geographical line run by McCoy. In 1854, the Secretary of War ordered a survey to be made, and a reservation laid off for military purposes at the fort, which survey was made by Captain Hunt; and being approved by the Secretary of War, the land therein set off was directed by the President to be reserved for military purposes. This survey also followed the southern boundary line run by McCoy, in 1830; but Captain Hunt thought it proper to limit this line so as to exclude a part of the land embraced in the original reservation of 1830 and in the survey by Captain Jolmson. In his report, Captain Hunt, after stating that the line is run with McCoy's southern boundary, says: "But as the reserve, as formerly laid out, was much larger than I conceived necessary under my instructions, I only went out two and three quarter miles on this line, and thence along the top of The Bluffs' as near as I could, to make a good boundary to the Missouri River." This final survey made a camp of about three miles square; the usual size of our camps. By treaty of the 6th of May, 1854, the Delaware Indians eeded to the United States all the land in the forks already mentioned, with the exception of a certain part reserved in the treaty, no part of which reserved portion was north of McCoy's line as limited by Captain Hunt. This reserved part was to be still their "permanent home." The treaty provided that the United States would have the ceded country surveyed and offered for sale, and pay the Indians the moneys received therefrom. It provided, also, that, when the Delawares desired it, the President might cause the country reserved for their "permanent home" to be surveyed in the same manner as the ceded country was to be surveyed, and might assign such uniform portions to each person or family as should be designated by the principal men of the tribe. Statement of the case. In making the surveys under this treaty of May 6, 1854, the lands between the western line of McCoy's survey of 1830 and the western line of Hunt's survey of 1854 were surveyed, and were afterwards sold, by order of the President, for the benefit of the Delawares. But in those surveys, the western line of Hunt and the southern line of both McCoy and Hunt, as far west as Hunt ran, were accepted as the true lines of the military reservation, and no surveys under the treaty were made therein. By the next treaty with the Delawares (made May 30, 1860), it was agreed that, in consideration of long and faithful services, certain of their chiefs should "have allotted to each a tract of land," to be selected by themselves, and should receive "a patent in fee therefor from the President of the United States.” The Commissioner of Indian Affairs, in the year 1861, informed the Commissioner of the General Land Office that the Secretary of the Interior had decided that the land lying between the fort and the southern line of McCoy's survey belonged to the Delawares, and had ordered the same to be surveyed. And the chiefs, or one Stone, rather, to whom they had assigned their "floats," having made selections in this strip, and everything having gone through the usual forms, patents passed the great seals, and having been signed by the President, were delivered to the chiefs, or to their agent, and subsequently to Stone, who now held, by deed from them, the estates granted. The patents all recited the promises of the treaty of 1860 to grant land to the chiefs, and went on to grant the particular tract, "in conformity with the provisions, as above recited, of the aforesaid treaty." In 1862, the Secretary of the Interior decided that the patents had been issued without legal authority, and he declared them void and revoked. However, to proceed rightly, the United States filed a bill in the Federal court of Kansas, against the Indian chiefs and Stone, to have them judicially decreed null, and the instruments themselves delivered up for cancellation. The court gave the decree asked for. Appeal here. Argument in support of the patent. Messrs. Stinson and Browning, with whom were Messrs. Ewing and Carlisle, for the appellant Stone.. 1. The recitals of the patent are conclusive, that the lands were within the class from which the chiefs might select. The language of the treaty of 1860 is, "there shall be allotted" to the grantees, to be selected by themselves, so many acres of land. There are no words of limitation upon this power of selection. It is made the duty of the President to issue patents for the lands so selected. This duty is cast, by the laws of the United States, upon the Commissioner of the General Land Office, under the direction of the President. The selections having been made, it was the duty of the commissioner, of course, either to pass upon them, under the direction of the President, and by procuring the patent to issue, make the allotment complete, or else to refuse to approve and ratify the selection. The interests of the Delawares were under the supervision of the Commissioner of Indian Affairs. These selections were made; they received the approval of the Commisioner of Indian Affairs, and were sanctioned by the President and the Commissioner of the General Land Office, by the issuing the patents. The principal case in which the jurisdiction of chancery is affirmed to annul patents, at the suit of the sovereign,* is put upon the ground of fraud practised by the patentee. This is believed to be the only ground upon which the courts of chancery have heretofore taken jurisdiction in such cases. Admitting, however, that if the land were within the boundaries of any military reservation, a mere grant of it might be voidable, yet where the Commissioner of the General Land Office and the President declare, as they do here, that they ure acting" in conformity with the provisions of a treaty" which authorizes grants only of lands not in such reservation, then the Government is concluded. It is estopped to say that the land was in a military fort. The discretion of saying what portion of these lands was open to patent, is vested by the * Attorney-General v. Vernon, 2 Reports in Chancery; S. C., 1 Vernon,, 277. |