By treaties with the Cherokees, the United States have
recognized them as a distinct political community, so far
independent as to justify and require negotiations with them in
that character.
The Cherokees in North Carolina dissolved their connection with
the Cherokee Nation when they refused to accompany the body of it
on its removal, and have had no separate political organization
since; though fostered and encouraged, they have not been
recognized by the United States as a nation,
Page 117 U. S. 289
in whole or in part, and, as now organized, are not the
successor of any organization recognized by any treaty or law of
the United States.
The claim of the Cherokees of North Carolina to a share of the
commuted annuity fund of $214,000, and of the fund created by sales
of lands west of the Mississippi ceded to the Cherokee Nation, has
no substantial foundation, those funds and that property being
dedicated by the Constitution of the Cherokees, and intended by
their treaties with the United States for the benefit of the united
nation, and not in any respect for those who had separated from it
and become aliens to their nation.
This action was commenced by appellants in the Court of Claims
under the jurisdiction conferred upon that court by the following
provision in the Act of March 3, 1883, c. 141, 22 Stat. 582,
585:
"That the Eastern Band of Cherokee Indians is hereby authorized
to institute a suit in the Court of Claims against the United
States to determine the rights of the said band in and to the
moneys, stock, and bonds held by the United States in trust for the
Cherokee Indians arising out of the sales of lands lying west of
the Mississippi River, and also in a certain other fund, commonly
called the permanent annuity fund, to which suit the Cherokee
Nation, commonly called the Cherokee Nation West, shall be made a
party defendant. The said Eastern Band shall within three months
after the passage of this act file a petition in said court,
verified by the principal chief of said band, setting forth the
facts upon which said claim is based. The said Cherokee Nation West
shall, within six months after the passage of this act, file its
answer to said petition, and said cause shall proceed to final
determination pursuant to the practice in said court and such rules
or orders as the said court may make in that behalf."
"The Secretary of the Interior shall transmit to said court for
the consideration of said court copies duly certified of all
records, reports, papers, and other documents on file in the
Department of the Interior which he may deem necessary to said
cause, or which may be requested by either of the parties
hereinbefore referred to, and the said parties respectively may
take and submit to said court such additional competent testimony
as they may desire. And jurisdiction is hereby conferred upon said
court to hear and determine what if any interest, legal or
equitable, the said Eastern Band has in said
Page 117 U. S. 290
moneys, stocks, bonds, so held in trust as aforesaid by the
United States, and shall enter a decree specifically defining the
rights and interests of the said Eastern Band therein, and in any
moneys hereafter to be derived from sources similar to those out of
which the existing fund arose."
"When the interest, if any, of the said Eastern Band has been
ascertained as aforesaid, the Secretary of the Treasury shall, out
of the portion of said fund adjudged to said parties, respectively,
pay all the proper costs and expenses of said respective parties of
the proceedings herein provided for, each party, except the United
States, to be liable for its own costs and expenses, and the
remainder shall be placed to credit of the said Eastern Band and of
the Cherokee Nation, in accordance with their respective rights as
ascertained by the said judgment and decree of said court."
"In the said proceeding, the Attorney General, or such of his
assistants as he may designate, shall appear on behalf of the
United States. Either of the parties to said cause may appeal from
any judgment rendered by said Court of Claims to the Supreme Court
of t he United States, and the said courts shall give such cause
precedence."
The facts which make the case are stated in the opinion of the
Court.
Judgment was rendered against the claim of the Eastern Band to
share in the funds named in the act, 20 Ct.Cl. 449, and this appeal
was taken.
Page 117 U. S. 293
MR. JUSTICE FIELD delivered the opinion of the Court.
This case comes before us on appeal from the Court of Claims. It
was brought to determine the right of the petitioners, called the
"Eastern Band of the Cherokee Indians," to a proportionate part of
two funds held by the United States in trust for the Cherokee
Nation. One of the funds was created by the treaty with the nation
made December 29, 1835 at New Echota, in Georgia, commuting certain
annuities into the sum of $214,000. The other arose from sales of
certain lands of the nation lying west of the Mississippi
River.
The suit by the petitioners was authorized by an act of
Congress, and it is brought against the United States and the
Cherokee Nation. 22 Stat. 581, c. 141. The United States, however,
have no interest in the controversy, as they hold the funds merely
as trustee. They stand neutral, therefore, in the litigation,
although as a matter of form they have filed an answer traversing
the allegations of the petition.
The general ground upon which the petitioners proceed and seek a
recovery is that the Cherokee Indians, both those residing east and
those residing west of the Mississippi, formerly constituted one
people and composed the Cherokee Nation; that by various treaty
stipulations with the United States, they became divided into two
branches, know as the "Eastern Cherokees" and the "Western
Cherokees," and that the petitioners constitute a portion of the
former, and as such are entitled to a proportionate share of the
funds which the United States hold in trust for the nation.
This claim is resisted upon the ground that the two branches
into which it is admitted the nation was once divided subsequently
became reunited, and have ever since constituted one nation, known
as the "Cherokee Nation," and that as such, it
Page 117 U. S. 294
possesses all the rights and property previously claimed by
both, and that the petitioners have not, since the Treaty of New
Echota, constituted any portion of the nation.
To determine the merits of the respective claims and pretensions
of the parties, it will be necessary to give some account of the
different treaties between the Cherokees and the United States and
to refer to the several laws passed by Congress to carry the
treaties into effect and accomplish the removal of the Indians from
their former home east of the Mississippi to their present country
west of that river.
When that portion of North America which is now embraced within
the limits of the United States east of the Mississippi was
discovered, it was occupied by different tribes or bands of
Indians. These people were destitute of the primary arts of
civilization, and, with a few exceptions, had no permanent
buildings, occupying only huts and tents. Their lands were
cultivated in small patches, and generally by women. The men were
chiefly engaged in hunting and fishing. From the chase came their
principal food, and the skins of animals were their principal
clothing. The different tribes roamed over large tracts and claimed
a right to the country as their territory and hunting grounds. Of
these tribes the Cherokee Indians constituted one of the largest
and most powerful. They claimed the principal part of the country
now composing the States of North and South Carolina, Georgia,
Alabama, and Tennessee. Their title was treated by the governments
established by England and the governments succeeding them as
merely usufructuary, affording protection against individual
encroachment but always subject to the control and disposition of
those governments, at least so far as to prevent without their
consent its acquisition by others. Such superior right rested upon
the claim asserted by England of prior discovery of the country,
and was respected by other European nations. There was no nation,
therefore, to oppose this assertion of superior right to control
the disposition of the lands and to acquire the title of the
Indians except the Indians themselves, and by treaties with them
from time to time their title and interest were ceded to the United
States.
Page 117 U. S. 295
On the 28th of November, 1785, the United States made their
first treaty with the Cherokees. 7 Stat. 18. It was concluded at
Hopewell, on the Keowee, between commissioners representing the
United States on the one part, and the "headmen and warriors of all
the Cherokees, on the other." By it, the Indians, for themselves
and their respective tribes and towns, acknowledged that all the
Cherokees were under the protection of the United States and of no
other sovereign. The treaty promised peace to them, and the favor
and protection of the United States, on condition of the
restoration to liberty of certain prisoners whom they had captured
and of the return of certain property which they had seized. It
also prescribed the boundary between them and citizens of the
United States of lands allotted to them for their hunting grounds.
These lands embraced large tracts within the states mentioned. The
ninth article provided that for the benefit and comfort of the
Indians and for the prevention of injuries or oppressions on the
part of the citizens or Indians, the United States should "have the
sole and exclusive right of regulating the trade with the Indians
and managing all their affairs in such manner as they think
proper." By this treaty, the Cherokees were recognized as one
people, composing one tribe or nation, but subject, however, to the
jurisdiction and authority of the government of the United States,
which could regulate their trade and manage all their affairs.
On the 2d of July, 1791, another treaty was made with the
Cherokees in which they were described as the "Cherokee Nation." 7
Stat. 39. Its representatives were designated as the "chiefs and
warriors of the Cherokee Nation of Indians," and the first article
declared that
"There shall be perpetual peace and friendship between all the
citizens of the United States of America and all the individuals
composing the whole Cherokee Nation of Indians,"
and the chiefs and warriors, "for themselves and all parts of
the Cherokee Nation," acknowledged themselves and the Cherokee
Nation to be under the protection of the United States and of no
other sovereign. The treaty also renewed the agreement on the part
of the Cherokees that the United States should have the sole
and
Page 117 U. S. 296
exclusive right of regulating their trade, and readjusted the
boundary between citizens of the United States and the "Cherokee
Nation," by which the hunting grounds were reduced in quantity, and
in consideration of this reduction, the United States agreed to
deliver certain valuable goods to the chiefs and warriors for the
use of the nation, and to pay to the nation annually the sum of
$1,000. A further article increased the amount to $1,500.
The boundary of the hunting grounds was from time to time
changed by subsequent treaties, and by each succeeding one, their
extent was reduced, in consideration of which a larger quantity of
goods was promised to the nation, and the annuity was increased
until, in the year 1805, it amounted to $10,000. 7 Stat. 43, 62,
93. This annuity was regularly paid to the Cherokee Nation, as
represented by the Indians occupying territory east of the
Mississippi River, until the Treaty of July 8, 1817. 7 Stat. 156.
That treaty originated from a division in opinion among the
Cherokees as to their mode of life which existed when the first
treaty with the United States was made, in 1785, and which had from
that time increased. There were numerous settlements or towns
within the territory allotted to the Indians. Those who occupied
the upper towns, which were mostly in the State of North Carolina,
desired to engage in the pursuits of agriculture and civilized
life, while those who occupied the lower towns, in the valley of
the Mississippi, desired to continue "the hunter life," and, owing
to the scarcity of game where they lived, to remove across the
Mississippi River to vacant lands of the United States. As early as
1808, a deputation from the upper and lower towns, authorized by
the Cherokee Nation, came to Washington to declare to the President
their desires and inform him of the impracticability of uniting the
whole nation in the pursuits of civilized life, and to request the
establishment of a division line between the two classes of towns.
The Treaty of 1817, which was made with
"the chiefs, headmen, and warriors of the Cherokee Nation east
of the Mississippi River, and the chiefs, headmen, and warriors of
the Cherokees on the Arkansas River,"
recites the action of this deputation
Page 117 U. S. 297
and the reply of the President to the parties, made on the 9th
of January, 1809, which was in substance that the United States
were the friends of both parties, and, as far as could be
reasonably asked, were willing to satisfy the wishes of both; that
those who remained might be assured of their patronage, aid, and
good neighborhood; that those who wished to remove would be
permitted to send an exploring party to reconnoiter the country on
the west of the Arkansas and White Rivers and higher up; that when
this party should have found a tract of country suiting the
emigrants and not claimed by other Indians, the United States would
arrange with them to exchange it for a just proportion of the
country they should leave, and to a part of which, according to
their numbers, they had a right, and that every aid toward their
removal, and what would be necessary for them there, would then be
freely extended to them.
The treaty recites that, relying upon these promises of the
President, the Cherokees explored the country on the west side of
the Mississippi, and made choice of the country on the Arkansas and
White Rivers, and settled upon lands of the United States to which
no other tribe of Indians had any just claim, and that they had
duly notified the President thereof, and of their desire for a full
and complete ratification of his promise. To that end, as notified
by him, they had sent their agents, with full powers to execute a
treaty relinquishing to the United States their right, title, and
interest to all lands belonging to them as part of the Cherokee
Nation,
"which they had left, and which they were about to leave,
proportioned to their numbers, including, with those now on the
Arkansas, those who were about to remove thither."
The treaty then proceeds to recite that, to carry into effect in
good faith the promises of the President and to promote a
continuation of friendship with their brothers on the Arkansas
River, and for that purpose to make an equal distribution of the
annuities secured by the United States to the whole Cherokee
Nation, its articles were agreed upon. These were in substance that
the chiefs, headmen and warriors of the whole Cherokee Nation ceded
to the United States certain lands lying east of
Page 117 U. S. 298
the Mississippi, and the United States, in exchange for them,
bound themselves to give to that branch of the Cherokee Nation on
the Arkansas as much land on that river and the White River as they
had received or might thereafter receive from the Cherokee Nation
east of the Mississippi, "acre for acre, as the just proportion due
that part of the nation on the Arkansas, agreeably to their
numbers." The United States also agreed to give to each poor
warrior who might remove to the western side of the Mississippi a
rifle gun, with ammunition and other articles, to pay for all
improvements of real value to their lands, and to give of the lands
surrendered to the United States, to every head of an Indian family
residing on the east side of the Mississippi who might wish to
become a citizen of the United States 640 acres. It was also agreed
that the annuity due to the whole nation for the year 1818 should
be divided between the two branches of the nation according to
their respective numbers, to be ascertained by a census to be
taken. Previous treaties between the United States and the Cherokee
Nation were to continue in force with both of its branches, each to
be entitled to all the immunities and privileges which the "old
nation" enjoyed under them.
On the 27th of February, 1819, another treaty was made with the
Cherokee Nation, 7 Stat. 195, represented by its chiefs and
headmen. By it a further cession of lands was made to the United
States, and it was agreed that the annuity to the nation should be
paid as follows: two-thirds to the Cherokees east of the
Mississippi, and one-third to the Cherokees west of that river.
This apportionment was based upon an estimate that those who had
emigrated, and those who were enrolled for emigration, constituted
one-third of the nation, instead of upon a census to be taken, as
mentioned in the treaty of 1817. The annuity thus divided was
regularly paid as stipulated until commuted by the treaty of
December, 1835, of which we shall presently speak.
On the 6th of May, 1828, a treaty was made with the chiefs and
headmen of the Cherokee Nation of Indians west of the Mississippi.
7 Stat. 311. This was the first time that the Cherokees west of the
River were recognized as so far a distinct and separate
Page 117 U. S. 299
political body from the Cherokees east of the river as to call
for separate treaty negotiations with them. The treaty recited, as
among the causes of its being made, that it was the anxious desire
of the government to secure to the Cherokee Nation of Indians, as
well those then living within the limits of Arkansas as those of
their friends and brothers residing in states east of the
Mississippi, who might wish to join their brothers west, a
permanent home which should, under the guarantee of the United
States, remain forever theirs, and that the present location of the
Cherokees in Arkansas was unfavorable to their repose, and tended
to their degradation and misery. By it, the United States agreed to
put the Cherokees in possession of and to guarantee to them forever
seven millions of acres of land which were specifically described,
and which are situated in what is now known as the Indian
Territory, and also to give and guarantee to the Cherokee Nation a
perpetual outlet west of these lands, and a free and unmolested use
of the country so far as their sovereignty and right of soil
extended. They also agreed to pay for all improvements on the land
abandoned, and, in order to encourage the emigration of their
brothers remaining in the states, to give to each head of a
Cherokee family then residing within any of the states east of the
Mississippi, who might desire to remove west, on enrolling himself
for emigration, a good rifle and certain other articles, to make
just compensation for their property abandoned, to bear the cost of
their emigration, and to procure provisions for their comfort,
accommodation, and support by the way, and for twelve months after
their arrival at the agency. On the other hand, the chiefs and
headmen of the Cherokee Nation west re-ceded to the United States
the lands to which they were entitled on the Arkansas under the
Treaties of July 8, 1817, and of February 27, 1819, and agreed to
remove from the same within fourteen months.
From this time until the Treaty of New Echota, concluded
December 29, 1835, 7 Stat. 478, the Cherokees were divided into two
branches, so far constituting distinct political bodies that the
United States had separate negotiations with each, and on the 14th
February, 1833, by a treaty with the chiefs
Page 117 U. S. 300
and headmen of the Cherokee Nation west of the Mississippi, the
United States renewed their guarantee of the seven millions of
acres, and of the perpetual outlet to the nation west of those
lands, and of the free and unmolested use of the country west. 7
Stat. 413.
In the meantime -- from the treaty of 1828 until the Treaty of
New Echota -- the Cherokees remaining east of the Mississippi were
subjected to harassing and vexatious legislation from the states
within which they resided. The United States had, as early as 1802,
agreed with Georgia, in consideration of her cession of western
lands, to extinguish the Indian title to lands within the state.
North Carolina claimed that the United States were under a similar
obligation to extinguish the Indian title to lands within her
limits, in consideration of a like cession of western lands,
although there was no positive agreement to that effect, and with
the extinguishment of their title, it was expected that the Indians
themselves would be removed to territory beyond the bounds of those
states. At the time the treaty of 1828 was made, a great deal of
impatience had been exhibited by the people of those states at the
little progress made in the extinguishment of the Indian title, and
at the continued presence of the Indians. Severe and oppressive
laws were passed by Georgia in order to compel them to leave, and,
though less severity was practiced in North Carolina toward the
Indians in that state, an equally pronounced desire for their
departure was expressed. Angry and violent disputes between them
and the white people in both states, but more particularly in
Georgia, were of frequent occurrence.
See Case of Cherokee
Nation v. State of Georgia, as reported in a separate volume
by Richard Peters in 1831; also a document called "The Public
Domain," prepared by the public land commission, and published as
Ex.Doc. 47 of H. of R. 46th Cong., 3d Sess., and Doc. No. 71 of H.
of R. 23d Cong. 1st Sess.
The Treaty of New Echota was made to put an end to those
troubles, and to secure the reunion of the divided nation. It
recites, as motives to its negotiation, among other things, that
the Cherokees were anxious to make some arrangement with the
government of the United States whereby the difficulties
Page 117 U. S. 301
they had experienced from residence within the settled parts of
the country under the jurisdiction and laws of the state
governments, might be terminated and adjusted, and they be reunited
into one body, and be secured a permanent home for themselves and
their posterity in the country selected by their forefathers,
without the territorial limits of the state sovereignties, and
where they could establish and enjoy a government of their choice,
and perpetuate such a state of society as might be most consonant
with their views, habits, and conditions, and as might tend to
their individual comfort and their own advancement in civilization.
By its stipulations the Cherokees ceded to the United States all
the lands owned, claimed, or possessed by them east of the
Mississippi River, and all claims for spoliations of every kind,
for the sum of five millions of dollars, and agreed to remove to
"their new home" west of the Mississippi within two years from its
ratification.
The treaty also recited the cession to the Cherokee Nation by
previous treaties of the 7,000,000 acres, and the guarantee of a
perpetual outlet west of these lands, and a free and unmolested use
of all the country, so far as the sovereignty of the United States
and their right to the soil extended, and also that it was
apprehended by the Cherokees that in this cession there was not a
sufficient quantity of land for the accommodation of the whole
nation, and therefore the United States agreed, in consideration of
$500,000, to convey by patent to the Indians and their descendants
an additional tract of 800,000 acres, and that the land previously
ceded, including the outlet, should be embraced in the same patent.
Art. 2. They also agreed to remove the Indians to their new home,
and to subsist them one year after their arrival there, except that
such persons and families as, in the opinion of "the emigrating
agent," were capable of subsisting and removing themselves should
be permitted to do so, and should be allowed for all claims for the
same $20 for each member of their families, and in lieu of their
one year's rations, should be paid the sum of $33.33, if they
preferred it. Art. 8.
It was also agreed that, after deducting the amount which should
be actually expended for the payment for improvements,
Page 117 U. S. 302
claims for spoliations, removal, subsistence, and debts and
claims upon the Cherokee Nation, and for the additional quantity of
lands and goods for the poorer class of Cherokees, and the several
sums to be invested for the general national funds provided for in
the several articles of the treaty, the balance, whatever the same
might be, should be equally divided between all the people
belonging to the Cherokee Nation east, according to the census
completed, and such Cherokees as had removed west after June, 1833,
and that those individuals and families that were averse to
removal, and were desirous to become citizens of the state wherein
they resided, and such as were qualified to take care of themselves
and their property, should be entitled to receive their due
proportion of all the personal benefits arising under the treaty
for their claims, improvements, and their
per capita, as
soon as an appropriation was made to carry out the treaty. Arts. 12
and 15.
By the eleventh article,
"the Cherokees, believing it would be for the interest of their
people to have all their funds and annuities under their own
direction and future disposition,"
agreed to commute their permanent annuity of $10,000 for the sum
of $214,000, the same to be invested by the President of the United
States as part of the general fund of the nation.
In the following year, Congress made the requisite appropriation
for the commutation, and, according to the tenth article of the
treaty, the money was invested "for the benefit of the whole
Cherokee Nation," which had removed, or should subsequently remove,
to the lands assigned to it west of the Mississippi. This is one of
the funds of which the petitioners claim a part, in proportion to
their numbers as compared with the citizens of the Cherokee Nation
living west of the Mississippi on the territory ceded. The
provisions of the treaty as to the investment, custody, and
distribution of the income of this fund, and all other funds
belonging to the nation, remained in force until the treaty of July
19, 1866. The interest was paid over annually to the agents of the
Cherokee Nation authorized to receive the same, and was subject to
application by its council to such purposes as they deemed best for
the general interests of their people. The Treaty of 1866, Article
23, 14 Stat. 799, 805,
Page 117 U. S. 303
provided that all funds then due the nation, or that might
thereafter accrue from the sale of its lands by the United States,
as provided for, should be invested in United States registered
stocks at their current value, and the interest on all said funds
should be paid semiannually on the order of the Cherokee Nation,
and be applied to the following purposes, to-wit: thirty-five
percent for the support of the common schools of the nation and
educational purposes; fifteen percent for the orphan fund, and
fifty percent for general purposes, including reasonable salaries
of district officers.
Immediately after the ratification of the treaty of 1835
measures were taken by the government to secure its execution, and
commissioners were appointed to adjust claims for improvements and
to facilitate the emigration of the Indians. But emigration
proceeded slowly. Great reluctance to go was manifested by large
numbers, and at last it became necessary to make a display of force
to compel their removal. The lieutenant general was sent to the
country with troops, and instructed to remove all the Indians
except such as were entitled to remain and become citizens under
the twelfth article of the treaty. The number that remained was
between eleven and twelve hundred. They were without organization
or a collective name. They ceased to be part of the Cherokee
Nation, and henceforth they became citizens of and were subject to
the laws of the state in which they resided. The name of the
Eastern Cherokees accompanied those who emigrated, to distinguish
them from those who had preceded them, and who were called old
settlers.
After the reunion of the Cherokee people on their lands west of
the Mississippi, resulting from the execution of the treaty, and on
the 12th of July, 1839, the following act of union between the
Eastern and Western Cherokees was adopted:
"
Act of Union between the Eastern and Western
Cherokees"
"Whereas, our fathers have existed as a separate and distinct
nation, in the possession and exercise of the essential and
appropriate attributes of sovereignty, from a period extending
Page 117 U. S. 304
into antiquity, beyond the records and memory of man, and
whereas, these attributes, with the rights and franchises which
they involve, remain still in full force and virtue, as do also the
national and social relation of the Cherokee people to each other
and to the body politic, excepting in those particulars which have
grown out of the provisions of the treaties of 1817 and 1819
between the United States and the Cherokee Nation, under which a
portion of our people removed to this country, and became a
separate community (but the force of circumstances have recently
compelled the body of the Eastern Cherokees to remove to this
country, thus bringing together again the two branches of the
ancient Cherokee family), it has become essential to the general
welfare that a union should be formed, and a system of government
matured adapted to their present condition, and providing equally
for the protection of each individual in the enjoyment of all his
rights:"
"Therefore we, the people composing the Eastern and Western
Cherokee Nation, in national convention assembled, by virtue of our
original unalienable rights, do hereby solemnly and mutually agree
to form ourselves into one body politic, under the style and title
of the Cherokee Nation."
"In view of the union now formed, and for the purpose of making
satisfactory adjustment of all unsettled business which may have
arisen before the consummation of this union, we agree that such
business shall be settled according to the provisions of the
respective laws under which it originated, and the courts of the
Cherokee Nation shall be governed in their decisions accordingly;
also that the delegation authorized by the Eastern Cherokees to
make arrangements with Major General Scott for their removal to
this country shall continue in charge of that business, with their
present powers, until it shall be finally closed, and also that all
rights and titles to public Cherokee lands on the east or west of
the River Mississippi, with all other public interests which may
have vested in either branch of the Cherokee family, whether
inherited from our fathers or derived from any other source, shall
henceforward vest entire and unimpaired in the Cherokee Nation, as
constituted by this union."
Page 117 U. S. 305
"Given under our hands at Illinois camp grounds, this twelfth
day of July, 1838."
"By order of the national convention."
"GEORGE LOWRY"
"
President of the Eastern Cherokees"
"his"
"GEORGE X GUESS"
"mark"
"
President of the Western Cherokee"
On the 6th of September following, they adopted a constitution
of government in which they recited that the Eastern and Western
Cherokees had become reunited in one body politic, under the style
and title of the Cherokee Nation. The second clause of its first
article is as follows:
"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 be rightfully 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 limit 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."
But notwithstanding this declared reunion of the divided
Cherokees, there was much bitter feeling between the old settlers
and the newcomers, leading to violent contests, and causing, in
many instances, great loss of property and life. The newcomers,
being the more numerous, claimed to control the government of the
country, and endeavored to compel the old
Page 117 U. S. 306
settlers to submit to their rule. The old settlers had an
organization of their own, and complained that the newcomers
occupied their lands and overthrew their organization, and among
the newcomers, also, there was bitterness between those who had
favored the treaty of removal from the east side of the Mississippi
and those who had opposed it. The former sided with the old
settlers, but the latter outnumbered both. Violent measures were
resorted to on both sides to carry out their purposes, and there
was little security for person or property. The situation became
intolerable, and in 1845 the contending factions -- the old
settlers, the treaty party, and the anti-treaty party -- sent
delegates to Washington to lay their grievances before the
officials of the United States government in the hope that some
relief might be afforded to them. The old settlers and the treaty
party desired a division of the people into two nations and a
division of the territory. Demands also were made by each party
against the United States under the stipulations of the Treaty of
New Echota. These circumstances led to the treaty of August 6,
1846, 9 Stat. 871. It was negotiated, on the part of the Cherokees,
by delegates appointed by the regularly constituted authorities of
the Cherokee Nation, and by delegates appointed by and representing
that portion of the Cherokee tribe known as the "Treaty Party," and
by delegates appointed by and representing that portion of the
tribe known and recognized as "Western Cherokees" or the "Old
Settlers." It recited that serious difficulties had for a
considerable time existed between the different parties of the
people constituting and recognized as the Cherokee Nation of
Indians, which it was desirable should be speedily settled, so that
peace and harmony might be restored among them, and that certain
claims existed on the part of the Cherokee Nation and portions of
the Cherokee people against the United States, and that, with a
view to the final and amicable settlement of these difficulties and
claims, the parties had agreed to the treaty.
It declared that all difficulties and difference existing
between the several parties of the Cherokee Nation were settled and
adjusted, and that they should, as far as possible, be
forgotten
Page 117 U. S. 307
and forever buried in oblivion; that all party distinctions
should cease, except so far as they might be necessary to carry the
treaty into effect; that a general amnesty should be proclaimed,
and that all offenses and crimes committed by a citizen or citizens
of the Cherokee Nation against the nation or an individual were
pardoned. It was agreed also that all parties were to unite to
enforce laws against future of offenders, and that laws should be
passed for equal protection and for security of life, liberty, and
property. Thus, the personal dissensions were to a great extent
healed.
The treaty also declared that the lands occupied by the Cherokee
Nation should be secured to the whole Cherokee people for their
common use and benefit, and that a patent should be issued for the
same, including the 800,000 acres purchased, together with an
outlet west, thus recognizing that all the lands ceded by the
United States for the benefit of the Cherokees west of the
Mississippi belonged to the entire nation, and not to any of the
factions into which the nation was divided. The treaty also made
provision for the adjustment and payment of the claims of different
parties. The 9th article is as follows:
"The United States agree to make a fair and just settlement of
all moneys due to the Cherokees, and subject to the
per
capita division under the treaty of 29th December, 1835, which
said settlement shall exhibit all money properly expended under
said treaty, shall embrace all sums paid for improvements, ferries,
spoliations, removal, and subsistence, and commutation therefor,
debts and claims upon the Cherokee Nation of Indians for the
additional quantity of land ceded to said nation, and the several
sums provided in the several articles of the treaty to be invested
as the general funds of the nation, and also all sums which may be
hereafter properly allowed, and paid under the provisions of the
treaty of 1835. The aggregate of the said several sums shall be
deducted from the sum of six million six hundred and forty-seven
thousand and sixty-seven dollars, and the balance thus found to be
due shall be paid over
per capita, in equal amounts, to
all those individuals, heads of families, or their legal
representatives, entitled
Page 117 U. S. 308
to receive the same under the treaty of 1835 and the supplement
of 1836, being all those Cherokees residing east at the date of
said treaty, and the supplement thereto."
By the Treaty of July 19, 1866, 14 Stat. 797, provision was made
for the settlement of friendly Indians on certain unoccupied lands
of the Cherokees west of the Mississippi, and for the sale of their
interest, and also for the sale of other lands belonging to them in
the State of Kansas, and the investment of the proceeds in
registered stocks of the United States for the benefit of the
Cherokee Nation. Under it and pursuant to other laws, sales were
made of the lands mentioned, and also of other lands west of the
Mississippi ceded to the Cherokees under the different treaties, to
which we have referred, and the proceeds have been duly invested,
as required by article twenty-third of the treaty. The investment
constitutes one of the funds of which the petitioners seek a
proportionate part.
Their claim, however, rests upon no solid foundation. The lands,
from the sales of which the proceeds were derived, belonged to the
Cherokee Nation as a political body, and not to its individual
members. They were held, it is true, for the common benefit of all
the Cherokees, but that does not mean that each member had such an
interest, as a tenant in common, that he could claim a
pro
rata proportion of the proceeds of sales made of any part of
them. He had a right to use parcels of the lands thus held by the
nation, subject to such rules as its governing authority might
prescribe; but that right neither prevented nor qualified the legal
power of that authority to cede the lands and the title of the
nation to the United States. Our government, by its treaties with
the Cherokees, recognized them as a distinct political community,
and so far independent as to justify and require negotiations with
them in that character. Their treaties of cession must therefore be
held not only to convey the common property of the nation, but to
divest the interest therein of each of its members. Such was
substantially the language and such the decision of the Attorney
General of the United States in a communication made to the
President, in 1845, with reference to the Treaty of New Echota.
"The executive of the United States," he said,
"must therefore
Page 117 U. S. 309
regard the Treaty of New Echota as binding on the whole Cherokee
tribe, and the Indians, whether in Georgia, Alabama, Tennessee, or
North Carolina, are bound by its provisions. As a necessary
consequence, they are entitled to its advantages. The North
Carolina Indians, in asking the benefit of the removal and
subsistence commutation, necessarily admit the binding influence of
the treaty on them and their rights. They cannot take its benefits
without submitting to its burdens. The executive must regard the
treaty as the supreme law, and as a law construe its
provisions."
4 Opins.Attys.Gen. 435, 437.
Whatever rights therefore the Cherokees in North Carolina, who
refused to join their countrymen in the removal to the lands ceded
to them west of the Mississippi, can claim in the funds arising
from sales of portions of such lands, or in the fund created by a
commutation of the annuities granted upon cessions of the lands of
the Cherokee Nation, must depend entirely upon the treaties out of
which those funds originated. They have as yet received nothing
from either of them, and they can claim nothing by virtue of the
fact that the lands of the nation, which its authorities ceded to
the United States, were held for the common benefit of all the
Cherokees. All public property of a nation is supposed to be held
for the common benefit of its people; their individual interest is
not separable from that of the nation.
The Cherokees in North Carolina dissolved their connection with
their nation when they refused to accompany the body of it on its
removal, and they have had no separate political organization
since. Whatever union they have had among themselves has been
merely a social or business one. It was formed in 1868 at the
suggestion of an officer of the Indian office, for the purpose of
enabling them to transact business with the government with greater
convenience. Although its articles are drawn in the form of a
constitution for a separate civil government, they have never been
recognized as a separate nation by the United States; no treaty has
been made with them; they can pass no laws; they are citizens of
that state, and bound by its laws. As well observed by the
Court
Page 117 U. S. 310
of Claims, in its exhaustive opinion, they have been in some
matters fostered and encouraged by the United States, but never
recognized as a nation, in whole or in part. 20 Ct.Cl.
Nor is the band, organized as it now is, the successor of any
organization recognized by any treaty or law of the United States.
Individual Indians who refused to move west, and preferred to
remain and become citizens of the states in which they resided,
were promised certain moneys, but there is no evidence that the
petitioners have succeeded to any of their rights. The original
claimants have probably all died, for fifty years have elapsed
since the treaty of 1835 was made, and no transfer from them or
their legal representatives is shown. But assuming that the
petitioners properly represent all rightful demands of the
Cherokees living in North Carolina when the treaty was made, what
were those demands? As designated by articles 12 and 15 of the
treaty, these Cherokees were to receive "their due portion of all
the personal benefits accruing under the treaty, for their claims,
improvements, and
per capita." The term "claims" had
reference to demands for spoliations of their property which
existed prior to the treaty. The improvements were those made on
the property ceded. By
per capita was meant the
proportionate amount, given to each Cherokee east not choosing to
emigrate, of the money received on the cession of the lands east of
the Mississippi, after deducting certain expenditures mentioned in
article fifteen. Whatever may have remained for the
per
capita distribution of the five millions received for the
lands after the deductions mentioned, it is plain that it
constituted no portion of the moneys that formed the fund of which
the petitioners seek by this suit a proportionate part. By the
treaty of 1846, certain sums were allowed, in addition to the five
millions specified in the treaty of 1835, and from the whole amount
certain items, other than those three designated, were to be
deducted, and the balance was to be paid over
per capita
in equal amounts to all the individuals, heads of families, or
their legal representatives entitled to receive it under that
treaty. But this change in no respect affects the case.
Page 117 U. S. 311
While the treaty of 1846 was under negotiation, one William H.
Thomas appeared in Washington as the representative of Cherokees in
North Carolina, and urged a recognition of their demands for the
per capita money and the removal and subsistence money
under articles eight and twelve of the treaty of 1835. He had
obtained a statement from one of the commissioners who negotiated
that treaty on the part of the United States, from several
respectable persons who were privy to the negotiations, and from
some of the Cherokees who signed the treaty, as to the meaning
which should be given to certain terms used in it, and we are
referred to these documents as though they should have some
influence upon the construction of those terms. But it is too plain
for controversy that they cannot be used to control the language of
the treaty or guide in its construction.
The
per capita money and removal and subsistence money
had not been paid when the treaty of 1846 was made, but the Court
of Claims finds that since then they have been paid. The claim now
presented by the Cherokees of North Carolina to a share of the
commuted annuity fund of $214,000, and of the fund created by sales
of lands west of the Mississippi ceded to the Cherokee Nation,
resting, as it does, upon the designation in the treaties of the
lands originally possessed by the Cherokees, and ceded to the
United States, or subsequently acquired by them from the United
States, as "the common property of the nation," or as held for the
"common use and benefit" of the Cherokee people, has no substantial
foundation. If Indians in that state, or in any other state east of
the Mississippi, wish to enjoy the benefits of the common property
of the Cherokee Nation, in whatever from it may exist, they must,
as held by the Court of Claims, comply with the Constitution and
laws of the Cherokee Nation, and be readmitted to citizenship as
there provided. They cannot live out of its territory, evade the
obligations and burdens of citizenship, and at the same time enjoy
the benefits of the funds and common property of the nation. Those
funds and that property were dedicated by the Constitution of the
Cherokees, and were intended by the treaties with the United
States, for the benefit of the united nation,
Page 117 U. S. 312
and not in any respect for those who had separated from it, and
become aliens to their nation. We see no just ground on which the
claim of the petitioners can rest to share in either of the funds
held by the United States in trust for the Cherokee Nation, and the
decree of the Court of Claims must therefore be
Affirmed.