tract which the parties made, in accordance with the plain import of the language which they used.

It is true that "rights and immunities" are often used as descriptive of only political rights and immunities, and do not necessarily include property rights; so that, if these were the only words by which the intent of the contracting parties was to be determined, there would be room for the argument that only political rights and immunities were intended to be granted. But it must be borne in mind that the rights and interest which the native Cherokees had in the reservation and outlet sprang solely from citizenship in the Cherokee Nation, and that the grant of equal rights as members of the Cherokee Nation naturally carried with it the grant of all rights springing from citizenship. So far as the provision in the agreement for the purchase of homes is concerned, it will be perceived that no absolute title to these homes was granted. We may take notice of the fact that the Cherokees, in their long occupation of this reservation, had generally secured homes for themselves; that the laws of the Cherokee Nation provided for the appropriation by the several Cherokees of lands for personal occupation, and that this purchase by the Delawares was with the view of securing to the individual Delawares the like homes; that the lands thus purchased and paid for still remained a part of the Cherokee Reservation. And, as a further consideration for the payment of this sum for the purchase of homes, the Delawares were guarantied, not merely the continued occupancy thereof, but also that, in case of a subsequent allotment in severalty of the entire body of lands among the members of the Cherokee Nation, they should receive an aggregate amount equal to that which they had purchased, and such a distribution as would secure to them the homes upon which they had settled, together with their improvements; so that if, when the allotment was made, there was for any reason not land enough to secure to each member of the Cherokee Nation 160 acres, the Delawares were to have at least that amount, and the deficiency would have to be borne by the native Cherokees pro rata. In other words, there was no purchase of a distinct body of lands, as in the case of the settlement of other tribes as tribes within the limits of the Cherokee Reservation. The individual Delawares took their homes in and remaining in the Cherokee Reservation, and as lands to be considered in any subsequent allotment in severalty among the members of the Cherokee Nation. All this was in the line of the expressed thought of a consolidation of these Delawares with, and absorption of them into, the Cherokee Nation as individual members thereof. If it be said that all of the Delaware trust funds were not turned into the national fund, it will be remembered that there was no impropriety in the reservation

of a part thereof, in order to enable the Delawares to make such improvements as they might desire on the tracts that they selected for homes, and also that there was no certainty that all the members of the Delaware tribe would elect to remove to the Cherokee country, and that those who remained in Kansas were entitled to their share in the Delaware national funds.

With regard to the claim that the Delawares paid an inconsiderable sum, if it was the intent that they should share equally with the native Cherokees in this vast body of lands included in the reservation and outlet, it will be borne in mind that the alleged gross inadequacy depends largely upon the value of these 13,000,000 of acres. Counsel for the Cherokees place this value at $1.25 per acre,-the minimum price for gov ernment lands,-and upon that valuation base their claim of inadequacy of consideration. They point to the fact that the neutral lands in Kansas were estimated in the agreement to be worth $1.25 an acre, and infer therefrom that the lands in the Indian Territory were of like value. But that is a mere inference, and over against it may be placed such facts as these: On June 14, 1866, only about a year before this agreement, the Creeks, by treaty, sold to the government a tract in the Indian Territory, estimated to contain 3,250,560 acres, at the price of 30 cents per acre. 14 Stat. 786. The Seminoles, on March 21, 1866, likewise ceded a tract estimated at 2,169,080 acres, at the rate of 15 cents an acre (Id. 756); and on April 28, 1866, the Choctaws and Chickasaws ceded a large tract, also in the territory. for the gross sum of $300,000,-a sum which, as counsel for the appellee stated, was only at the rate of about 5 cents an acre (Id. 769). The significance of these figures is not destroyed by the fact that in 1889 congress appropriated a large sum for both the Creeks and Seminoles,-to wit, to the Creeks the sum of $2,280,857.10, and to the Seminoles the sum of $1,912,942.02 (25 Stat. 758, 1004), -apparently in further payment of these lands; for. while this may tend to show that congress then felt that the Creeks and Seminoles had not received a full price for their lands, it is not inconsistent with the claim that in 1866 the contracting parties considered the lands to be worth only the stipulated price. Further than that, in pursuance of the provi sions of the fifth section of the act of May 29, 1872 (17 Stat. 190), an appraisement was made of the Cherokee lands west of the ninety-sixth meridian, which appraisement, approved by the president, fixed the value of a portion of such lands (230,014.04 acres) at 70 cents, and the balance (6,344,562.01 acres) at 47.49 cents, per acre. It may well be that land within the limits of a rapidlygrowing state were worth at the time of this agreement $1.25 per acre, while lands within the Indian Territory, situate as these were, were of much less value. Neither should too

much weight be given to the fact that the Delawares were to pay for their homes at the rate of $1 an acre, for by that purchase they acquired no title in fee simple, and it is not unreasonable to believe that the price thus fixed was not merely as compensation for the value of the lands (to be taken in the eastern portion of the reservation, where the body of the Cherokees had their homes, and therefore probably the most valuable portion of the entire reservation), but also as sufficient compensation for an interest in the entire body of lands, that interest be ing, like that of the native Cherokees, limited to a mere occupancy of the tracts set apart for homes, with the right to free use in common of the unoccupied portion of the reserve, and a right to share in any future allotment. At any rate, with the uncertainty that exists as to its value, it cannot be said to be clear that there was such gross inadequacy of consideration as is urged by the counsel for the Cherokees; certainly nothing which would justify a court of equity in setting aside the contract on the ground of inadequacy.

But, further, the thought of sale-at least of an early sale-was evidently not in contemplation of the parties, or in line with the then policy of the government. This Indian Territory was looked upon as the permanent home of the Indians. The government was making the effort to bring within its limits all the Indians from all parts of the land, and it was not in the contemplation of the government, or of these contracting parties, that at any early day these lands would be thrown open to settlement and sale, but rather the idea was that they were to be continued as their permanent place of abode. Considered as such, so long as each individual Indian, whether Delaware or Cherokee, had his particular tract for occupancy as a home, it was not unnatural or unequal that the vast body of the lands not thus specifically and personally appropriated should be treated as the common property of the nation, in respect to which all who were members thereof, whether by birth or adoption, should be entitled to equal rights and privileges. That there might come a time when an allotment in severalty would be advisable was something that was contemplated and provided for; and while, if allotment had been made at the time among the 13,573 Cherokees, there would have been enough land to have given each nearly 1,000 acres, yet, with the expected coming in of other tribes, either to take certain selected portions of the reservation as tribes by an absolute title, or to enlarge the numbers of the Cherokee Nation by adoption (as in the case of these Delawares), it was foreseen that the time might come when the allotment might not secure even 160 acres to each individual, and so was added the express guaranty that the purchasing Delawares should obtain at least that amount in the allotment. True, the

course of events has not been what was then contemplated, but, in order to determine the meaning of this contract, we must place ourselves in the circumstances of the parties at the time, with their surroundings and expectations. In that light we see nothing in the matters suggested by counsel sufficient to overthrow the plain import of the language used in the agreement, and must conclude that by such agreement the Delawares became incorporated into the Cherokee Nation, became members thereof, and, as such, entitled equally with the native Cherokees to all their rights in the reservation and outlet.

Further, it may be remarked that the action of the Cherokee Nation up to the year 1882 was in the line of the construction we have placed upon this contract, for up to that date there was no distinction made between the native Cherokees and these Delawares in the distribution of funds, from whatever source obtained. Out of the moneys received by the Cherokee Nation on account of lands west of the ninty-sixth degree set apart for the Osage Indians, under the act of June 5, 1872, $200,000 was distributed per capita, in which distribution the Delawares shared equally with the native Cherokees; and, again, when, on account of sales west of the ninty-sixth degree, congress, on June 16, 1880, appropriated $300,000, such sum was also paid out per capita, the Delawares sharing equally with the native Cherokees. Such action is of significance in determining the understanding of the parties to the contract. It is a practical interpretation by the parties themselves of the contract they made. It is also worthy of note that when, in 1883, a bill passed the national council for the payment to the native Cherokees alone of a certain sum of money received as rental from the Cherokee Strip Live-Stock Association, which, so far as appears, was the first manifestation of a claim of a difference between the native Cherokees and the registered Delawares as to the extent of their interests in the lands or the proceeds thereof, it was vetoed by D. W. Bushyhead, the then principal chief of the Cherokee Nation, on the ground that such action was in violation of the agreement of 1867. It is true the bill was passed over his veto. While the veto message is too long to quote in full, these extracts sufficiently disclose the reasons upon which it is based:

"(3) The 'patent' was made to the 'Cherokee Nation' in 1838, and the Cherokee Nation was then composed of citizens by right of blood, and so continued to be until the exigencies of the late war arose, when, in 1866, it became necessary to make a new treaty with the United States government. By this treaty, made by and with this Nation, other classes of persons were provided to be vested with all the rights of 'native Cherokees' upon specified conditions. These conditions have been fulfilled as regards the acknowl

edged colored citizens of this Nation and the so-called Delaware and Shawnee citizens. I refer you to article 9th of said treaty, in regard to colored citizens, and article 15th, first clause, as regards Indians provided to be settled east of 96°. The language is, they shall have all the rights of native Cherokees, 'and' they shall be incorporated into, and ever after remain a part of, the Cherokee Nation, on equal terms in every respect with native Cherokees.

"(6) If the lands of the Nation were and are the common property of citizens, then no citizen can be deprived of his or her right and interest in the property without doing an injustice, and without a violation of the constitution, which we are equally bound to observe and defend. While the lands remain common property, all citizens have an equal right to the use of it. When any of the land is sold under provisions of treaty, all citizens have an equal right to the proceeds of their joint property, whether divided per capita or invested.

"Senators, such is the treaty and such is the constitution. I have referred you to them, and stated their evident meaning in the premises 'to the best of my ability,' as is my duty. To the classes of citizens this bill would exclude, attach 'all the rights and privileges of citizenship according to the constitution.' To three of these classes attach also all the rights of 'native Cherokees,' according to treaty."

Further comment on this case is unnecessary. We see no error in the conclusions of the court of claims, and its decree is affirmed.

(155 U. S. 218)

UNITED STATES et al. v. BLACKFEATHER.

INDIANS

(November 19, 1894.) No. 671.

CONTRACT BETWEEN CHEROKEES AND
SHAWNEES-RIGHTS OF SHAWNEES-RE-
VIEW ON APPEAL.

1. Under the agreement of June 7, 1869, between the Cherokees and Shawnees, differing materially from that between the Cherokees and Delawares of April 8, 1867, only in that no provision is made for the purchase of homes by the Shawnees or payment on account thereof into the national fund of the Cherokees, the Shawnees have equal rights with the native Cherokees in all the common property of the Cherokee Nation.

2. An appellee, having taken no appeal, cannot in the appellate court question the decree of the trial court.

Appeal from the Court of Claims.

Chas. A. Maxwell and Geo. S. Chase, for the Cherokee Nation. Asst. Atty. Gen. Dodge, for the United States. Charles Brownell, for appellee.

Mr. Justice BREWER delivered the opinion of the court.

This case is similar to that just decided,, in which the same parties were appellants,) and Charles Journeycake, principal chief, etc., defendant. 15 Sup. Ct. 55. The petition was filed under the authority of the same act of October 1, 1890 (26 Stat. 636), and to enforce the claim of the Shawnee Indians domiciled in the Cherokee Nation to an equal interest in the Cherokee Reservation and Outlet, and the proceeds and profits thereof.

In pursuance of article 15 of the treaty of July 19, 1866, an agreement was, on June 7, 1869, entered into between the Shawnees and the Cherokee Nation, through their representatives, the substantial portions of which are as follows:

"Whereas, the Shawnee tribe of Indians are civilized and friendly with the Cherokees and adjacent tribes, and desire to settle within the Cherokee country on unoccupied lands east of 96°: It is therefore agreed by the parties hereto that such settlement may be made upon the following terms and conditions, viz.: That the sum of five thousand dollars belonging to the Shawnee tribe of Indians, and arising under the provisions of treaties between the United States and the said Shawnee Indians as follows, viz.: For permanent annuity for educational purposes, per fourth article of treaty 3d of August, 1795, and third article treaty 10th of May, 1854, one thousand dollars; for interest at five per cent. on forty thousand dollars for educational purposes, per third article of treaty 10th of May, 1854, two thousand dollars; for permanent annuity in specie for educational purposes, per fourth article of treaty 29th of September, 1817, and third article 10th of May, 1854, two thousand dollars, shall be paid annually to the Cherokee Nation of said Indians, and that the annuities and interests as recited and the investment or investments upon which the same are based shall hereafter become and remain the annuities and interest and investment or investments of the Cherokee Nation of Indians, the same as they have been the annuities and interest and investments of the Shawnee tribe of Indians. And that the sum of fifty thousand dollars shall be paid to the said Cherokees as soon as the same shall be received by the United States for the said Shawnees from the sales of the lands in the state of Kansas known as the 'Absentee, Shawnee Lands,' in accordance with the resolution of congress approved April 7, 1869, entitled 'A resolution for the relief of settlers upon the absentee Shawnee lands in Kansas,' and the provisions of the treaty between the United States and the Shawnee Indians concluded May 10, 1854, and also that the said Shawnees shall abandon their tribal organizations.

"And it is further agreed by the parties hereto that in consideration of the said payments and acts agreed upon as herein before stated, that the said Cherokees will receive

ས

the said Shawnees-referring to those now in Kansas, and also to such as properly belong to said tribe who may be at present elsewhere, and including those known as the absentee Shawnees now residing in the Indian Territory-into the country of the said Cherokees upon unoccupied lands east of 96°, and that the said Shawnees shall be incorporated into, and ever after remain a part of the Cherokee Nation, on equal terms in every respect and with all the privileges and immunities of native citizens of said Cherokee Nation: Provided, that all of the said Shawnees who shall elect to avail themselves of the provisions of this agreement shall register their names and permanently locate in the Cherokee country, as herein provided, within two years from the date hereof; otherwise they shall forfeit all rights under this agreement."

The rights of the petitioners are to be determined by this agreement in the light of article 15 of the treaty. The principal difference between this contract and that made between the Cherokees and the Delawares consists in the fact that in this there is no provision for the purchase of "homes" or any payment of moneys on account thereof into the national fund of the Cherokees; but, nevertheless, there is the express stipulation "that the said Shawnees shall be incorporated into, and ever after remain a part of, the Cherokee Nation, on equal terms in every respect and with all the privileges and immunities of native citizens of said Cherokee Nation."

For the reasons stated in the opinion in the former case, it must be held that this stipulation secured to the Shawnees equal rights with the native Cherokees in that which was the common property of the Cherokee Nation, to wit, the reservation and the outlet, as well as all profits and proceeds thereof.

So far, therefore, as the appellants are concerned, there was no error in the decree.

There is an application by the appellee for a modification of the decree increasing the sums awarded per capita to the Shawnees. It is enough to say in reference to this application that no appeal was taken by the appellee. Without an appeal, a party will not be heard in an appellate court to question the correctness of the decree of the trial court. The Stephen Morgan, 94 U. S. 599. The decree of the court of claims is affirmed.

(155 U. S. 180)

UNITED STATES v. BLACKFEATHER. (November 19, 1894.) No. 622.

INDIANS-SHAWNEE CLAIMS.

1. The Shawnee treaty of December 30, 1825, art. 4, obliged the government to keep a

blacksmith for the Indians' use for five years, "or as long as the president may deem it ad visable." The court of claims found that a certain sum had been paid the tribe for blacksmiths from 1825 to 1854, but did not find how much thereof had been paid in the five years or further period "deemed advisable." Held, that the government had no claim, in this regard, available as a set-off to a claim of said Indians.

2. The treaty of August 8, 1831, with the Ohio Shawnees, by article 7 obliged the United States to expose the lands ceded "to public sale to the highest bidder, in the manner of selling the public lands." A part of the lands was so sold at a price above $2 an acre. The rest was sold at private sale at $1.25. Held, that though the government failed in its trust by selling at private sale, yet in view of Act April 24, 1820, then in force, which required the public lands to be offered for sale at $1.25, and made those remaining unsold subject to private sale at that price, and on the assumption that the government acted as it deemed best for the tribe, the proof was against any claim for actual damages.

3. By article 7 of the treaty of August 8, 1831, with the Ohio Shawnees, it was agreed that the net proceeds of the ceded lands should constitute a fund on which the United States would pay the chiefs annually 5 per cent. "as an annuity" until dissolution of the fund by consent of the chiefs and people. A dissolution was had in 1852, and the amount resulting from actual sales was paid over to the chiefs. Held, that the annuity was not thereby terminated as to a balance thereafter remaining due on this account, and the court rightly allowed the claimant tribe interest thereon as "upon a contract expressly stipulating for the payment of interest.' Rev. St. § 1091.

4. Under the Shawnee treaty of May 10, 1854, the tribe became entitled to a certain sum, payable in installments to them individually, the portions of orphan children to be appropriated by the president as he should deem best for them. The president decided to pay them in severalty, and the Shawnee council created guardians, to whom a part of the money was paid. This never reached the orphans, and another part was embezzled by a United States officer. Held that, even if the tribe had any claim on the fund, it could not hold the United States liable for the embezzlements of its own appointed "guardians"; and, in the absence of a finding what part of the whole shortage these constituted, there was no basis for a decree against the government.

5. Act Oct. 1, 1890, authorizing suit in the court of claims to determine certain treaty rights of the Shawnee and Delaware Indians, by section 3 allowed said Indians counsel, and authorized the court to decree compensation not to exceed 10 per cent. of the amount recovered. Held that, though literally referring only to section 2, which related to suits against the Cherokee Nation and the United States, for moneys unlawfully diverted by said Nation, said section should also be read in connection with section 4, authorizing the suit against the United States for moneys diverted from the tribal fund.

Appeal from the Court of Claims.

This was a claim by the Shawnee tribe of Indians under a special act of congress passed October 1, 1890 (26 Stat. 636), conferring Jurisdiction upon the court of claims, subject to an appeal to this court, to hear and determine the just rights, in law or in equity, of the Shawnee and Delaware Indians under certain treaties with the government.

The fourth section of the act authorizes the Shawnees to bring suit to recover "any amount of money that in law or equity is due from the United States to said tribes in reimbursement of their tribal fund for money wrongfully diverted therefrom."

The original petition in the case was filed December 10, 1890. An amended petition was filed, by leave of the court, February 3, 1891, to which the defendants filed a traverse.

On July 6, 1892, an amended and supplemental act of congress was passed (27 Stat. 86), authorizing the Shawnees to present to the court of claims "all their claims against the United States and the Cherokee Nation, or against either or both of them, of every description whatsoever, arising out of treaty relations with the United States, rights growing out of such treaties, and from contracts, expressed or implied, under such treaties, made and entered into by and between the said Shawnees and Cherokees, and between them or either of them, and the United States."

Subsequently, on July 21, 1892, the appellee filed a second amenued petition in the court of claims, introducing claims not embraced in the former petition.

The United States interposed a general denial of the allegations of the petition and also made a counterclaim of $12,182.03, alleged to have been overpaid, under a treaty of 1825.

The case having been heard by the court of claims, the court, upon the evidence, made the following findings of fact:

"(1) The following is the Spanish grant to the Shawnee Indians, to which reference is made in the preamble of the treaty between the United States and the Shawnees in Missouri, proclaimed December 30, 1825:

"Delawares and Shawnees, claiming a tract of country*between the river St. Coure and Cape Gira'deau, and bounded on the east by the Mississippi and west by the White Water, district of Cape Gira'deau, produced to the board as follows, to wit:

""The Baron De Carondelet, knight of the faith of St. John, colonel of the royal armies, governor intendant general, subprefect of the provinces of Louisiana, west Florida, and inspector of their troops, etc. Be it known by these presents that, in consideration of the good and faithful services that the said Louis Lorimer has rendered to the state since he has been a subject of his Catholic majesty, we allow him to settle with the Delaware and Shawnee Indians who are under his control in such places as he may select in the province of Louisiana, on the right bank of the Mississippi, from the Missouri to the Arkansas river, which may have no governor, and both to hunt and plant thereon for the support of their families; and no commandant, officer, or king's subject shall have the power to oppose him in occupying the v.15s.c.-5

lands by him and the said Indians sown, planted, or settled, so long as they shall think proper to abide there: provided, in case they abandon them to move elsewhere, they will be considered as vacant; and, as for the house that the said Sir Louis Lorimer built at Cape Gira'deau, it shall remain in his possession, not to be taken from him for any reason except the sole ones of illicit commerce or corresponding with the enemies of the state.

""Wherefore we have given these presents, signed by our hand, and countersigned by the secretary of this government, and to which we have caused the seal of our arms to be affixed at New Orleans, on January 4, 1793. Le Baron De Carondelet. "Andres Lopez Armesto. "By order of his lordship.'

"(2) The Missouri band of Shawnees have received payments in accordance with the provisions of the treaty of 1825, but the following balance remains unpaid: $1,152.78.

"(3) The lands which the treaty of 1831, between the United States and the Ohio band of Shawnees, ceded to the defendant herein, were received and sold. Of these lands, between December 24, 1832, and December 31, 1832, 9,841.27 acres were sold at public sale to the highest bidder at the rate of $2.08% per acre. The total amount received for these lands is shown in finding 6. The rest of the land so ceded was sold at private sale at the rate of $1.25 per acre. Some of the land sold at this rate of $1.25 per acre had improvements upon it, but most of the land so sold was unimproved. The lands were sold with reasonable expedition. The last sale was June 30, 1840. The total amount of the lands ceded was 96,051.48

acres.

"The amount of land to be reserved to Francis Duquochet (article 11, treaty of 1831) was 320 acres.

"The amount of land to be reserved to Joseph Parks (article 13) was 640 acres. The amount of land, the price of which was to be reserved to the Michigan Shawnees (ar ticle 13), was 640 acres.

"(4) Whether the Shawnees, who, in 1831, resided on the river Huron, Michigan, have expressed a desire to follow the Shawnees of Wapaghkonnetta to their residence west of the Mississippi, does not appear; nor does it appear that they have expressed a desire not to do so. Their wishes upon this subject are not disclosed.

"(5) Out of the proceeds of the land sales in Ohio, the United States has retained (at 70 cents per acre) the amount shown in finding 6; also, $6,994.40 the cost of the gristmill and sawmill; also, $1,011, the cost of surveying; also, $13,000 for improvements.

"(6) The following is the account between the United States and the Shawnee tribe un der treaty of 1831: