Children born to enrolled members of the Cherokee Tribe after
September 1, 1902, and living on March 4, 1906, are entitled to
enrollment as members of the tribe and to participation in the
allotment and distribution of its lands and funds made under the
Act of July 1, 1902, 32 Stat. 725, c. 1375, and subsequent acts
relating to such allotment and distribution.
Section 2 of the Act of April 26, 1906, as amended June 21,
1906, for the enrollment of minor children living March 4, 1906, is
not to be construed as excluding those born after September 1,
1902.
Under the Act of July 1, 1902, individual members of the
Cherokee Tribe did not individually acquire any vested rights in
the surplus lands and funds of the tribe that disabled Congress
from thereafter making provision for admitting newly born members
of the tribe to the allotment and distribution, as it did by the
Act of April 26, 1903.
The Act of July 1, 1902, limiting the allottees and distributees
of Cherokee lands and funds, was not a contract, but only an act of
Congress, and can have no greater effect; it was but an exertion of
the governmental administrative control over tribal property of
tribal Indians, and subject to change by Congress at any time
before it was carried into effect and while tribal relations
continued.
37 App.D.C. 473 affirmed.
Page 224 U. S. 641
The facts, which involve the construction and validity of the
statutes relating to allotment and distribution of Cherokee lands
and funds and the right of children born after September 1, 1902,
to participate therein, are stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
The question presented for decision in this case is whether
children born to enrolled members of the Cherokee Tribe of Indians
after September 1, 1902, and living on March 4, 1906, are entitled
to enrollment as members of the tribe, and to participation in the
allotment and distribution of its lands and funds now being made
under the legislation of Congress. The Secretary of the Interior
and the Secretary of the Treasury, who are respectively charged
with important duties in that connection, have taken the position,
and are proceeding upon the theory, that, under the Acts of April
26, 1906, and June 21, 1906,
infra the right of the
controversy is with the children, and the purpose of this suit is
to test the accuracy of that position, and, if it be held
untenable, to enjoin those officers from giving effect to it. The
suit was begun in the Supreme Court of the District of Columbia in
1911, and the plaintiffs are three Indian members of the tribe,
duly enrolled as such as of September 1, 1902, under the Act of
July 1,
Page 224 U. S. 642
1902,
infra, who sue on behalf of themselves and all
others similarly situated. A demurrer to the bill was sustained and
a decree of dismissal entered, which was affirmed by the Court of
Appeals. 37 App.D.C. 473. An appeal brought the case here.
During the last twenty years, Congress has enacted a series of
laws looking to the allotment and distribution of the lands and
funds of the Five Civilized Tribes, of which the Cherokee Tribe is
one, among their respective members, and to the dissolution of the
tribal governments. An extended statement of these laws, so far as
they concern the Cherokees, as also of the title by which their
lands and funds have been held and of the relations of the tribe
and its members to the United States, will be found in
Stephens
v. Cherokee Nation, 174 U. S. 445;
Cherokee Nation v. Hitchcock, 187 U.
S. 294;
Cherokee Intermarriage Cases,
203 U. S. 76;
Lowe v. Fisher, 223 U. S. 95, and
Heckman v. United States, ante, p.
224 U. S. 413.
Anterior to this legislation, the lands and funds belonged to
the tribe as a community, and not to the members severally or as
tenants in common. The right of each individual to participate in
the enjoyment of such property depended upon tribal membership, and
when that was terminated by death or otherwise, the right was at an
end. It was not alienable or descendible. And when children were
born into the tribe, they became thereby members, and entitled to
all the rights incident to that relation. Under treaties with the
United States, the tribe maintained a government of its own, with
legislative and other powers, but this was a temporary expedient,
and in time proved inefficient and unsatisfactory. As in the
instance of other tribal Indians, the members of this tribe were
wards of the United States, which was fully empowered, whenever it
seemed wise to do so, to assume full control over them and their
affairs, to determine who were such members, to allot and
distribute the tribal lands and funds among
Page 224 U. S. 643
them, and to terminate the tribal government. This Congress
undertook to do. The undertaking was a large one, and difficulties
were encountered. The first legislation was largely preliminary and
experimental, and need not be specially noticed, because no
material change in the situation resulted therefrom.
The Act of July 1, 1902, 32 Stat. 716, c. 1375, which related
only to the Cherokees and is spoken of as the Cherokee Agreement,
was quite comprehensive and is the one upon which the plaintiffs
here rely. It made provision for ascertaining who were members, and
permanently enrolling them (§§ 25-30), for reserving certain of the
tribal lands for public purposes (§ 24), for appraising the other
lands (§§ 9, 10), and for allotting in severalty to each enrolled
member land equal in value to 110 acres of the average allottable
lands (§ 11). It declared that the enrollment should be made "as of
September 1, 1902," and should include "all persons then living"
and entitled to enrollment (§ 25); that "no child born thereafter"
should be entitled to enrollment or "to participate in the
distribution of the tribal property" (§ 26); that, during the
months of September and October, 1902, applications could be
received for the enrollment of infant children born to recognized
and enrolled members on or before September 1 of that year, but
that the application of no person whomsoever for enrollment should
be received after October 31, 1902 (§ 30); that no person not
enrolled should be entitled to "participate in the distribution of
the common property" of the tribe, and those who were enrolled
should "participate in the manner set forth" in the act (§ 31);
that the enrollment should be made in partial lists, which, when
approved by the Secretary of the Interior, were to constitute parts
of the final roll "upon which allotment of land and distribution of
other tribal property" should be made, and that, when lists
embracing all persons lawfully entitled to enrollment were
Page 224 U. S. 644
made and approved, the roll should "be deemed complete" (§ 29).
There were provisions that "no allotment of land or other tribal
property" should be made on behalf of any enrolled person dying
prior to September 1, 1902, but that his right in the lands or
other tribal property should be deemed extinguished (§ 31), and
that, if any enrolled person should die after September 1, 1902,
and before receiving his allotment, the lands to which he would
have been entitled if living should be allotted in his name, and
should, "with his proportionate share of other tribal property,"
descend to his heirs (§ 20). The act declared that the tribal
government should not continue longer than March 4, 1906 (§ 63),
directed the payment in full, out of the tribal funds, of the
lawful indebtedness of the tribe incurred up to the time of its
dissolution, and authorized a
pro rata distribution, among
the enrolled members, of the tribal funds remaining after the
dissolution of the tribal government and the payment of its
indebtedness (§§ 66, 67). But it made no specific provision for the
distribution or disposal of tribal lands remaining after the
prescribed reservations and allotments were made.
But the tribal government was not dissolved on March 4, 1906. By
joint resolution of March 2, 1906, Congress provided that the
tribal existence and the tribal government should continue until
all property of the tribe, or the proceeds thereof, should be
distributed among the individual members (34 Stat. 822), and, by
the Act of April 26, 1906, they were further continued until
otherwise provided by law (34 Stat. 137, 148, c. 1876). On those
dates, the work contemplated by the Act of July 1, 1902, had not
been completed. Some of the applications for enrollment, received
within the time prescribed in the act, had not been acted upon;
some of the enrolled members had not selected their allotments, and
litigation was pending which involved the rights of some who had
been enrolled and of others whose applications were awaiting
Page 224 U. S. 645
action. In addition to this, some tho otherwise were entitled to
enrollment had filed applications therefor after the time
prescribed, and the tribal council of the Cherokees had requested
that children born after September 1, 1902, and before March 4,
1906, who, but for the limitation in the Act of July 1, 1902, would
be entitled to participate in the allotment and distribution of the
tribal lands and moneys equally with members born prior thereto, be
admitted to such participation, if possible, and if that could not
be done, that each child born between those dates be given a sum of
money sufficient to place him, as far as possible, on an equal
footing with the others.
The Act of April 26, 1906, unlike that of July 1, 1902, was not
limited to the Cherokees, but it did in express terms include them.
By its twenty-eighth section, it continued the tribal existence and
the tribal government, as just indicated; by its first section, it
authorized the enrollment of a class of persons whose applications
therefor were made prior to December 1, 1905, and were not allowed
solely because not made in time, and by its second section, as
amended June 21, 1906, 34 Stat. 325, 341, c. 3504, it provided as
follows:
"That for ninety days after approval hereof, applications shall
be received for enrollment of children who were minors living March
fourth, nineteen hundred and six, whose parents have been enrolled
as members of the Choctaw, Chickasaw, Cherokee, or Creek tribes, or
have applications for enrollment pending at the approval hereof,
and, for the purpose of enrollment under this section, illegitimate
children shall take the status of the mother, and allotments shall
be made to children so enrolled. If any citizen of the Cherokee
Tribe shall fail to receive the full quantity of land to which he
is entitled as an allotment, he shall be paid out of any of the
funds of such tribe a sum equal to twice the appraised value of the
amount of land thus deficient. . . .
Provided,
Page 224 U. S. 646
That the rolls of the tribes affected by this act shall be fully
completed on or before the fourth day of March, nineteen hundred
and seven, and the Secretary of the Interior shall have no
jurisdiction to approve the enrollment of any person after said
date:
Provided further, That nothing herein shall be
construed so as hereafter to permit any person to file an
application for enrollment or to be entitled to enrollment in any
of said tribes, except for minors, the children of Indians by
blood, or of freedmen members of said tribes, . . . as herein
otherwise provided."
By its sixteenth and seventeenth sections, it further provided
that, after the making of the allotments provided for in that and
other acts, the residue of the lands not reserved or otherwise
disposed of should be sold by the Secretary of the Interior, and
the proceeds deposited in the United States Treasury to the credit
of the tribe, together with moneys arising from other sources, and
that thereafter, and when all the just charges against the tribal
funds should be deducted therefrom, the remaining funds should be
distributed per capita to the members then living and to the heirs
of deceased members named in the finally approved rolls.
The controversy here arises out of the provision in § 2 of the
Act of April 26, 1906, as amended June 21 following, for the
enrollment of "children who were minors living March 4, 1906,"
which the defendants regard as including children born after
September 1, 1902, and living on March 4, 1906. The appellants
contend first that it does not include children born after
September 1, 1902, but only such as were born prior to that date,
and for whom no application for enrollment was made within the time
limited by the Act of July 1, 1902 -- that is, on or before October
31, 1902 -- and second, that if it does include children born after
September 1, 1902, it arbitrarily takes from the appellants and
others similarly situated property
Page 224 U. S. 647
which is theirs and gives it to others, and therefore is
violative of due process of law. The last contention rests upon
another,
viz., that the Act of July 1, 1902, vested in the
members living on September 1, 1902, who were enrolled under that
act, an absolute right to receive all lands of the tribe not
reserved or allotted thereunder, and all funds of the tribe not
used in the payment of tribal debts.
We are unable to assent to the first contention. The provision
in question says "children who were minors living March 4, 1906,"
and those words as naturally and aptly embrace children born after
as before September 1, 1902. Had it been intended, as is claimed,
merely to extend the time for filing applications on behalf of
children living on September 1, 1902, and therefore born on or
before that date, it is reasonable to believe that other words more
appropriate to the occasion would have been used. Why say "living
March 4, 1906," if, as to these children, the prior requirement
expressed in the words "living on September 1, 1902," was not to be
affected? Besides, the Cherokee tribal council, as also the
Chickasaw legislature (
see H.R.Doc. No. 455, 59th Cong.,
1st Sess.), had asked that provision be made for the enrollment of
children born up to March 4, 1906, and that would shed some light
on the provision were its meaning uncertain. But it does not seem
to have been regarded as uncertain by those charged with its
enforcement, nor by the courts below. On the contrary, they treated
it as plainly including children born after September 1, 1902, and
we think that is the right view of it.
We come, then, to the second contention. It is not proposed to
disturb the individual allotments made to members living September
1, 1902, and enrolled under the Act of 1902, and therefore we are
only concerned with whether children born after September 1, 1902,
and living on March 4, 1906, should be excluded from the allotment
and distribution. The Act of 1902 required that they be
Page 224 U. S. 648
excluded, and the legislation in 1906, as we have seen, provides
for their inclusion. It is conceded, and properly so, that the
later legislation is valid and controlling unless it impairs or
destroys rights which the Act of 1902 vested in members living
September 1, 1902, and enrolled under that act. As has been
indicated, their individual allotments are not affected. But it is
said that the Act of 1902 contemplated that they alone should
receive allotments and be the participants in the distribution of
the remaining lands, and also of the funds, of the tribe. No doubt
such was the purport of the act. But that, in our opinion, did not
confer upon them any vested right such as would disable Congress
from thereafter making provision for admitting newly born members
of the tribe to the allotment and distribution. The difficulty with
the appellants' contention is that it treats the Act of 1902 as a
contract, when "it is only an act of Congress, and can have no
greater effect."
Cherokee Intermarriage Cases,
203 U. S. 76. It
was but an exertion of the administrative control of the government
over the tribal property of tribal Indians, and was subject to
change by Congress at any time before it was carried into effect
and while the tribal relations continued.
Stephens v. Cherokee
Nation, 174 U. S. 445,
174 U. S. 488;
Cherokee Nation v. Hitchcock, 187 U.
S. 294;
Wallace v. Adams, 204 U.
S. 415,
204 U. S. 423.
It is not to be overlooked that those for whose benefit the change
was made in 1906 were not strangers to the tribe, but were children
born into it while it was still in existence, and while there was
still tribal property whereby they could be put on an equal, or
approximately equal, plane with other members. The council of the
tribe asked that this be done, and we entertain no doubt that
Congress, in acceding to the request, was well within its
power.
Decree affirmed.