I agree with the majority of the Court in affirming these judgments ; but I dissent from some qf- the principles upon which they have founded their opinion.
The Court (as I understand the opinion) consider Hawkins’ line to be the- established boundary line of the treaty of Holston; they think, it is recognised as such-dn the subsequent treaty of Tellico; and that being thus recognised by the political department of the government, the Court (according to;the principles deduced in Garcia vs. Lee and Foster, and Elam vs. Nielson) must also regard it as the true boundary line; and must treat it as such from the date of the treaty of Holston, in any question of property that may come before them.
If the legislative or executive departments of the government, by *16any clear and unequivocal act, had. declared Hawkins’ line tó be the true line of. the treaty of Holston, I should concur with the majority of this Court. But .I do not find any act of that description-by any ■ department of the government. In the cases of Foster and Elam vs. Neilson, and of Garcia vs. Lee; an act of Congress' had been passed describing particularly the boundary line-therein mentioned, and declaring it to be the true, .line of that treaty. But in this case we have no act of the legislative or executives' departments .of. the, government; recognising the line run by. Hawkins as the treaty line.' It is true that in the subsequent treaty'of Tellieo, the parties, in describing the boundaries of this new treaty, call, .upon two occasions, for Hawkins’ line, and upon both of them rtin some • distance with it. But there is no expression in /this treaty which recognises the line thus called for as the boundary line-of the treaty of Holston. It is mentioned and referred to merely as a known point,like other places called for in this treaty; and the lines spoken of, are run with, merely as known lines.. But so, far from declaring it to be the boundary line described in the treaty of. Holston, the. treaty of Tellieo does not even- say that it was rum by Hawkins as the boundary; nor .is it described as having any connexion whatever with the treaty of H.olston. It is called for as a line known in the country,, and which oh some occasion or other had been run by Hawkins; but- when run, or for what purpose, cannot be gathered from any expressions in the'treaty of Tellieo. We know, indeed, from public historical documents, that Hawkins’ line is one of the many efforts that-were made to fix a certain boundary between North Carolina and the Cherokee Indians, from the vague' and imperfect descriptions contained in the treaty of Holston. Other lines were run for this purpose besides that of Hawkins. And we have no evidence that Hawkins’ line, or any other line was ever acknowledged, either by the Cherokees or the United States, as the correct one, unless .the expressions in the treaty of Tellieo are deemed to be sufficient for that purpose. The treaty of Holston was made in 1791; the treaty, of Tellieo in 1798: and the last mentioned. treaty recites that delays had taken place in carrying the former into effect, so that the boundaries were not. regularly ascertained and marked, until the latter part of the year 1797. But the treaty of Tellieo gives no description of the marks or of the boundaries thus ascertained; nor does it state by whom the lines were run, or the boundaries ascertained and marked. I cannot think that this recital, and- the calls before mentioned for Hawkins’ lime, are sufficient of themselves to establish as a matter of law, that this line is the true boundary of the treaty of Holston; and I must dissent from that part of the opinion of the Court which holds that doctrine. At the trial of this case in the Circuit Court, the jury were instructed, “that the treaty of Tellieo is an admission by the parties that the line of the treaty of Holston has been ascertained and marked,'.and furnishes ■ strong evidence that the lands reserved to the Cherokees by the treatyof Tellieo were reserved by the treaty of Holston, but does not estab*17lish the lines of Pickens and Hawkins, if erroneous'in factN I concur entirely in this opinion of the Circuit Court,: and as I perceive nothing in the other instructions of that Court, as stated in the exception, of which the. plaintiff has a right to complain, I agree -with a majority of my brethren in affirming its judgment.
Mr. Justice Wayne dissented. Mr, Justice Catkon.1 think the treaty of Tellico did not settle the line of the treaty of Holston, from the Holston river to the top of the Iron mountain; and certainly not east of the Iron mountain. So that it must n,ow be extended in a direct course, and as .a unit, to the line of intersection, running north from the North Carolina line.
The land in controversy was granted before Hawkins’ line was run; and which was not marked in execution of the treaty of Holston ; no one pretends it was; the Indians were not present, which was indispensable, to give binding validity to the line.
To say it was conclusive on one of the contracting parties, the United States, and void as to the other, the Cherokees, at the time it was run and marked, would be a most harsh assumption in regard to those whd acquired titles before it was run;' admitting, that the contracting parties .had the power afterwards to_ settle its position, but, which they never saw proper tó do. The truth is, not open to question, that the Holston. treaty line never was ascertained southeast of the Iron mountain; . and with due deference to the opinion of others, I think not west-of it, in execution'of, and in conformity to, the treaty. Why Hawkins’ line was run, the history of our relations with the Cherokees does not with any distinctness show. From personal position, I, happen to- know, through those who lived at that date, and by reputation, that it was run to fix some line beyond which it was .intended the white population should not be permitted to obtrude, further than they had done at the;"time the line was marked, extending to a few settlers on Nine Mile eréek. But that Hawkins’ line was run as a conclusive boundary' in execution of the treaty of Holston, of .1791, or for any further purpose than to hold the whites .in check, for the sake of peace and convenience, it is impossible to affirm as a matter of history; and as such it must be affirmed, there not being any evidence in this cause.
I repeat: The land in controversy was granted before this line was run; Hawkins’ ceased running far west of where the land is situated; on the east a line was run and marked by Pickens, which, when marked, was as authentic as' that marked by Hawkins, for any thing we know; the object of each line no doubt was the same:, neither concluding the Cherokees previous to the treaty ofi Tellico; which treaty superseded the necessity of ascertaining and marking the true line' of the treaty of Holston, from the point east, from where Hawkins’ ceased running. Frond this point, (the top of the Irpn mountain,) it continues a line not fixed by the contracting par*18ties; ana the United States and Cherokees-having, ceased to-have any interest in its ascertainment after the treaty of Tellico was made,North Carolina had the right to ascertain and settle it for herself,, according to some one construction of -the treaty of. 1791; and by which'her grantees should be bound; if so settled :,or, she may have recognised Pickens’ as the true line of the treaty; if so, I think the state and her grantees bound'by the recognition: so this Court held in Patterson vs. Jenks, 2 Peters, in a similar case;. and for. reasons manifestly just. Truly, Pickens’ line must be proved to’ be in conformity to some onp construction of the treaty; and that it is in conformity to the most favourable construction for North Carolina, there can be little doubt
To extend H'awkins’ line eastwardly as the true boundary of the treaty of Holston, will manifestly tend to disturb titles -made in reference- to another line;. -as it will (when extended) split Buncombe county, long settled, almost in the centre.
I do not, therefore, find myself capable- of concurring with the majority- of the Court in its extension.
Again: If , North-.Carolina has construed this treaty., and for herself settled this boundary, by her subsequent -acts manifesting her understanding of it, I should :not hesitate to adopt that construction, unless in violation.of the plain terms of the treaty: I use the.language holden- by this Court in Patterson vs. Jenks, 2 Peters, 231. But the misfortune is, the bill of exceptions sets forth not a single' fact; and the correctness of the instructions of the Court below cannot therefore be tested by the evidence given,on the trial; whether they are right or wrong, it is impossible for me to say; they may have been mere abstractions,, especially as to the main fact, whether or not North Carolina had-, by her acts fixed a boundary for herself, be it Pickens’ line or another. It follows, I feel bound' to concur with a majority of the Court, -in affirming the judgment, on the presumption that the instructions were proper.'
This, cause came on to be heard on the transcript pf the record from the Circuit Court of tiré United States'for the-District of North Carolina, and was argued by counsel. On consideration whereof, it is how here ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with cost's.