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tract whicb. the parties made, in accordance of a part thereof, in order to enable the Delawith the plain import of the language which wares to make such improvements as they they used.

might desire on the tracts that they selected It is true that "rights and immunities” are for homes, and also that there was no ceroften used as descriptive of only political tainty that all the members of the Delaware rights and immunities, and do not necessarily tribe would elect to remove to the Cherokee include property rights; so that, if these

country, and that those who remained in were the only words by which the intent of Kansas were entitled to their share in the the contracting parties was to be determined, Delaware national funds. there would be room for the argument that With regard to the claim that the Delaonly political rights and immunities were in wares paid an inconsiderable sum, if it was tended to be granted. But it must be borne the intent that they should share equally in mind that the rights and interest which with the native Cherokees in this vast body the native Cherokees had in the reservation of lands included in the reservation and outand outlet sprang solely from citizenship in let, it will be borne in mind that the althe Cherokee Nation, and that the grant of leged gross inadequacy depends largely upon equal rights as members of the Cherokee Na the value of these 13,000,000 of acres. Couption naturally carried with it the grant of all sel for the Cherokees place this value at rights springing from citizenship. So far as $1.25 per acre,—the minimum price for gov. the provision in the agreement for the pur ernment lands,-and upon that valuation basechase of homes is concerned, it will be per their claim of inadequacy of consideration." ceived that no absolute title to these homes They point to the fact that the neutral lands was granted. We may take notice of the in Kansas were estimated in the agreement fact that the Cherokees, in their long occu to be worth $1.25 an acre, and infer therepation of this reservation, had generally se from that the lands in the Indian Territory cured homes for themselves; that the laws were of like value. But that is a mere inof the Cherokee Nation provided for the ap ference, and over against it may be placed propriation by the several Cherokees of lands such facts as these: On June 14, 1866, only for personal occupation, and that this pur about a year before this agreement, the chase by the Delawares was with the view Creeks, by treaty, sold to the government a of securing to the individual Delawares the tract in the Indian Territory, estimated to like homes; that the lands thus purchased contain 3,250,560 acres, at the price of 30 and paid for still remained a part of the cents per acre. 14 Stat. 786. The SemiCherokee Reservation. And, as a further noles, on March 21, 1866, likewise ceded a consideration for the payment of this sum tract estimated at 2,169,080 acres, at the for the purchase of homes, the Delawares rate of 15 cents an acre (Id. 756); and on were guarantied, not merely the continued oc April 28, 1866, the Choctaws and Chickasaws cupancy thereof, but also that, in case of a ceded a large tract, also in the territory, subsequent allotment in severalty of the en for the gross sum of $300,000,-a sum which, tire body of lands among the members of the as counsel for the appellee stated, was only Cherokee Nation, they should receive an ag. at the rate of about 5 cents an acre (Id. 769). gregate amount equal to that which they had The significance of these figures is not depurchased, and such a distribution as would stroyed by the fact that in 1889 congress apsecure to them the homes upon which they propriated a large sum for both the Creeks had settled, together with their improve and Seminoles,-to wit, to the Creeks the ments; so that if, when the allotment was sum of $2,280,857.10, and to the Seminoles made, there was for any reason not land the sum of $1,912,942.02 (25 Stat. 758, 1004), enough to secure to each member of the apparently in further payment of these Cherokee Nation 160 acres, the Delawares lands; for. while this may tend to show that were to have at least that amount, and the congress then felt that the Creeks and Semideficiency would have to be borne by the noles had not received a full price for their native Cherokees pro rata. In other words, lands, it is not inconsistent with the claim that there was no purchase of a distinct body of in 1866 the contracting parties considered the lands, as in the case of the settlement of oth lands to be worth only the stipulated price. er tribes as tribes within the limits of the Further than that, in pursuance of the provi. Cherokee Reservation. The individual Dela sions of the fifth section of the act of May wares took their homes in and remaining in 29, 1872 (17 Stat. 190), an appraisement was the Cherokee Reservation, and as lands to be made of the Cherokee lands west of the considered in any subsequent allotment in ninety-sixth meridian, which appraisement, severalty among the members of the Chero

approved by the president, fixed the value kee Nation. All this was in the line of the of a portion of such lands (230,014.04 acres) expressed thought of a consolidation of these at 70 cents, and the balance (6,314,562.01 Delawares with, and absorption of them in acres) at 47.49 cents, per acre. It may well to, the Cherokee Nation as individual mem be that land within the limits of a rapidlybers thereof. If it be said that all of the growing state were worth at the time of this Delaware trust funds were not turned into agreement $1.25 per acre, while lands within the national fund, it will be remembered that the Indian Territory, situate as these were, there was no impropriety in the reservation were of much less value. Neither showd too

much weight be given to the fact that the course of events has not been what was then Delawares were to pay for their homes at contemplated, but, in order to determine the

the rate of $1 an acre, for by that purchase meaning of this contract, we must place ourthey acquired no title*in fee simple, and it selves in the circumstances of the parties is not unreasonable to believe that the price at the time, with their surroundings and exthus fixed was not merely as compensation pectations. In that light we see nothing in for the value of the lands (to be taken in the matters suggested by counsel sufficient the eastern portion of the reservation, where to overthrow the plain import of the lanthe body of the Cherokees had their homes, guage used in the agreement, and must conand therefore probably the most valuable clude that by such agreement the Delawares portion of the entire reservation), but also became incorporated into the Cherokee Naas sufficient compensation for an interest tion, became members thereof, and, as such, in the entire body of lands, that interest be entitled equally with the native Cherokees ing, like that of the native Cherokees, limited to all their rights in the reservation and outto a mere occupancy of the tracts set apart let. for homes, with the right to free use in com Further, it may be remarked that the acmon of the unoccupied portion of the reserve, tion of the Cherokee Nation up to the year and a right to share in any future allot 1882 was in the line of the construction we ment. At any rate, with the uncertainty that have placed upon this contract, for up to exists as to its value, it cannot be said to be that date there was no distinction made beclear that there was such gross inadequacy tween the native Cherokees and these Delaof consideration as is urged by the counsel wares in the distribution of funds, from for the Cherokees; certainly nothing which whatever source obtained. Out of the monwould justify a court of equity in setting eys received by the Cherokee Nation on acaside the contract on the ground of inade count of lands west of the ninty-sixth degree quacy.

set apart for the Osage Indians, under the But, further, the thought of sale—at least act of June 5, 1872, $200,000 was distributed of an early sale-was evidently not in con per capita, in which distribution the Delatemplation of the parties, or in line with the wares shared equally with the native Cherothen policy of the government. This Indian

kees; and, again, when, on account of sales Territory was looked upon as the permanent west of the ninty-sixth degree, congress, on home of the Indians. The government was June 16, 1880, appropriated $300,000, such making the effort to bring within its limits sum was also paid out per capita, the Delaall the Indians from all parts of the land, and wares sharing equally with the native Cherit was not in the contemplation of the govern okees. Such action is of significance in dement, or of these contracting parties, that termining the understanding of the parties at any early day these lands would be to the contract. It is a practical interpretathrown open to settlement and sale, but tion by the parties themselves of the conrather the idea was that they were to be tract they made. It is also worthy of note continued as their permanent place of abode. that when, in 1883, a bill passed the national Considered as such, so long as each individ council for the payment to the native Cheroual Indian, whether Delaware or Cherokee, kees alone of a certain sum of money received had his particular tract for occupancy as as rental from the Cherokee Strip Live-Stocka a home, it was not unnatural or unequal that Association, which," so far as appears, was the the vast body of the lands not thus specifical first manifestation of a claim of a difference ly and personally appropriated should be between the native Cherokees and the registreated as the common property of the nation, tered Delawares as to the extent of their inin respect to which all who were members terests in the lands or the proceeds thereof, it thereof, whether by birth or adoption, should was vetoed by D. W. Bushyhead, the then be entitled to equal rights and privileges. principal chief of the Cherokee Nation, on the That there might come a time when an allot ground that such action was in violation of ment in severalty would be advisable was the agreement of 1867. It is true the bill something that was contemplated and pro was passed over his veto. While the veto vided for; and while, if allotment had been message is too long to quote in full, these exmade at the time among the 13,573 Chero tracts sufficiently disclose the reasons upon kees, there would have been enough land to which it is based: have given each nearly 1,000 acres, yet, with “(3) The ‘patent' was made to the 'Cherokee the expected coming in of other tribes, either Nation' in 1838, and the Cherokee Nation was to take certain selected portions of the res then composed of citizens by right of blood, ervation as tribes by an absolute title, or to and so continued to be until the exigencies enlarge the numbers of the Cherokee Nation of the late war arose, when, in 1866, it beby adoption (as in the case of these Dela came necessary to make a new treaty with wares), it was foreseen that the time might the United States government By this come when the allotment might not secure treaty, made by and with this Nation, other even 160 acres to each individual, and so classes of persons were provided to be vested was added the express guaranty that the with all the rights of 'native Cherokees' uppurchasing Delawares should obtain at least on specified conditions. These conditions that amount in the allotment. True, the have been fulfilled as rocards the acknowl

The pe

edged colored citizens of this Nation and the This case is similar to that just decided, so-called Delaware and Shawnee citizens. I in which the same parties were appellants, refer you to article 9th of said treaty, in re and Charles Journeycake, principal* chief, gard to colored citizens, and article 15th, first etc., defendant. 15 Sup. Ct. 55. clause, as regards Indians provided to be set tition was filed under the authority of the tled east of 96o. The language is, they shall same act of October 1, 1890 (26 Stat. 636), have all the rights of native Cherokees, 'and' and to enforce the claim of the Shawnee they shall be incorporated into, and ever aft Indians domiciled in the Cherokee Nation er remain a part of, the Cherokee Nation, on to an equal interest in the Cherokee Reservaequal terms in every respect with native tion and Outlet, and the proceeds and profits Cherokees.

thereof.

In pursuance of article 15 of the treaty of "(6) If the lands of the Nation were and July 19, 1866, an agreement was, on June 7, are the common property of citizens, then no 1869, entered into between the Shawnees citizen can be deprived of his or her right and the Cherokee Nation, through their repand interest in the property without doing an

resentatives, the substantial portions of injustice, and without a violation of the con

which are as follows: stitution, which we are equally bound to ob “Whereas, the Shawnee tribe of Indians serve and defend. While the lands remain are civilized and friendly with the Cherokees common property, all citizens have an equal

and adjacent tribes, and desire to settle withright to the use of it. When any of the land

in the Cherokee country on unoccupied lands is sold under provisions of treaty, all citi

east of 96°: It is therefore agreed by the zens have an equal right to the proceeds of

parties hereto that such settlement may be their joint property, whether divided per cap

made upon the following terms and condiita or invested.

tions, viz.: That the sum of five thousand “Senators, such is the treaty and such is dollars belonging to the Shawnee tribe of the constitution. I have referred you to Indians, and arising under the provisions of them, and stated their evident meaning in

treaties between the United States and the the premises 'to the best of my ability,' as is

said Shawnee Indians as follows, viz.: For my duty. To*the classes of citizens this bill permanent annuity for educational purposes, would exclude, attach 'all the rights and

per fourth article of treaty 3d of August, privileges of citizenship according to the con 1795, and third article treaty 10th of May, stitution.' To three of these classes attach 1854, one thousand dollars; for interest at also all the rights of 'native Cherokees,' ac five per cent. on forty thousand dollars for cording to treaty."

educational purposes, per third article of Further comment on this case is unnecessa treaty 10th of May, 1854, two thousand dolry. We see no error in the conclusions of the lars; for permanent annuity in specie for educourt of claims, and its decree is affirmed. cational purposes, per fourth article of treaty

29th of September, 1817, and third article 10th

of May, 1854, two thousand dollars, shall be (155 U. S. 218)

paid annually to the Cherokee Nation of

said Indians, and that the annuities and inter UNITED STATES et al. v. BLACK

ests as recited and the investment or in. FEATHER.

vestments upon which the same are based (November 19, 1894.)

shall hereafter become and remain the anNo. 671.

nuities and interest and investment or inINDIANS CONTRACT BETWEEN CHEROKEES AND vestments of the Cherokee Nation of Indians, SHAWNEES-RIGITS OF SHAWNEES-RE the same as they have been the annuities VIEW ON APPEAL.

and interest and investments of the Shawnee 1. Under the agreement of June 7, 1869, between the Cherokees and Shawnees, differ

tribe of Indians. And that the sum of fifty ing materially from that between the Cherokees

thousand dollars shall be paid to the said and Delawares of April 8, 1867, only in that no Cherokees as soon as the same shall be reprovision is made for the purchase of homes by

ceived by the United States for the said the Shawnees or payment on account thereof into the national fund of the Cherokees, the

Shawnees from the sales of the lands in the Shawnees have equal rights with the native state of Kansas known as the 'Absentee, Cherokees in all the common property of the Shawnee Lands,'in accordance with the reso a Cherokee Nation. 2. An appellee, having taken no appeal,

lution of congress approved April 7, 1869, en. cannot in the appellate court question the de

titled 'A resolution for the relief of settlers cree of the trial court.

upon the absentee Shawnee lands in Kansas,'

and the provisions of the treaty between the Appeal from the Court of Claims.

United States and the Shawnee Indians conChas. A. Maxwell and Geo. S. Chase, for cluded May 10, 1854, and also that the said the Cherokee Nation. Asst. Atty. Gen. Dodge, Shawnees shall abandon their tribal organi. for the United States. Charles Brownell, for zations. appellee.

“And it is further agreed by the parties

hereto that in consideration of the said payMr. Justice BREWER delivered the opin ments and acts agreed upon as hereinbefore ion of the court.

stated, that the said Cherokees will receive

the said Shawnees-referring to those now in blacksmith for the Indians' use for five years, Kansas, and also to such as properly belong or as long as the president may deem it ad. to said tribe who may be at present else

visable." The court of claims found that a

certain sum had been paid the tribe for blackwhere, and including those known as the ab smiths from 1825 to 1854, but did not find how sentee Shawnees now residing in the Indian much thereof had been paid in the five years Territory-into the country of the said Chero

or further period "deemed advisable.” Held,

that the government had no claim, in this rekecs upon unoccupied lands east of 96°, and

gard, available as a set-off to a claim of said that the said Shawnees shall be incorporated Indians. into, and ever after remain a part of the 2. The treaty of August 8, 1831, with the Cherokee Nation, on equal terms in every re

Ohio Shawnees, by article 7 obliged the United

States to expose the lands ceded “to public sale spect and with all the privileges and immuni.

to the highest bidder, in the manner of selling ties of native citizens of said Cherokee Na the public lands." A part of the lands was so tion: Provided, that all of the said Shawnees sold at a price above $2 an acre. The rest was who shall elect to avail themselves of the

sold at private sale at $1.25. Held, that though

the government failed in its trust by selling at provisions of this agreement shall register private sale, yet in view of Act April 24, 1820, their names and permanently locate in the then in force, which required the public lands Cherokee country, as herein provided, with

to be offered for sale at $1.25, and made those in two years from the date hereof; other

remaining unsold subject to private sale at

that price, and on the assumption that the gov. wise they shall forfeit all rights under this ernment acted as it deemed best for the tribe, agreement."

the proof was against any claim for actual The rights of the petitioners are to be de

damages.

3. By article 7 of the treaty of August 8, termined by this agreement in the light of ar

1831, with the Ohio Shawnees, it was agreed ticle 15 of the treaty. The principal differ that the net proceeds of the ceded lands should ence between this contract and that made be constitute a fund on which the United States

would pay the chiefs annually 5 per cent. “as tween the Cherokees and the Delawares con

an annuity" until dissolution of the fund by sists in the fact that in this there is no pro consent of the chiefs and people. A dissoluvision for the purchase of “homes" or any tion was had in 1852, and the amount resultpayment of moneys on account thereof into

ing from_actual sales was paid orer to the

chiefs. Held, that the annuity was not thereby the national fund of the Cherokees; but, terminated as to a balance thereafter remains nevertheless, there is the express stipulation ing due on this account, and the court rightly “that the said Shawnees shall be incorporat

allowed the claimant tribe interest thereon as ed into, and ever after remain a part of, the

"upon a contract expressly stipulating for the Cherokee Nation, on equal terms in every re

payment of interest. Rev. St. 1091.

4. Under the Shawnee treaty of May 10, spect and with all the privileges and immuni 1854, the tribe became entitled to a certain ties of native citizens of said Cherokee Na sum, payable in installments to them individu

ally, the portions of orphan children to be aption."

propriated by the president as he should deem For the reasons stated in the opinion in best for them. The president decided to pay the former case, It must be held that this them in severalty, and the Shawnee council stipulation secured to the Shawnees equal

created guardians. to whom a part of the mon

ey was paid. This never reached the orphans, rights with the native Cherokees in that

and another part was embezzled by a United which was the common property of the States officer. Held that, even if the tribe had Cherokee Nation, to wit, the reservation and

any claim on the fund, it could not hold the the outlet, as well as all profits and proceeds

United States liable for the embezzlements of

its own appointed "guardians''; and, in the thereof.

absence of a finding what part of the whole * So far, therefore, as the appellants are con shortage these constituted, there was no basis cerned, there was no error in the decree.

for a decree against the government.

5. Act Oct. 1, 1890, authorizing suit in the There is an application by the appellee for

court of claims to determine certain treaty a modification of the decree increasing the rights of the Shawnee and Delaware Indians, sums awarded per capita to the Shawnees.

by section 3 allowed said Indians counsel, and It is enough to say in reference to this ap

authorized the court to decree compensation not

to exceed 10 per cent. of the amount recorered. plication that no appeal was taken by the

Held that, though literally referring only to secappellee. Without an appeal, a party will tion 2, which related to suits against the Chernot be heard in an appellate court to ques

okee Nation and the United States, for moneys tion the correctness of the decree of the trial

unlawfully diverted by said Nation, said sec

tion should also be read in connection with court. The Stephen Morgan, 94 U. S. 599. section 4, authorizing the suit against the

The decree of the court of claims is ar. United States for moneys diverted from the firmed.

tribal fund.

Appeal from the Court of Claims. (153 U. S. 180)

* This was a claim by the Shawnee tribe of

Indians under a special act of congress passUNITED STATES v. BLACKFEATHER.

ed October 1, 1990 (26 Stat. 636), conferring (November 19, 1891.)

jurisdiction upon the court of claims, subNo. 622.

ject to an appeal to this court, to hear and INDIANS-SHAWNEE CLAIMS.

determine the just rights, in law or in equity, 1. The Shawnee treaty of December 30,

of the Shawnee and Delaware Indians under 1825, art. 4, ubliged the government to keep a certain treaties with the government.

181

The fourth section of the act authorizes lands by him and the said Indians sown, the Shawnees to bring suit to recover "any planted, or settled, so long as they shall amount of money that in law or equity is think proper to abide there: provided, in due from the United States to said tribes in case they abandon them to move elsewhere, reimbursement of their tribal fund for mon they will be considered as vacant; and, as ey wrongfully diverted therefrom."

for the house that the said Sir Louis Lorimer The original petition in the case was filed built at Cape Gira'deau, it shall remain in December 10, 1890. An amended petition bis possession, not to be taken from him for was filed, by leave of the court, February 3,

any reason except the sole ones of illicit 1891, to which the defendants filed a tra

commerce or corresponding with the eneverse.

mies of the state. On July 6, 1892, an amended and supple “ 'Wherefore we have given these presents, mental act of congress was passed (27 Stat.

signed by our hand, and countersigned by 86), authorizing the Shawnees to present to

the secretary of this government, and to the court of claims "all their claims against

which we have caused the seal of our arms the United States and the Cherokee Nation,

to be affixed at New Orleans, on January 4, or against either or both of them, of every de

1793.

Le Baron De Carondelet. scription whatsoever, arising out of treaty re

'Andres Lopez Armesto. lations with the United States, rights grow

'By order of his lordship.' ing out of such treaties, and from contracts,

(2) The Missouri band of Shawnees have expressed or implied, under such treaties,

received payments in accordance with the made and entered into by and between the said Shawnees and Cherokees, and between

provisions of the treaty of 1825, but the fol

lowing balance remains unpaid: $1,152.78. them or either of them, and the United

“(3) The lands which the treaty of 1831, States."

between the United States and the Ohio Subsequently, on July 21, 1892, the appel

band of Shawnees, ceded to the defendant lee filed a second amenued petition in the

herein, were received and sold. of these court of claims. introducing claims not em

lands,* between December 24, 1832, and Debraced in the former petition. The United States interposed a general de

cember 31, 1832, 9,841.27 acres were sold at nial of the allegations of the petition and

public sale to the highest bidder at the rate

of $2.0834 per acre. The total amount realso made a counterclaim of $12,182.03, al

ceived for these lands is shown in finding 6. leged to bave been overpaid, under a treaty

The rest of the land so ceded was sold at of 1825. The case having been heard by the court

private sale at the rate of $1.25 per acre. of claims, the court, upon the evidence, made

Some of the land sold at this rate of $1.25 the following findings of fact:

per acre had improvements upon it, but most (1) The following is the Spanish grant to

of the land so sold was unimproved. The the Shawnee Indians, to which reference is

lands were sold with reasonable expedition. made in the preamble of the treaty between

The last sale was June 30, 1810. The total the United States and the Shawnees in Mis

amount of the lands ceded was 96,051.48 souri, proclaimed December 30, 1825:

acres, “ 'Delawares and Shawnees, claiming a

“The amount of land to be reserved to tract of country between the river St. Coure

Francis Duquochet (article 11, treaty of 1831) and Cape Gira'deau, and bounded on the east

was 320 acres. by the Mississippi and west by the White

“The amount of land to be reserved to Water, district of Cape Gira'deau, produced Joseph Parks (article 13) was 640 acres. to the board as follows, to wit:

The amount of land, the price of which was ""The Baron De Carondelet, knight of the to be reserved to the Michigan Shawnees (ar. faith of St. John, colonel of the royal armies,

ticle 13), was 610 acres. governor intendant general, subprefect of

“(4) Whether the Shawnees, who, in 1831, the provinces of Louisiana, west Florida, resided on the river Huron, Michigan, have and inspector of their troops, etc. Be it expressed a desire to follow the Shawnees known by these presents that, in considera of Wapaghkonnetta to their residence wesi tion of the good and faithful services that the of the Mississippi, does not appear; nor does said Louis Lorimer has rendered to the state it appear that they have expressed a desire since he has been a subject of his Catholic

not to do so. Their wishes upon this subject miljesty, we allow him to settle with the are not disclosed. Delaware and Shawnee Indians who are un "(5) Out of the proceeds of the land sales der his control in such places as he may se

in Ohio, the United States bas retained (at lect in the province of Louisiana, on the right 70 cents per acre) the amount shown in find. bank of the Mississippi, from the Missouri ing 0; also, $6,994.40 the cost of the gristto the Arkansas river, which may have no mill and sawmill; also, $1,011, the cost of governor. and both to hunt and plant thereon surveying; also, $13,000 for improvements. for the support of their families; and no com "(6) The following is the account between mandant, officer, or king's subject shall have the United States and the Shawnee tribe un the power to oppose him in occupying the der treaty of 1831:

v.ls.C.-5

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