
    J. Chaffee v. G. Garrett.
    Where the consideration of a note is a lease of lands within an Indian reservation, and the lessor makes title under an Indian, plaintiff can not recover.
    This cause was adjourned from Crawford county, and came before the court upon the subjoined agreed state of facts.
    The note upon which the plaintiff’s declaration is founded, fell due on December 18, 1830, and was given by the defendant to the plaintiff for one hundred and ninety dollars. The note was given on December 18,1829, to secure the payment of the amount named in it, as the rent of the Upper Sandusky “Walker Place” so called, which said “ Walker Place” consists of a tavern-stand and improvements at said Upper Sandusky, and as a part of the reservation commonly called the “Wyandot Reservation,” situated within the extreme limits of the county of Crawford, in the State of Ohio, and the line mentioned in the .treaty between the United States of the one part, and several nations of Indians, concluded at the foot of the rapids of Miami, in 1817. William Walker, deceased, was a white person, and when, quite a child was taken by the Delaware Indians, and was by them given to the Wyandot nation of Indians, and they adopted him into their nation and as one of them, and he afterward married a woman (now the widow Catharine Walker), who was one of the nation, and was part white. 
      422] By permission of said *Wyandot nation of Indians, the said William Walker, deceased, went on to and began to make the improvements at the said Upper Sandusky, called the “Walker Place” aforesaid, and so continued to occupy and improve the said “ Walker Place,” until the time of his death, which was some time in the year 1823; and upon his death, Isaac Walker, one of the sons and heirs at law of the said William, deceased, and the said widow, Catharine Walker, were left in the possession and occupation of the said “ Walker Place,” where they continued to live with the family left by the said William, deceased, and to improve the said “Walker Place,” until the time of his said Isaac’s death, in May, 1829; the said Isaac leaving at the time of his death his widow, Rebecca, who, with the other members of said family continued to reside on said placo until her marriage. Said Isaac at his death made his will, whereby he bequeathed one-half of said “Walker Place” to the said Catharine and her two sons, the brothers of the said Isaac, deceased, and the other half to Rebecca, the widow of the said Isaac, deceased, a white woman, who was afterward married to the said Joseph Chaffee, the plaintiff in this action, and Isaiah, the infant son of said Isaac; and after the intermarriage of the said Rebecca with the said Chaffee, the said Chaffee went into the possession of the said “ Walker Place,” at Upper Sandusky, and on said December 18, 1829, executed the lease of one-half of said “Walker Place” to the said defendant, and delivered the possession of said “ Walker Place ” to the said defendant, and as a consideration for the leasing of said premises, and to secure the rent therefor, and for no other purpose, and on no other consideration, took the note above mentioned, on which the plaintiff’s declaration is predicated. Said improvements, and all of them, were made with the consent, express or implied, of the Wyandot nation of Indians. The said William Walker held the appointment of interpreter under the United States, while he so resided at Upper Sandusky, as did also his son, Isaac Walker, during his residence at the same place, after the death of his father; and said Isaac claimed to be a citizen of the United States, and exercised the privilege of voting at elections, though he also received his dividend of the annuities secured by the treaties, to be paid to the Wyandot nation of Indians, as one of the nation ; said Isaac, during his residence at said “Walker Place,” expended a large sum of money in improving the said place, and he was also in the receipt of all the profits ^arising from said place. [423 The condition in the lease in relation to the forty-acre field, and upon the determination of which against the said Chaffee’s right to the one-half of said premises, he was to deduct forty dollars from said note, depends upon the following facts: The said Chaffee then had it in contemplation to commence a suit to determine his right, and shortly after did file a petition in the common pleas of Crawford county, for partition of said land ; and upon 'a trial ot said cause upon the merits, the court determined that the petitioner had not made out sufficient title to the said premises, and therefore dismissed the petition.
    Parish, for plaintiff:
    Upon the facts agreed we ask this question: Has this widow of Isaac violated any law, either human or divine — either of God or of man? The answer is but a monosyllable, JVo. If but the day previous to her marriage to the plaintiff, a white man had by force turned her out of possession of the premises, with what pleasure would this court have instructed a jury to give vindicative damages against such wrong dono in an action of trespass? But she marries the plaintiff; does not he succeed to all the rights of his wife? Could not she have leased the premises? Certainly she could,- without violating any law.- If she could, then it follows that her husband, the plaintiff, could also lease the lands which she obtained by her former husband. But the counsel for the defendant insists that the will of Isaac Walker was an Indian will. Was void, or if valid, must be enforced by the Indians. Yes, the
    “ Poor Indian, whose untutored mind,
    Sees God in clouds, and hears him in the wind,”
    has exclusive jurisdiction over this will. My law reading teaches me that this court will take notice with regard to the will of the native of Hindostán, of the Turk, or of the tribe of Black Hawk. Plaintiff had a moral and legal right to marry the widow of Isaac Walker. She had a perfect, legal right to the possession of this valuable property at the time of her marriage with plaintiff. He and wife have surrendered this possession to defendant; the defendant has enjoyed the premises. The defendant is now estopped from setting up want of title-in plaintiffs. I say plaintiffs, for n effect this suit is prosecuted for the benefit of Mrs. Chaffee as well 424] as her husband. *The act of Congress referred to by counsel for defendant, has no application to this case. The court has jurisdiction over the persons litigant, and the subject matter in dispute. This court could not refrain from exercising jurisdiction in a suit upon contract between two Indians, should they choose to resort to this court for the determination of their controversy. A Seneca Indian has recovered a valuable tract of land of a white man, in an action of ejectment in this court; Judges .Burnet and Sherman presiding. In the case of Nimble Jemmy v. McNutt, in replevin (Lane, president judge), Sandusky county, no objections were made that plaintiff was an Indian. Admitting, then, that William Walker was a legitimate member of the Wyandot nation, that Isaac followed the condition of his father, and that the wife of Isaac followed the condition of her husband; and Chaffee succeeds to the rights of Isaac’s widow by virtue of his marriage, and the defense of the defendant fails. No jurisdiction over the leased premises is claimed for this court by plaintiff. Jurisdiction over the persons and subject matter of the suit (the note) is all that is claimed.
    Boalt and Swan, for defendants:
    The plaintiff has an undoubted right to recover, if not prevented by the laws and general policy of the government of the United States. The consideration of the note was a lease of premises to the defendant, situate in one of the reservations secured to the Wyandot Indians by the treaty'at the foot of the rapids of the Miami, in 1817.
    We rely upon the act to regulate trade and intercourse with the Indian tribes, etc., approved March 3, 1802. 3 L. U. S. 460.
    Section 2 forbids any citizen of the United States, or residents therein, from crossing over the boundary line to hunt; from driving stock, etc., to range on any land secured by treaty, and subjects the offender to fine .or imprisonment.
    Section 5 provides, that if any citizen or other person shall make a settlement on lands, etc., secured to any Indian tribe, or shall survey or attempt to survey such lands, or designate boundaries by marking trees, etc., he shall forfeit not exceeding a thousand dollars, and be imprisoned not exceeding twelve months.
    
      By section 7, no person is permitted to reside at any town as a trader without license, etc.
    ^Section 12 provides that no purchase, grant, lease, or [425 other conveyance of lands, or any title, or claim thereto, from any Indian, or nation, or tribe of Indians within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the constitution, etc. This section declares it a misdemeanor in any person to negotiate for the title or purchase of any lands held by Indians, and subjects the offender to fine and imprisonment. Do the agreed facts bring the plaintiff and the ease within the prohibitions of the statute?
    Assuming that Isaac Walker was one of the Wyandot tribe, subject to the usages and laws of the Indians,'we conclude that his last will must be carried into effect according to the laws and usages of the sovereign power, whose citizen and subject ho was. Admitting he made a devise of lands, his devisees must take, not according to our laws, but those of the Indians; and, we believe, among the enumerated matters confided to our courts, and the extent of territory allotted to this court in particular, neither the constitution nor the law requires the supreme judges to hold courts in the Indian reservations, or to take jurisdiction of contracts arising between the natives residing there. We could not well do so, without a better knowledge cf their code, which is said to be entirely traditionary and unwritten. With any contracts made between Indians claiming to be such within those reservations, this court can not and will not interfere. Even Georgia did not take judicial jurisdiction over the Indians there, until the legislature expressly gave it by law. The Indians enforce their own contracts and punish crimes according to their own customs. If Isaac Walker made a will, the Indians must enforce it. As a white person, he had no right at all upon Indian lands. He could not make boundaries — he could not purchase — ■ he could not lease. The will of Isaac Walker was void — the possession by his devisee was unlawful and void — the lease by the plaintiff and the occupation under it were both unlawful and void acts. The authorities upon this subject are collected in 3 Stark. Ev. 1631, 1632; 17 Mass. 258; 1 M. & S. 593.
    The lease itself being void, none of the doctrines relative to estoppels on the principles concerning landlord and tenant can help out the plaintiff. Where a conveyance of land is void, so that no estate passes, all dependent covenants are void also. 1 Salk. 199; Wood’s J. 342.
    426] *We can not see a particle of ground for the plaintiff to recover.
   Judge Lane

delivered the opinion of the court:

The facts agreed, show clearly that the note, the amount of which the plaintiff seeks to recover, was given in consideration of the lease. The title of the lessor to the premises leased, is derived under the will of Isaac Walker, who derived a possessory title, by succession to his father, one of the Wyandot tribe of Indians, the lands lying within their reservation.

The statute of the United States, of 1802, enacts that no purchase, lease, conveyance, or title of, or to land from, an Indian, shall have any validity, unless made in a treaty with the United States. The lease, therefore, transferred no title, because the lessors possessed no title to transfer; consequently, the consideration of the note fails, and the plaintiff can not recover.  