History of Genesee county, Michigan. With illustrations and biographical sketches of its prominent men and pioneers, Part 6

Author: Ellis, Franklin, 1828-1885; Everts & Abbott, Philadelphia, pub. [from old catalog]
Publication date: 1879
Publisher: Philadelphia, Everts & Abbott
Number of Pages: 683

USA > Michigan > Genesee County > History of Genesee county, Michigan. With illustrations and biographical sketches of its prominent men and pioneers > Part 6

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All of the above-mentioned documents were laid before Congress in support of the petition of the Smith elaimants, as was also the following memorial from persons residing principally at Flint River and in that vicinity, viz. :

"To the Honorable, the Senate of the United States :

" The undersigned, citizens of the Territory of Michigan, residing in the vicinity of certain lands reserved to the heirs of Jacob Smith, under the treaty of Saginaw, having understood that a certain bill is now pending before your honorable body for the relief of the heirs of said Jacob Smith, have thought proper to represent that the con- firmation of the said grants to the said heirs would greatly advance the settlement and improvement of this part of the Territory, and that the delay in the perfecting of the title to said lands has already been of serious injury to this portion of the Territory. The undersigned would, therefore, respectfully petition that the above-mentioned bill may become a law, there being no doubt that the equitable title to said lands is in the said heirs, and that strict justice requires of the general government a confirmation of the same:

"LYMAN STOW,

" THOMAS J. DRAKE, E. BEACH,

MERRICK STOW,

JAMES PATTERSON,

JOHN TODD,

NAHUM N. WILSON,

E. R. EWINGS,

RICHARD J. GILMAN,

WAIT BEACH,

JOHN CLIFFORD,

RUFFS W. STEVENS,

LEWIS BUCKINGHAM,

CHARLES MCLEAN,

L. G. BUCKINGHAM,

LUTHER KING,

A. 11. BEACH,

ELIJAH CARMAN,

LEMUEL JOHNSON,

ISAAC MILES,

ISAAC BROWN,

JOHN A. HOYES,

MILTON MORRIS,

AARON G. HOYES,

JONATHAN BEACH,

CALEB BUCKNER,

EBENEZER S. FISI,

CHARLES C. ILASCALL,

NATHANIEL NELSON,

CALVIN C. PARKE,

JOSEPH SMITH,

J. M. CUMMINGS,

CALEB BERRY,

JAMES W. CROOKS,

LUMAN BEACH,

JAMES MCCORMICK, W. H. NELSON,

A. D. WILSON,

JOSEPH C. WINTERS,

LORTON S. MATHEWSON,

LUTHER DICKINSON,

ROBERT MCCORMICK,

CHARLES TOOGOOD,

BENJAMIN PEARSON,

ABIAL L. SHAW,

ALANSON DICKINSON,

ASA DAVIS,

THOMAS NELSON,

JOHN MCCORMICK.

" FLINT RIVER, Sept. 28, 1835."

The result was the passage of an act " To authorize the President of the United States to cause to be issued to Al- bert J. Smith and others patents for certain reservations of land in Michigan Territory." This aet (approved June 25, 1836) provided :

" That the President of the United States be, and he is hereby, au- thorized and required to issue or cause to be issued, to Metawaneno (or Albert J. Smith), Messawwakut (or Ilarriet M. Smith), Annoke- toqua (or Louisa L. Smith), and Nondashemau (or Maria G. Smith),

being children of Jacob Smith, deceased (formerly a trader among the Chippewa Indians), patents for one section of land each ; also one section of land conjointly to the aforesaid Albert J. Smith, Harriet M. Smith, Louisa L. Smith, and Maria G. Smith, being the only sur- viving brother and sisters of Sagosequa (or Caroline Smith, deceased, who was also one of the children of Jacob Smith, deceased, at or near the Grand Traverse of the Flint River, in the Territory of Michigan, which said sections of land were reserved to said children, by the third article of the treaty made and concluded at Saginaw, in the said Territory, between the United States of America and the Chipperra nation of Indians, on the 24th day of September, in the year of our Lord one thousand eight hundred and nineteen,"

In accordance with the provisions of this act, the five patents were issued June 2, 1836. This was. at that time, considered as a final settlement of the question of title to these reservations ; but it was not very long before the opinion began to be entertained by some (an opinion which was afterwards sustained by the courts) that these patents did not and could not convey a title as against any person or persons who could prove themselves to be the rightful reservees in the true intent and meaning of the treaty. It would seem that the proofs adduced by the Smith heirs had been ample for the establishment of their claims, but there were still doubts whether they could hold under the article of the treaty which provided that the lauds granted should be for the use of persons of Indian deseent only. About this time it was discovered that a young Chippewa, whose English name was Jack, and who had been brought up and protected by Jacob Smith, claimed to be the real Metawa- nene, and consequently the owner of the reservation num- bered two on the land-office plat ; and also that some In- dian women made the same claim to sections which had been patented to the daughters of Mr. Smith.

In March, 1842, the Indian claimant to reservation num- bered two, deeded that tract to Gardner D. Williams, of Saginaw, who in June, 1845, conveyed one moiety of the same to Daniel D. Dewey, of Genesee ; and by these a suit was commenced in the Circuit Court for the establish- ment of the elaim of the alleged true Metawanene, and the possession of the lands. After many years of delay, this cause came to final trial in 1856, at the March term, held by Judge Sanford M. Green, in the city of Flint. Plain- tiffs, Messrs. Williams and Dewey. Defendant, Chauncey S. Payne .* Attorneys for plaintiffs, IIon. Moses Wisner, James H. C. Blades. For the defendant, Messrs. E. C. and C. I. Walker, of Detroit, John Moore, of Saginaw City, and Charles P. Avery of Flint; which last-named gentle- man had then recently purchased an undivided half of Mr. Payne's interest in the property, thus becoming equally in- terested with him in the result of the suit.

Fu support of the plaintiff's claim there were brought forward four Indian witnesses, who testified through the sworn interpreter to the court, the Rev. Henry P. Chase, of Muncey Town, Canada West. These witnesses were Nahwahchegome, Kahkagezhick, Francis Roy, and Pero Roy, of Saginaw ; the first two being full-blood Chippewas and the others half-breeds. Their testimony was to the effect that the Indian, Jack, who was associated with the

# Albert J. Smith had, in 1836, deeded to Mr. Payne an undivided three-fourths, and to T. B. W. Stockton an undivided one-fourth, of the reservation. In 1840, Mr. Stockton conveyed his interest to Mr. Payne, who thus became sole owner.

RUFUS HARRISON,

INDIAN RESERVATIONS ON FLINT RIVER.

plaintiffs upon the record, was known by them to be the true Metawanene for whom section two was reserved; that at the time of the treaty of 1819 he was about four or five years old, and that on that occasion he was brought into the council-house and placed before the commissioner, Gen. Cass. These witnesses (who are represented as having been unenlightened pagans) did not sustain themselves well under cross-examination ; and a part of their testimony was directly contradicted by that of Gen. Cass,-taken upon commission,-which was to the effect that no children were produced before him at the treaty as the designated res- ervees.

The defense brought twelve Indian witnesses,-among whom were several chiefs,-who testified that the Indian claimant was not the true Metawanene of the treaty ; that he was the son of a Canada Indian whose name was Shayo- gemaus, and that his own name, from the time of his christening, was Ahnemekeens, and that they had been in- timately acquainted with his personal history from the time when he was first laid in his bark eradle. One of these witnesses, an old woman named Mooseqnay, said she was present at the birth of the claimant, the date of which she placed at about two years after the treaty of Saginaw. This woman was a Christianized Indian, as were also several others of the witnesses for the defense. They also testified that Albert J. Smith, son of Jacob, had been adopted, while yet a small boy, by the old chief, Neome, in the place of a deceased grandson, and that from that time he had uni- formly been recognized by the Indians as Metawanene; this adoption having taken place before the treaty, at Mr. Smith's house in Detroit.

Among the white witnesses were the Rev. D. C. Jacokes, E. D. Young, Daniel S. Freeman, and P. O. Johnson. Mr. Jacokes testified that he had made these Indian claims the subject of thorough and impartial examination at an carly day, and at a time when it was his interest to estab- lish them as rightful claims if it could be done, the result of which investigation was that in no instance did a single Indian allege that any one of those five sections had been intended for any other than the white children of Jacob Smith. Both he and Mr. Freeman also stated that in con- versation with them, at various times, the Indian, Ahneme- kceus (or " Jack"), had told them that he had never thought of his having a claim, or that his name was Meta- wanene until it had been suggested to him by white men. The defense also embraced the evidence contained in the verified statements of the Chippewa chiefs, which were laid before Congress, as before mentioned, as well as several less interesting points. The jury after short deliberation rendered a verdict in favor of the defendant, thus deciding a case which, during years of litigation, had cansed much excitement and some bitter feeling, and which is a matter of general historical interest in the annals of the county.

The trial of a similar suit, involving the title to reserva- tions numbers three and four, was also had before Judge Green, at Flint, in the December term in the same year, resulting, as in the case of section 2, adversely to the In- dian title. The suit was brought in the names of two of the Indian women, before mentioned, who claimed to be the real Annoketoqua and Sagosequa, and consequently

owners of the tracts which had been patented respectively to Louisa L. Smith and to the heirs of Caroline Smith, deceased.

For the plaintiff there appeared several Indians who were, or claimed to have been, at the treaty of 1819, and whose testimony was given to show that the reservations were not intended for the children of Jacob Smith, but for the daughters of Neome, and that the Indian elaimants in this case were the daughters of that chief. The defense brought two Indians and three white men who were present at the treaty, whose testimony went to show the great in- Anence exerted by Smith at the treaty, and that ohl Neome favored Smith's wishes, but desired no lands for his own children. The testimony of General Cass for the defense was to the effect that he understood the reservations to have been intended for half-breeds, and not to full-blood Indians, as the granting of reservations to the last-named class was contrary to the policy of the government. (The Indian claimants in this case were full-blood Chippewas.) He further testified that he did understand at the treaty that the design of Jacob Smith was to obtain reservations for his white children, and that to defeat that design he (General Cass) had eaused to be inserted in the treaty the words " all of whom are Indians by descent."* But it was held by the court that whatever the intention of Gen- erul Cuss might have been, yet if it had been the intention of the Indian grantors to give the lands for the use of the white children of Jacob Smith, the fee was thus vested in them, notwithstanding the insertion of the descriptive words " Indians by descent."

The same counsel who had conducted the case of section 2 appeared also in this. The trial occupied three days, and at its conchision the jury, after a retirement of less than an hour, returned a verdict for the defendant repre- senting the Smith interest.

But the end was not yet. The case involving the title to these two sections (Gregory vs. Frost,-the defendant

# About the time when the question first began to be agitated, in reference to the validity of the title of the Smith children to tho reservations, General Cass, in response to a request for a statement of the facts, wrote a letter, which was placed on file in the Indian Department at Washington, of which the following is a copy :

" DETROIT, June 22, 1831.

" I have been requested to state the facts connected with the reser- vation of eleven sections of land nt Flint River, made under tho treaty of Saginaw, so far as respects nny interest held therein by tho children of Jacob Smith. At the time this reservation was made, I understood that the Indians intended that a number of the sections -I believe five or six-should be granted to the children of Smith, nad the names given by them as the grantees of these sections wero said to be his children. From circumstances not necessary to detail here, I was led to suspect that Smith designed the land for his white children, and that most of the names purporting to be those of his Indian children were, in fact, tho names of his whito children, which the Indians-who were in the habit of frequenting his house-had given to them. To guard ngainst the consequences of this attempt, I therefore inserted in the article providing for these reservations a clause confining them to persons of Indian descent. I have an in- distinct recollection that one young girl was spoken of us the Indian daughter of Smith, but cannot remember her namo. I know Louis Beanfait and Henry Connor well; they were both nt the treaty of Saginaw, and they are very honest men, in whose statements full confidence may be placed.

(Signed) "LEWIS CASS."

HISTORY OF GENESEE COUNTY, MICHIGAN.

holding under the Smith heirs) was removed by change of venue to the Circuit Court of Oakland County, and came to trial there in September, 1860. The testimony here was the same as at the trial of four years before in Genesee, except that the defendant introduced, in addition, that of Mr. Le Parle, of Monroe, and Jean Baptiste Trudell, of Bay County, which was very strong in confirmation of the other evidence for the defense. Testimony for the plaintiff, given by several Indian and half-breed witnesses, was suc- cessfully impeached, and a verdict was rendered for the defendant.

The plaintiff had urged, as a principal argument in favor of the change of venue, that a fair trial could not be had in Genesee County, for the reason, not only, that many individuals there were interested in sustaining the Smith title, because holding under it, but also that a large majority of the people of Flint were favorable to it, in the belief that its overthrow would be detrimental to the interests of the city. The case, therefore, having been tried at a dis- tance from all such alleged influences, was regarded as a test ease, and the verdict was a final decision in favor of the Smith title to the five reservations numbered from two to six inclusive.

Protracted litigation resulted also from a controversy concerning the title to reservation eight, which was allotted in the survey of 1820 to Mokitchenoqua. This Indian name was claimed (justly, as it afterwards appeared) by Elizabeth Lyons, a half-breed daughter of Archibald Lyons,* an Indian trader. She was one of three girls, or women, all half-breeds, who at different times laid claim to the reservation, and who received from the register and receiver of the land-office at Detroit, certificates of iden- iifieatioo, as Mokitchenoqua, the rightful reservee under the treaty. The certificate to Elizabeth was obtained Aug. 2, 1824. The next claimant was Marie Lavoy, who ob- tained a certificate of identity Feb. 7, 1827 ;7 and the last was Nancy Crane (wife of Alexander D. Crane), formerly Nancy Smith, a reputed daughter of Jacob Smith. She received her certificate July 22, 1831. This was endorsed and confirmed by the Commissioner of the General Land- Office at Washington, Aug. 5, 1835, and on the 7th of March, 1840, a patent was issued for the section of land " to Mokitchenoqua, alias Nancy Crane, wife of Alexander

D. Crane, formerly Nancy Smith." In the mean time (June 30, 1835), she had united with her husband in a release of all their interest in the lands to Maj. John Garland.

The interest of Elizabeth Lyons was conveyed by her on the 4th of April, 1838, to Gardoer D. Williams and Kintzing Pritchette, who, in February, 1840, brought an action of ejectment against T. B. W. Stockton and Chauncey S. Payne, occupants of the seetion under title conveyed to them from Maj. Garland. Four months later (June 11, 1840), Stockton and Payne filed a bill in chancery, praying that Williams and Pritchette be restrained from prosecuting their action of ejectment, and deereed to release their claim to the premises. Associated with these as defendants were Calvin Smith, Thomas J. Drake, and Elizabeth Lyons; Nancy Crane having on the 10th of February, 1837, joined with her husband in a conveyance of two-thirds of her interest in the section to Messrs. Smith and Drake, who were charged with notice of the deed of the same interest to Maj. Garland, made twenty months before.

This case was tried before Chancellor Manning in Feb- ruary, 1843. In the testimony, as reviewed by the Chan- eellor, there were but few points of general interest. Henry Connor, the interpreter at the treaty, testified that he did not know of any reservation being made for Elizabeth Lyons. Robert A. Forsyth, who drafted the treaty, said he thought that the name of Mokitchenoqua was among those handed in by Jacob Smith to be inserted as reservees. Louis Beaufait, interpreter at the treaty, said that Jacob Smith, a few months after the treaty, showed him a list of names of those for whom he had obtained each a section of land, and he thought that among them was Mokitche- weenoqua. Ceeil Boyer (a woman) was at the treaty, and heard there that a reservation had been made at the Grand Traverse of the Flint for Mokiteheweenoqua, who, she believed, was Jacob Smith's only child of Indian descent. She had also heard that Elizabeth Lyons had a traet reserved for her at Shiawassee. Eshtonaquot, alias Macons, testified strongly in favor of the claim of Naney Smith, but admitted that he did not know that Mr. Smith had ever claimed more than one seetion under the treaty.

The testimony for the defense was much stronger. Rose Campau said that Elizabeth Lyons had been brought up in her family in Detroit, and had frequently been visited there by her Indian relatives, who always called her Mokitcheno- qua, and that she had often heard them say that a section had been reserved for Elizabeth by the treaty. Josette Knaggs, widow of Whitmore Knaggs (who was chief in- terpreter at the treaty), testified that her husband had tohl her, on his return from the council at Saginaw, that a sec- tion of land had been given to Elizabeth Lyons. She had also heard the same from Indians of the tribe, and from the half-breeds, Peter and James Riley.

An important witness for the defense was Rufus W. Stevens, a prominent and most respectable citizen of Gen- esee County. Ile testified that he had been told by Jacob Smith that section 7 hal been reserved for Edouard Cam- pau, section 8 for Archibald Lyons' daughter, and others for his (Smith's) children, on the north side of the river, but that he made no claim for them to lands on the south side of the river. Louis Moran testified that when, ou one

# "Archie Lyons was a trustworthy agent of the Messrs. Williams [Gardner D. and Ephraim S. Williams, traders at Sagioaw, and on the Tittabawassee], whose history is identified with the Saginaw Valley prior to the treaty. Ile was a fine penman, well educated, and a musician of no little skill. He was located at the Little Forks of the Tittabawassee (Midland City), and in coming down from that point on the ice upon skates for the purpose of playing the violin for a dancing-party at Saginaw he was drowned. His track was found on tho iee the next day, to the edge of the hele into which he had skated, leaving no doubt as te his fate."-Hon. C. P. Avery.

+ Soon after the issuance of this certificato to Marie Lavoy, a council was held at Saginaw by Chippewa chiefs, who certified before Col. Stanard (n justice of the peace), and in presence of Archibald Lyons, that they had, at the treaty, reserved a section of land at tho Flint River for Mokitchenoqua, the daughter of Lyons. This was testified to by Antoine Campan at one of the trials which subsequently grew out of her claim. Not long after this Lyoos was drowned in the Tittabawassee, but the above-mentioned fact proves that while living he recognized her elaim to lands on the Flint (and not at Big Rock on the Shiawassee), and that he took measures to establish it.

INDIAN RESERVATIONS ON FLINT RIVER.

occasion, he had inquired of Jacob Smith as to the owner- ship of certain lands at the Flint, the latter replied that it was a section which had been reserved for Archibald Lyons' daughter by the treaty.

John Baptist Trudell said he was present at the treaty ; that all the chiefs told him at the time that Lyons' daugh- ter had land reserved for her ; that Jacob Smith, while he resided at the Flint, told him that Lyons' daughter had a section of land there on the opposite side of the river; that he (Smith) spoke of this a number of times, and only a short time before his death. Nearly the same facts were testified to by Peter Whitmore Knaggs (who was at the treaty) and by several others.

The chancellor, in reviewing the testimony, said in effect that he did not consider that adduced by the complainants to be entitled to much weight, and that the preponderance of evidence was decidedly in favor of the defense.

The facts testified to for the defense by Rufus W. Ste- vens, Louis Moran, and J. B. Trudell, concerning Jacob Smith's frequent admissions that his children claimed no reservations on the south side of the river, were held by the chancellor to be most important. In reference to these he said : " The repeated declarations of Smith after the treaty that there was a section reserved at the Flint for Lyons' daughter is almost conclusive of itself. IIe claimed five sections at that place, under the treaty, for himself or children, and took possession of them, but he never claimed section S. No one, perhaps, was more anxious to secure personal advantage by the treaty, or knew better for whom reservations were made, than Smith himself."

The court, therefore, refused to decree the release of the defendants' claims, and the bill was distuissed. The com- plainants then appealed the case to the Supreme Court, where it was tried at the January term in 1845, resulting in a decision affirming the decree of the Court of Chancery. Upon this decision, Williams and Pritchette proceeded with their ejeetment suit, and in due time it was brought to trial. The evidence adduced by them here was the same as in the previous trials, but it did not prove sufficiently strong and convincing to establish the claim of Elizabeth Lyons. The decision was in favor of Messrs. Stockton and Payne, and this was a final settlement of the case.

Reservation No. 1 has also been the subject of long and vexatious controversy at law between opposing parties, each of whom claimed to hold under the true Taweumegoqua, for whom the section was reserved by the treaty, and to whom it was allotted in the survey of 1820.

One of the persons-for whom it was claimed that she was the true reservee of this section-was a half-breed daughter of the before-mentioned French trader, Bolieu, by his full-blood Indian wife. This girl was named in French Angélique, but in Chippewa Tawcumegoqua. At the age of about twelve years she was sent to the white settlements at or near Detroit, and there partially educated. On at- taining womanhood she married a Frenchman named Cou- tant, and settled near Connor's Creek, in Hamtramck, Wayne Co., where she continued to reside (living after the manner of the French inhabitants of the neighborhood) during the remainder of her life. By her marriage with Coutant she had two children, -a son and daughter.

After his death she married Jean Baptiste St. Aubin, but by him had no children. At the time when the treaty of Saginaw was made she was fully forty years of age, and about eight years later she died, leaving her two children, Simon and Angélique Coutant, as her sole heirs-at-law. Both these children married, the husband of Angélique being Nicholas Chauvin.

It appears that Madam Coutant (otherwise St. Aubin) had claimed to be the owner of the reservation in question, and that after her death her heirs made the same claim, though neither had had actual possession or had taken any legal steps to secure it. But on the 17th of October, 1833, Simon Coutant and his wife Marie conveyed all their in- terest in the section, by deed, to Joseph Campau, of Detroit, for the consideration of four hundred and eighty dollars ; and on the 18th of the same month, Nicholas Chauvin and his wife (formerly Angelique Coutant) conveyed all their interest in the traet, by deed, to the same grantee. Subse- quently (June 24, 1839) these transactions were confirmed by a deed from the same parties to Campau, who, about the same time, took possession by the placing of one or more tenants upon the tract. On the 26th of February, 1845, a patent for the section was issued to Mr. Campau, in pur- suance of the anthority conferred by act of Congress, approved June 15, 1844.

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History of Genesee county, Michigan. With illustrations and biographical sketches of its prominent men and pioneers, Part 6

Author: Ellis, Franklin, 1828-1885; Everts & Abbott, Philadelphia, pub. [from old catalog] Publication date: 1879 Publisher: Philadelphia, Everts & Abbott Number of Pages: 683

Author: Ellis, Franklin, 1828-1885; Everts & Abbott, Philadelphia, pub. [from old catalog]
Publication date: 1879
Publisher: Philadelphia, Everts & Abbott
Number of Pages: 683