(175 U. S. 60)

UNITED STATES, Appt.,

v.

WAY et al.

Confirmation of private land claim-grant of lands by act of Congress.

1.

Lands previously confirmed by act of Congress to Indian pueblos should be excepted from a decree of confirmation of a Spanish grant, even if the previous grant by Congress to the pueblos may be void, as the effect of the confirmation is only to release all claim of title by the United States, and it is not incumbent upon the court of private land claims to determine the priority of right as between the claimant and another grantee.

laws, customs, and usages; and there is nothing whatever in the case that throws any doubt on the trustworthiness of his tes- MARIA DE LA PAZ VALDEZ DE CONtimony. The only matters that can be supposed to lessen the weight of Moose Dung's testimony are an affidavit, a receipt, and a lease, each signed with his mark in 1895, more than three years after the lease to the plaintiffs, and wholly incompetent as independent evidence against them. That affidavit, in which he stated that the two daughters and the three grandchildren were the only legal heirs of his father beside himself and were entitled to share with him in the estate, was procured from him by the Indian agent under direction of the Secretary of the Interior, and, as well as the receipt, was evidently considered by him as mere matter of form with which he was obliged to comply in order to get any part of the rent under the lease of 1894. That it made little impression on his mind is evident from the fact that, when afterwards examined as a witness in this case, in the presence of the counsel for both parties, he testified that no one had ever said anything to him about the daugh ters and grandchildren having some interest in the land. And it is not without significance that the other chiefs and headmen of

2.

3.

An appeal may be taken by the United States from a decision by the court of private land claims in favor of a petitioner, although the government may have no interest in the result of the litigation.

An Indian claim or title that has been confirmed by Congress is a "just and unextinguished" one, within the meaning of the private land claim act, § 13, subd. 2, providing that no claim shall be allowed that shall interfere with or overthrow any such title.

[No. 13.]

Decided October 30, 1899.

the tribe, from whom, under the direction of Argued and Submitted January 12, 1899. the Secretary of the Interior, affidavits were likewise obtained to the relationship between

old Mcose Dung and his six descendants, said nothing, and do not appear to have been asked anything, as to the right of inheritance, or as to the laws, customs, and usages of the Indians upon that subject.

The title to the strip of land in controversy, having been granted by the United States to the elder chief Moose Dung by the treaty itself, and having descended, upon his death, by the laws, customs, and usages of the tribe, to his eldest son and successor as chief, Moose Dung the younger, passed by the lease executed by the latter in 1891 to the plaintiffs for the term of that lease; and their rights under that lease could not be devested by any subsequent action of the lessor, or of Congress, or of the Executive Departments. The construction of treaties is the peculiar province of the judiciary; and, except in cases purely political, Congress has no constitutional power to settle the rights under a treaty, or to affect titles already granted by the treaty itself. Wilson v. Wall, 6 Wall. 83, 89, 18 L. ed. 727, 729; Reichart v. Felps, 6 Wall. 160, 18 L. ed. 849; Smith v. Stevens, 10 Wall. 321, 327, 19 L. ed. 933, 935; Holden v. Joy, 17 Wall. 211, 247, 21 L. ed. 523, 535.

The congressional resolution of 1894, and the subsequent proceedings in the Depart ment of the Interior, must therefore be held to be of no effect upon the rights previously acquired by the plaintiffs by the lease to them from the younger chief; and the decree is affirmed.

A
Private Land Claims of a claim to lands al-
cree of confirmation by the Court of
most entirely within the limits of lands pre-
viously confirmed to pueblos by act of Con-
gress and patented to them. Reversed.

PPEAL by the United States from a de

*

Statement by Mr. Justice Brown:

This was a petition filed by Maria de la Paz Valdez de Conway and twenty-one oth. ers in the court of private land claims for the confirmation of a tract of land known as the Cuyamungue grant, or private land claim, situated in the county of Santa Fé, territory of New Mexico, and alleged to contain in excess of 5,000 acres.

It appears from an examination of the exof the claim, that on January 22, 1731, Berpediente, offered in evidence as the basis nardino de Sena, Tomas de Sena, and Luis Lopez presented a petition to Governor Juan Domingo Bustamente to grant them the surplus land in the abandoned pueblo of Cuyamungue as royal, public, and uninhabited, and described it as being situated on both sides of the river Tesuque (formerly Cuyamungue), and extending from a bluff of the pueblo of Cuyamungue to the hills of the Nambé road.

The governor made the grant on the same day, directed the chief alcalde of the new of the pueblo of Tesuque, the heirs of cervillage of Santa Cruz to notify the Indians tain adjoining property owners, and all other citizens of the vicinity to show cause, if any they had, why the tract should not be granted to the petitioners, and, if there were no objection, to put them in possession.

Such notice having been given, the alcalde | their patents issued by the United States on January 22, 1731, put the petitioners in government. juridical possession of the lands, describing Subsequently to this decree, and on Nothe boundaries, and, after executing such act, returned the proceedings to the governor, by whom they were approved and placed in the royal archives of the city of Santa Fé, a testimonio thereof being delivered to the grantees, the original of which is now a part of the archives of the United States in the custody of the surveyor general of the territory. The grantees, their heirs and assigns, have been in possession of the land grant up to the present time, a period of one hundred and sixty-four years.

The petition further alleged that the claim had been examined and approved by the surveyor general of the territory, returned by him favorably to Congress with a recommendation that the same be confirmed to the legal representatives of the original petitioners; but that it had never been acted upon by Congress, or the authorities of the United States.

The government made no answer to the petition, but the court proceeded to hear the cause upon petition and proofs under the last clause of section 6 of the court of private land claims act, notwithstanding the failure of the government to file an answer. Petitioners produced certain witnesses to the effect that portions of the land granted had been occupied and cultivated by persons claiming under the original grantees; while the government showed that Indians of the pueblos of Nambé and Pojoaque had many years before instituted proceedings before the surveyor general of New Mexico under the act of July 22, 1854, for 4 leagues of land each; that the surveyor general had recommended that the lands thus demanded be granted to them, and Congress had confirmed the grant to each of said pueblos for 4 leagues as recommended (11 Stat. at L. 374); that the grants to said pueblos were surveyed and patents for them issued; that such surveys covered the larger portions of the land of the old pueblo of Cuyamungue, which petitioners alleged were granted to the original grantees in this case.

vember 9, the Indians of the two pueblos
above named entered their appearance,
stated that the lands confirmed to the peti-
tioners were almost entirely within the lim-
its of the lands confirmed by the act of Con-
gress to these pueblos, and patented to them,
and that, while they were made parties de-
fendant to the petition, they were never
served with process, and had no opportunity
of making a defense, and therefore moved
the court to vacate the decree of confirmation
and allow them to be heard in opposition to
the claim. This motion was subsequently,
and on December 2, 1896, denied, whereupon
the United States appealed to this court.

Messrs. Matthew G. Reynolds and
John K. Richards, Solicitor General, for ap
pellant.
Mr. John H. Knaebel for appellees.

Mr. Justice Brown delivered the opinion of the court:

This case involves the proper disposition by the court of private land claims, under the act of Congress constituting the court, of overlapping grants. The facts are extremely simple: Petitioners derived their title by purchase or inheritance from the original grantees, who held under a royal grant made in 1731 by the then governor of New Mexico, and through which they had been in possession of portions of the land ever since. Their grant had been examined, surveyed, and approved by the surveyor general of the United States in 1871, but had never been confirmed by Congress. It was not true, as stated in the petition, however, that "no person or persons, natural or artificial, are in possession of the said land, or any part thereof, or claim the same or any part thereof adversely to your petitioners, or otherwise than by their lease or permission," since it appears there were two Indian pueblos within the limits of the grant, from a time whence the memory of man and the traditions of the several tribes ran not to the contrary. It was shown that one of them, Pojoaque, had a bell originally cast for its church, which bore the date of 1710. These pueblos had instituted proceedings before Upon motion made by the government and the surveyor general under the act of July upon the consent of all the parties to the 22, 1854, for 4 leagues of land, which he proceeding, it was ordered on October 11, recommended to be granted, and in com1895, that these pueblos be made parties, pliance therewith Congress confirmed and that the petition of the claimants be grant to each of said pueblos, which grants deemed amended accordingly. It did not were subsequently surveyed and patents isappear that any copy of the petition was sued. 11 Stat. at L. 374. These surveys covered served upon these pueblos, or that they ap- all the land of the abandoned pueblo of peared or waived service; but the court on Cuyamungue, granted to the petitioners, exOctober 24, 1895, entered a decree against cept about 100 acres. It was insisted in the the United States confirming the entire court below that the land covered by these grant as complete and perfect as of the date patents should be excepted out of the decree of the treaty of Guadalupe Hidalgo, in 1848, of confirmation in this case; but it was held and further decreed that the confirmation that the pueblos had no just right or claim should in no wise affect the rights of the pueb- at the date of the treaty to any part of the los of Pojoaque and Nambé, if any they have, | land covered by the petitioners' grant; that as between them and the confirmees under the United States acquired no right or in

The oral testimony tended to show that the pueblo of Pojoaque had been in existence since 1710, and the pueblo of Nambé from a time immemorial.

a

*63

99.

contained in terms a grant de novo. Ryan | it cannot patent the same land a second time v. Carter, 93 U. S. 78, 82, 23 L. ed. 807, 809. without virtually stultifying itself. A patNor is the action of Congress confirming ent assumes that a patentor has certain such private land claim subject to judicial rights to convey, and that, if those rights review. As was said by this court in Tame- have already been conveyed with the knowlling v. United States Freehold & E. Co. 93 edge of the grantor, a second patent carries U. S. 644, 662, 23 L. ed. 998, 1002: "No with it a suspicion of a want of good faith. jurisdiction over such claims in New Mex- Nor is the confirmation of this patent esico was conferred upon the courts; but the sential to the protection of the petitioner. surveyor general, in the exercise of the au- The title set forth is one which was complete thority with which he was invested, decides and perfect at the date of the treaty, and them in the first instance. The final action while he had the right, under section 8, he on each claim reserved to Congress is, of was clearly not bound to apply to the court course, conclusive, and therefore not subject for a confirmation of such title, but was at to review in this or any other forum. It is liberty to resort to the local courts for its obviously not the duty of this court to sit establishment. in judgment upon either the recital of the matters of fact by the surveyor general, or his decision declaring the validity of the grant. They are embodied in his report, which was laid before Congress for its consideration and action." See also Maxwell Land Grant Case, 121 U. S. 325, 30 L. ed. 949, 7 Sup. Ct. Rep. 1015.

The government having thus exhausted its power with reference to the land in dispute by granting all its title as sovereign proprietor to the pueblos, it is difficult to see upon what principle it is called upon to make or confirm another grant to a different person. Nothing can be plainer from the language of the private land claim act than that lands "that shall have been disposed of by the United States" should be excepted from the decree of confirmation (sec. 8); that no claim shall be allowed which shall interfere with or overthrow any just or unextinguished Indian title (sec. 13); that no claim shall be allowed for any land the right to which has been lawfully acted upon and decided by Congress (sec. 13); and that no proceeding under the act shall conclude or affect the private rights of persons as between each other (sec. 13). Under these provisions, if the court were to confirm this grant for lands already granted, such confirmation would be void, as nothing is better settled by this court than that a patent issued by the United States to lands which they do not own is a simple nullity. Polk's Lessee v. Wendell, 9 Cranch, 99, 3 L. ed. 669; S. C. 5 Wheat. 293, 5 L. ed. 92; Sabariego v. Maverick, 124 U. S. 261, 281, 31 L. ed. 430, 438, 8 Sup. Ct. Rep. 461; Wright v. Roseberry, 121 U. S. 488, 520, 30 L. ed. 1039, 1049, 7 Sup. Ct. Rep. 985; Doolan v. Carr, 125 U. S. 618, 625, 31 L. ed. 844, 847, 8 Sup. Ct. Rep. 1228; Noble v. Union River Logging R. Co. 147 U. S. 165, 174, 37 L. ed. 123, 127, 13 Sup. Ct. Rep. 271.

It is true that the act of December 22, 1858, confirming these lands to the pueblos, may have been itself void by reason of petitioner's prior title thereto; but that is a question which is not necessarily involved in this case and upon which we express no opinion. It will occasionally happen that the government through accident or inadvert ence will patent the same land a second time; but when its attention is called to the fact that the land has been previously patented

It is possible that the surveyor general, in recommending the grant of 4 square leagues to each pueblo, measured from the church as a center, allowed more than was proper; yet, as he acted according to the opinion at one time prevailing, and as Congress confirmed the grant to that amount, the propriety of such grant cannot be attacked here upon that or any other ground. As was said in the case of Tameling v. United States Freehold & E. Co. 93 U. S. 644, 663, 23 L. ed. 998, 1003: "Congress acted upon the claim as recommended for confirmation by the surveyor general. The confirmation being absolute and unconditional, without any limitation as to quantity, we must regard it as effectual and operative for the entire tract."

Nor is this the proper time to adjudicate upon the respective merits of the two titles. We have only to consider whether the gov ernment can properly be called upon to confirm that which it has already confirmed to another party. The court of private land claims seems to have assumed that the grant by Congress to the pueblos was absolutely void by reason of the fact that, the petitioners having a complete and perfect title, the United States had nothing to convey. This may be entirely true, but it is not perceived how the petitioners' title can be aided by the government devesting itself for a second time of a title which it had already released. The duty of the court under section 8, "to hear, try, and determine the validity of the same" (the grant) "and the right of the claimant thereto, its extent, location, and boundaries," is discharged by determining the extent and validity of the grant as between the United States and the grantee, and it is not incumbent upon the court of private land claims to determine the priority of right as between him and anoth. er grantee. Such private rights are carefully preserved in the 8th and 13th sections.

2. The appeal in this case was properly taken by the United States. While the gov ernment may have no interest in the result of the litigation, it is a proper and necessary party to the suit, and it would be a strange conclusion to hold that it could not follow the litigation through all the courts that are given jurisdiction of the case. Upon such appeal the government is at liberty to show that the petitioner is not entitled

*70

to a confirmation of his claim. Indeed, an appeal is expressly given by section 9, which enacts that "the party against whom the court shall in any case decide the United States in case of the confirmation of the claim in whole or in part, and the claimant in case of a rejection of a claim in whole or in part-shall have the right of appeal to the Supreme Court of the United States."

whether the land claimed as private prop erty under the treaty is in fact private property, or, on the contrary, is public property. In the latter case, of course, a confirmation is refused; in the former case a confirmation is made if the claimant appears to have, as between himself and the United States, the right to it, but subject to the rights of others who are at liberty to assert their superior title in the local courts.

We are therefore of opinion that the decree of confirmation should have excepted the pueblo lands, and such decree is accordingly reversed and the case remanded for further proceedings in accordance with this opinion. Mr. Justice Shiras and Mr. Justice

3. That the Indian claim or title is a "just and unextinguished" one within the meaning of section 13, subdivision 2, of the act, is shown by the fact that such title was confirmed by Congress. By the word "just" in this connection is meant only a title which is good upon its face, or not manifestly frivolous, not one which shall ultimately turn out to be valid. As already observed, White dissented. it was not the object of the act to permit private titles to be litigated in the court of private land claims (although perhaps this may be done incidentally), but merely to determine if and to whom the United States ought to release its rights as sovereign proprietor of the soil. As was said by this court in Adam v. Norris, 103 U. S. 591, 26 L. ed. 583:

"But the United States, in dealing with the claimants of lands under Mexican grants, which had come into the political control of our government by the treaty of Mexico, never made pretense that it was the owner of the lands so granted by Mexico. When, therefore, guided by the action of the tribunals which the government had established to pass upon the validity of these alleged grants, it issued a patent to the claimant, it was in the nature of a quitclaim, an admission that the rightful ownership had never been in the United States, but at the time of the cession it had passed to the claimant, or to those under whom he claimed. This principle has been more than once clearly announced in this court. The leading cases are Beard v. Federy, 3 Wall. 478, 18 L. ed. 88; Henshaw v. Bissell, 18 Wall. 268, 21 L. ed. 840; Miller v. Dale, 92 U. S. 478, 23 L. ed. 738.

"Such a patent was therefore conclusive only as between the United States and the grantee, and was evidence that, as to them, the claimants had established the validity of the grant. . . We do not think, therefore, that if defendant's survey and patent are based upon a superior Mexican grant, their rights are concluded by the prior survey of the plaintiffs."

(175 U. S. 71)

TOWN OF REAL DE DOLORES DEL ORO,
Hipolito Montoya, et al., Appts.,

v.

UNITED STATES et al.

Petition for confirmation of private land claim-prior confirmation by Congress and patent to other claimant.

1.

2.

A claim for lands within the limits of a grant which has been confirmed by Congress, and for which a patent has been issued to another party, is properly rejected by the court of private land claims.

An Indemnity under the private land claim act, 14, cannot be adjudged when no such claim is made by the petition.

3. A personal judgment against the United

States for the indemnity provided by the prlvate land claim act, § 14, in case the lands decreed to a claimant have been sold or granted by the United States to any other person, is authorized only when such lands have been sold or granted as public lands for a consideration which equitably belongs to the owner of the land, and not where the government has merely released its interest to one apparently holding a good title under a Spanish or Mexican grant, which subsequently turns out to be invalid by reason of an older or better title.

[No. 17.]

Argued and Submitted January 12, 1899.
Decided October 30, 1899.

PPEAL by petitioners from a decree by fusing confirmation of their claim. Affirmed.

We do not wish to be understood as hold. A the Court of Private Land Claims re ing that two claimants to the same land may not litigate, as between themselves, which of the two is entitled to a confirmation, and the question thus becomes res judicata; but when the title has once been confirmed by Congress it should be respected by the court of private land claims as if it were a confirmation by the court itself, and conflicting claimants are at liberty to resort to the ordinary remedies at law or in equity, according to the nature of the claim.

The main object of the court of private land claims is to ascertain and determine 20 8. C.-2

Statement by Mr. Justice Brown: This was a petition filed by the town of Real de Dolores del Oro and Guadalupe Montoya against the United States, the New Mexico Mining Company, and a large number of other defendants, for the confirmation of a tract of land containing 4 square leagues, having for its center the center of the old Real de Dolores del Oro,-being the church situated therein, with a prayer that the

*72