The Cherokees and the Delawares having, on the 8th day of April,
1867, in pursuance of the provisions of the treaty of July 19,
1866, 14 Stat. 799, between the United States and the Cherokee
Nation, entered into a contract whereby it was agreed that on the
fulfillment by the Delawares of the stipulations on their part
contained in said contract, all the members of that tribe,
registered as. provided in said contract, should become members of
the Cherokee Nation, with the same rights and immunities and the
same participation (and no other) in the national funds as native
Cherokees, except as otherwise provided in the contract, the so
registered Delawares were on such fulfillment of their stipulations
thereby incorporated into the Cherokee Nation, and, as members and
citizens thereof, were entitled to equal rights in the lands of
that Nation and their proceeds.
On July 19, 1866, the United States and the Cherokee Nation
entered into a treaty, 14 Stat. 799, the fifteenth article of which
is as follows:
"The United States may settle any civilized Indians, friendly
with the Cherokees and adjacent tribes, within the Cherokee
country, on unoccupied lands east of the ninety-sixth degree, on
such terms as may
Page 155 U. S. 197
be agreed upon by any such tribe and the Cherokees, subject to
the approval of the President of the United States, which shall be
consistent with the following provisions,
viz.: should any
such tribe or band of Indians setting in said country abandon their
tribal organization, there being first paid into the Cherokee
national fund a sum of money which shall sustain the same
proportion to the then existing national fund that the number of
Indians sustains to the whole number of Cherokees then residing in
the Cherokee country, they shall be incorporated into and ever
after remain a part of the Cherokee Nation, on equal terms in every
respect with native citizens. And should any such tribe, thus
settling in said country, decide to preserve their tribal
organizations, and to maintain their tribal laws, customs, and
usages, not inconsistent with the Constitution and laws of the
Cherokee Nation, they shall have a district of country set off for
their use by metes and bounds equal to one hundred and sixty acres,
if they should so decide, for each man, woman, and child of said
tribe, and shall pay for the same into the national fund such price
as may be agreed on by them and the Cherokee Nation, subject to the
approval of the President of the United States, and in cases of
disagreement, the price to be fixed by the President."
"And the said tribe thus settled shall also pay into the
national fund a sum of money, to be agreed on by the respective
parties, not greater in proportion to the whole existing national
fund and the probable proceeds of the lands herein ceded or
authorized to be ceded or sold than their numbers bear to the whole
number of Cherokees then residing in said country, and thence
afterwards they shall enjoy all the rights of native Cherokees. But
no Indians who have no tribal organizations, or who shall determine
to abandon their tribal organizations, shall be permitted to settle
east of the ninety-sixth degree of longitude without the consent of
the Cherokee National Council, or of a delegation duly appointed by
it, being first obtained. And no Indians who have and determine to
preserve their tribal organizations shall be permitted to settle,
as herein provided, east of the ninety-sixth degree of longitude
without such consent's being first obtained unless the President of
the United
Page 155 U. S. 198
States, after a full hearing of the objections offered by said
council or delegation to such settlement, shall determine that the
objections are insufficient, in which case he may authorize the
settlement of such tribe east of the ninety-sixth degree of
longitude."
Prior to that time, and in 1839, the Cherokee Nation had adopted
a Constitution, § 2 of article I and section 5 of article III
being in these words:
"SEC. 2. The lands of the Cherokee Nation shall remain common
property; but the improvements made thereon, and in the possession
of the citizens of the Nation, are the exclusive and indefeasible
property of the citizens respectively who made or may rightfully be
in possession of them,
provided that the citizens of the
Nation possessing exclusive and indefeasible right to their
improvements, as expressed in this article, shall possess no right
or power to dispose of their improvements, in any manner whatever,
to the United States, individual states, or to individual citizens
thereof, and that, whenever any citizen shall remove with his
effects out of the limits of this Nation, and become a citizen of
any other government, all his rights and privileges as a citizen of
this Nation shall cease,
provided, nevertheless, that the
national council shall have power to readmit, by law, to all the
rights of citizenship, any such person or persons who may at any
time, desire to return to the Nation, on memorializing the national
council for such readmission."
"SEC. 5. No person shall be eligible to a seat in the national
council but a free Cherokee male citizen who shall have attained to
the age of twenty-five years."
"The descendants of Cherokee men by all free women, except the
African race, whose parents may have been living together as man
and wife according to the customs and laws of this Nation shall be
entitled to all the rights and privileges of this Nation as well as
the posterity of Cherokee women by all free men. No person who is
of negro or mulatto parentage, either by the father's or the
mother's side, shall be eligible to hold any office of profit,
honor or trust, under this government."
Const. and Laws Cherokee Nation, ed. of 1892, pp. 11, 12,
14.
Page 155 U. S. 199
Immediately following the treaty, the Cherokee Nation amended
these sections, first adopting the following preamble:
"Whereas, by the treaty executed at Washington on the 19th day
of July, A.D. 1866, between the United States and the Cherokee
Nation, through its delegation, ratified by the Senate and
officially promulgated by the President of the United States,
August 11, 1866, certain things were agreed to between the parties
to said treaty, involving changes in the Constitution of the
Cherokee Nation, which changes cannot be accomplished by the usual
mode; and,"
"Whereas, it is the desire of the people and government of the
Cherokee Nation to carry out in good faith all of its obligations,
to the end that law and order be preserved, and the institutions of
their government maintained."
The sections, as amended, read as follows:
"SEC. 2. The lands of the Cherokee Nation shall remain common
property until the national council shall request the survey and
allotment of the same, in accordance with the provisions of article
20th of the treaty of 19th July, 1866, between the United States
and the Cherokee Nation."
"SEC. 5. No person shall be eligible to a seat in the national
council but a male citizen of the Cherokee Nation who shall have
attained to the age of twenty-five years and who shall have been a
bona fide resident of the district in which he may be
elected at least six months immediately preceding such election.
All native-born Cherokees, all Indians, and whites legally members
of the Nation by adoption, and all freedmen who have been liberated
by voluntary act of their former owners or by law, as well as free
colored persons who were in the country at the commencement of the
Rebellion, and are now residents therein, or who may return within
six months from the 19th day of July, 1866, and their descendants,
who reside within the limits of the Cherokee Nation, shall be taken
and deemed to be citizens of the Cherokee Nation."
Constitution and Laws Cherokee Nation, ed. 1892, pp. 31-33.
In pursuance of this treaty and under this amended Constitution,
the Cherokees and Delawares came together and
Page 155 U. S. 200
entered into an agreement of date April 8, 1867, which, after
referring to certain treaties, among them this of July 19, 1866,
and reciting that a
"full and free conference has been had between the
representatives of the Cherokees and the Delawares, in view of the
treaties herein referred to, looking to a location of the Delawares
upon the Cherokee lands, and their consolidation with said Cherokee
Nation,"
stipulates as follows:
"Now therefore it is agreed between the parties hereto, subject
to the approval of the President of the United States, as
follows:"
"The Cherokees, parties of the first part, for and in
consideration of certain payments, and the fulfillment of certain
conditions hereinafter mentioned, agree to sell to the Delawares
for their occupancy a quantity of land east of the line of the
96� west longitude, in the aggregate equal to one hundred
and sixty acres for each individual of the Delaware tribe who has
been enrolled upon a certain register made February 18, 1867, by
the Delaware agent and on file in the office of Indian affairs,
being the list of Delawares who elect to remove to the 'Indian
Country,' to which list may be added, only with the consent of the
Delaware council, the names of such other Delawares as may, within
one month after the signing of this agreement, desire to be added
thereto, and the selections of the lands to be purchased by the
Delawares may be made by said Delawares in any part of the Cherokee
Reservation east of said line of 96� not already selected
and in possession of other parties, and in case the Cherokee lands
shall hereafter be allotted among the members of said Nation, it is
agreed that the aggregate amount of land herein provided for the
Delawares, to include their improvements according to the legal
subdivisions when surveys are made (that is to say, one hundred and
sixty acres for each individual) shall be guaranteed to each
Delaware incorporated by these articles into the Cherokee Nation;
nor shall the continued ownership and occupancy of said land by any
Delaware so registered be interfered with in any manner whatever
without his consent, but shall be subject to the same conditions
and restrictions as are
Page 155 U. S. 201
by the laws of the Cherokee Nation imposed upon native citizens
thereof:"
"Provided, that nothing herein shall confer the right to
alienate, convey, or dispose of any such lands, except in
accordance with the Constitution and laws of said Cherokee
Nation."
"And the said Delawares, parties of the second part, agree that
there shall be paid to the said Cherokees from the Delaware funds,
now held or hereafter received by the United States, a sum of money
equal to one dollar per acre for the whole amount of one hundred
and sixty acres of land for every individual Delaware who has
already been registered upon the aforesaid list, made February 18,
1867, with the additions theretofore provided for."
"And the Secretary of the Interior is authorized and requested
to sell any United States stocks belonging to the Delawares to
procure funds necessary to pay for said lands; but in case he shall
not feel authorized, under existing treaties, to sell such bonds
belonging to the Delawares, it is agreed that he may transfer such
United States bonds to the Cherokee Nation at their market value at
the date of such transfer."
"And the said Delawares further agree that there shall be paid
from their funds now or hereafter to come into possession of the
United States a sum of money which shall sustain the same
proportion to the existing Cherokee national fund that the number
of Delawares registered as above mentioned and removing to the
Indian country sustains to the whole number of Cherokees residing
in the Cherokee Nation, and for the purpose of ascertaining such
relative numbers, the registers of the Delawares herein referred
to, with such additions as may be made within one month from the
signing of this agreement, shall be the basis of calculation as to
the Delawares, and an accurate census of the Cherokees residing in
the Cherokee Nation shall be taken under the laws of that Nation
within four months, and properly certified copies thereof filed in
the Office of Indian Affairs, which shall be the basis of
calculation as to the Cherokees."
"And that there may be no doubt hereafter as to the
Page 155 U. S. 202
amount to be contributed to the Cherokee national fund by the
Delawares, it is hereby agreed by the parties hereto that the whole
amount of the invested funds of the Cherokees, after deducting all
just claims thereon, is $678,000."
"And the Delawares further agree that in calculating the total
amount of said national fund, there shall be added to the said sum
of $678,000 the sum of $1,000,000, being the estimated value of the
Cherokee neutral lands in Kansas, thus making the whole Cherokee
national fund $1,678,000, and this last-mentioned sum shall be
taken as the basis for calculating the amount which the Delawares
are to pay into the common fund:"
"Provided that, as the $678,000 of funds now on hand belonging
to the Cherokees is chiefly composed of stocks of different values,
the Secretary of the Interior may transfer from the Delawares to
the Cherokees a proper proportion of the stocks now owned by the
Delawares of like grade and value, which transfer shall be in part
of the
pro rata contribution herein provided for by the
Delawares to the funds of the Cherokee Nation; but the balance of
the
pro rata contribution by the Delawares to said fund
shall be in cash or United States bonds at their market value."
"All cash, and all proceeds of stocks, whenever the same may
fall due or be sold, received by the Cherokees from the Delawares
under the agreement, shall be invested and applied in accordance
with the 23d article of the treaty with the Cherokees of August 11,
1866."
"On the fulfillment by the Delawares of the foregoing
stipulations, all the members of the tribe registered as above
provided shall become members of the Cherokee Nation, with the same
rights and immunities, and the same participation (and no other) in
the national funds, as native Cherokees, save as hereinbefore
provided."
"And the children hereafter born of such Delawares so
incorporated into the Cherokee Nation shall in all respects be
regarded as native Cherokees."
In pursuance of this agreement, which was approved by the
President of the United States, as stipulated in article XV of the
treaty, 985 Delawares removed to the territory of the
Page 155 U. S. 203
Cherokees, paid $157,600 for the lands set apart for them,
contributed $121,824.28, their share of the national fund as
provided, and became incorporated into the Cherokee Nation.
At the time of this treaty, the Cherokee Nation was possessed of
the following tracts or bodies of lands:
Acres
Strip lands in Kansas (about) . . . . . . . . . 400,000
Neutral lands in Kansas (about) . . . . . . . . 1,000,000
Lands west of 96�, Indian Territory (about) . .
8,000,000
Lands east of 96�, Indian Territory,
Home Reservation (about). . . . . . . . . . . 5,000,000
By article XVII of the treaty, the strip lands and the neutral
lands were ceded to the United States, to be sold for the benefit
of the Cherokee Nation. The sum expected to be realized from the
sale of the neutral lands was, by the agreement between the
Cherokees and the Delawares, considered as already received, and a
part of the Cherokee national fund. The proceeds of the sale of the
strip lands were subsequently appropriated to the uses of the
Cherokee Nation as a Nation, and not for the benefit of the native
Cherokees alone, leaving as still the property of the Cherokee
Nation the two bodies of land in the Indian Territory (sometimes
known as the "Home Reservation" and the "Cherokee Outlet"). Certain
sums of money were received by the Cherokee Nation for the rental
of the Cherokee outlet. These sums the Cherokee council determined
belonged wholly to the native Cherokees, to the exclusion of the
Delawares. This brought about a controversy between the native
Cherokees and the Delawares, involving not merely the right to
share in these proceeds, but also the interest of the Delawares in
the reservation and the outlet. On October 1, 1890, c. 1249, 26
Stat. 636, an act of Congress was passed providing for a reference
to the Court of Claims of that controversy. Thereupon on October
29, 1890, this suit was brought, the United States being made a
party defendant, not as having any adverse interest, but as
trustee, holding the funds of the Indians. The Opinion of that
court was filed April 24, 1893, 28 Ct.Cl. 281, the conclusion being
that the
Page 155 U. S. 204
Delawares were incorporated into the Cherokee Nation, and, as
members and citizens thereof, were entitled to equal rights in
these lands and their proceeds. On May 22, 1893, a decree was
entered in accordance with these views, from which decree the
Cherokee Nation and the United States have appealed to this
Court.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case hinges on the status of the individual Delawares as
members and citizens of the Cherokee Nation, and the rights secured
to them by the agreement of April 8, 1867. In order to a correct
understanding of this agreement, it is necessary to refer to the
provisions of article XV of the treaty of 1866. That article
contemplated the settlement of other Indians within the limits of
the Cherokee country east of the ninety-sixth degree of longitude,
and provided for such settlement in two ways: one in which the
Indians settled should abandon their tribal organization, in which
case, as expressed, they were to "be incorporated into, and ever
after remain a part of, the Cherokee Nation, on equal terms in
every respect with native citizens." The other was where the
removal of the tribe to the Cherokee country should involve no
abandonment of the tribal organization, in which case a distinct
territory was to be set off by metes and bounds to the tribe
removed. The one contemplated an absorption of individual Indians
into the Cherokee Nation, the other a mere location of a tribe
within the limits of the Cherokee Reservation. If the removed
Indians were to be absorbed into the
Page 155 U. S. 205
Cherokee Nation, they were to be absorbed on equal terms in
every respect with native citizens.
In this connection, reference may be had to article XVI of the
treaty, which authorized the government to settle friendly Indians
in any part of the Cherokee country west of the ninety-sixth degree
of longitude. This article differs from article XV in that it
contemplated a location of any friendly tribe as a tribe,
authorized the government to place it anywhere within the
reservation west of the ninety-sixth degree of longitude, on a
tract in compact form, and provided for a conveyance of such tract
in fee simple to the located tribe. It thus provided for taking a
body of land out of this part of the Cherokee Reservation, and
removing it wholly from the jurisdiction of the Cherokee Nation,
making a new reservation for the occupancy of the tribe to whom it
was conveyed, while in the case of Indians removed under the
provisions of article XV, even though the tribal organization was
preserved, the general jurisdiction of the Cherokee Nation over the
territory occupied by the removed tribe was not disturbed.
Turning now to the agreement itself, its purpose, as expressed
in its preliminary language, was "a location of the Delawares upon
the Cherokee lands and their consolidation with the said Cherokee
Nation." There is no provision for the setting apart of a distinct
body of land in any portion of the reservation for the Delaware
tribe, but the agreement is to sell to them for their occupancy a
quantity of land equal in the aggregate to 160 acres for each
individual Delaware who may "elect to remove to the Indian
country," and
"the selection of the amounts to be purchased by the Delawares
may be made by said Delawares in any part of the said Cherokee
Nation east of said line of 96 degrees, not already selected and in
possession of other parties."
This contemplates personal selection of separate tracts by
individual Delawares. Further, there is a guaranty "to each
Delaware incorporated by these articles into the Cherokee Nation"
of the lands thus by him purchased, and that his ownership and
occupancy shall not be interfered with in any manner without his
consent -- not the consent of the Delaware tribe -- and also that
it shall be subject
Page 155 U. S. 206
to the "same conditions and restrictions as are by the laws of
the Cherokee Nation imposed upon native citizens thereof." But we
are not limited to the plain inferences to be drawn from these
expressions. The positive provision at the close of the agreement
is as follows:
"On the fulfillment by the Delawares of the foregoing
stipulations, all the members of the tribe registered as above
provided shall become members of the Cherokee Nation, with the same
rights and immunities, and the same participations (and no other)
in the national funds, as native Cherokees, save as hereinbefore
provided."
"And the children hereafter born of such Delawares no
incorporated into the Cherokee Nation shall in all respects be
regarded as native Cherokees."
If nothing were presented other than the language of the
agreement, the conclusion would seem irresistible that the
registered Delawares -- that is, those of the tribe who chose to
remove from Kansas to the Indian Territory -- were not only to
become members of the Cherokee Nation, but also to stand equal with
the native Cherokees in all the rights springing out of citizenship
in the Cherokee Nation. Whatever rights the Cherokees had the
registered Delawares were to have, and it was an equality not
limited to the living Delawares; but, to guard against any
misconception, there was the express declaration that the children
of the registered Delawares should in all respects be regarded as
native-born Cherokees. This last clause was not inserted with the
view of giving additional rights to such children, but to prevent
any question as to their inheritance of all the rights which their
fathers received under the agreement.
That the thirteen million of acres, whether appropriately styled
its "common property" or its "public domain," belonged to the
Cherokee Nation as a nation is beyond dispute. By the treaty of May
6, 1828, 7 Stat. 311, it was provided in article 2 that
"the United States agree to possess the Cherokees, and to
guaranty it to them forever, and that guaranty is hereby solemnly
pledged, of seven million acres of land, to be bounded as follows:
. . . In addition to the seven
Page 155 U. S. 207
million of acres thus provided for, and bounded, the United
States further guaranty to the Cherokee Nation a perpetual outlet
west and a free and unmolested use of all the country lying west of
the western boundary of the above described limits, and as far west
as the sovereignty of the United States and their right of soil
extend."
By subsequent Treaties of February 14, 1833, 7 Stat. 414, and
December 29, 1835, 7 Stat. 478, certain changes were made in the
boundaries of the reservation and the outlet, and by article 3 of
the latter treaty it was provided that
"the United States also agree that the lands above ceded by the
treaty of February 14, 1833, including the outlet, and those ceded
by this treaty, shall all be included in one patent executed to the
Cherokee Nation of Indians by the President of the United States
according to the provisions of the Act of May 28, 1830."
Under these treaties, and in December 1838, a patent was issued
to the Cherokees for these lands. By that patent, whatever of title
was conveyed was conveyed to the Cherokees as a nation, and no
title was vested in severalty in the Cherokees, or any of them. The
Constitution of the Cherokee Nation, both as originally adopted in
1839 and as amended in 1866, declares in article 1, section 2, that
"the lands of the Cherokee Nation shall remain common property,"
and, while the amendment contemplates a time at which these lands
shall cease to be common property, it is only when, by article 20
of the treaty of 1866, the national council shall request that they
be surveyed and allotted in severalty to the Cherokees. Not only
does the Cherokee Constitution thus provide that the lands shall be
common property, but also the legislation of the Cherokee Nation
from 1839 on to the present time abounds with acts speaking of
these lands as "public domain" or "common property" of the Cherokee
Nation. Quite a number of these acts are collected in the opinion
of the Court of Claims in this case.
*
Page 155 U. S. 208
Now, if these lands be the public domain, the common property of
the Cherokee Nation, all who are recognized as
Page 155 U. S. 209
members and citizens of that Nation are alike interested and
alike entitled to share in the profits and proceeds thereof.
Page 155 U. S. 210
Given, therefore, the two propositions that the lands are the
common property of the Cherokee Nation, and that the registered
Page 155 U. S. 211
Delawares have become incorporated into the Cherokee Nation, and
are members and citizens thereof, it follows necessarily that they
are, equally with the native Cherokees, the owners of, and entitled
to share in the profits and proceeds of, these lands.
As against this conclusion, the argument of the counsel for the
Cherokees runs along these lines: first, that the terms "rights and
immunities" refer only to political rights and immunities, and do
not include property rights; second, that as it is specifically
provided that the registered Delawares shall have equal
participation in the national funds, while no
Page 155 U. S. 212
mention is made of these lands which constituted the bulk of the
Cherokee property, it is to be taken that no interest therein was
intended to be transferred; third, that this is strengthened by the
fact that there was a stipulation for the purchase of certain lands
at one dollar per acre; and, fourth, that the contribution of the
Delawares to the national property was so small, and the value of
these lands so great, that it could not have been in the
contemplation of the parties that the Delawares were to receive any
interest in them.
Commenting generally upon this line of argument, it is rather an
endeavor to induce the court to reconstruct the contract, and frame
one more in accord with what, from the present standpoint, would
seem to have been equitable than to interpret the contract 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
Page 155 U. S. 213
for the purchase of homes, the Delawares were guaranteed 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 government lands
-- and upon that valuation base
Page 155 U. S. 214
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. 785, 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, 14 Stat. 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. 14
Stat. 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. c. 317, 757, 758; c. 412, 980, 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 provisions of the fifth section of the Act of May 29, 1872, c.
233, 17 Stat. 165, 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 rapidly growing 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 one dollar an acre, for by
that purchase they acquired no title
Page 155 U. S. 215
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 being, 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,
Page 155 U. S. 216
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 ninety-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
ninety-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,
Page 155 U. S. 217
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:
"3d. 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 acknowledged
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."
"
* * * *"
"6th. 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
Page 155 U. S. 218
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.
*
Extract from the opinion of the Court of
Claims
"The constitution and laws of the Cherokees, since that people
came within the confines of civilization, have followed, in a
limited extent, the traditions and usages of the race, and have
embodied in them in varying degrees the fundamental principle and
characteristics of communal property."
"The preamble of their constitution, September 6, 1839, like
that of the Constitution of the United States, sets forth the
general purpose of the instrument:"
" We, the people of the Cherokee Nation, in national convention
assembled, in order to establish justice, insure tranquillity,
promote the common welfare, and to secure to ourselves and our
posterity the blessings of freedom, acknowledging with humility and
gratitude, the goodness of the Sovereign Ruler of the Universe in
permitting us so to do, and imploring His aid and guidance in its
accomplishment, do ordain and establish this constitution for the
government of the Cherokee Nation."
"The constitution then takes up (and it is most significant that
it does so by its first article) the subject of paramount
importance in the Indian mind -- of more importance than the form
of government, than the right of representation, than the right of
trial by jury, or of habeas corpus, or of any of those principles
of civil liberty, which, in the Anglo-Saxon mind are held supreme,
the subject of their lands."
" SEC. 2. The lands of the Cherokee Nation shall remain common
property ; but the improvements made thereon, and in the possession
of the citizens of the nation, are the exclusive and indefeasible
property of the citizens respectively who made, or may rightfully
be in possession of them,
provided that the citizens of
the nation possessing exclusive and indefeasible right to their
improvements, as expressed in this article, shall possess no right
or power to dispose of their improvements in any manner whatever,
to the United States, individual States, or to individual citizens
thereof, and that,whenever any citizen shall remove with his
effects out of the limits of this nation and become a citizen of
any other government, all his rights and privileges as a citizen of
this nation shall cease, provided, nevertheless, that the national
council shall have power to readmit, by law, to all the rights of
citizenship, any such person or persons who may at any time desire
to return to the nation, on memorializing the national council for
such readmission."
" Moreover, the national council shall have power to adopt such
laws and regulations as its wisdom may deem expedient and proper to
prevent citizens from monopolizing improvements with the view of
speculation."
"The amendment of 1866 modified the foregoing as follows:"
" SEC. 2. The lands of tire Cherokee Nation shall remain common
property until the national council shall request the survey and
allotment of the same, in accordance with the provisions of article
20th of the treaty of 19th of July, 1866, between the United States
and the Cherokee Nation."
"With these restrictive provisions should be considered the
brief grant which the constitution contains of legislative
power:"
" SEC. 14. The national council shall have power to make all
laws and regulations which they shall deem necessary and proper for
the good of the nation, which shall not be contrary to this
constitution."
"The legislation of the Cherokees recognizes again and again the
communal character of the seisin or occupancy of the land. It is
not "lawful for any citizen of the Cherokee Nation to sell any farm
or other improvement in said nation to any person other than a
bona fide' citizen thereof," nor "to rent any farm or
other improvement to any other person than a citizen of the Indian
Territory." Revised Code, 1874, Art. xxi, sec. 112, p. 234. "No
person shall be permitted to settle or erect any improvement within
one-fourth of a mile of the house, field, or other improvement of
another citizen without his, her, or their consent, under the
penalty of forfeiting such improvement and labor for the benefit of
the original settler; provided, it may be lawful, however, where a
settler has a field one-half mile or more from his residence, and
where there may be a spring or running water and timber, for
another citizen to improve and settle one hundred yards from such
field so situated." Act 24th September, 1839; id., p.
249."
"The law regulating intermarriage with white men or foreigners
provides that should a citizen of the United States or any foreign
country 'become a citizen of the Cherokee Nation by intermarriage'
and be left a widower, he shall continue to enjoy the rights of
citizenship unless he shall marry a person 'having no rights of
Cherokee citizenship by blood; in that case, all of his rights
acquired under the provisions of this act shall cease.' Revised
Code, 1874, Art. xv, sec. 74, p. 223. If he abandons his wife, he
'shall thereby forfeit every right and privilege of citizenship,'
and shall 'be removed from the nation.' Sec. 75. There is also a
significant provision attached to the law allowing citizenship by
intermarriage which shows how clearly the communal character of the
property of the nation is recognized -- that is to say, property of
which all the citizens of the nation are joint owners and in which
each has a direct personal interest:"
"
Provided also that the rights and privileges herein
conferred shall not extend to right of soil or interest in the
vested funds of this nation unless such adopted citizen shall pay
into the general fund of the national treasury a sum of money to he
ascertained and fixed by the national council equal to the '
pro
rata' share of each native Cherokee, in the lands and vested
wealth of the nation, estimated at five hundred dollars,"
"(
id., p. 224)."
"
* * * *"
"Herbert Spencer has said, 'Did primitive communal ownership
survive, there would survive the primitive control of the uses to
be made of land.' The Man versus The State, p. 386, ed. 1892. In
the Cherokee county, the converse of this is the condition of
affairs. 'The primitive control of the uses to be made of land' has
passed from the communal owners and become lodged in the state --
that is to say, in the government of the nation -- and the communal
owners as such exercise no more control over the national territory
than the citizens of the United States exercise over the public
lands of the United States. Of this the statutes of the Cherokees
afford overwhelming evidence."
"The constitution, as before quoted, recognizes a right of
occupancy under the name of 'improvements' as 'an exclusive and
indefeasible property' in citizens rightfully in possession, but at
the same time expressly vests in the National Council 'power to
adopt such laws and regulations as its wisdom may deem expedient
and proper to prevent citizens from monopolizing improvements
[
i.e., occupancy] with the view of speculation.' A statute
contemporaneous with the constitution is entitled 'An act
regulating settlements on the
public domain.� Act
September 24, 1839, Laws of the Cherokee Nation, ed. 1870, p. 249.
A statute for the preservation of trees refers to trees 'standing
and growing upon the public domain' (
id., p. 143, §
67). The act 14th December, 1870 (
id., p. 252), declares
the conditions upon which railroad ties and other material shall
'be furnished from the public domain.' The Act 17th December, 1869
(
id., p. 255), is entitled 'An act for the protection of
the public domain,' and the Act of 14th December, 1870
(
id., p. 257), 'An act in relation to the Public
Domain.'"
"All of these statutes and many others justify by their
provisions the use of the term 'Public Domain.' A statute relating
to minerals declares that 'All gold, silver, lead, copper, iron,
stone, coal, petroleum, salt, or medicinal water' which has been or
may be discovered within the limits of the country 'is the property
of the Cherokee Nation,' and provides for the leasing of mines,
petroleum beds, salt works, and of mineral springs (
id.,
p. 226). The act regulating settlements on the public domain
declares that if they be left unoccupied they shall 'revert to the
nation as common property� (
id., p. 249). The
statute for the preservation of trees makes it a misdemeanor to cut
down, kill, or destroy any fruit or nut-bearing tree 'standing and
growing upon the public domain of the Cherokee Nation' (id., p.
143). The act relating to railroad ties imposes a royalty to be
paid for taking timber from the public domain or stone from the
quarries of the nation (
id., p. 252). The act for the
protection of the public domain requires a citizen to take out a
license before he can dispose of sawed lumber, and to pay into the
treasury fifteen per cent of the money he receives for it
(
id., p. 255). The act in relation to the public domain
provides that at each and every station along the line of any
railroad passing through 'the lands of the Cherokee Nation there
shall be reserved to the Cherokee Nation one mile square,' and that
these tracts so reserved 'shall be laid off into town lots and sold
at public sale to the highest bidder,' who shall acquire thereby no
other rights 'than those of use and occupancy, . . . provided that
this act shall not be so construed as to interfere with any of the
mineral resources of the public domain' (
id., p. 257). The
act for the support and education of orphan children empowers the
trustees 'to occupy and hold as much land, not exceeding two miles
square, as they may deem necessary for farming such mechanical
purposes' (
id., p. 258). The act authorizing the transfer
or sale of Cherokee lands west of the Arkansas authorizes the sale
of 'all the Cherokee lands, . . . commonly known as the Cherokee
Outlet.' The act 19th May, 1883, recognizes 'the unoccupied lands
belonging to the Cherokee Nation' as having been set apart by a
previous statute 'to produce revenue from grazing,' and authorizes
and directs the principal chief 'to execute a lease for all the
unoccupied lands of the Cherokee Nation' west of the Arkansas. And
other statutes and treaties have recognized and exercised the power
of absolute sale and alienation without authority from ratification
by communal owners."
"With this power of regulation and control of the public domain
and the
jus disponendi lodged in the government of the
Nation, it is plain that the communal element has been reduced to a
minimum and exists only in the occupied lands. And it is manifest
that with the growth of civilization, with all of its intricacies,
and manifold requirements, the communal management of the public
domain would have been utterly insufficient, and if it had
continued would have been a barrier to the advancement of
civilization itself."
"With these powers of absolute ownership lodged in the Cherokee
government, the power to alienate, the power to lease, the power to
grant rights of occupancy, the power to restrict rights of
occupancy, and with the exercise of those powers running back to
the very year of the adoption of the constitution, and receiving
from that time to the present the unquestioning acquiescence of the
former communal owners, the Cherokee people, it is apparent that
the 'public domain' of the Cherokee Nation is analogous to the
'public lands' of the United States or the 'demesne lands of the
Crown,' and that it is held absolutely by the Cherokee government,
as all public property is held, a trust for governmental purposes
and to promote the general welfare."
