Robert Cooper Grier

“ Now, while it is freely conceded that this construction given to the treaty should form a rule for the subsequent conduct of the department, it cannot affect titles before given by the government, nor does it pretend to do so. Congress has no constitutional power to settle the rights under treaties except in cases purely political. The construction of them is the peculiar province of the judiciary, when a case shall arise between individuals. ”

“ Under the Spanish and French dominions, grants of land were always made to individuals in proportion to the number of persons composing the family. Thus, in Frique v. Hopkins, [1] the court said as follows:
'By the regulations of the Spanish government, if the individual who applied for land was unmarried, a certain quantity was given to him; if he had a wife this quantity was increased, and if he had children an additional number of acres were conceded. ”

“ We can hardly expect the Indians to be very profound on the subject of adverbs or prepositions, and the agents of the government do not seem to have exhibited much greater knowledge of the proprieties of grammar, or they would not have left this section of the treaty capable of misconstruction or doubt when it was so easy to avoid it. ”

“ Now, if the circumstance of his being married made the thing given become the property of both husband and wife, we must, on the same principle, hold that where children were the moving cause, they too should be considered as owners in common of the land conceded. ”

“ The fact is clear that such was not the construction under which the grantor gave the deed or the grantee accepted it. A chancellor will not be astute to charge a constructive trust upon one who has acted honestly and paid a full and fair consideration without notice or knowledge. ”

“ The parties to this contract may justly be presumed to have had in view the previous custom and usages with regard to grants to persons 'desirous to become citizens.' The treaty suggests that they are 'a people in a state of rapid advancement in education and refinement.' But it does not follow that they were acquainted with the doctrine of trusts. ”