United States v. Cherokee Nation
202 U.S. 101 (1906)

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U.S. Supreme Court

United States v. Cherokee Nation, 202 U.S. 101 (1906)

United States v. Cherokee Nation

Nos. 346-348

Argued January 16-18, 1906

Decided April 30, 1906

202 U.S. 101


Under sec. 68 of the Cherokee Act of July 1, 1902, 32 Stat. 726, as construed by the Act of March 3, 1903, 32 Stat. 726, and the agreement of December 19, 1891, providing for the sale of the Cherokee Outlet, the Court of claims had jurisdiction of all claims of the Cherokee Indians against the United States, and the claims were to be reopened and reexamined de novo, and the court and the accountants were to go behind statutory and treaty bars and receipts in full, and were to consider any alleged and declared amount of money promised but withheld under any treaty or law.

The United States, as stated in the Slade & Bender account made under the agreement of December 19, 1891, and as found by the Court of Claims, is liable to the Cherokee Nation for $1,111,284.70, the amount paid for the removal of the Eastern Cherokee Indians to the Indian Territory, improperly charged to the treaty fund.

The question whether interest should be allowed on this fund having been submitted, under the Eleventh Article of the Cherokee Treaty of 1846, to the Senate of the United States, and that body having by resolution

Page 202 U. S. 102

found that interest should be allowed at five percent from June 12, 1838, until paid, the amount of interest was one of the subjects of difference referred to the Court of Claims under the Act of July 1, 1902, and that court had jurisdiction to allow interest, and correctly awarded it at the rate, and from the time specified, in the Senate resolution.

The term "Cherokee Tribe or any band thereof," as used in the Act of July 1, 1902, means the Cherokee people as a people, and not the Cherokee Nation as a body politic, and the Court of Claims correctly decided that the amount awarded to the Cherokee Nation be paid to the Secretary of the Interior to be by him received and distributed to the persons entitled thereto, but such distribution should be made as to the Eastern Cherokees as individuals whether East or West of the Mississippi, parties to the treaties of 1835, 1836, and 1846, exclusive of the Old Settlers.

The Eastern and Emigrant Cherokees are not entitled to their demand of one-fourth of the entire sum awarded, but only to per capita payment with the Eastern Cherokees.

Section 68 of the Act of Congress of July 1, 1902, entitled "An Act to Provide for the Allotment of the Lands of the Cherokee Nation, for the Disposition of Town Sites Therein [Described], and for Other Purposes," 32 Stat. 716, 726, reads as follows:

"Jurisdiction is hereby conferred upon the Court of Claims to examine, consider, and adjudicate, with a right of appeal to the Supreme Court of the United States by any party in interest feeling aggrieved at the decision of the Court of Claims, any claim which the Cherokee tribe, or any band thereof, arising under treaty stipulations, may have against the United States, upon which suit shall be instituted within two years after the approval of this act, and also to examine, consider, and adjudicate any claim which the United States may have against said tribe, or any band thereof. The institution, prosecution, or defense, as the case may be, on the part of the tribe or any band, of any such suit shall be through attorneys employed and to be compensated in the manner prescribed in sections twenty-one hundred and three to twenty-one hundred and six, both inclusive, of the Revised Statutes of the United States, the tribe acting through its principal chief in the employment of such attorneys, and the band acting through a committee recognized by the Secretary of the Interior. The Court of Claims shall have full authority, by proper orders and

Page 202 U. S. 103

process, to make parties to any such suit all persons whose presence in the litigation it may deem necessary or proper to the final determination of the matter in controversy, and any such suit shall, on motion of either party, be advanced on the docket of either of said courts and be determined at the earliest practicable time."

February 20, 1903, the Cherokee Nation filed a petition in the Court of Claims asking judgment on an account rendered by Slade & Bender, pursuant to the treaty of March 3, 1893 (27 Stat. 640), with interest.

March 3, 1903, an act was approved entitled

"An Act Making Appropriations for the Current and Contingent Expenses of the Indian Department and for Fulfilling Treaty Stipulations with Various Indian Tribes for the Fiscal Year Ending June Thirtieth, Nineteen Hundred and Four, and for Other Purposes"

32 Stat. 982, 996, containing the following provisions:

"Section sixty-eight of the Act of Congress entitled 'An Act to Provide for the Allotment of the Lands of the Cherokee Nation, for the Disposition of Town Sites Therein, and for Other Purposes,' approved July first, nineteen hundred and two, shall be so construed as to give the Eastern Cherokees, so called, including those in the Cherokee Nation and those who remained east of the Mississippi River, acting together or as two bodies, as they may be advised, the status of a band or bands, as the case may be, for all the purposes of said section: Provided, That the prosecution of such suit on the part of the Eastern Cherokees shall be through attorneys employed by their proper authorities, their compensation for expenses and services rendered in relation to such claim to be fixed by the Court of Claims upon the termination of such suit, and said section shall be further so construed as to require that both the Cherokee Nation and said Eastern Cherokees, so called, shall be made parties to any suit which may be instituted against the United States under said section upon the claim mentioned in House of Representatives' Executive Document Numbered Three Hundred and Nine of the second session of the

Page 202 U. S. 104

Fifty-seventh Congress, and if said claim shall be sustained in whole or in part, the court claims, subject to the right of appeal named in said section, shall be authorized to render a judgment in favor of the rightful claimant, and also to determine, as between the different claimants, to whom the judgment so rendered equitably belongs, either wholly or in part, and shall be required to determine whether, for the purpose of participating in said claim, the Cherokee Indians who remained east of the Mississippi River constitute a part of the Cherokee Nation or of the Eastern Cherokees, so called, as the case may be."

The claim mentioned in said H.R.Ex.Doc. No. 309, 57th Cong., 2d sess., is therein referred to as "the award rendered under the Cherokee agreement of December 19, 1891, ratified by act of Congress approved March 3, 1893."

March 14, 1903, a petition was filed on behalf of all the Eastern Cherokees, both west and east of the Mississippi River, alleging in substance that there was due to the Eastern Cherokees, upon the account of Slade & Bender, the sum of $1,111,284.70, with interest from June 12, 1838, as an award against the United States or, if the court should not hold said account as an award, the sum of $1,761,447.27, with interest at five percent from the same date, together with interest on the income annually accruing at the rate of five percent per annum until paid, by virtue of the treaties of 1828 (7 Stat. 313) and the treaty of 1835-1836, commonly known as the "treaty of New Echota." But at the trial of the case no contention was made for this larger amount.

March 20, 1903, a petition was filed on behalf of certain Eastern Cherokees, living east of the Mississippi, amended September 3, 1903, when petitioners took the title of the Eastern and Emigrant Cherokees, asserting their claim to a pro rata share of --

"That portion of the removal and subsistence fund improperly taken by the United States from the five million fund on account of removal of Eastern Cherokees, as found

Page 202 U. S. 105

by the expert accountants, Messrs. Slade & Bender, April 28, 1894, the said five million fund being an interest-bearing fund in the hands of the United States, as trustee, and representing the money paid by the government to the Eastern Cherokees for the sale of their lands in North Carolina, Georgia, and Tennessee, or east of the Mississippi River, as set forth in article first of the treaty of New Echota, in north Georgia, on March 14, 1835, and articles 2 and 3 of the supplemental treaty proclaimed May 23, 1836, this sum so misapplied amounting, in accordance with said accounting, to $1,111,284.70, with interest at five percent per annum from the date of said wrongful taking, June 12, 1838, to date."

The three petitions were consolidated and heard as one case, and although in effect the proceedings were in equity, findings of fact and conclusions of law were filed.

Among the facts found were these:




"By section 14 of the act of Congress entitled 'An Act Making Appropriations for the Current and Contingent Expenses of the Indian Department, and for Fulfilling Treaty Stipulations with Various Indian Tribes for the Year Ending June 30, 1890, and for Other Purposes,' approved March 2, 1889 (25 Stat. 1005), the President was authorized to appoint three commissioners to negotiate with the Indian tribes owning or claiming lands lying west of the ninety-sixth degree of longitude in the Indian Territory for the cession to the United States of all their title, claim, or interest of every kind or character in and to said lands, and he did appoint David H. Jerome, Alfred M. Wilson, and Warren G. Sayre such commissioners."

"By virtue of the authority contained in an act of the Cherokee national council approved November 16, 1891, Elias C. Boudinot, Joseph A. Scales, Roach Young, William Triplett, Thomas Smith, Joseph Smallwood, and George Downing were duly appointed commissioners --"

" To meet and enter into negotiations with the above-named

Page 202 U. S. 106

commission, appointed by the President of the United States, for the cession of the lands of the Cherokee Nation west of the 96th degree of west longitude, and for the final adjustment of all questions of interest between the United States and the Cherokee Nation which are now unsettled."

"By said act of Congress, it was made the duty of said commissioners appointed by the President to report all agreements resulting from such negotiations to the President, to be by him reported to the Congress at its next session, and by the act of the Cherokee council it was made the duty of the commissioners, on the part of the Cherokee Nation, to report all their proceedings in full to the national council for its approval and ratification. Ex.Doc. 56, 52d Cong., 1st sess., 17."

"At the outset of the negotiations between said commissioners for the purchase and sale of said lands, which were known as the 'Cherokee Outlet,' the commissioners on the part of the Cherokee Nation renewed their claims and contentions with respect to the balances alleged to be due to them under various treaties, and particularly their contention that the so called treaty fund had been improperly charged with the expense of the removal of the Eastern Cherokees to the Indian Territory, and demanded as 'a condition precedent to any agreement for the sale of the land' that some adjustment of such contentions should be made."

"On the 19th of December, 1891, after prolonged negotiations, the commissioners above named entered into articles of agreement, by Article I of which it was agreed that --"

" The Cherokee Nation, by act duly passed, shall cede and relinquish all its title, claim, and interest of every kind and character in and to that part of the Indian Territory bounded on the west by the one hundredth (100

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