Absent. JOHNSON, J. & TODD, J.

ERROR to the Circuit Court for the district of East

Tennessee, in an action of ejectment brought by M'Clung's lessee against Meigs and others.

On the trial in the Court below, a bill of exceptions was taken, which stated the case as follows:

The Plaintiff's lessor claims the land under a grant from the state of North Carolina, to John Donelson, dated the 11th of July 1788, for 1500 acres lying on the north side of Tennessee river, opposite to a high bluff of rocks of diverse colors. The Defendants resided on the the land as officers, and under the authority of the United States who had a garrison there and had erected works at an expence of 30,000 dollars. The place where the Defendants resided was two miles at least above the termination of the treaty line opposite the mouth of the Highwassee. In 1805 the line between the United States and the Cherokee Indians was run, according to the treaty, under the direction of the Defendant, Meigs, who was an agent of the United States for that purpose; and afterwards the garrison reserve of three square miles was laid off by the direction of the Defendant, Meigs, opposite and above the mouth of the Highwassee river, making the treaty line from the three forks of Duck river to the point on Tennessee river opposite the mouth of Highwassee the lower line of said reservation, and the Tennessee river the southern line, meandering the river and reducing it to a straight line of three miles in length.

The Defendant's read a copy of a letter written by D. Smith and the Defendant, Meigs, who were commissioners on the part of the United States, at the treaty holden with the Cherokee Indians, on the 25th of October, 1805, dated at Washington, January 10th, 1806, and addressed to the secretary at war; in which they say 'by the treaty with the Indians concluded at Tellico on the 25th day of October, 1805, there was reserved three square miles of land for the particular disposal of the United States, on the north bank of the Tennessee, opposite to and below the mouth of Highwassee. This reservation is ostensibly predicated on the supposition that the garrison at south west point, and the United States factory now at Tellico, would be placed on the reserve during the pleasure of the United States. But it was stipulated with Doublehead that whenever the United States should find this land unnecessary for the purposes mentioned, then it is to revert to Doublehead; provided, as a condition, that he retain one of the square miles to his own use, and that he is to relinquish his right and claim to the other two sections of one mile square each in favor of John D. Chisholm and John Riley, son to Samuel Riley, one of the interpreters in the Cherokee nation in equal shares.'

As it is proper that this be recognized we have made this statement for your information,

And have the honor to be, &c.

DANIEL SMITH,

REFURN J. MEIGS.

When the Defendant and the other officers of the United States went to look for the place to erect the garrison in pursuance of the reserve, they went first below the mouth of Highwassee; But it was a low and marshy country, affording no good scite for a garrison and no water or spring was to be had there.

The Plaintiff's counsel insisted that the Indian title to the land was extinguished and that he had a right to recover, and prayed the Court so to instruct the jury; to which the Defendant's counsel objected and insisted that the Defendants were entitled to recover against the Plaintiff, because the Indian title was not extinguished; and because the land was occupied by the United States' troops, and the Defendants as officers of the United States, for the benefit of the United States, and by their direction; and because the garrison was erected on the land really reserved for that purpose by the treaty; as they insisted it was out of the land ceded that the reserve was made. That it must, by the letter of the treaty, be understood to be land reserved to the Indians, out of the part ceded, and not a reserve in favor of the United States, out of the land not ceded by the Indians; and that the term 'reserve' in the treaty controlled the other expressions, 'opposite and below the mouth of Highwassee.' That the United States had a right by the constitution to appropriate the property of individual citizens; and that the line run, was the true line of the reservation.

But the Court over ruled the objections of the Defendant's counsel, and charged the jury that the land reserved for a garrison was opposite to and below the mouth of the Highwassee, and that the land opposite to and above was ceded to the United States by the Indians by the treaty of Tellico, and that the United States had no right to appropriate the land mentioned in the Plaintiff's declaration. And that the Plaintiff was authorized by law to recover, if the land covered by his grant lay opposite to and above the mouth of the Highwassee. That if the treaty had expressly reserved the three miles square for the disposal of the United States opposite and above the mouth of Highwassee, the Indian title would be thereby extinguished, as that reserve would be north of the treaty line. That if the land thus reserved was at the time vacant land the United States could appropriate it as they pleased; but if it was private property the United States could not deprive the individual of it without making him just compensation therefor. And further, that by the expressions used in the said treaty, the Indian title to all land north of the treaty line, from the point opposite the mouth of Highwassee to fort Nash, except such tracts as were expressly reserved for the Indians, was extinguished; and that the three square miles, reserved for the United States, must, according to the treaty, be situate opposite and below the mouth of Highwassee. To this opinion the counsel for the Defendants excepted.

By the 2d art. of the treaty of 25th October 1805. (Laws of United States, vol. 8, p. 192.) 'The Cherokee's quit claim and cede to the United States, all the land which they have heretofore claimed, lying to the north of the following boundary line: beginning at the mouth of Duck river, running thence up the main stream of the same to the junction of the fork, at the head of which fort Nash stood, with the main south fork; thence a direct course to a point on the Tennessee river bank opposite the mouth of Highwassee river.' &c.

After describing the other lines of the cession, the treaty proceeds thus, 'and whereas, from the present cession made by the Cherokees, and other circumstances, the scite of the garrisons at south west point and Tellico are become not the most convenient and suitable places for the accommodation of the Indians, it may become expedient to remove the said garrisons and factory to some more suitable place; three other square miles are reserved for the particular disposal of the United States on the north bank of the Tennessee, opposite to and below the mouth of the Highwassee.'

C. LEE, for the Plaintiffs in Error.

The points in dispute in this cause are stated in the bill of exceptions. The principal question is whether the three miles reserved for the use of the United States are to lay below or above the mouth of the Highwassee.

We say that it was the intention of the parties that they should lye above. The expression 'reserved' imports an exception to the cession. The reservation must have been out of the land ceded. The United States could not reserve what was not theirs before; but for the accommodation of the Indians they reserve three miles square for the use of the United States. It was intended to prevent the extinguishment of the Indian title to so much in order to prevent individuals from parchasing it. The letter of Smith and Meigs to the secretary of war shows that the land was to revert to Doublehead and two others, whenever the United States should cease to have a use for it. It was therefore clearly a reserve, or exception from the general operation of the grant. It would be inconsistent with the faith of the treaty to suffer any individual to possess it.

JONES, contra,

Relied upon the plain words of the treaty.

The word 'reserve' is the only thing that can justify a question; but it means 'to appropriate' to 'set apart' to hold it for the use of the U. States, for the purpose of a garrison, but not to make an absolute grant or cession of the land. The expression 'three other square miles,' shows that they meant other than the land ceded.

The letter is not evidence; it is no part of the treaty; it was never ratified by the senate; and is unimportant if it was. It, however, shows that there was no mistake in the word 'below' in the treaty.

C. LEE, in reply.

The word 'reserve' was used to keep individuals from appropriating to themselves, the lands supposed most convenient for the mutual accommodation of the Indians and the United States. It means the same as the word 'retain.'

The word 'other' is put in opposition to the former sites of the garrison and factory. It is straining the word 'reserve' very far to make it mean a new grant.

MARSHALL, Ch. J.

Does the question arise in this case whether a grant is good before extinguishment of the Indian title?

C. LEE.

That question does not come up in this case.

STORY, J.