THIS case was brought up, by writ of error, under the 25th section of the Judiciary act, from the Supreme Court of the state of Alabama.
On the 24th of March, 1832, a treaty was made between the United States and the Creek tribe of Indians, east of the Mississippi river.
The articles of this treaty which bear upon the present case are as follows:
'Article I. The Creek tribe of Indians cede to the United States all their lands east of the Mississippi river.
'Art. II. The United States engage to survey the said land as soon as the same can be conveniently done, after the ratification of this treaty, and when the same is surveyed to allow ninety principal chiefs of the Creek tribe to select one section each, and every other head of a Creek family to select one-half section each, which tracts shall be reserved from sale for their use for a term of five years, unless sooner disposed of by them. A census of these persons shall be taken under the direction of the President, and the selections shall be made so as to include the improvements of each person within his selection, if the same can be so made, and if not, then all the persons belonging to the same town, entitled to selections, and who cannot make the same, so as to include their improvements, shall take them in one body in a proper form. And twenty selections shall be selected, under the direction of the President for the orphan children of the Creeks, and divided and retained or sold for their benefit as the President may direct. Provided, however, that no selection or locations under this treaty shall be so made as to include the agency reserve.
'Art. III. These tracts may be conveyed by the persons selecting the same, to any other person for a fair consideration, in such manner as the President may direct. The contract shall be certified by some person appinted for that purpose by the President, but shall not be valid till the President approves the same. A title shall be given by the United States on the completion of the payment.
'Art. IV. At the end of five years all the Creeks entitled to these selections, and desirous of remaining, shall receive patents therefor in fee-simple from the United States.
'Art. V. All intruders upon the country hereby ceded, shall be removed therefrom in the same manner as intruders may be removed by law from other public land until the country is surveyed, and the selections made; excepting, however, from this provision, those white persons who have made their own improvements, and not expelled the Creeks from theirs. Such persons may remain till their crops are gathered. After the country is surveyed and the selections made, this article shall not operate upon that part of it not included in such selections. But intruders shall, in the manner before described, be removed from the selections for the term of five years from the ratification of this treaty, or until the same are conveyed to white persons.
'Art. VI. Twenty-nine sections in addition to the foregoing may be located, and patents for the same shall then issue to those persons, being Creeks, to whom the same may be assigned by the Creek tribe.
'Art. XV. This treaty shall be obligatory to the contracting parties, as soon as the same shall be ratified by the United States.'
Sally Ladiga claimed to be the head of a Creek Indian family, and, as such, entitled to a reservation of land. Being ejected, she brought an action of trespass quare clausum fregit to try her title, in the Circuit Court of Benton county, state of Alabama, and recovered. But the case having been carried to the Supreme Court of Alabama, the judgment was reversed. Upon the certificate of the Supreme Court being produced in the Circuit Court, on the second trial, judgment was given for the defendant; which judgment was subsequently affirmed in the Supreme Court of the state.
To review this judgment the present writ of error was brought.
The facts of the case and ruling of the court are set forth in the following bill of exceptions.
Be it remembered that upon the trial of the above entitled cause the plaintiff claimed title to the land in controversy under and by virtue of the treaty made and concluded between the United States of America and the Creek tribe of Indians east of the Mississippi river, on the 24th day of March, A. D. 1832, the plaintiff introduced the following witnesses, viz.: Chr. A. Green, John Goodwyn, Horatio Griffin, Benjamin Pope, Thomas C. Henderson, John Boyd, Thomas E. Montgomery, and Matthew M. Houston, by whom she proved substantially the following facts:
1. That said plaintiff, at the date of treaty aforesaid, to wit, on the 24th March, 1832, and long anterior to that period, and from thence to the present time, was and is the head of the Creek Indian family residing in and having an improvement upon the E half of section 2, township 14, range 8 E, &c., in the district of land subject to sale at Mardisville, in the state ...