The United States, being the source of title, had the right to dispose of and issue a patent for the land in controversy according to law ; but having issued two patents to different claimants, the question is, to whom did it pass the title ?
The transcripts from the General Land Office and the Indian Bureau of the Department of the Interior were properly received in evidence, being copies of what appeared on file in those departments, properly certified under the seal of such departments by the proper officers.
These showed that the land in controversy was assigned to a Creek Indian as her reservation under the treaty, concluded at Washington between the United States and the Creek Tribe, of 24th March, 1832 ; that she sold according to the forms prescribed by the President of the United States, who approved the sale, and that by mesne tranfers her title became vested in the plaintiff (Westwood), to whom a patent issued. The patent to Stephens issued before that to Westwood, but upon entries made in the land office at Montgomery, of date subsequent to the location of the Indian.
Now, if the Indian was located by the proper authorities of the United States, and entitled to the land by virtue of the treaty above mentioned, the Government had no power to sell the land ; and consequently, no valid entry could be made of it, and a patent issued upon such entry would be void, as against the reservee, or those duly deriving title from her. The grant or patent to Stephens would be nugatory and worthless, for the reason, that the Government had no right to the land granted, having previously made a valid disposition of it. See this case reported in 20 Ala. Rep. 278 ; Ladiga v. Rowland, 2 How. (U. S.) Rep. 581; Wilcox v. Jackson, 13 Peters 498 ; Crommelin v. Minter, 9 Ala. 594.
It is manifest from what we have said, that, in a controversy between those claiming under these conflicting patents, the *720question of right must depend upon whether the Indian, under whom Westwood asserts a prior claim, was located upon the land or entitled to it under the treaty. He has shown that she was located and entitled, by the -transcript from the locating agent's record of locations, properly certified, and which appears in evidence; and upon this evidence, unim-peached, coupled with the patent and transfers and approved -Indian's -deed, the court would have been entirely justified in charging the jury, that the title was with the plaintiff, — that the patent to Stephens was void, the Government having made a valid disposition of the land ; and that the treaty under which such disposition was made, aside from the general la.w, expressly provided such lands should be -reserved from Sale, and authorized the reservee to dispose of ’them to any other person in such manner as the President might direct.
After a census was taken by the United States of the Creek Tribe, and the heads of families ascertained and designated ■upon the census roll, a copy of this roll, containing a list of the heads of Creek Indian families who were entitled to re■s.ervations under the treaty, was furnished to the locating -agents, and they were instructed by the proper department to proceed and designate, opposite the name of each Indian entitled to a reservation, the particular tract to which he or she •was entitled, including the improvement of each reservee in his selection, if the same could be done ; and if not, then that the Indians who could not be so located should take in one body of a proper form. This designation of the land opposite the name of the Indian upon the rolls of the locating agents, which were forwarded to Washington and filed in the public archives, 'constituted “ the location.” The questions whether the Indian was the head of a family, and entitled ■under the treaty to the particular tract set apart for her, have been decided by the officers of the Government, and are not subject to be revised in this collateral way. It would be a ■shooking-perversion of the spirit-of the treaty, to require the -reservee, whose claim, after repeated investigations by the ■several Government officers, has been fully recognized and confirmed by -the United States, to prove her right to a location, -or that she was actually plaeed in possession of the land ^Hotted to her. The United States proceeded, in the fulfil*721ment of the obligations imposed by the treaty,- in a manner peculiar to itself, and adapted to the condition of this half-civilized people. The Government was not bound down by the strict rules of the common law, in receiving proof of their being heads of families, and entitled under the treaty to locations ; but acting as a sovereign, and desirous of carrying out the treaty in good faith, it was proper that a liberal policy should be adopted. The testimony of Indians was received ; the chiefs of the respectivo Indian towns were generally consulted, and their reports were generally accredited, as indeed they were found in most cases to be very reliable, and their rights, in many instances, depended wholly upon the testimony of their people. Our courts, however, receive no such proof, and to subject them now to the maintenance of those rights according to the forms which our law prescribes, we should exclude the evidence upon which alone the Government acted, in many cases, and thereby defeat their claims, which were not only guarantied by solemn treaty stipulation, but recognized and sanctioned by the Government itself. We can never consent to minister to such bad faith to the reservees and those claiming under them.
In our opinion, the action of the Government, in ascertaining the heads of families, and setting apart thoir lands, or locating them, as we have above shown locations were made, when returned by the respective Government officers, and confirmed by the department entrusted with the matter by law, becomes final, and no one has a right to put the reservee upon proof, other than that furnished by the Government records, of her right to the land set apart opposite her name as her reservation. It follows, therefore, that the offer in the court below to show that this reservee was not located, when the Government record shows that she was, is an attempt to impeach collaterally the Government record, and was properly disallowed. If, in designating the sections or fractions of sections reserved from sale, the officers of the General Land Office failed to mark this land as reserved, whereby the Land Office at Montgomery, Ala., permitted it to be entered, this mistake should not be allowed to prejudice the claim of the Indian reservee, or those claiming under her. The party thus making the entry must look to a just Government for repara*722tion, and cannot be allowed to defeat a prior (and therefore a better) right which had vested in another. It follows from what we have said, that there was no error in excluding from the jury the certificate of the register of the Land Office at Montgomery.
As to the verdict: It is not very formal, but it is general; and under the liberal rules of intendment which apply in such cases, we are of opinion that it fully warrants the judgment, which must be affirmed.
No claim or suggestion for the improvements was made by the pleadings, and it is needless, therefore, to notice this sub' ject further. — Clay’s Dig., p. 320, § 47; ib. 336, §§ 134-5.
Judgment affirmed.