Delaware Indians v. Cherokee Nation
193 U.S. 127 (1904)

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U.S. Supreme Court

Delaware Indians v. Cherokee Nation, 193 U.S. 127 (1904)

Delaware Indians v. Cherokee Nation

No. 240

Argued December 1-2, 1903

Decided February 23, 1904

193 U.S. 127

APPEAL FROM THE COURT OF CLAIMS

Syllabus

In a suit brought under § 25 of the Act of June 28, 1898, 30 Stat. 495, by the Delaware Indians residing in the Cherokee Nation for the purpose of determining their rights in and to the lands and funds of the Cherokee Nation under their contract and agreement with the Cherokee Nation of April 8, 1867,

Held that the registered Delawares acquired in the 157,000 acres set off to them east of the ninety-sixth meridian only the right of occupancy during life with a right upon allotment of the lands to not less than 160 acres, together with their improvements, and their children and descendants took only the rights of other citizens of the Cherokee Nation as the same are regulated by law.

Held that the Cherokee Nation has been recognized as a distinct political community, Cherokee Fund Cases,117 U. S. 288, having its own constitution

Page 193 U. S. 128

and laws and power to administer the same, and it was not the purpose of the Enabling Act under which this suit was brought to revise the political action of the administration of the Nation in admitting persons to citizenship therein under authority of provisions of its constitution which were in force when the Delawares were consolidated with the Cherokee Nation.

Held that the Enabling Act contemplated a judgment of the court, determining the rights of the Delawares and Cherokees in the lands and funds of the Cherokee Nation, in such wise as to enable a division to be made conformable to the rights of the parties as judicially determined.

Held that the bill should not be dismissed because the Delawares have not proved their asserted claims, but a decree should be entered finding the registered Delawares entitled to participate equally with Cherokee citizens of Cherokee blood in the allotment of lands.

The facts are stated in the opinion of the Court.

MR. JUSTICE DAY delivered the opinion of the Court.

On June 28, 1898, the Congress of the United States passed an act entitled "An Act for the Protection of the the Indian Territory and for Other Purposes." 30 Stat. 495. By the twenty-fifth section of the act, it is provided:

"That, before any allotment shall be made of lands in the Cherokee Nation, there shall be segregated therefrom by the commission heretofore mentioned, in separate allotments or otherwise, the one hundred and fifty-seven thousand, six hundred acres purchased by the Delaware tribe of Indians from the Cherokee Nation, under agreement of April eighth, eighteen hundred and sixty-seven, subject to the judicial determination of the rights of said descendants and the Cherokee Nation under said agreement. That the Delaware Indians residing in the Cherokee Nation are hereby authorized and empowered to

Page 193 U. S. 129

bring suit in the Court of Claims of the United States within sixty days after the passage of this act against the Cherokee Nation for the purpose of determining the rights of said Delaware Indians in and to the lands and funds of said nation under their contract and agreement with the Cherokee Nation dated April eighth, eighteen hundred and sixty-seven; or the Cherokee Nation may bring a like suit against said Delaware Indians, and jurisdiction is conferred on said court to adjudicate and fully determine the same, with right of appeal to either party to the Supreme Court of the United States."

Under this section, the present suit was prosecuted in the Court of Claims by the Delaware Indians residing in the Cherokee Nation, as a tribe and individually, joined by certain others suing for the surviving registered Delawares, their children, descendants, and personal representatives, against the Cherokee Nation, for the purpose of determining the right of the Delaware Indians "in and to the lands and funds of said nation" under the contract and agreement with the Cherokee Nation dated April 8, 1867. This contract sets forth:

"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

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