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�
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 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
Page 193 U. S. 130
any part of the Cherokee reservation east of said line 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, 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 thereto heretofore 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
Page 193 U. S. 131
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 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
Page 193 U. S. 132
Delawares under the agreement, shall be invested and applied in
accordance with the twenty-third 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 hereinafter born of such Delawares so
incorporated into the Cherokee Nation shall in all respects be
regarded as native Cherokees."
The treaties which led up to this agreement are referred to in
the contract and were ratified in 1866. The fifteenth article of
the Treaty of August 11, 1866, between the United States and the
Cherokee Nation provided:
"Article XV. The United States may settle any civilized Indians,
friendly with the Cherokees and adjacent tribes, within the
Cherokee country, on unoccupied lands east of 96 degrees, on such
terms as may 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 settling 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 sustain 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 tribunal
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,
Page 193 U. S. 133
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."
"An 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 organization, 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 being first obtained, unless the President of
the United 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."
Article IV of the Delaware Treaty, referred to in the agreement
of April 8, 1867, is in the following terms:
"Article IV. The United States agree to sell to the said
Delaware Indians a tract of land ceded to the government by the
Choctaws and Chickasaws, the Creeks, or the Seminoles, or which may
be ceded by the Cherokees in the Indian Country, to be selected by
the Delawares in one body in as compact a form as practicable, so
as to contain timber, water, and agricultural lands, to contain in
the aggregate, if the said Delaware
Page 193 U. S. 134
Indians shall so desire, a quantity equal to one hundred and
sixty (160) acres for each man, woman, and child who shall remove
to said country at the price per acre paid by the United States for
the said lands, to be paid for by the Delawares out of the proceeds
of sales of land in Kansas heretofore provided for. The said tract
of country shall be set off with clearly and permanently marked
boundaries by the United States, and also surveyed as public lands
are surveyed, when the Delaware council shall so request; when the
same may, in whole or in part, be allotted by said council to each
member of said tribe residing in said country, said allotment being
subject to the approval of the Secretary of the Interior."
At the time of moving upon these lands, there were 985
registered Delawares, of whom 212 survived at the beginning of this
suit, together with children and descendants of those deceased.
The agreement of April 8, 1867, was before this Court in the
case of the
Cherokee Nation v. Journeycake, 155 U.
S. 196. While the precise questions involved in the
present controversy were not then before the Court, the rights
adjudicated turned upon the construction of the agreement of April
8, 1867, and its nature and the history of the events which led up
to its execution by the parties thereto were the subjects of
consideration and determination by this Court. In that case, it was
held that, under the agreement, the registered Delawares were
incorporated into the Cherokee Nation, and, as members and citizens
thereof, were entitled to participate in the proceeds of the sale
of a portion of the Cherokee lands upon equal terms with native
Cherokee citizens. The claim is made that the contract of 1867
secured to the registered Delawares individually, or to the
Delawares as a tribe, the 157,000 acres of land which were to be
set off to them east of the ninety-sixth meridian. This agreement
was made and entered into in pursuance of the treaty stipulations
hereinbefore referred to. And, while it may be regarded as arising
from these preliminary treaties with the United States, the care
with which it was
Page 193 U. S. 135
made and the evident intention of the parties to deal at arm's
length with full knowledge of their respective rights and aims,
leaves little to be gained from these preliminary treaties as an
aid to construction except as a means of placing ourselves in the
situation of the parties when the contract was signed and
delivered. It is the claim in behalf of the Delawares that, if not
technically an estate in fee, one was conveyed permanent in its
character and transmissible by descent to the children and kin of
the registered Delawares, or at least it was a holding which should
endure so long as the Delawares and their descendants continued to
exist as a tribe.
It was held in the
Journeycake case to be the purpose
of this agreement to incorporate the registered Delawares into the
Cherokee Nation, with full participation in the political and
property rights of citizens of that nation. As a part of the
general agreement, provision is made for rights in certain lands as
a home for the Delawares, who are to remove from their Kansas lands
to the Indian Territory. These lands are to pass to registered
Delawares, and they are to have the privilege of selecting them
from unoccupied lands east of the line 96 degrees west longitude.
This right is conferred not upon the Delaware Nation, but upon
certain registered Delawares who are to be incorporated into the
Cherokee Nation. To such is given a quantity of land equal in the
aggregate to one hundred and sixty acres for each registered
Delaware, whose name is required to be entered upon a register to
be filed in the Office of Indian Affairs, the lands thus conveyed
being distinctly declared to be sold to the Delawares "for their
occupancy." This limitation, in what may be characterized as the
habendum clause of the conveyance, does not import a
holding beyond the life of the first taker, and is entirely
inconsistent with the idea of permanency of tenure in the estate
conveyed unless there is something in the nature of Indian titles
to lands or in the terms of the instrument which requires an
enlargement of an estate for occupancy into one the equivalent of a
fee. It is argued that an estate of occupancy is the ordinary
estate of the Indian tribes, and
Page 193 U. S. 136
embraces all the title held by them, the fee remaining in the
United States. There is nothing to prevent the United States, if it
chooses to convey a fee to the Indian tribes, from so doing.
Indeed, in the sixteenth clause of the Treaty with the Cherokee
Nation of August, 1866, it is provided that a fee may be conveyed
to friendly Indians settled west of the ninety-sixth meridian. But,
for the present purpose, it is unnecessary to speculate as to the
nature of the Indian title derived from the United States by
treaty. The nature and extent of the Cherokee title has been
settled by previous adjudications of this Court. In the case of
Cherokee Trust Funds, 117 U. S. 288,
117 U. S. 308,
it was held that the lands of the Cherokee Nation belonged to them
as a political body, and not to its individual members, and,
speaking of the rights of individual Cherokees, it was said: "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."
The lands of the Cherokee Nation are not held in individual
ownership, but are public lands, though held for the equal benefit
of all the members.
Stephens v. Cherokee Nation,
174 U. S. 445,
174 U. S. 488;
Cherokee Nation v. Hitchcock, 187
U. S. 295. Under the patent issued to the Cherokees for
their lands, whatever title conveyed was to the Cherokees as a
nation, and no title was vested in severalty in any of the
Cherokees.
Cherokee Nation v. Journeycake, 155 U.
S. 196,
155 U. S.
207.
In an agreement incorporating certain Delawares into the
Cherokee Nation, it is important to consider under what terms and
conditions its citizens held and used the lands occupied by them.
We are here dealing with the extent of the title conveyed as
between Indian tribes, and the question is what did the Cherokees
convey in the agreement to the Delawares who came within the terms
of the compact and who were to be incorporated into the Cherokee
Nation? In addition to the limitations expressed in the conveyance,
"for occupancy," we find other terms of the instrument inconsistent
with the grant of a perpetual estate. It is provided that in case
the Cherokee
Page 193 U. S. 137
lands shall hereafter be allotted among the members of said
nation, the aggregate amount of land 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 the articles into the Cherokee Nation. The lands which are for
occupancy of the Delawares are described as "Cherokee lands," and a
provision made which secures one hundred and sixty acres, to
include their improvements, to each registered Delaware in case of
allotment. If the full title was intended to be transferred to the
Delawares, either as a tribe or individually, this stipulation to
secure the rights of the Delawares in the contingency named was
entirely superfluous. Further, the contract reads:
"Nor shall the ownership and occupancy of said lands by any
Delawares so registered be interfered with in any manner whatsoever
without his consent, but shall be subject to the same conditions
and restrictions as are, by the laws of the Cherokee Nation,
imposed upon the native citizens thereof. Provided, that nothing
herein shall confer the right to alienate, convey, or dispose of
any such land except in accordance with the constitution and laws
of said Cherokee Nation."
These stipulations wholly inconsistent with the full title of
the Delawares to the lands in question, must be read in the light
of the Constitution and laws of the Cherokee Nation as to the
holding of land by Cherokee citizens.
The provisions of the Cherokee Constitution and the statutes
passed in pursuance thereof pertinent to the subject are collected
in the opinion of the Court of Claims in the
Journeycake
case, and are cited in a note to the opinion of this Court in the
same case.
155 U. S. 155 U.S.
196,
155 U. S. 207.
From them, it is apparent that lands to be held upon the same terms
as the Cherokees hold their lands cannot be alienated by those who
occupy and hold them, but the ownership is lodged in the Cherokee
Nation. The individual has no right to alienate or lease the lands.
The nation grants and restricts the right of occupancy. The
title
Page 193 U. S. 138
to the lands is vested in the government, to be held and
controlled in such wise as to promote the general welfare. Under
these restrictions and conditions, the registered Delawares held
the lands set apart for their occupancy. In the laws of the
Cherokee Nation, we find that the use of the terms "for use and
occupancy" was not an unfamiliar form of expression in describing
the character and limitation upon the right of private ownership.
Thus, in the act relating to the public domain, and reserving
tracts of lands one mile square along railroads at stations, and
providing for the sale of town lots, it is provided that the
purchaser shall acquire no other rights than those of use and
occupancy. If the lands in question were granted in perpetuity to
the Delawares, we have the awarding of an estate of this character
carved out of lands recognized in the agreement as continuing to be
Cherokee lands, belonging to the nation which expressly limits the
conveyance of its lands to its own citizens for use and occupancy
only. Again, if it was intended to provide for the children or
heirs of the first takers -- the registered Delawares -- we should
expect to find some words in the agreement competent for that
purpose, conceding that the technical terms of the common law to
create an estate in fee need not have been used. As to the children
of the registered Delawares, we find this specific provision: "And
the children hereafter born of such Delawares so incorporated into
the Cherokee Nation shall, in all respects, be regarded as native
Cherokees." This provision is utterly inconsistent with the grant
of an estate in the lands to survive the "occupancy" of the
registered Delawares. Such children are to have the rights of
native Cherokees, and no more. Their parents were incorporated into
the Cherokee Nation with certain specific rights; the children were
to stand upon an equality with their adopted brethren of the
Cherokee blood.
The importance of the issue now distinctly made as to the title
to these lands has led us to give renewed examination to the
question of the extent and character of the interest conveyed to
the Delawares in the lands in controversy. In the
Page 193 U. S. 139
Journeycake case, while it is true that the precise
question was not the same as is now presented, full consideration
to all the terms of this contract was given in order to determine
the interests of the Delawares in the Cherokee lands sold, and the
court, speaking by MR. JUSTICE BREWER, used this pertinent
language, the force of which has not been diminished in the light
of subsequent examinations aided by the arguments and briefs of
counsel now presented:
"So far as the provision in the agreement for the purchase of
homes is concerned, it will be perceived that no absolute title to
these homes was granted. We may take notice of the fact that the
Cherokees, in their long occupation of this reservation, had
generally secured homes for themselves; that the laws of the
Cherokee Nation provided for the appropriation by the several
Cherokees of lands for personal occupation, and that this purchase
by the Delawares was with the view of securing to the individual
Delawares the like homes; that the lands thus purchased and paid
for still remained a part of the Cherokee reservation. And, as a
further consideration for the payment of this sum for the purchase
of homes, the Delawares were 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 one hundred and sixty 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
Page 193 U. S. 140
the Cherokee Nation. All this was in the line of the expressed
thought of a consolidation of these Delawares with, and the
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."
If such be the true construction of the agreement, it is
nevertheless insisted that it should not be literally enforced in
view of the understanding of the parties, more particularly of the
Delawares, that they were thereby receiving full title to the
occupied lands. To establish this contention, it is claimed that,
in view of the character of the contracting parties, they should
not be held to the strict rule of evidence which denies the
competency of parol testimony to contradict written agreements, and
a class of cases is cited of which
Worcester
v. Georgia, 6 Pet. 515, may be taken as an example.
The language of Justice McLean is quoted, in which he said:
"The language used in treaties with the Indians should never be
construed to their prejudice. If words be made use of which are
susceptible of a more extended meaning than their plain import, as
connected with the tenor of the treaty, they should be considered
as used only in the latter sense. . . . How the words of the treaty
were understood by this unlettered people, rather than their
critical meaning, should form the rule of construction."
But the Justice was here dealing with a treaty negotiated
between the representatives of the United States and those of the
Indians, wherein the disparity of the contracting parties in
education and knowledge of law and the use of language is
obvious.
Page 193 U. S. 141
The contract of April 7, 1867, was negotiated between
representatives of Indian nations, meeting upon equal terms. In the
testimony of John G. Pratt, called for the Delawares, and at one
time Indian agent for the Delaware agency, it appears:
"Q. Do you know whether or not the agreement frequently referred
to in your testimony was read over to the two delegations
representing the Delawares and Cherokee tribes of Indians?"
"A. It was read over repeatedly; read over and corrected and
altered and read over again several times, and each party put in
his suggestions, until they finally harmonized."
"Q. Then, as I understand, the agreement, as finally signed,
expressed the wishes of both sides, and both sides were fully
satisfied with all it contained?"
"A. No; the Delawares were not satisfied, but they signed
because it was the best they could do. They wanted to own the land
outright."
"Q. They did not contend at any time afterwards that the
agreement did not fully express what they intended to express, did
they?"
"A. No, sir; I did not hear anything of that kind."
We can perceive no room in this case for a departure from the
familiar rules of the law protecting written agreements from the
uncertainties of parol testimony. The testimony offered was, in the
main, that of interested persons nearly thirty years after the
agreement had been reduced to writing and signed by the parties
thereto. Nor can we find a latent ambiguity in the terms of the
contract which requires the admission of parol testimony to explain
its effect. In the light of the circumstances and the language used
in the writing, its construction is not rendered difficult because
of latent ambiguities. It is claimed as a cogent circumstance,
which should be considered in construing this agreement, that the
Cherokee Nation received one dollar per acre for these lands -- a
sum sufficient to cover their full value, and of consequent
importance in determining the character of the estate conveyed.
Page 193 U. S. 142
In the
Journeycake case, it was held that, in
consideration of the sum paid for citizenship rights, the Delawares
obtained an interest in the lands of the Cherokee Nation, although
the same were not considered in making up the sum paid for what has
been denominated the right of citizenship. In that case, it is
pointed out that, at the time the agreement under consideration was
made, the Cherokee Nation possessed, in addition to the "neutral"
lands in Kansas, which were estimated at $1,000,000 in making up
the total of the Cherokee national fund of $1,678,000 upon the
basis of which the Delawares paid into the common fund --
"Strip" lands in Kansas (about) . . . . . . . . 400,000
acres
Lands west of 96 degrees, Indian Territory
(about) . . . . . . . . . . . . . . . . . . . 8,000,000
acres
Lands east of 96 degrees, Indian Territory
home reservation (about). . . . . . . . . . . 5,000,000
acres
In that case, it was held that the Delawares acquired a right in
the distribution of the proceeds, not only of the Kansas lands, but
as well in such sales as were made of this vast domain held by the
Cherokee Nation. Of this feature of the agreement MR. JUSTICE
BREWER, in the
Journeycake case, says:
"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 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
the right to share in any future allotment. "
Page 193 U. S. 143
We conclude, then, that the registered Delawares acquired in
these lands only the right of occupancy during life, with a right,
upon allotment of the lands, to not less than one hundred and sixty
acres, together with their improvements, and the children and
descendants of such Delawares took only the rights of other
citizens of the Cherokee Nation as the same are regulated by its
laws.
The bill further seeks to exclude from the allotment of Cherokee
lands and funds certain citizens alleged to have been illegally
admitted to citizenship, thereby wrongfully diminishing the shares
of the Delawares in the common property. At the time of the
agreement of April 7, 1867, the Constitution, secs. 2 and 5, of the
Cherokee Nation had been amended to read:
"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 freed
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."
These constitutional provisions were in full force when the
Delawares acquired their rights and when they were incorporated,
or, as the agreement expressed it, "consolidated," with
Page 193 U. S. 144
the Cherokee Nation. Under its terms, the Delawares have
participated in political rights and have taken part in the
government of the nation. It is claimed that these amendments were
illegally adopted for want of compliance with authorized methods
for amending the national constitution. But the nation has never
undertaken to set them aside or call in question their force and
effect. They were in the fundamental law when the Delawares were
made a part of the Cherokee Nation, and the rights exercised were
only those belonging to the nation when the Delawares saw fit to
subject themselves to the laws of a new nation of which they were
to become a component part upon equal terms with other citizens.
The Cherokee Nation has many of the rights and privileges of an
independent people. They have their own constitution and laws, and
power to administer their internal affairs. They are recognized as
a distinct political community, and treaties have been made with
them in that character.
Cherokee Trust Funds, 117 U.
S. 288. It is not reasonable to suppose that in the act
under which these proceedings were brought it was intended to
authorize inquiry into the administration of the political affairs
of the Cherokee Nation, with a view to setting aside and the
revision of political action in admitting and the revision of
political action in admitting persons to citizenship in the nation
under authority of its constitution. The same conclusion disposes
of the contention of the appellants that relief can be granted in
this case in respect to alleged maladministration of the financial
affairs of the Cherokee Nation, with a view to holding it to
account in favor of the Delawares prosecuting this suit. We are
authorized by the Enabling Act to determine the contractual rights
of the Delawares in the national lands and funds, not to overhaul
the political and administrative action of the Cherokee Nation.
The act authorizing this suit contemplates a determination of
the rights and interest of the Delawares residing in the Cherokee
Nation in the lands and funds of the Cherokee Nation under the
compact of April, 1867. That it was the purpose
Page 193 U. S. 145
of Congress to have a full and final determination of such
rights is further shown in the Cherokee Allotment Act of July 1,
1902. Section 23 of this act provides:
"SEC. 23. All Delaware Indians who are members of the Cherokee
Nation shall take lands and share in the funds of the tribe, as
their rights may be determined by the judgment of the Court of
Claims, or by the Supreme Court if appealed, in the suit instituted
therein by the Delawares against the Cherokee Nation, and now
pending; but if said suit be not determined before said commission
is ready to begin the allotment of lands of the tribe as herein
provided, the commission shall cause to be segregated one hundred
and fifty-seven thousand, six hundred acres of land, including
lands which have been selected and occupied by Delawares in
conformity to the provisions of their agreement with the Cherokees
dated April eighth, eighteen hundred and sixty-seven, such lands so
to remain, subject to disposition according to such judgment as may
be rendered in said cause, and said commission shall thereupon
proceed to the allotment of the remaining lands of the tribe as
aforesaid. Said commission shall, when final judgment is rendered,
allot lands to such Delawares in conformity to the terms of the
judgment and their individual rights thereunder. Nothing in this
act shall in any manner impair the rights of either party to said
contract as the same may be finally determined by the court, or
shall interfere with the holdings of the Delawares under their
contract with the Cherokees of April eighth, eighteen hundred and
sixty-seven, until their rights under said contract are determined
by the courts in their suit now pending against the Cherokees, and
said suit shall be advanced on the dockets of said courts, and
determined at the earliest time practicable."
These acts contemplate a judgment of the court which shall
determine 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. The Court of Claims rendered
Page 193 U. S. 146
a decree dismissing the bill. Whilst agreeing with the
conclusions reached in that court as to the rights of the
Delawares, we think the bill was broad enough in its allegations
and prayer for relief to require a definite settlement of the
rights in controversy. Instead of dismissing the bill, we think a
decree should have been entered finding the registered Delawares
entitled to participate equally with Cherokee citizens of Cherokee
blood in the allotment of lands of the Cherokee Nation, with the
addition that, if there is not enough land to give to each citizen
of the nation one hundred and sixty acres, then the registered
Delawares shall be given that quantity, together with their
improvements. In all other respects the Cherokee citizens, whether
of Delaware or Cherokee blood, should be given equal rights in the
lands and funds of the Cherokee Nation. The decree dismissing the
bill is so modified as to conform to the terms just stated, and, as
so modified, it is
Affirmed.