Penobscot Tribe of Indians v. Veazie , 58 Me. 402 ( 1870 )

Walton, J.

This is a real action in which the Penobscot tribe of Indians claim to recover possession of five small islands lying in the Penobscot river, near Oldtown. The action is authorized by a resolve of the legislature, and is prosecuted by the attorney-general for the benefit of the plaintiffs.

It appears that in 1796 the Penobscot Indians released to the Commonwealth of Massachusetts all their right, title, and interest to the lands lying on each side of the Penobscot river, commencing at Nichols Rock, so called, near Colonel Jonathan Eddy’s dwelling-house, and extending up the river thirty miles. The deed contains the following reservation:

“Excepting, however, and reserving to the said tribe all the si ands in said river, above Oldtown, including said Oldtown Island, within the limits of the said thirty miles.”

The plaintiffs claim that the islands sued for are included in the foregoing reservation. If this were true, it would by no means follow that they are entitled to recover. The statute of limitations would still have to be overcome; for the defendants, and those under whom they claim, have been in the actual possession of the premises, under a grant from the State, for more than thirty years. They would also have to overcome the objection that the courts have always held, that a title derived from the government is superior to one derived from the aborigines; and that if it shordd now be held otherwise, and it should also be held that the statute of limitations is no bar to a recovery under an Indian title, a door would be opened to endless litigation, and thousands of titles, now considered perfectly secure, would be instantly destroyed.

The fact must- not be overlooked, that the reservation referred to did not create in the Indians any new title, — did not operate as a grant to them of the islands therein described. Its effect was simply to leave in them the title which they before had, and no more. It is clear, therefore, that if the plaintiffs prevail, it must be upon the ground that the title of the aborigines of this country to the wild lands over which they roamed is superior to that of the government. The executive and legislative departments of the government have generally treated with the Indians as if they were the owners of those vast territories. But when the title to any particular tract of land has been called in question, in the courts of justice, no such doctrine has been admitted. The courts have uniformly held that the title of the government is superior to that of the aborigines. 3 Kent’s Com. Lect, 51, and authorities there cited.

But the defendants do not rely wholly upon these grounds of defense. They deny that the islands sued for are included in the reservation referred to. They do not deny that “ all the islands in said river, above Oldtown, including Oldtown Island,” were reserved ; for such is the very language of the deed. But they deny that the five small islands sued for, which lie alongside of Oldtown Island, were reserved; and we think they are right. Certainly they are not a part of Oldtown Island, nor are they above it. How, then, can it be claimed that they are included in the above reservation? We think it cannot. We think that whatever title the Penobscot Indians had to those islands was conveyed to the Commonwealth of Massachusetts in 1796, and that these plaintiffs now have no shadow of title. The defendants, on the contrary, are in possession under a conveyance from the land-agents of Maine and Massachusetts. The land-agents conveyed to Nathaniel Lord in 1837; Lord conveyed to Samuel Veazie in 1839; Veazie died in 1868, and the defendants are his heirs.

It is suggested, however, that the land-agents, in making the conveyance to Lord in 1837, may have exceeded their authority. We have not deemed it necessary to scrutinize very carefully the resolves under which they acted in making the sale, to see whether they exceeded their authority or not; for it is a familiar rule of law, that, in real actions, the plaintiff must recover, if he recover at all, upon the strength of Ms own title and not the weakness of his adversary’s. It is clear that the plaintiffs have no title to stand upon. It is not necessary, therefore, to scrutinize very closely the regularity of the sale under which the defendants claim. The State received two hundred and fifty dollars for less than four acres of land, and, so far as appears, there has never been any attempt to rescind the sale. The State has kept the money for upwards- of thirty years, without offering to restore it; and the defendants, and those under whom they claim, have held the possession and claimed to be the owners of the land during all that time. We think it is not competent for these plaintiffs, who do not appear to possess a scintilla of title, to question the regularity of the sale.

Judgment for defendants.

Appleton, C. J.; Cutting, Dickerson, and Danporth, JJ., concurred.