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ty-sixth degree, on terms to be agreed on by On July 19, 1866, the United States and the Cherokees with such Indians, provided the Cherokee Nation entered into a treaty that, should any Indians settling in said country abandon their tribal organization, there being
(14 Stat. 799), the fifteenth article of which first paid into the Cherokee Nation a sum bear
is as follows: ing the same proportion to the Cherokee nation "The United States may settle any civial fund that the number of such Indians bore
lized Indians, friendly with the Cherokees to the number of Cherokees in the Cherokee country, they should be incorporated into and
and adjacent tribes, within the Cherokee ever after remain part of the Cherokee Nation, country, on unoccupied lands east of the on equal terms in every respect with native cit ninety-sixth degree, on such ternis as may izens"; but, should they decide to retain their be agreed upon by any such tribe and the tribal organization, they should have a distinct tract set off to them, by metes and bounds, Cherokees, subject to the approval of the equal to 100 acres for each member of the president of the United States, which shall tribe, for which they should pay into the Chero be consistent with the following provisions, kee fund a price to be agreed on by them with the Cherokee Nation; and the tribe thus settled
viz.: Should any such tribe or band or should also pay into the Cherokee fund a sum,
Indians settling in said country abanciou to be agreed on by the parties, not greater in their tribal organization, there being first proportion to the whole Cherokee fund and the
paid into the Cherokee national fund a sum probable proceeds of the lands which the treaty, authorized the United States to sell (the "strip"
of money which shall sustain the same pro. and "neutral” lands) than their numbers bore portion to the then existing national fund to the number of Cherokees, and thereafter that the number of Indians sustains to they should enjoy all the rights of native Cher
the whole number of Cherokees then reokees. Article 16 provided for location of any tribe, as a tribe, west of the ninty-sixth degree,
siding in the Cherokee country, they shall on land in a compact form, which should be
be incorporated into and ever after re. conveyed in fee simple to such tribe. April 8, 1867. the Cherokees and Delawares made a
main a part of the Cherokee Nation, on contract, which rererred to said treaty, and de
equal terms in every respect with native clared its purpose to be “a location of the Del citizens. And should any such tribe, thus awares upon the Cherokee lands and their con
settling in said country, decide to preserve solidation with the said Cherokee Nation." by
their tribal organizations, and to maintain which the Cherokees agreed to sell to the Delawares, for their occupancy, land east of the
their tribal laws, customs, and usages, not ninty-sixth degree, equal to 160 acres for each inconsistent with the constitution and laws of the Delawares who should elect to remove
of the Cherokee Nation, they shall have a to that country, their ownership and occupancy of which should not be interfered with, but
district of country set off for their use by should be subject to the same conditions and re metes and bounds equal to 160 acres, if they strictions as were placed on native citizens by should so decide, for each man, woman, and the laws of the Cherokee Nation, which provided that the lands of the Nation should re
child of said tribe, and shall pay for the main cummon property till surveyed and al same into the national fund such price as lotted in severalty. The contract also pro may be agreed on by them and the Cherokee vided that, should the Cherokee lands be allot
Nation, subject to the approval of the presited in severalty there should be guarantied to each Delaware, incorporated by the contract in
dent of the United States, and in cases of to the Cherokee Nation, 160 acres, including disagreement the price to be fixed by the his improvements. The Delawares agreed to president. pay from their fund one dollar an acre for the
"And the said tribe thus settled shall also land, and, in addition, to pay from their fund a sum bearing the same proportion to the Cher pay into the national fund a sum of money, okee national fund, including $1.000.000, the to be agreed on by the respective parties, not estimated value of the neutral lands, that their
greater in proportion to the whole existing numbers bore to the number of the Cherokees;
national fund and the probable proceeds of and it was stipulated that, this being done, ali such Delawares "shall become members of the the lands herein ceded or authorized to be Cherokee Nation, with the same rights and im ceded or sold than their numbers bear to munities, and the same participation (and no
the whole number of Cherokees then resid. other) in the national fund, as the native Cherokees.
And the children born of such ing in said country, and thence afterwards Delawares so incorporated into the Cherokee they shall enjoy all the rights of native Nation shall in all respects be regarded as na Cherokees. But no Indians who have no tive Cherokees." Held, that the Delawares who
tribal organizations, or who shall deterremoved to that county not only became members of the Cherokee Nation, but had equal
mine to abandon their tribal organizations, rights with nature Cherokers in all respects. - shall be permitted to settle east of the nine a practical construction, which was put on the
ty-sixth degree of longitude without the concontract by the Cherokees till 1882; that the provision as to the children of the Delawares
sent of the Cherokee National Council, or of was not to gireadditional rights to the children, a delegation duly appointed by it, being first but to secure to them the rights of their fa
obtained. And no Indians who have and thers; and that the "rights and immunities"
determine to preserve their tribal organizasecured were not political merely, but included property rights in the common lands as well as tions shall be permitted to settle, as herein the national fund which it was specifically pro provided, east of the ninety-sixth degree of vided they should participate in; and that this
longitude without such consent being first on construction was not affected by the fact that heir contribution was small if all the common
obtained, unless the president of the United lands were considered worth as much as the States. after a full hearing of the objections neutral lands were estimated at in the agree offered by said council or delegation to such ment. 28 Ct. Cl. 281, affirmed.
settlement, shall determine that the objecAppeal from the Court of Claims.
tions are insufficient, in which case he may
authorize the settlement of such tribe east The sections, as amended, read as follows: of the ninety-sixth degree of longitude." “Sec. 2. The lands of the Cherokee Nation
Prior to that time, and in 1839, the Chero shall remain common property until the na kee Nation had adopted a constitution, sec tiopal council shall request the survey and tion 2 of article 1 and section 5 of article 3 allotment of the same, in accordance with being in these words:
the provisions of article 20th of the treaty “Sec. 2. The lands of the Cherokee Nation of 19th July, 1866, between the United shall remain common property; but the im States and the Cherokee Nation." provements made thereon, and in the posses “Sec. 5. No person shall be eligible to a sion of the citizens of the Nation, are the seat in the national council but a male citi. exclusive and indefeasible property of the zen of the Cherokee Nation, who shall have citizens respectively who made or may right attained to the age of twenty-five years, fully be in possession of them: Provided, and who shall have been a bona fide resident that the citizens of the Nation possessing of the district in wbich he may be elected, exclusive and indefeasible right to their im at least six months immediately preceding provements, as expressed in this article, such election. All native-born Cherokees, all shall possess no rigbt or power to dispose of Indians, and whites legally members of the their improvements, in any manner what. Nation by adoption, and all freedmen who ever, to the United States, individual states, have been liberated by voluntary act of or to individual citizens thereof; and that, their former owners or by law, as well as whenever any citizen shall remove with his free colored persons wbo were in the couneffects out of the limits of this Nation, and
try at the commencement of the Rebellion, become a citizen of any other government, and are now residents therein, or who may all his rights and privileges as a citizen of return within six months from the 19th day this Nation shall cease: Provided, never of July, 1866, and their descendants, who theless, that the national council shall have
reside within the limits of the Cherokee Napower to readmit, by law, to all the rights
tion, shall be taken and deemed to be citi. of citizenship, any such person or persons zens of the Cherokee Nation." Const. & who may, at any time, desire to return to
Laws Cherokee Nation (Ed. 1892) pp. 31-33. the Nation, on memorializing the national
In pursuance of this treaty, and under this, council for such readmission."
amended constitution, the Cherokees and "Sec. 5. No person shall be eligible to a
Delawares came together, and entered into seat in the national council but a free Chero.
an agreement of date April 8, 1867, which, kee male citizen, who shall have attained
after referring to certain treaties, among to the age of twenty-five years.
them this of July 19, 1866, and reciting that “The descendants of Cherokee men by all a "full and free conference has been had befree women, except the African race, whose
tween the representatives of the Cherokees parents may have been living together as
and the Delawares, in view of the treaties man and wife, according to the customs and
herein referred to, looking to a location of laws of this Nation, shall be entitled to all
the Delawares upon the Cherokee lands, and the rights and privileges of this Nation as their consolidation with said Cherokee Nawell as the posterity of Cherokee women by tion,” stipulates as follows: all free men. No person who is of negro or “Now, therefore, it is agreed between the mulatto parentage, either by the father's or parties hereto, subject to the approval of the mother's side, shall be eligible to hold the president of the United States, as folany office of profit, honor or trust, under this lows: government." Const. & Laws Cherokee Nation (Ed. 1892), pp. 11, 12, 14.
for and in consideration of certain payments, * Immediately following the treaty, the and the fulfillment of certain conditions hereCherokee Nation amended these sections, inafter mentioned, agree to sell to the Delafirst adopting the following preamble: wares, for their occupancy, a quantity of
"Whereas, by the treaty executed at Wash land east of the line of the 96° west longiington, on the 13th day of July, A. D. 1866, tude, in the aggregate equal to one hundred between the United States and the Cherokee and sixty acres for each individual of the Nation, through its delegation, ratified by Delaware tribe who has been enrolled upon the senate and officially promulgated by the a certain register made February 18, 1867, president of the United States, August 11, by the Delaware agent, and on file in the 1866, certain things were agreed to between office of Indian affairs, being the list of the parties to said treaty, involving changes Dela wares who elect to remove to the 'Inin the constitution of the Cherokee Nation, dian Country,'to which list may be added, onwhich changes cannot be accomplished by ly with the consent of the Delaware council, the usual mode; and,
the names of such other Delawares as may, “Whereas, it is the desire of the people and within one month after the signing of this gorernment of the Cherokee Nation, to carry agreement, desire to be added thereto, and out in good faith all of its obligations, to the selections of the lands to be purchased the end that law and order be preserved, and by the Delawares may be made by said the institutions of their government main Delawares in any part of the Cherokee Res tained."
ervation east of said line of 96°, not already
1 lowThe Cherokees, parties of the first part,
211 cash, and all proceeds of stocks, when
selected and in possession of other parties; Cherokee national fund by the Delawares, and, in case the Cherokee lands shall bere it is hereby agreed by the parties hereto that after be allotted among the members of said the whole amount of the invested funds of Nation, it is agreed that the aggregate the Cherokees, after deducting all just claims amount of land herein provided for the thereon, is $678,000. Delawares, to include their improvements ac "And the Delawares further agree that, in cording to the legal subdivisions when sur calculating the total amount of said national veys are made (that is to say, one hundred fund, there shall be added to the aid sum of and sixty acres for each individual), shall be $678,000 the sum of $1,000,000, being the esguarantied to each Delaware incorporated timated value of the Cherokee neutral lands by these articles into the Cherokee Nation; in Kansas, thus making the whole Cherokee nor shall the continued ownership and occu national fund $1,678,000; and this last-menpancy of said land by any Delaware so reg tioned sum shall be taken as the basis for istered be interfered with in any manner what calculating the amount which the Delawares ever without his consent, but shall be subject are to pay into the common fund: to the same conditions and restrictions as "Provided that, as the $678,000 of funds * are*by the laws of the Cherokee Nation im now on hand belonging to the Cherokees is posed upon native citizens thereof:
chiefly composed of stocks of different values, “Provided, that nothing herein shall con the secretary of the interior may transfer fer the right to alienate, convey, or dispose of from the Delawares to the Cherokees a prop any such lands, except in accordance with er proportion of the stocks now owned by the constitution and laws of said Cherokee the Delawares of like grade and value, Nation.
wbich transfer shall be in part of the pro “And the said Delawares, parties of the rata contribution herein provided for by the second part, agree that there shall be paid to Delawares to the funds of the Cherokee Nathe said Cherokees from the Delaware funds, tion; but the balance of the pro rata connow held or hereafter received by the United tribution by the Delawares to said fund States, a sum of money equal to one dollar shall be in cash or United States bonds, at per acre for the whole amount of one hun their market value. dred and sixty acres of land for every individual Delaware who has already been reg ever the same may fall due or be sold, re istered upon the aforesaid list, made Feb ceived by the Cherokees from the Delawares ruary 18, 1867, with the additions thereto under the agreement, shall be invested and fore provided for.
applied in accordance with the 23d article “And the secretary of the interior is au of the treaty with the Cherokees of August thorized and requested to sell any United 11, 1866. States stocks belonging to the Delawares “On the fulfillment by the Delawares of the to procure funds necessary to pay for said foregoing stipulations, all the members of lands; but in case he shall not feel author the tribe registered as above provided shall ized, under existing treaties, to sell such become members of the Cherokee Nation, bonds belonging to the Delawares, it is with the same rights and immunities, and agreed that he may transfer such United the same participation (and no other) in the States bonds to the Cherokee Nation, at their national funds, as native Cherokees, save as market value, at the date of such transfer. hereinbefore provided.
“And the said Delawares further agree that “And the children hereafter born of such there shall be paid from their funds, now or Delawares so incorporated into the Cherokee hereafter to come into possession of the
Nation shall in all respects be regarded as United States, a sum of money which shall pative Cherokees.” sustain the same proportion to the existing In pursuance of this agreement, which was Cherokee national fund that the number of approved by the president of the United Delawares registered as above mentioned States, as stipulated in article 15 of the and removing to the Indian country sustains treaty, 985 Delawares removed to the territo the whole number of Cherokees residing tory of the Cherokees, paid $157,600 for thei in the Cherokee Nation; and, for the pur lands set apart for them, contributed $121,pose of ascertaining such relative numbers, 824.28, their share of the national fund as the registers of the Delawares herein referred provided, and became incorporated into the to, with made with Cherokee Nation.
At ment, shall be the basis of calculation as to Nation was possessed of the following tracts the Delawares; and an accurate census of or bodies of lands: the Cherokees residing in the Cherokee Na
Acres. tion shall be taken under the laws of that
Strip lands in Kansas (about)...... 400.000 Nation within four months, and properly cer
Neutral lands in Kansas (about). 1,000,000
Lands west of 96°, Indian Territory tified copies thereof filed in the office of (about)
8,000,000 Indian affairs, which shall be the basis of Lands east of 96°, Indian Territory, calculation as to the Cherokees.
Home Reservation (about)........ 5,000,000 “And that there may be no doubt hereafter By article 17 of the treaty the strip lands as to the amount to be contributed to the and the neutral lands were ceded to the
United States, to be sold for the benefit of native citizens." The other was where tho the Cherokee Nation. The sum expected to removal of the tribe to the Cherokee country be realized from the sale of the neutral lands should involve no abandonment of the tribal was, by the agreement between the Chero organization, in which case a distinct terri. kees and the Delawares, considered as al- tory was to be set off, by metes and bounds, ready received and a part of the Cherokee to the tribe removed. The one contemplated national fund. The proceeds of the sale of an absorption of individual Indians into the the strip lands were subsequently appropri Cherokee Nation; the other, a mere location ated to the uses of the Cherokee Nation as of a tribe within the limits of the Cherokee a Nation, and not for the benefit of the na Reservation. If the removed Indians were tive Cherokees alone, leaving as still the prop
to be absorbed into the* Cherokee Nation, erty of the Cherokee Nation the two bodies they were to be absorbed on equal terms of land in the Indian Territory (sometimes in every respect with native citizens. known as the "Home Reservation" and the In this connection reference may be bad “Cherokee Outlet”). Certain sums of money to article 16 of the treaty, which authorized were received by the Cherokee Nation for the government to settle friendly Indians in the rental of the Cherokee outlet. These any part of the Cherokee country west of sums the Cherokee council determined be the ninety-sixth degree of longitude. This longed wholly to the native Cherokees, to the article differs from article 15, in that it conexclusion of the Delawares. This brought templated a location of any friendly tribe about a controversy between the native
as a tribe, authorized the government to Cherokees and the Delawares, involving not place it anywhere within the reservation merely the right to share in these proceeds, west of the ninety-sixth degree of longitude, but also the interest of the Delawares in the on a tract in compact form, and provided for reservation and the outlet. On October 1, a conveyance of such tract in fee simple to 1990 (26 Stat. 636), an act of congress was
the located tribe. It thus provided for taking passed providing for a reference to the court a body of land out of this part of the Chero of claims of that controversy. Thereupon, kee Reservation, and removing it wholly from on October 29, 1890, this suit was brought, the jurisdiction of the Cherokee Nation, makthe United States being made a party de
ing a new reservation for the occupancy of fendant, not as having any adverse interest, the tribe to whom it was conveyed; while but as trustee, holding the funds of the Indi
in the case of Indians removed under the proans. The opinion of that court was filed visions of article 15, even though the tribal April 24, 1893 (28 Ct. Cl. 281), the conclusion organization was preserved, the general jurisbeing that the Delawares were incorporated
diction of the Cherokee Nation over the terinto the Cherokee Nation, and, as members ritory occupied by the removed tribe was not and citizens thereof, were entitled to equal
disturbed. rights in these lands and their proceeds. On Turning now to the agreement itself, its May 22, 1893, a decree was entered in ac purpose, as expressed in its preliminary lancordance with these views, from which de guage, was “a location of the Delawares upcree the Cherokee Nation and the United on the Cherokee lands and their consolidation States have appealed to this court.
with the said Cherokee Nation." There is no
provision for the setting apart of a distinct Chas. A. Maxwell and Geo. S. Chase, for body of land in any portion of the reservathe Cherokee Nation. Asst. Atty. Gen. tion for the Delaware tribe, but the agree Dodge, for the United States. Thos. C. ment is to sell to them for their occupancy a Fletcher and J. H. McGowan, for appellee. quantity of land equal in the aggregate to 160
acres for each individual Delaware who may Mr. Justice BREWER, after stating the "elect to remove to the Indian country," and facts in the foregoing language, delivered the “the selection of the amounts to be purchased opinion of the court
by the Delawares may be made by said Del. This case hinges on the status of the indi awares in any part of the said Cherokee Na. vidual Delawares as members and citizens tion east of said line of 96 degrees, not alof the Cherokee Nation, and the rights se ready selected and in possession of other par. cured to them by the agreement of April 8, ties." This contemplates personal selection 1967. In order to a correct understanding of separate tracts by individual Delawares. of this agreement, it is necessary to refer to Further, there is a guaranty “to each Delathe provisions of article 15 of the treaty of ware incorporated by these articles into the 1866. That article contemplated the settle Cherokee Nation" of the lands thus by him ment of other Indians within the limits of purchased, and that his ownership and occuthe Cherokee country east of the ninety-sixth pancy shall not be interfered with in any degree of longitude, and provided for such manner without his consent-not the consent settlement in two ways: One in which the of the Delaware tribe,-and also that it shall Indians settled should abandon their tribal be subject to the "same conditions and reorganization, in which case, as expressed, strictions as are by the laws of the Cherokee they were to "be incorporated into, and Nation imposed upon native citizens thereof." ever after remain a part of, the Cherokee But we are not limited to the plain inferences Nation, on equal terms in every respect with to be drawn from these expressions. The
positive provision at the close of the agree Under these treaties, and in December, ment is as follows:
1838, a patent was issued to the Cherokees "On the fulfillment by the Delawares of the for these lands. By that patent, whatever foregoing stipulations, all the members of the of title was conveyed was conveyed to the tribe registered as above provided shall be Cherokees as a nation, and no title was vestcome members of the Cherokee Nation, with ed in severalty in the Cherokees, or any of the same rights and immunities, and the them. The constitution of the Cherokee Nasame participations (and no other) in the na tion, both as originally adopted in 1839 and tional funds, as native Cherokees, save as as amended in 1860, declares in article 1, & hereinbefore provided.
2, that "the lands of the Cherokee Nation "And the children hereafter born of such shall remain common property"; and, while Delawares so incorporated into the Cherokee the amendment contemplates a time at Nation shall in all respects be regarded as
which these lands shall cease to be common native Cherokees.”
property, it is only when, by article 20 of the If nothing were presented other than the treaty of 1866, the national council shall reInnguage of the agreement, the conclusion quest that they be surveyed and allotted in would seem irresistible that the registered severalty to the Cherokees. Not only does Delawares-that is, those of the tribe who the Cherokee constitution thus provide that chose to remove from Kansas to the Indian the lands shall be common property, but Territory-were not only to become members also the legislation of the Cherokee Nation of the Cherokee Nation, but also to stand from 1839 on to the present time abounds equal with the native Cherokees in all the with acts speaking of these lands as "public rights springing out of citizenship in the domain" or "common property" of the CherCherokee Nation. Whatever rights the Cher okee Nation. Quite a number of these acts okees had the registered Delawares were to are collected in the opinion of the court of have, and it was an equality not limited to
claims in this case. the living Delawares; but, to guard against
Now, if these lands be the public domain, any misconception, there was the express the common property of the Cherokee Nadeclaration that the children of the registered tion, all who are recognized as members and Delawares should in all respects be regarded
citizens of that Nation are alike interested as native born Cherokees. This last clause and alike entitled to share in the profits and was not inserted with the view of giving ad
proceeds thereof. Given, therefore, the two * ditional rights to such children, but to pre propositions that the lands are the common vent any question as to their inheritance of property of the Cherokee Nation, and that all the rights wbich their fathers received un the*registered Delawares have become incorder the agreement.
porated into the Cherokee Nation, and are That the thirteen million of acres, whether
members and citizens thereof, it follows necappropriately styled its “common property" essarily that they are, equally with the naor its "public domain," belonged to the Cher tive Cherokees, the owners of, and entitled okee Nation as a nation, is beyond dispute.
to share in the profits and proceeds of, these By the treaty of May 6, 1928 (7 Stat. 311), it
lands. was provided in article 2 that “the United As against this conclusion, the argument States agree to possess the Cherokees, and
of the counsel for the Cherokees runs along to guaranty it to them forever, and that these lines: First, that the terms “rights guaranty is hereby solemnly pledged, of
and immunities” refer only to political rights to seven million acres of land, to be bounded and immunities, and do not include property as follows: * In addition to the sev
rights; second, that as it is specifically proen million of acres thus provided for, and
vided that the registered Delawares shall bounded, the United States further guaranty have equal participation in the national to the Cherokee Nation a perpetual outlet,
funds, while no* mention is made of these: west, and a free and unmolested use of all lands which constituted the bulk of the Cherthe country lying west of the western bound okee property, it is to be taken that no in. ary of the above described limits, and as far terest therein was intended to be transfer. west as the sovereignty of the United States red; third, that this is strengthened by the and their right of soil extend."
fact that there was a stipulation for the purBy subsequent treaties, of February 14, chase of certain lands at one dollar per 1833 (7 Stat. 411), and December 29, 1835 acre; and, fourth, that the contribution of (7 Stat. 478), certain changes were made in the Delawares to the national property was the boundaries of the reservation and the so small, and the value of these lands so outlet; and by article 3 of the latter treaty great, that it could not have been in the con. it was provided that “the United States also templation of the parties that the Delawares agree that the lands above ceded by the were to receive any interest in them. treaty of February 14, 1833, including the Commenting generally upon this line of aroutlet, and those ceded by this treaty, shall gument, it is rather an endcavor to induce all be included in one patent executed to the the court to reconstruct the contract, and Cherokee Nation of Indians by the president frame one more in accord with what, from. of the United States according to the provi the present standpoint, would seem to have sions of the act of May 23, 1830.".
been equitable, than to interpret the con-