The Act of Congress of July 4, 1884, 23 Stat. 73, c. 179,
granting a right of way through the Indian Territory to the
Southern Kansas Railway Company, for a railroad, telegraph and
telephone line, is a valid exercise of the power of Congress to
regulate commerce among the several states and with the Indian
tribes.
The Cherokee Nation filed in the court below a bill of
complaint, seeking a decree enjoining the Southern Kansas Railway
Company from entering upon the lands of that nation for the purpose
of constructing its proposed railway, and, if that relief could not
be granted, then that its bill might be treated as an original
complaint and petition in appeal as provided in § 3, c. 179, Act of
July 4, 1884, 23 Stat. 73.
Held:
(1) That these two causes of action, one of an equitable and the
other of a legal nature, could not be joined in the same suit.
(2) That the court below erred in not treating the complaint as
a petition of appeal which entitled the petitioners to have a trial
de novo of the question of damages for the lands and
rights proposed to be taken.
The Cherokee Nation is not sovereign in the sense that the
United States or a state is sovereign, but is now, as heretofore, a
dependent political community, subject to the paramount authority
of the United States.
The United States may exercise the right of eminent domain in
respect to lands in the territories, as in any of the states, for
purposes necessary to the execution of the powers belonging to the
general government, such an exercise being essential to their
independent existence and perpetuity.
All lands held by private persons within the limits of the
United States are held subject to the authority of the general
government to take them for such objects as are germane to the
execution of the powers granted to it, provided only that they are
not taken without just compensation being made to the owner.
In the execution of the power to regulate commerce, Congress may
employ, as instrumentalities, corporations created by it or by the
states.
A railroad is a public highway established primarily for the
convenience of the people and to subserve public ends, and is
subject to governmental control and regulation, and for these
reasons the corporation owning
Page 135 U. S. 642
it may, under legislative sanction, take private property for a
right of way upon making just compensation to the owner.
The act granting a right of way to the Southern Kansas Railway
Company through the Indian Territory authorized the company to
enter upon the lands taken for right of way after it should have
paid into court doable the amount of the award of the referees
appointed by the President.
Held that this was a
sufficient provision to secure just compensation; that the
Constitution does not require that compensation shall be made in
advance of the appropriation of lands for a right of way; that it
is sufficient if adequate provision be made to secure just
compensation; that the title does not pass from the owner till such
compensation is actually received, and that if the railway company
fails to pay the amount ascertained, it will thereafter be a
trespasser, although before the termination of the proceedings
instituted to fix the compensation, it may have rightfully entered
upon the lands for the purpose of constructing its road.
In equity. The case is stated in the opinion.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This is an appeal from a decree of the District Court of the
United States for the Western District of Arkansas. The litigation
between the parties arises out of an Act of Congress, approved July
4, 1884, entitled "An act to grant the right of way through the
Indian Territory to the Southern Kansas Railway Company, and for
other purposes." 23 Stat. 73. By the first section of that act, the
above company was authorized to locate, construct, operate, and
maintain a railway, telegraph, and telephone line, through the
Indian Territory, beginning at a point on the northern line of the
territory, where an extension of the Southern Kansas Railway from
Winfield in a southerly direction would strike that line, running
thence south in the direction of Dennison, Texas on the most
practicable route, to a point at or near where the Washita River
empties into the Red River, with a branch constructed
Page 135 U. S. 643
from a point at or near where the main line crosses the northern
line of the territory, westwardly along or near that line to a
point at or near where Medicine Lodge Creek crosses the northern
line of the territory, and from that point in a southwesterly
direction, crossing Beaver creek at or near Camp Supply, and
reaching the west line of the Indian Territory at or near where
Wolf Creek crosses the same, with the right to construct, use, and
maintain such tracks, turn-outs, and sidings as the company might
deem it to their interest to construct along and upon the right of
way and depot grounds by that act granted. The second section
grants to the company a right of way of a prescribed width through
the territory for its main line and branch road, stations, and
telegraph and telephone lines, subject to the condition that no
part of the lands granted shall be used otherwise than for the
company's railroad, telegraph, and telephone lines, and that, if
any portion ceases to be so used, it shall revert to the nation or
tribe of Indians from which it was taken.
The third section, upon which some of the principal questions in
the case depend, is in these words:
"SEC. 3. That before said railway shall be constructed through
any lands held by individual occupants according to the laws,
customs, and usages of any of the Indian nations or tribes through
which it may be constructed, full compensation shall be made to
such occupants for all property to be taken or damage done by
reason of the construction of such railway. In case of failure to
make amicable settlement with any occupant, such compensation shall
be determined by the appraisement of three disinterested referees,
to be appointed by the President, who, before entering upon the
duties of their appointment, shall take and subscribe, before
competent authority, an oath that they will faithfully and
impartially discharge the duties of their appointment, which oath,
duly certified, shall be returned with their award. In case the
referees cannot agree, then any two of them are authorized to make
the award. Either party being dissatisfied with the finding of the
referees shall have the right, within ninety days after the making
of the award and notice of the same, to appeal by
Page 135 U. S. 644
original petition to the courts, where the case shall be tried
de novo. When proceedings have been commenced in court,
the railway company shall pay double the amount of the award into
court to abide the judgment thereof, and then have the right to
enter upon the property sought to be condemned, and proceed with
the construction of the railroad. Each of said referees shall
receive for their services the sum of four dollars per day for each
day they are engaged in the trial of any case submitted to them
under this act, with mileage at five cents per mile. Witnesses
shall receive the usual fees allowed by the courts of said nations,
costs, including compensation of the referees, shall be made a part
of the award, and be paid by such railroad company."
The 5th, 6th, and 8th sections are as follows:
"SEC. 5. That said railway company shall pay to the Secretary of
the Interior, for the benefit of the particular nations or tribes
through whose lands said main line and branch may be located, the
sum of fifty dollars, in addition to compensation provided for in
this act, for property taken and damages done by the construction
of the railway, for each mile of railway that it may construct in
said territory, said payments to be made in installments of five
hundred dollars as each ten miles of road is graded. Said company
shall also pay, so long as said territory is owned and occupied by
the Indians, to the Secretary of the Interior, the sum of fifteen
dollars per annum for each mile of railway it shall construct in
the said territory. The money paid to the Secretary of the Interior
under the provisions of this act shall be apportioned by him in
accordance with the laws and treaties now in force among the
different nations and tribes according to the number of miles of
railway that may be constructed by said railway company through
their lands,
provided that Congress shall have the right,
so long as said lands are occupied and possessed by said nations
and tribes, to impose such additional taxes upon said railroad as
it may deem just and proper for their benefit;
provided
further that if the general council of either of the nations
or tribes through whose lands said railway may be located shall
within four months
Page 135 U. S. 645
after the filing of maps of definite location, as set forth in
section six of this act, dissent from the allowances provided for
in this section, and shall certify the same to the Secretary of the
Interior, then all compensation to be paid to such dissenting
nation or tribe under the provisions of this act shall be
determined as provided in section three for the determination of
the compensation to be paid to the individual occupant of lands,
with the right of appeal to the courts upon the same terms,
conditions, and requirements as therein provided,
provided
further that the amount awarded or adjudged to be paid by said
railway company for said dissenting nation or tribe shall be in
lieu of the compensation that said nation or tribe would be
entitled to receive under the provisions of this section. Nothing
in this act shall be construed to prohibit Congress from imposing
taxes upon said railway, nor any territory or state hereafter
formed through which said railway shall have been established, from
exercising the like power as to such part of said railway as may
lie within its limits. Said railway company shall have the right to
survey and locate its railway immediately after the passage of this
act."
"SEC. 6. That said company shall cause maps showing the route of
its located lines through said territory to be filed in the office
of the Secretary of the Interior and also to be filed in the office
of the principal chief of each of the nations or tribes through
whose lands said railway may be located, and after the filing of
said maps, no claim for a subsequent settlement and improvement
upon the right of way shown by said maps shall be valid as against
said company,
provided that when a map showing any portion
of said railway company's located line is filed as herein provided
for, said company shall commence grading said located line within
six months thereafter or such location shall be void, and said
location shall be approved by the Secretary of the Interior in
sections of twenty-five miles before construction of any such
section shall be begun."
"SEC. 8. That the United States Circuit and District Courts for
the Northern District of Texas, the Western District of
Page 135 U. S. 646
Arkansas, and the District of Kansas, and such other courts as
may be authorized by Congress, shall have, without reference to the
amount in controversy, concurrent jurisdiction over all
controversies arising between said Southern Kansas Railway Company
and the nations and tribes through whose territory said railway
shall be constructed. Said courts shall have like jurisdiction,
without reference to the amount in controversy, over all
controversies arising between the inhabitants of said nations or
tribes and said railway company, and the civil jurisdiction of said
courts is hereby extended within the limits of said Indian
Territory, without distinction as to citizenship of the parties, so
far as may be necessary to carry out the provisions of this
act."
The Cherokee Nation having dissented from the allowance provided
for in the fifth section of the above act, commissioners were
appointed by the President as provided in the third section. They
met at Topeka, Kansas, on the 26th of August, 1886, and, having
duly qualified according to law, proceeded to the Indian Territory
in the discharge of their duties. Their report to the President,
made September 25, 1886, states that they inspected the located
line of road as it traversed the territory of the Cherokee Nation,
with its branch, and that, upon an actual view of the lands
proposed to be taken and appropriated for right of way, station
grounds, etc., under the act of Congress, they found that said
nation was entitled to receive as adequate compensation for such
lands, and for damages done by the construction of the railway for
thirty-five and one-half miles of the main line the sum of $93 for
each mile, aggregating for the whole distance $3,301.50. They also
found and awarded as adequate compensation and damages in respect
to the lands to be taken and appropriated for the branch line, one
hundred and twelve and 54/100 miles in length, the sum of $36 for
each mile, aggregating for the whole distance the sum of $4,051.44.
The commissioners ordered that the railway company, within ten days
after receiving notice from the Secretary of the Interior that
their report was filed, should deposit with that officer the total
amount of the awards made by them, for such disposition, under the
law
Page 135 U. S. 647
and the order of the secretary, as might be just and proper.
This report having been filed in the office of the Secretary of the
Interior, its contents were made known by that officer to the
principal chief of the Cherokee Nation in a communication dated
October 29, 1886.
The Cherokee Nation, by the act of its national council approved
December 17, 1886, concurred in by its house December 16, 1886,
dissented from and rejected as unjust, inequitable, and without
authority of law, the award made by the commissioners.
The third, fourth, fifth, and eighth sections of that act are as
follows:
"SEC. 3. That the Cherokee Nation does not concede to the United
States the rightful power, through its constituted authorities, to
authorize any private individual or corporation to enter upon,
appropriate, and use any lands belonging to said nation without
first obtaining the consent of the constituted authorities of said
nation, and hereby protests against the action of said Southern
Kansas Railway Company in entering upon and appropriating the lands
of the Cherokee Nation as an arbitrary and unjust violation of the
guaranteed rights of said nation."
"SEC. 4. That the principal chief be, and he is hereby,
authorized and empowered to proceed in pursuance of the provisions
of the third and the eighth sections of said act of Congress, and
bring suit in the Circuit Court of the United States in and for the
Western District of Arkansas against said Southern Kansas Railway
Company, the object of said suit being to indicate the absolute
title of the Cherokee Nation to all lands within her borders and to
obtain redress from said company for such damages as may have been
sustained by said nation by means of the location and construction
of said railroad,
provided that nothing herein shall be
construed as an acknowledgment by the Cherokee Nation of the right
of the United States to appropriate the lands of the Cherokee
Nation for the benefit of private corporations without its
consent."
"SEC. 5. That the principal chief be, and he is hereby, further
authorized and empowered to employ suitable counsel for the
Page 135 U. S. 648
bringing and managing of said suit on the part of the Cherokee
Nation."
"SEC. 8. That the principal chief be, and he is hereby,
authorized and required to certify the provisions of this act to
the Secretary of the Interior, in pursuance of the provisions of
the fifth section of act of Congress."
Subsequently the Cherokee Nation, by its attorneys, sent a
communication to the President of the United States in which that
nation, with its principal chief -- reserving to that nation all
rights and claims in and to the common property thereof as absolute
owner of the same, and expressly denying the right and authority of
the United States to grant to persons or corporations any easement,
right of way, or property right whatever, in, to, and upon their
common property, as specially set forth in their protest of
December 12, 1884, -- appealed to the Circuit Court of the United
States of the Western District of Arkansas from the award and
judgment of the referees, and prayed that a transcript of all the
proceedings relating to the award, together with their appeal, be
certified to that court.
In consequence of this communication and appeal, the Secretary
of the Interior, January 22, 1887, transmitted to that court all of
said proceedings on file in his department as far as they related
to the Cherokee lands proposed to be taken by the railroad
company.
The bill in the present case was filed in that court on the 26th
day of January, 1887.
It alleges that the Cherokee Nation is a sovereign state,
recognized as such by the various treaties made between it and the
United States, beginning with that of Hopewell, November 22, 1785,
and ending with that of Washington, July 10, 1866, and is entitled
to exercise, and is exercising, the powers, jurisdiction, and
functions of a sovereign state within the territory ceded to it and
defined under the Treaty of Fort Gibson, February 14, 1833.
It also alleges that by virtue of its inherent sovereignty, as
recognized by those treaties, the right of eminent domain, with
other rights of sovereignty in this country, remains
exclusively
Page 135 U. S. 649
vested in it; that in addition to the cessions of territory by
the above treaties, for which it gave a full and valuable
consideration, the United States, by letters patent, conveyed said
territory to it in fee simple; that all of such territory remains
under the jurisdiction and sovereignty of the plaintiff except
certain tracts lying west of the ninety-sixth degree of west
longitude and north of the thirty-seventh degree of north latitude,
which have been conveyed back to the United States by the Cherokee
Nation under the terms of the treaty of 1866; that the Southern
Kansas Railway Company, without right, and without consent or
license from the plaintiff, entered its domain and territory and
commenced the construction over it of a railway; that in the
construction of such railway, that company had commenced cutting
down the natural surface of the land, building embankments thereon,
and appropriating the stone, earth, and lumber found on the line of
the proposed road; had graded about ten miles of its road and
threatened and intended to carry on the same damage and destruction
of the plaintiff's property throughout the whole of the proposed
line of road, destroying the property and depriving the plaintiff,
by reason of the construction of such road, of a large revenue
arising from the rental of its property for grazing purposes under
existing leases of the lands proposed to be occupied by the railway
company, and causing thereby irreparable loss and damage to the
plaintiff. Referring to the act of Congress, the plaintiff avers
that no jurisdiction or authority remained in the United States to
grant any right of way through its territory, and that the right of
eminent domain over that territory remained, under the above
treaties and patents, in the plaintiff. The bill then sets forth
the facts already stated in relation to the proceedings taken by
the commissioners appointed under the act of Congress, and
proceeds:
"That even though the said referees had been authorized to make
the award referred to, the sum by them awarded is entirely
insufficient and inadequate compensation for the said right of way;
that the same is reasonably worth the sum of $500 per mile, and
your complainant, protesting against the
Page 135 U. S. 650
said award, and insisting that the United States have no power
to grant a right of way through the territory of your complainant
without its consent, and protesting and insisting that the said
referees had no lawful authority to make an award for the lands so
intended to be taken from your complainant or its domain, and that
even on payment of the compensation so awarded, the said
corporation could acquire no right to build its road through the
territory of your complainant without its consent, still insists
that the compensation so proposed to be awarded and paid is
inadequate, insufficient for the land proposed to be taken, and
prays that this complaint may be taken and treated as an original
complaint and petition in appeal from the action of the said
referees, as provided by section 3 of the Act of July 4, 1884,
aforesaid."
"Your complainant avers that by reason of the premises
aforesaid, the referees aforesaid had no authority to condemn any
of the land or territory of your complainant, or to make any award
therefor, and that no right accrued to the said Southern Kansas
Railway Company to enter upon or build said proposed railway
through the territory of your complainant."
The prayer of the bill is that the said awards be vacated and
set aside; that the defendant be restrained and perpetually
enjoined from locating, or attempting to locate, construct, equip,
operate, use, or maintain a railway, telegraph, or telephone line
through the land, domain, or territory of the complainant; that
pending this suit it be restrained as aforesaid, and that, in the
event the court should decline to grant the injunction prayed, the
complainant be awarded full, just, and adequate compensation for
the lands so proposed to be taken, and the rights, easements, and
franchises so proposed to be granted to the defendant. The bill
prays for such other and further relief as the nature of the case
requires.
The defendant appeared and by its attorney offered to pay into
the registry of the court the sum of $14,705.98, being double the
amount of the award of the referees appointed to assess the damages
for the right of way for the railroad through the plaintiff's
territory.
Page 135 U. S. 651
A demurrer to the bill was sustained. The prayer for an
injunction was refused, a hearing on the question of damages was
denied because of the misjoinder of equitable and legal causes of
action, and the bill way dismissed for want of equity, without
prejudice and with judgment against the plaintiff for costs. 33 F.
900.
The plaintiff, as we have seen, seeks a decree setting aside and
vacating the award of damages made by the referees and perpetually
enjoining the railway company from locating, operating, and
maintaining a railroad, telegraph, and telephone line through its
territory, as provided for in the Act of July 4, 1884. Relief of
that character is unquestionably of an equitable nature. But the
plaintiff unites with this cause of action a prayer that if an
injunction be refused, it may be awarded full, just, and adequate
compensation for the lands proposed to be taken by the railway
company, and for the rights, easements, and franchises assumed to
be granted to it by Congress. The latter is a legal, as
distinguished from an equitable, cause of action. "Whenever," this
Court said in
Van Norden v. Morton, 99 U. S.
378,
99 U. S.
380,
"a new right is granted by statute, or a new remedy for
violation of an old right, or whenever such rights and remedies are
dependent on state statutes or acts of Congress, the jurisdiction
of such cases, as between the law side and the equity side of the
federal courts, must be determined by the essential character of
the case, and unless it comes within some of the recognized heads
of equitable jurisdiction, it must be held to belong to the
other."
We do not doubt that a proceeding for an assessment of damages
for the taking of private property for public use is one of law. It
possesses none of the essential elements of a suit in equity within
the meaning of the statutes defining the jurisdiction of the courts
of the United States. It was therefore properly held below that
these two causes of action could not be united in the same suit in
a court of the United States.
Hurt v. Hollingsworth,
100 U. S. 100;
Buzard v. Houston, 119 U. S. 347,
119 U. S.
351.
But the court below ought not for that reason to have dismissed
the plaintiff out of court without making some provision,
Page 135 U. S. 652
by appropriate orders, for the protection of its rights as
against the railway company. Congress gave the Cherokee Nation, if
dissatisfied with the allowances provided for in the above act, the
right, within ninety days after the making of an award and notice
of the same, "to appeal by original petition to the courts," and
have a trial of the case
de novo. It did not prescribe the
form of the petition nor indicate what it should contain. Yet a
petition of some kind was necessary in order to invest the court
below with authority to take hold of the question of compensation
to be made to the Cherokee Nation, and finally determine it without
reference to the award of the commissioners. While, for the reasons
above stated, the proceeding instituted by the plaintiff could not
be regarded as technically a suit in equity of which the court
might take cognizance under the general statutes defining its
jurisdiction, we perceive no reason why, in view of the broad terms
of the act of Congress and of the peculiar relations which the
plaintiff sustains to the government and people of the United
States -- relations which forbid, if to be avoided, the application
of strict rules of interpretation -- the bill might not have been
treated simply as an original petition of appeal by the plaintiff
for a trial of the case between it and the railway company upon the
issue as to damages. It was nonetheless a petition for appeal
because relief of an equitable character was asked that could not
be granted. The petition need not have been regarded as one to
which the railway company must file a formal answer, but rather as
the basis for such orders as would bring both parties into court
for the determination of the question of damages. As the case is to
be tried
de novo, the court can properly make an order
requiring the railway company to take the initiative by filing its
written application or petition for an ascertainment of the
compensation to be made for the property proposed to be taken, or
the damage that would be done by reason of the construction of the
railway. To that petition, when filed, the Cherokee Nation can
demur, answer, or plead, as they may be advised. Under issues thus
made, or under some other mode of procedure devised by the
court,
Page 135 U. S. 653
and appropriate for a regular trial of the issues, the case be
tried
de novo, and all the questions of law and fact that
either party chooses to raise be finally determined.
This mode of proceeding will result in a speedy determination of
the matters really in dispute, and is conducive to the ends of
justice, and we are the better satisfied with such a disposition of
the controversy because the equitable relief sought by the
plaintiff cannot be granted. We have had some doubt as to whether,
in the present attitude of the case, the reasons for this
conclusion ought to be now given. But, as the questions raised by
the demurrer were elaborately examined by the court below (33 F.
900), and were fully discussed at the bar, and as the plaintiff
ought not to be led to suppose that a new bill in equity, based
upon the alleged invalidity of the Act of July 4, 1884, would avail
any good purpose, we have concluded to state the grounds upon which
we hold that Congress, in the passage of that act, has not violated
any rights belonging to the plaintiff.
No allegations are made in the bill that would justify a decree
perpetually enjoining the railway company from proceeding under the
act of Congress. The proposition that the Cherokee Nation is
sovereign in the sense that the United States is sovereign, or in
the sense that the several states are sovereign, and that that
nation alone can exercise the power of eminent domain within its
limits, finds no support in the numerous treaties with the Cherokee
Indians, or in the decisions of this Court, or in the acts of
Congress defining the relations of that people with the United
States. From the beginning of the government to the present time,
they have been treated as "wards of the nation," "in a state of
pupilage," "dependent political communities," holding such
relations to the general government that "they and their country,"
as declared by Chief Justice Marshall in
Cherokee
Nation v. Georgia, 5 Pet. 1,
30 U. S. 17,
"are considered by foreign nations, as well as by ourselves, as
being so completely under the sovereignty and dominion of the
United States that any attempt to acquire their lands or to form a
political connection with them would be considered by all as an
invasion of our territory,
Page 135 U. S. 654
and an act of hostility."
It is true, as declared in
Worcester v.
Georgia, 6 Pet. 515,
31 U. S. 557,
31 U. S. 569,
that the treaties and laws of the United States contemplate the
Indian territory as completely separated from the states, and the
Cherokee Nation as a distinct community, and, in the language of
Mr. Justice McLean in the same case (p.
31 U. S. 583)
that,
"in the executive, legislative, and judicial branches of our
government, we have admitted by the most solemn sanctions the
existence of the Indians as a separate and distinct people, and as
being vested with rights which constitute them a state or separate
community."
But that falls far short of saying that they are a sovereign
state with no superior within the limits of its territory. By the
Treaty of New Echota (1835), the United States covenanted and
agreed that the lands ceded to the Cherokee Nation should at no
future time, without their consent, be included within the
territorial limits or jurisdiction of any state or territory, and
that the government would secure to that nation
"the right by their national councils to make and carry into
effect all such laws as they may deem necessary for the government
of the persons and property within their own country belonging to
their people or such persons as have connected themselves with
them,"
and by the Treaties of Washington (1846 and 1866), the United
States guaranteed to the Cherokees the title and possession of
their lands and jurisdiction over their country. Revision of Indian
Treaties, 65, 79, 85. But neither these nor any previous treaties
evinced any intention upon the part of the government to discharge
them from their condition of pupilage or dependency and constitute
them a separate, independent, sovereign people, with no superior
within its limits. This is made clear by the decisions of this
Court rendered since the cases already cited. In
United
States v. Rogers, 4 How. 567,
45 U. S. 572,
the Court, referring to the locality in which a particular crime
had been committed, said:
"It is true that it is occupied by the tribe of Cherokee
Indians. But it has been assigned to them by the United States as a
place of domicile for the tribe, and they hold and occupy it with
the assent of the United States, and under their authority. . . .
We think it too firmly and clearly
Page 135 U. S. 655
established to admit of dispute that the Indian tribes residing
within the territorial limits of the United States are subject to
their authority."
In
United States v. Kagama, 118 U.
S. 375,
118 U. S. 379,
the Court, after observing that the Indians were within the
geographical limits of the United States, said:
"The soil and the people within these limits are under the
political control of the government of the United States or of the
states of the union. There exists within the broad domain of
sovereignty but these two. . . . They were and always have been
regarded as having a semi-independent position when they preserved
their tribal relations -- not as states, not as nations, not as
possessed of the full attributes of sovereignty, but as a separate
people, with the power of regulating their internal and social
affairs -- and thus far not brought under the laws of the union, or
of the state within whose limits they resided. . . . The power of
the general government over these remnants of a race once powerful,
now weak and diminished in numbers, is necessary to their
protection as well as to the safety of those among whom they dwell.
It must exist in that government, because it has never existed
anywhere else, because the theater of its exercise is within the
geographical limits of the United States, because it has never
denied, and because it alone can enforce its laws on all the
tribes."
The latest utterance upon this general subject is in
Choctaw
Nation v. United States, 119 U. S. 127,
where the Court, after stating that the United States is a
sovereign nation limited only by its own Constitution, said:
"On the other hand, the Choctaw Nation falls within the
description in the terms of our Constitution not of an independent
state or sovereign nation, but of an Indian tribe. As such, it
stands in a peculiar relation to the United States. It was capable,
under the terms of the Constitution, of entering into treaty
relations with the government of the United States, although, from
the nature of the case, subject to the power and authority of the
laws of the United States when Congress should choose, as it did
determine in the Act of March 3, 1871, embodied in § 2079 of the
Revised Statutes, to exert its legislative power."
In view of these authorities, the contention that the lands
Page 135 U. S. 656
through which the defendant was authorized by Congress to
construct its railway are held by the Cherokees as a sovereign
nation, without dependence on any other, and that the right of
eminent domain within its territory can only be exercised by it,
and not by the United States except with the consent of the
Cherokee Nation, cannot be sustained. The fact that the Cherokee
Nation holds these lands in fee simple under patents from the
United States is of no consequence in the present discussion, for
the United States may exercise the right of eminent domain, even
within the limits of the several states, for purposes necessary to
the execution of the powers granted to the general government by
the Constitution. Such an authority, as was said in
Kohl v.
United States, 91 U. S. 367, is
essential to the independent existence and perpetuity of the United
States, and is not dependent upon the consent of the states.
United States v. Fox, 94 U. S. 315,
94 U. S. 320;
United States v. Jones, 109 U. S. 513;
United States v. Great Falls Manufacturing Co.,
112 U. S. 645;
Van Brocklin v. Tennessee, 117 U.
S. 151,
117 U. S. 154.
As was said by MR. JUSTICE BRADLEY in
Stockton v. Railroad
Co., 32 F. 9, 19:
"The argument based upon the doctrine that the states have the
eminent domain or highest dominion in the lands comprised within
their limits, and that the United States have no dominion in such
lands, cannot avail to frustrate the supremacy given by the
Constitution to the government of the United States in all matters
within the scope of its sovereignty. This is not a matter of words,
but of things. If it is necessary that the United States government
should have an eminent domain still higher than that of the state
in order that it may fully carry out the objects and purposes of
the Constitution, then it has it. Whatever may be the necessities
or conclusions of theoretical law as to eminent domain or anything
else, it must be received as a postulate of the Constitution that
the government of the United States is invested with full and
complete power to execute and carry out its purposes."
It would be very strange if the national government, in the
execution of its rightful authority, could exercise the power of
eminent domain in the several states, and could not exercise the
same
Page 135 U. S. 657
power in a territory occupied by an Indian nation or tribe the
members of which were wards of the United States and directly
subject to its political control. The lands in the Cherokee
territory, like the lands held by private owners everywhere within
the geographical limits of the United States, are held subject to
the authority of the general government to take them for such
objects as are germane to the execution of the powers granted to
it, provided only that they are not taken without just compensation
being made to the owner.
But it is said that the objects for which the act of 1884 was
passed are not such as admit of the exercise of the right of
eminent domain. This contention is without merit. Congress has
power to regulate commerce not only with foreign nations and among
the several states, but with the Indian tribes. It is not necessary
that an act of Congress should express in words the purpose for
which it was passed. The court will determine for itself whether
the means employed by Congress have any relation to the powers
granted by the Constitution. The railroad which the defendant was
authorized to construct and maintain will have, if constructed and
put into operation, direct relation to commerce with the Indian
tribes, as well as with commerce among the states, especially with
the states immediately north and south of the Indian territory. It
is true that the company authorized to construct and maintain it is
a corporation created by the laws of a state, but it is nonetheless
a fit instrumentality to accomplish the public objects contemplated
by the act of 1884. Other means might have been employed, but those
designated in that act, although not indispensably necessary to
accomplish the end in view, are appropriate and conducive to that
end, and therefore within the power of Congress to adopt. The
question is no longer an open one as to whether a railroad is a
public highway established primarily for the convenience of the
people and to subserve public ends, and therefore subject to
governmental control and regulation. It is because it is a public
highway and subject to such control that the corporation by which
it is constructed and by which it is to be maintained may be
permitted, under legislative sanction, to appropriate private
property
Page 135 U. S. 658
for the purposes of a right of way upon on making just
compensation to the owner in the mode prescribed by law. It is well
said by Mr. Cooley in his treatise on Constitutional Limitations,
section 537, that
"while there are unquestionably some objections to compelling a
citizen to surrender his property to a corporation whose
corporators, in receiving it, are influenced by motives of private
gain and emolument, so that to them the purpose of the
appropriation is altogether private, yet, conceding it to be
settled that these facilities for travel and commerce are a public
necessity, if the legislature, reflecting the public sentiment,
decide that this general benefit is better promoted by their
construction through individuals or corporations than by the state
itself, it would clearly be pressing a constitutional maxim to an
absurd extreme if it were to be held that the public necessity
should only be provided for in the way which is least consistent
with the public interest."
But this precise question was determined upon full consideration
in
California v. Pacific Railroad Company, 127 U. S.
1,
127 U. S. 39,
where this Court said:
"The power to construct, or to authorize individuals or
corporations to construct, national highways and bridges from
states to state is essential to the complete control and regulation
of interstate commerce. Without authority in Congress to establish
and maintain such highways and bridges, it would be without
authority to regulate one of the most important adjuncts of
commerce. . . . Of course the authority of Congress over the
territories of the United States, and its power to grant franchises
exercisable therein, are and ever have been undoubted. But the
wider power was very freely exercised, and much to the general
satisfaction, in the creation of the vast system of railroads
connecting the east with the Pacific, traversing states as well as
territories and employing the agency of state as well as federal
corporations."
Upon this point nothing more need be said.
It is further suggested that the act of Congress violates the
Constitution in that it does not provide for compensation to be
made to the plaintiff before the defendant entered upon these lands
for the purpose of constructing its road over them.
Page 135 U. S. 659
This objection to the act cannot be sustained. The Constitution
declares that private property shall not be taken "for public use
without just compensation." It does not provide or require that
compensation shall be actually paid in advance of the occupancy of
the land to be taken, but the owner is entitled to reasonable,
certain, and adequate provision for obtaining compensation before
his occupancy is disturbed. Whether a particular provision be
sufficient to secure the compensation to which, under the
Constitution, he is entitled is sometimes a question of difficulty.
In the present case, the requirements of the Constitution have, in
our judgment, been fully met. The third section provides that
before the railway shall be constructed through any lands proposed
to be taken, full compensation shall be made to the owner for all
property to be taken or damage done by reason of the construction
of the road. In the event of an appeal from the finding of the
referees, the company is required to pay into court double the
amount of the award, to abide its judgment, and, that being done,
the company may enter upon the property sought to be condemned, and
proceed with the construction of its road. We are of the opinion
that this provision is sufficiently reasonable, certain, and
adequate to secure the just compensation to which the owner is
entitled.
The plaintiff asks what will be its condition as to compensation
if, upon the trial
de novo of the question of damages the
amount assessed in its favor should exceed the sum which may be
paid into court by the defendant. This question would be more
embarrassing than it is if, by the terms of the act of Congress,
the title to the property appropriated passed from the owner to the
defendant when the latter, having made the required deposit in
court, is authorized to enter upon the land pending the appeal and
to proceed in the construction of its road. But clearly the title
does not pass until compensation is actually made to the owner.
Within the meaning of the Constitution, the property, although
entered upon pending the appeal, is not taken until the
compensation is ascertained in some legal mode and, being paid, the
title passes from the owner. Such was the decision in
Kennedy
Page 135 U. S. 660
v. Indianapolis, 103 U. S. 599,
103 U. S. 604,
where the Court construed a clause of the Constitution of Indiana
declaring that no man's property "shall be taken or applied to
public use . . . Without a just compensation being made therefor"
-- substantially the provision found in the national Constitution.
This Court there said that,
"on principle and authority, the rule is, under such a
Constitution as that of Indiana, that the right to enter on and use
the property is complete as soon as the property is actually
appropriate under the authority of law for a public use, but that
the title does not pass from the owner without his consent until
just compensation has been made to him."
In the case now before us, the property in respect to which the
referees made the award will be conditionally appropriated for the
public use when the defendant makes a deposit in court of double
the amount of such award, and it only remains to fix the just
compensation to be made to the owner. But the title has not passed,
and will not pass, until the plaintiff receives the compensation
ultimately fixed by the trial
de novo provided for in the
statute. So that if the result of that trial should be a judgment
in its favor in excess of the amount paid into court, the defendant
must pay off the judgment before is can acquire the title to the
property entered upon, and, failing to pay it within a reasonable
time after the compensation is finally determined, it will become a
trespasser, and liable to be proceeded against as such, and in such
case, if the plaintiff shall sustain damages by reason of the use
of its property by the defendant pending the appeal, the latter
will be liable therefor. The apprehension therefore that the
plaintiff may lose its property without receiving just compensation
therefor is without foundation.
Some stress is laid upon the possibility that the defendant may
become insolvent before the proceedings below reach a conclusion,
and become unable to pay any damages in excess of the amount it may
pay into court. The possibility of such insolvency is not, in our
opinion, a sufficient ground for holding that the provision made in
the act of Congress for securing just compensation is inadequate.
Absolute certainty in such matters is impracticable, and therefore
cannot reasonably be
Page 135 U. S. 661
required. In determining the validity of the act of Congress,
the presumption must be indulged that a deposit in court of double
the amount awarded by three disinterested referees appointed by the
President will amply secure the payment of any compensation that
may be fixed at the trial in the court below. The record states
that the defendant offered to pay in to court double the amount of
the award made by the referees. The offer to pay is not a
compliance with the statute. The amount required to be deposited
must be actually paid into court before the company can rightfully
enter upon the lands sought to be condemned, or proceed with the
construction of its road.
The decree is reversed, and the cause remanded for further
proceedings in conformity with this opinion.