
    Philip Coleman v. John Doe, ex dem. Tish-ho-mah.
    An Indian is a competent witness in a suit between white men.
    Actual registration is not necessary to entitle a Choctaw head of family to a reservation; such Indian becomes entitled by signifying his intention to the agent.
    A legal title is vested in the Indian, who has brought himself within the provisions of the 14th article of the Dancing Rabbit Creek treaty, and no patent from the government is necessary to complete it.
    The location of the land claimed by an Indian under the provisions of that treaty may be proved by parol.
    Where an Indian’s right to the section of land secured to him by that treaty, becomes vested, by his signifying his intention to remain to the proper agent, the title in the Indian becomes complete, subject to a forfeiture by a removal within five years ; such removal, to constitute a forfeiture, must be voluntary, and not brought about by the force of others.
    An Indian, in whom the title to a section of land has vested, by a compliance with the provisions of the 14th article of the Dancing Rabbit Creek treaty, and who has been subsequently dispossessed, may bring his action of ejectment at law and recover the possession.
    In error, from the Leake circuit court.
    John Doe, on the demise of Tish-ho-mah, alias Tish-ha-ho-ma, a Choctaw Indian, sued Richard Roe in ejectment. The notice was served on Philip Coleman, who was regularly made defendant. At the October term, 1841, of the court below, a trial was had, when the jury found for the plaintiff in the ejectment.
    At this trial the plaintiff below read to the jury the deposition of Tish-ho-pi-ah, a Choctaw Indian, who proved that he had known Tish-ho-mah from a child, that they had lived near together, and went to the Dancing Rabbit Creek treaty in company ; that Tish-ho-mah then had a wife and one child; th at Tish-ho-mah then occupied a field nowin the possession of Philip Coleman. That one Rowe took this place from Tish-ho-mah and tore down his fence, when Tish-ho-mah moved one small half mile off, and had remained there ever since; that he knew Col. William Ward, who was then the agent for the Choctaw Indians of the United States ; that he went with Tish-ho-mah to Ward’s house about twenty miles from Noxubee, to have his name registered; that he heard Tish-ho-mah ask Ward to register his name, that Ward refused, but agreed to do it at a subsequent time and place, which, upon application, he again refused.
    That Ho-pi-ah-ho-ma was chief of the Choctaws, and Tishho-mah one of his men; that Ho-pi-ah-ho-ma told the Indians to register their names and live five years on the land and it would be theirs, and that was the reason Tish-ho-mah applied to Ward; that the treaty was made at gathering corn time, and next summer, when corn was ripe, about twenty days before the annuity was paid at Leflore’s, Tish-ho-mah’s application to Ward was made. That Tish-ho-mah was witness’ brother-in-law.
    This deposition was objected to on the ground that the witness was an Indian, but the objection was overruled and the deposition read and exceptions taken.
    Iredell C. 'Groves, on part of plaintiffs, proved that he had known Tish-ho-mah eleven years; that in 1831 he lived on the land occupied by the defendant; that- he continued to live there till some time after the land became subject to entry;. when one Matthew Rowe made affidavit before one Esquire Morris, that nobody lived on the land; that he'remonstrated with Rowe and told him of Tish-ho-mah’s residence and claim, but that the land was entered by one Shotwell for said Rowe, notwithstanding his remonstrance; that this was the same land now lived on by the defendant Coleman; that Tish-ho-mah lived on: the land between three and four years.
    Shadrach Speight, for plaintiff, proved that Tish-ho-mah, in the spring of 1835, lived in the field where the defendant Coleman lived now; that Matthew Rowe employed him, the witness, to drive Tish-ho-mah off the land’ which he did by force, Tish-ho-mah refusing to go, and claiming the land as his. That ever since, Tish-ho-mah had lived in the same county on a different part of the same section; that Matthew Rowe sold the land of which he dispossessed Tish-ho-mah, to the defendant, Philip Coleman; that Tish-ho-mah then had a wife and two or three children; that Tish-ho-mah had never before sued for the land, and that the defendant had been in quiet possession of it. ever since 1835.
    The defendant then admitted his possession of the premises in controversy; admitted that William Ward was the'agent of the United States for the Choctaw nation at the date and ratification of the treaty of Dancing Rabbit Creek, and was such agent when the application for registration was said to have been made by the plaintiffs, which was within six months from the ratification of the treaty.
    The defendant then introduced the receiver’s of the land office certificate of entry of the land, in controversy, and showed a regular chain of title from the certificate to himself.
    The court then, at the instance of the plaintiff, instructed the jury —
    1. That the refusal of Ward, the Indian agent, to register the ‘name of the plaintiff, did not impair his right under the 14th article of the Choctaw treaty, provided said plaintiff was, at the time of the treaty and the ratification thereof, a Choctaw head of a family; and also provided said plaintiff did, within six months after the ratification,, signify to the agent his intention to remain and become a citizen of the state, pursuant to the provisions of said 14th article.
    2. That the treaty does not prescribe or require any particular form of signifying such intention, and any signification according to the usages of the Indians, which clearly made known to the agent the wish and intention of the Indian to remain and become a citizen under the provisions of said 14th article, would be sufficient, whether the agent actually registered the name or not.
    3. If the jury believe, from the evidence, that the plaintiff Tish-ho-mah was, at the time of the treaty, a Choctaw head of a family, and did, within six. months after the ratification,- signify to the agent his intention of remaining and becoming a citizen under the 14th article, and that the said plaintiff had, at the time of the treaty, an improvement and residence on the land in controversy, and claimed the same under said 14th article, and continued to reside, for five years after the ratification, upon the section including said improvement, then his title to said section was complete by virtue of the treaty.
    4. A removal by an Indian within the five years from the land claimed as a reservation under the 14th article of the treaty, to work a forfeiture, must be voluntary. If the Indian be driven away by force, such forced removal does not affect his title to his reservation.
    5. If the jury believe that Tish-ho-mah has complied with all the provisions of the 14th article necessary to entitle him to the land in controversy, except the five years’ residence, and that he was kept from his possession by force, and did not voluntarily leave it within said five years, then the title is in the plaintiff.
    The jury found a verdict for the plaintiff, Tish-ho-mah. The defendant moved for a new trial, which was refused ; to which he excepted, and embodied the evidence in a bill of exceptions, and brought the case to this court by writ of error.
    The errors assigned are :
    1. The permitting the deposition of Tish-ho-pi-ah to be read to the jury.
    2. In giving the instructions for plaintiff.
    3. In refusing a new trial.
    
      John B. Forester, for plaintiff in error.
    
      S. IS. Prentiss, for defendant in error.
    The points raised by the bill of exceptions in this case, are:
    1. Whether the testimony of Tish-ho-pi-ah, a Choctaw Indian, introduced as a witness on behalf of the lessor of the plaintiff, was properly admitted; in other words, was a Choctaw Indian a competent witness for the lessor of the plaintiff?
    By the act of the legislature of 1830, entitled “ An act to extend the laws of the state of Mississippi over the persons and property of the Indians resident within its limits,” it is provided, that “All the rights, privileges, immunities, and franchises, held, claimed, or enjoyed by those persons called Indian's and their descendants, and which are held by virtue of any form of policy, usage or custom existing among said 'persons, not particularly recognized and established' by the common law or statutes of the state of Mississippi,” be “ wholly abolished and taken away.” Tide 1st sec. of said act.
    By the 2d section it is enacted, “ That all the rights, privileges, immunities, and franchises held and enjoyed by free white persons, inhabitants of the said state, be and are hereby given, granted, and extended to the said person's, called Indians-, and their descendants, in as full and ample a manner as the same can be done by act of the general assembly.”
    By the 3d section it is enacted, “ That all the laws, statutes and ordinances, now in force in the said state of Mississippi, be and the same are hereby declared to have full force, power, and operation, over the persons and property of and within the territory now occupied by the said Indians.”
    The rules of evidence, among which of course is included the, rule of competency of a witness, are undoubtedly within the control of legislative enactment. The legislature can say, not only what shall be evidence, but who shall be competent witnesses.
    All free white persons, inhabitants of Mississippi, at the time of the passage of the act of 1830, were competent witnesses, unless laboring under such personal disabilities as were sufficient to exclude them either by common or statute 'law, such, for instance, as interest, infamy, &c. &c. The samé “ rights, privileges, immunities, and franchises, held and enjoyed by said free white persons ” being, by said, act, extended to the Indians, undoubtedly gave them the right and privilege of being received as competent witnesses, in the same manner and upon the same terms with such free white, persons.
    “ All the laws, statutes, and ordinances of Mississippi ” were extended over them. Of course all the laws and statutes relating to evidence, and 'the competency of free white witnesses, were extended over them ; and the question of the competency of an Indian witness, after the passage of said act, stood upon the same ground as the question of the competency of a free white person.
    
      It seems clear that under the provisions of the second and third section of the act of 1830, Tish-ho-pi-ah was a competent witness, and the court below did not err in admitting his testimony.
    2. The second point presented by the record is, whether, under the 14th article of the treaty of Dancing Rabbit Creek, the signification of intention to remain in the cohntry, as provided for by said article, was not sufficient, if made distinctly to the agent of the government, within the six months prescribed, according to the usages of the Indians; in other words, whether actual registry by the agent was necessary to sustain the claim of a Choctaw head of a family under the 14th article.
    The 14th article simply requires, that any Indian, wishing to avail himself of its provisions, should signify his intention within six months, &c. &c. No particular mode of signification is pointed out. Any mode which apprized the government or its agent of the intention to remain, &c. would doubtless be sufficient, even according to the strictest rules of construction; much more so, taking into consideration the provision in the treaty, that in all cases of doubt, the construction should be most favorable to the Choctaws.
    Actual registry is not required by the treaty. Whatever-constitutes a signification of intention, whether indicated according to the forms and usages of the whites or the Choctaws, would undoubtedly fulfil the requisition of the article. The point, however, has been fully decided, in the case of Newman v. Harris 8f Plummer, 4 Howard, 560.
    3. The third and last point in the case is, whether the fact that the lessor of the plaintiff was driven from the land claimed, by force, within five years after the ratification of the treaty, affects his title; in other words, whether an involuntary removal within five years, works a forfeiture, under the 14th article.
    This point was determined in Tennessee, under a similar provision in the Cherokee treaty of 1819, and it was decided that a removal, to work a forfeiture, must be voluntary. 2 Yerger, 432; 5 Ibid. 323; 7 Ibid. 46; 8 Ibid. 461.
    
      Our own high court of errors and appeals has recognized these cases, and reiterated the decision in. relation to the 14th article, in the case above cited, of Newman v. Harris Sf Plummer, 4 Howard, 560.
   Mr. Justice Clayton

delivered the opinion of the court.

The first question submitted in argument grows out of an exception to the competency of an Indian, whose deposition was offered in evidence. That point has already been settled at the present term of the court, in favor of his competency. Doe, ex dem. Harris v. Newman, 3 S. & M. 565.

The next question is whether actual registration by the agent is necessary to entitle a Choctaw head of a family to a reservation, or whether the Indian becomes entitled by signifying his intention to the agent. The words of the treaty are, “Each Choctaw head of a family, being desirous to remain and become a citizen of the state, shall be permitted to do so, by signifying his intention to the agent, within six months from the ratification of the treaty.” It was in proof that the lessor of the plaintiff made the application within the six months to be registered, and signified his intention to become a citizen, but the agent refused to register him. In this the Indian did all that he could to comply with the provisions of the treaty, and if anything were wanting to a literal compliance, it was prevented by the agent of the government. It is the same thing, therefore, as if there had been an actual registration by the agent, and the government is equally bound by it. The opinion of the Chancellor in Land v. Land, 1 S. & M. Chan. Rep. 158, on this point commands our entire assent.' To this effect the attorney general of the United States likewise gave his opinion in regard to the construction of the treaty. He says, “ that all Choctaw heads of families who shall prove by credible evidence, documentary or oral, that they actually and in good faith signified to the proper- agent in due time, their intention to remain, and who have resided the proper time on the land, are entitled to the reservations secured by the treaty, notwithstanding their names may not have been entered by' the agent on the list.” 2 Public Land Laws, 210. The same principle forms the basis of our congressional legislation on the subject. 1 Public Land Laws, 563.

It has already been decided by this court that a legal title is vested in the Indian by the treaty itself, and that no patent from the government is necessary to complete it. Newman v. Harris & Plummer, 4 How. 560. The case before us differs from that just cited in only one or two unimportant particulars. In that the Indian was actually registered, but having no improvement at the date of the treaty, his location- was also registered by the locating agent. In this case the Indian had an improvement on which he resided at the date of the treaty, and there was no registration of his location. In the same case it is hólden, that location may be proven by parol, because it makes no part of the title, but relates -merely to the identity of the land. Ib. 556, 557.

Had the location been marked on the books of the locating agent, it is probable that the register of the land office would not have permitted the land to be entered by those who dispossessed the Indian. Yet it is in proof that the entry was made in gross fraud. Before the entry the person for whom it was made filed an affidavit, that no one lived on the land, although he knew that the Indian lived upon it, and had been frequently told by the Indian that the land was his. This was most palpably fraudulent. Afterwards he procured a man to pull down the Indian’s house, to put him off by force and drive him away, after his crop was planted.

According to the case in 4 Howard, the treaty itself is a grant, or operates as such, to those Indians who signify their intention to remain and become citizens. The title to a section of land, including the improvement, becomes complete, when such intention is signified to the agent, liable to be forfeited unless sustained by five years’ residence. The removal, to amount to forfeiture, must be voluntary, and not brought about by the force of others. 7 Yer. 46; 8 Ib. 461; 5 Ib. 343. In this case it was in proof that the Indian resided on the land in contfoversy at the date of the treaty, and continued to reside upon It, until he was forced away by the agents of Rowe, under whom the defendant claims. This could not operate a divestiture of his title. 7 Yer. 46.

The only doubt at any time entertained in this case, was whether the remedy was at law or in equity. The treaty conferred the title; no patent was necessary, as it was itself equivalent to a deed or grant. 4 How. 559; Mitchell v. United States, 9 Peters, 734. Before the treaty the land belonged to the Choctaws as a nation. It was regarded as their common property from generation to generation, not as the right of individuals located on particular spots. Theirs was a right to retain possession, and to use it according to their own discretion, though not to dispose of the soil except to the government. That claimed the ultimate dominion, and the exclusive right to grant the soil, subject to the Indian right of occupancy. 3 Kent, 379; Johnson v. M’Intosh, 8 Wheaton. By the third article of the treaty the lands are all ceded to the United States, but by the fourteenth article, there is. reservéd to each Lead of a family one section of land to be surveyed so as to include his or her improvement. The parties to the treaty held the whole property in these lands, the one the right of occupancy, the other the fee, and by their joint act they confer the whole property in severalty, in a certain portion of the lands Upon those Indians, who intended to remain and become citizens. The Choctaw nation gave the immediate - right of occupancy, the United States gave the ultimate fee, and the reservees thus became clothed with the full title, subject only to be divested, in case of failure to comply with the condition of residence of five years.

The supreme court has said, “it is an universal rule that purchases made at Indian treaties, in the presence and with the approbation of the officer, under whose direction they are held, give a valid title to the lands. It prevailed under the colonial government, and under the laws of the States, after the revolution. It has been adopted by the United States, and purchases made at treaties -held by their authority, have always been held good by the ratification of the treaty, without any patent to the purchasers from the United States.” 9 Peters, 748. If purchases made from Indians are thus deemed complete legal titles upon the ratification of the treaty, reservations to them by treaty must stand on as high ground. A compact or treaty is as effectual to convey a legal title as a patent. 3 Dallas, 456; 1 Kent, 165. It was admitted, upon the trial, that the defendant was in possession of the land in controversy, claiming title under entries made in the land office at Columbus. It was the duty of the United States’not to alienate -the lands reserved, whilst the right of the reservee continued, and if they did so, by mistake or otherwise, the grant was wholly void, because of the want of authority to make it. New Orleans v. United States, 10 Peters, 663.

No error is perceived in the judgment of the court below, and the same is hereby in all things affirmed.  