In an action brought by the Cherokee Nation to enjoin the
Secretary of the Interior from leasing oil lands held for the
benefit of said Nation under section 13 of the Act of Congress
approved June 20, 1898, it is not necessary to join as parties
defendants the persons or corporations to whom the Secretary
proposes to make the leases.
The Act of Congress entitled "An act for the protection of the
people of the Indian Territory, and for other purposes," approved
June 28, 1898, which by section 13 thereof gives the Secretary of
the Interior exclusive power over oil, coal, asphalt and other
minerals in said territory, and authorizes him to make leases of
oil, coal, asphalt and other minerals
Page 187 U. S. 295
under certain prescribed conditions, the royalties and rents to
be paid into the Treasury of the United States to the credit of the
tribe to which they belong is, notwithstanding the provisions of
the treaties with the Cherokee Nation, a valid exercise of power
vested in Congress and fully authorizes the Secretary of the
Interior to make such leases in the manner prescribed in the
act.
This Court has already (
Stephens v. Cherokee Nation,
174 U. S. 495)
sustained the validity of the Act of Congress of June 28, 1898, and
the precedent of co-relative legislation, wherein the United States
practically assumed the full control over the Cherokees, as well as
the other nations constituting the five civilized tribes, and took
upon itself the determination of membership in the tribes for the
purpose of adjusting their rights in the tribal properties. That
decision necessarily involves the further holding that Congress is
vested with authority to adopt measures to make the tribal property
productive and secure therefrom an income for the benefit of the
tribe.
Under the treaties with, and patents issued to, the Cherokee
Nation, whatever of title has been conveyed has been to the
Cherokees as a Nation. And no title to any land is in any of the
individuals, although held by the tribe for the common use and
equal benefit of all the members.
This Court is not concerned with the question whether the Act of
June 28, 1898, is wise or will operate beneficially to the interest
of the Cherokees, as the power which exists in Congress to
administer upon, and guard, the tribal property is political and
administrative in its nature, and the manner of its exercise is a
question within the province of the legislative branch to
determine, and is not one for the courts.
This cause was begun on the equity side of the Supreme Court of
the District of Columbia. The complainants named in the bill were
the Cherokee Nation, and its principal chief and treasurer and
sundry other citizens of the nation, suing on behalf of themselves
and of citizens of the nation residing in the Indian Territory.
Ethan A. Hitchcock, as Secretary of the Interior, was made sole
defendant. It was claimed in the bill that, by virtue of certain
treaties and a patent based thereon, the Cherokee Nation was vested
with a fee simple title to its tribal lands in the Indian
Territory, and it was also averred that, by a treaty executed in
1835, there was secured to the nation the right, by its national
council, to make and carry into effect all such laws as the
Cherokees might deem necessary for the government and protection of
the persons and property within their own country belonging to
their people, or such persons as had connected themselves with
them. A synopsis
Page 187 U. S. 296
of the pertinent portions of the treaties above referred to is
set out in the margin.
*
Page 187 U. S. 297
The patent referred to in the bill was executed on December 31,
1838. It conveyed to the Cherokee Nation the lands secured and
guaranteed by the treaties of 1828, 1833, and 1835.
Page 187 U. S. 298
In the patent the seven million-acre tract, together with the
perpetual outlet, was described as one tract, aggregating
13,574,135.14 acres. In addition the patent specified the
boundaries of a tract of eight hundred thousand acres ceded by the
treaty of 1835. The description of the two tracts was succeeded by
the following habendum clause:
"Therefore, in execution of the agreements and stipulations
contained in the said several treaties, the United States have
given and granted, and by these presents do give and grant, unto
the said Cherokee Nation the two tracts of land so surveyed and
hereinbefore described, containing in the whole fourteen millions,
three hundred and seventy-four thousand, one hundred and
thirty-five acres, and fourteen-hundredths of an acre, to have and
to hold the same, together with all the rights, privileges, and
appurtenances thereto belonging to the said Cherokee Nation
forever; subject, however, to the right of the United States to
permit other tribes of red men to get salt on the salt plain on the
western prairie referred to in the second article of the treaty of
the twenty-ninth of December, one thousand eight hundred and
thirty-five, which salt plain has been ascertained to be within the
limits prescribed for the outlet agreed to be granted by said
article, and subject also to all the other rights reserved to the
United States, in and by the articles hereinbefore recited, to the
extent and in the manner in which the said rights are so reserved,
and subject also to the condition provided by the act of Congress
of the twenty-eighth of May, one thousand eight hundred and thirty,
referred to in the above-recited third article, and which condition
is, that the lands hereby granted shall revert to the United States
if the said Cherokee Nation becomes extinct or abandons the
same."
Averring that the Cherokee Nation and its citizens possessed the
exclusive right to the use, control, and occupancy of its tribal
lands, it was alleged that the Secretary of the Interior, without
having lawful authority so to do, was assuming the power to, and
was about to, pass favorably upon applications for leases, and was
about to grant leases of lands belonging to said nation for the
purpose of mining for oil, gas, coal, and other minerals, one such
successful applicant being stated to
Page 187 U. S. 299
be the Cherokee Oil & Gas Company, an Arkansas corporation.
Based upon general allegations of the absence of an adequate remedy
at law, the necessity of relief to avoid a multiplicity of suits
and to prevent the casting of a cloud upon the title of the nation
to its said lands, and the claim that irreparable injury would be
caused and wrong and oppression result, and that there would be a
deprivation of property rights of the complainants and of other
citizens of the Cherokee Nation, an injunction was prayed against
further action by the Secretary of the Interior in the premises. A
demurrer was filed to the bill upon the grounds following:
"1. Said bill is bad in substance and for want of equity, and
does not state facts sufficient to entitle complainants to the
relief prayed for, or to any relief."
"2. The court has no jurisdiction over the subject matter of the
suit."
"3. There is a defect of parties defendant."
Without considering or passing upon the objection of a defect of
parties defendant, the trial court sustained the demurrer and
entered a decree dismissing the bill of complaint. This decree was
affirmed, on appeal, by the court of appeals of the District.
An appeal was thereupon taken to this Court.
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
The grounds of demurrer to the bill of complaint were summarized
in the following reasons embodied in a statement filed with the
demurrer:
"1. The matters named in the bill are matters of administration,
which cannot be taken away from an executive department and carried
into the courts. "
Page 187 U. S. 300
"2. That the Cherokee Oil & Gas Company named in the bill is
a necessary party to the suit, as shown by the bill."
"3. That the defendant is proceeding in conformity with the Act
of Congress approved June 28, 1898, 30 Stat. 495, which is a valid
exercise of the power of Congress over the property of an Indian
tribe."
Preliminary to considering the fundamental question raised by
the demurrer, it is necessary to notice two subjects not expressly
referred to in the opinion below. They are first, the objection to
the formal sufficiency of certain of the averments in the bill, and
second, the claim that the Cherokee Oil & Gas Company was an
indispensable party defendant. With respect to the first-mentioned
ground of objection, without going into detail, we think the
statements in the bill were sufficient to show that the
jurisdiction of a court of equity was properly invoked. So far as
the second ground of objection is concerned, we presume that the
courts below omitted to pass expressly thereon because it was
deemed that the company named was properly omitted from the bill.
As the bill assailed generally the want of power in the Secretary
of the Interior to execute leases affecting lands owned by the
tribe, and referred to the application pending for a lease made by
the Cherokee Oil & Gas Company, as manifesting but a particular
instance in which it was charged that the Secretary of the Interior
might exercise the power conferred by the statute, the corporation
named was not an indispensable party to the bill. Clearly every
person with whom the Secretary might contract, if he exercised the
discretion vested in him by the statute, were not indispensable
parties to the determination of the question whether the statute
had lawfully conferred such discretionary power upon the official
in question. This brings us to consider the fundamental question
which the case involves -- that is, the contention on behalf of the
government that the decree below should be sustained because the
Act of June 28, 1898, is a valid exercise of power vested in
Congress, and fully authorized the Secretary of the Interior to do
and perform the things which the complainants seek to have him
enjoined from doing.
Before noticing the pertinent provisions of the Act of June
28,
Page 187 U. S. 301
1898, reference will be made to antecedent legislation by
Congress, which led up to the enactment of the statute in question.
In the statement preceding the opinion, delivered through MR. CHIEF
JUSTICE FULLER, in
Stephens v. Cherokee Nation,
174 U. S. 445, it
was said:
"By the sixteenth section of the Indian Appropriation Act of
March 3, 1893, 27 Stat. 612, 645, the President was authorized to
appoint, by and with the advice and consent of the Senate, three
Commissioners"
"to enter into negotiations with the Cherokee Nation, Choctaw
Nation, Chickasaw Nation, the Muscogee (or Creek) Nation, the
Seminole Nation, for the purpose of the extinguishment of the
national or tribal title to any lands within that territory now
held by any and all such nations or tribes, either by cession of
the same or some part thereof to the United States, or by the
allotment and division of the same in severalty among the Indians
of such nations or tribes, respectively, as may be entitled to the
same, or by such other method as may be agreed upon between the
several nations and tribes aforesaid, or each of them, with the
United States, with a view to such an adjustment, upon the basis of
justice and equity, as may, with the consent of such nations or
tribes of Indians, so far as may be necessary, be requisite and
suitable to enable the ultimate creation of a state or states of
the Union which shall embrace the lands within said Indian
Territory."
"The Commission was appointed and entered on the discharge of
its duties, and under the Sundry Civil Appropriation Act of March
2, 1895, 28 Stat. 939, two additional members were appointed. It is
commonly styled the 'Dawes Commission.'"
On November 20, 1894, and November 18, 1895, the Dawes
Commission made reports of the condition of affairs in the Indian
Territory. These reports, as also a report of the Senate Committee
on the Five Civilized Tribes, of date May 7, 1894, were referred to
and were quoted from in the statement of facts made by the court in
the
Stephens case. The reports asserted the existence of a
state of affairs in the Indian Territory "abhorrent to the spirit
of our institutions," and declared the necessity
Page 187 U. S. 302
of assumption by the United States of "responsibility for future
conditions in the territory" and the need of independent
legislation by Congress in that behalf. Thus, the Senate Committee
on the Five Civilized Tribes of Indians, in a report on May 7,
1894, Sen.Rep. No. 377, 53d Cong.2d sess., said in part:
"As we have said, the title to these lands is held by the tribe
in trust for the people. We have shown that this trust is not being
properly executed, nor will it be if left to the Indians, and the
question arises, what is the duty of the government of the United
States with reference to this trust? While we have recognized these
tribes as dependent nations, the government has likewise recognized
its guardianship over the Indians and its obligations to protect
them in their property and personal rights."
"In the treaty with the Cherokees made in 1846, we stipulated
that they should pass laws for equal protection and for the
security of life, liberty, and property. If the tribe fails to
administer its trust properly by securing to all the people of the
tribe equitable participation in the common property of the tribe,
there appears to be no redress for the Indian so deprived of his
rights unless the government does interfere to administer such
trust."
By a provision in the Act of June 10, 1896, 29 Stat. 321, 339,
said Commission was directed to continue the exercise of the
authority already conferred upon it, and was invested with further
powers in respect of hearing and determining applications for
citizenship in said tribes and making rolls of the members
thereof.
A provision in the Act of June 7, 1897, 30 Stat. 62, 84,
directed said Commission to continue to exercise all authority
theretofore conferred upon it to negotiate with said five tribes,
and gave further direction respecting the making of rolls of
citizenship.
The Act of June 28, 1898, 30 Stat. 495, entitled "An Act for the
Protection of the the Indian Territory, and for Other Purposes,"
contains provisions for the completion of the rolls of citizenship
of said tribes, for the reservation of town sites
Page 187 U. S. 303
and the sale of lots therein, and for the allotment of the
exclusive use and occupancy of the surface of all lands susceptible
of allotment among the citizens of the respective tribes, with a
provision as follows (sec. 11):
"But all oil, coal, asphalt, and mineral deposits in the lands
of any tribe are reserved to such tribe, and no allotment of such
land shall carry the title to such oil, coal, asphalt, or mineral
deposits."
Section 13 of said act contains provisions for leasing the oil,
coal, asphalt, and mineral deposits as follows:
"That the Secretary of the Interior is hereby authorized and
directed from time to time to provide rules and regulations in
regard to the leasing of oil, coal, asphalt, and other minerals in
said territory, and all such leases shall be made by the Secretary
of the Interior, and any lease for any such minerals otherwise made
shall be absolutely void. No lease shall be made or renewed for a
longer period than fifteen years, nor cover the mineral in more
than six hundred and forty acres of land, which shall conform as
nearly as possible to the surveys. Lessees shall pay on each oil,
coal, asphalt, or other mineral claim at the rate of one hundred
dollars per annum in advance, for the first and second years; two
hundred dollars per annum, in advance, for the third and fourth
years, and five hundred dollars, in advance, for each succeeding
year thereafter, as advanced royalty on the mine or claim on which
they are made. All such payments shall be a credit on royalty when
each said mine is developed and operated and its production is in
excess of such guaranteed annual advanced payments, and all lessees
must pay said annual advanced payments on each claim, whether
developed or undeveloped, and should any lessee neglect or refuse
to pay such advanced annual royalty for the period of sixty days
after the same becomes due and payable on any lease, the lease on
which default is made shall become null and void, and the royalties
paid in advance shall then become and be the money and property of
the tribe. Where any oil, coal, asphalt, or other mineral is
hereafter opened on land allotted, sold, or reserved, the value of
the use of the necessary surface for prospecting or mining, and the
damage done to the
Page 187 U. S. 304
other land and improvements, shall be ascertained under the
direction of the Secretary of the Interior and paid to the allottee
or owner of the land by the lessee or party operating the same,
before operations begin:
Provided, That nothing herein
contained shall impair the rights of any holder or owner of a
leasehold interest in any oil, coal rights, asphalt, or mineral,
which have been assented to by act of Congress, but all such
interest shall continue unimpaired hereby, and shall be assured to
such holders or owners by leases from the Secretary of the Interior
for the term not exceeding fifteen years, but subject to payment of
advance royalties as herein provided, when such leases are not
operated, to the rate of royalty on coal mined, and the rules and
regulations to be prescribed by the Secretary of the Interior, and
preference shall be given to such parties in renewals of such
leases:
And provided further, That when, under the customs
and laws heretofore existing and prevailing in the Indian
Territory, leases have been made of different groups or parcels of
oil, coal, asphalt, or other mineral deposits, and possession has
been taken thereunder and improvements made for the development of
such oil, coal, asphalt, or other mineral deposits by lessees or
their assigns, which have resulted in the production of oil, coal,
asphalt, or other mineral in commercial quantities by such lessees
or their assigns, then such parties in possession shall be given
preference in the making of new leases, in compliance with the
directions of the Secretary of the Interior, and in making new
leases due consideration shall be made for the improvements of such
lessees, and in all cases of the leasing or renewal of leases of
oil, coal, asphalt, and other mineral deposits preference shall be
given to parties in possession who have made improvements. The rate
of royalty to be paid by all lessees shall be fixed by the
Secretary of the Interior."
Section 16 contains a provision as to the payment and
distribution of rents and royalties due said tribes, as
follows:
"That it shall be unlawful for any person, after the passage of
this act, except as hereinafter provided, to claim, demand, or
receive, for his own use or for the use of anyone else, any royalty
on oil, coal, asphalt, or other mineral, or on any timber or
lumber, or any other kind of property whatsoever, or any rents on
any
Page 187 U. S. 305
lands or property belonging to any one of said tribes or nations
in said territory, or for anyone to pay to any individual any such
royalty or rents or any consideration therefor whatsoever, and all
royalties and rents hereafter payable to the tribe shall be paid,
under such rules and regulations as may be prescribed by the
Secretary of the Interior, into the Treasury of the United States
to the credit of the tribe to which they belong."
As the acts done and contemplated to be done by the appellee and
assailed by the bill of complaint are presumably not the subject of
criticism, in the event that the Act of June 28, 1898, was a
constitutional and valid exercise of power by Congress, we will now
address ourselves to a consideration of that statute.
Prior to the Act of March 3, 1871, 16 Stat. 544, 566, now
section 2079 of the Revised Statutes, which statute in effect
voiced the intention of Congress thereafter to make the Indian
tribes amenable directly to the power and authority of the laws of
the United States by the immediate exercise of its legislative
power over them, the customary mode of dealing with the Indian
tribes was by treaty. As, however, held in
Cherokee Nation v.
Southern Kansas Railway Co., 135 U. S. 641,
135 U. S. 653,
reaffirmed in
Stephens v. Cherokee Nation, 174 U.
S. 445,
174 U. S. 484,
while the Cherokee Nation and other Indian tribes domiciled within
the United States had been recognized by the United States as
separate communities, and engagements entered into with them by
means of formal treaties, they were yet regarded as in a condition
of pupilage or dependency, and subject to the paramount authority
of the United States.
Reviewing decisions of this Court rendered prior to the act of
1871, and particularly considering the status of the very tribe of
Indians affected by the present litigation, the Court commented
upon a declaration made in a previous decision that this government
had
"admitted by the most solemn sanction the existence of the
Indians as a separate and distinct people, and as being invested
with rights which constitute them a state, or separate
community."
It was observed of this declaration that it fell "far short of
saying that they are a sovereign state, with no superior within the
limits of its territory." Considering the treaty of 1835 with the
Cherokee Nation, under which it is now
Page 187 U. S. 306
claimed, on behalf of the appellants, that the Cherokees became
vested with the sole control over the lands ceded to them, the
Court observed (p.
174 U. S.
485):
"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, pp. 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."
It results, then, from the doctrine of the decisions of this
Court that the demurrer was properly sustained, because of the fact
that the matters named in the bill were matters of administration,
to which the Act of June 28 was applicable, and they were solely
cognizable by the executive department of the government. The
decision in
Stephens v. Cherokee Nation, 174 U.
S. 445, is particularly in point, as that case involved
the validity of the very act under consideration, and the precedent
correlative legislation, wherein the United States practically
assumed the full control over the Cherokees as well as the other
nations constituting the five civilized tribes, and took upon
itself the determination of membership in the tribes for the
purpose of adjusting their rights in the tribal property. The
plenary power of control by Congress over the Indian tribes and its
undoubted power to legislate, as it had done through the act of
1898, directly for the protection of the tribal property was in
that case reaffirmed. Thus, in the course of its opinion,
Page 187 U. S. 307
after alluding to the legislation concerning the Dawes
Commission, the Court said:
"It may be remarked that the legislation seems to recognize,
especially the Act of June 28, 1898, a distinction between
admission to citizenship merely and the distribution of property to
be subsequently made, as if there might be circumstances under
which the right to a share in the latter would not necessarily
follow from the concession of the former. But, in any aspect, we
are of opinion that the constitutionality of the acts in respect of
the determination of citizenship cannot be successfully assailed on
the ground of the impairment or destruction of vested rights. The
lands and moneys of these tribes are public lands and public
moneys, and are not held in individual ownership, and the assertion
by any particular applicant that his right therein is so vested as
to preclude inquiry into his status involves a contradiction in
terms."
The holding that Congress had power to provide a method for
determining membership in the five civilized tribes and for
ascertaining the citizenship thereof preliminary to a division of
the property of the tribe among its members necessarily involved
the further holding that Congress was vested with authority to
adopt measures to make the tribal property productive and secure
therefrom an income for the benefit of the tribe.
Whatever title the Indians have is in the tribe, and not in the
individuals, although held by the tribe for the common use and
equal benefit of all the members.
The Cherokee Trust
Funds, 117 U. S. 288,
117 U. S. 308.
The manner in which this land is held is described in
Cherokee
Nation v. Journeycake, 155 U. S. 196,
155 U. S. 207,
where this Court, referring to the treaties and the patent
mentioned in the bill of complaint herein, said:
"Under these treaties, and in December, 1838, a patent was
issued to the Cherokees for these lands. By that patent, whatever
of title was conveyed, was conveyed to the Cherokees as a nation,
and no title was vested in severalty in the Cherokees, or any of
them."
There is no question involved in this case as to the taking of
property; the authority which it is proposed to exercise, by virtue
of the act of 1898, has relation merely to the control and
Page 187 U. S. 308
development of the tribal property, which still remains subject
to the administrative control of the government, even though the
members of the tribe have been invested with the status of
citizenship under recent legislation.
We are not concerned in this case with the question whether the
Act of June 28, 1898, and the proposed action thereunder, which is
complained of, is or is not wise, and calculated to operate
beneficially to the interests of the Cherokees. The power existing
in Congress to administer upon and guard the tribal property, and
the power being political and administrative in its nature, the
manner of its exercise is a question within the province of the
legislative branch to determine, and is not one for the courts.
Affirmed.
* By article 2 of the Treaty of May 6, 1828, 7 Stat. 311, the
United States, in order to secure to the Cherokee Nation "a
permanent home," agreed to "possess the Cherokees, and to guarantee
it to them forever," seven million acres of land, within described
boundaries, and in addition
"guarantee to the Cherokee Nation a perpetual outlet west, and a
free and unmolested use of all the country lying west of the
western boundary of the above-described limits, and as far west as
the sovereignty of the United States and their right of soil
extend."
By article 1 of the Treaty of February 14, 1833, 7 Stat. 414,
the United States, by a corrected description as to the seven
million-acres tract, renewed the guaranty as to such tract, the
outlet, etc., contained in article 2 of the treaty of 1828, with
the reservation respecting use by other Indians of the salt plain
if within the limits of the outlet. The article concluded with the
statement that "letters patent shall be issued by the United States
as soon as practicable for the land hereby guaranteed."
By article 2 of the Treaty of December 29, 1835, 7 Stat. 478,
after reciting that, by the treaties of 1828 and 1833 "the United
States guaranteed and secured to be conveyed by patent, to the
Cherokee Nation of Indians," a described tract of seven million
acres of land, and had further guaranteed to the Cherokee Nation a
perpetual outlet west, etc., ceded an additional eight hundred
thousand acres of land in the following terms:
"And whereas it is apprehended by the Cherokees that in the
above cession there is not contained a sufficient quantity of land
for the accommodation of the whole nation on their removal west of
the Mississippi, the United States in consideration of the sum of
five hundred thousand dollars, therefore hereby covenant and agree
to convey to the said Indians and their descendants, by patent, in
fee simple, the following additional tract of land."
By article 3 of the same treaty, the United States also
agreed
"that the lands above ceded by the Treaty of February 14, 1833,
including the outlet, and those ceded by this treaty. shall all be
included in one patent executed to the Cherokee Nation of Indians
by the President of the United States according to the provisions
of the Act of May 28, 1830."
The Act of May 28, 1830, 4 Stat. 411, conferred authority upon
the President to create districts of territory in lands west of the
Mississippi to be exchanged for lands held by Indians in a state or
territory. Respecting the title to the lands so to be given in
exchange, it was provided in section 3 as follows:
"SEC.3.
And be it further enacted, That, in the making
of any such exchange or exchanges, it shall and may be lawful for
the President solemnly to assure the tribe or nation with which the
exchange is made that the United States will forever secure and
guarantee to them, and their heirs or successors, the country so
exchanged with them, and if they prefer it, that the United States
will cause a patent or grant to be made and executed to them for
the same:
Provided always, That such lands shall revert to
the United States, if the Indians become extinct or abandon the
same."
The article of the treaty of 1835. upon which is based the claim
that an exclusive right is vested in the Cherokee Nation to the
use, control, and occupancy of its tribal lands, is the following,
7 Stat. 481:
"ARTICLE 5. The United States hereby covenant and agree that the
lands ceded to the Cherokee Nation in the foregoing article shall,
in no future time without their consent, be included within the
territorial limits or jurisdiction of any state or territory. But
they shall secure to the Cherokee Nation the right by their
national councils to make and carry into effect all such laws as
they may deem necessary for the government and protection of the
persons and property within their own country belonging to their
people or such persons as have connected themselves with them:
Provided always, That they shall not be inconsistent with
the Constitution of the United States and such acts of Congress as
have been or may be passed regulating trade and intercourse with
the Indians, and also that they shall not be considered as
extending to such citizens and army of the United States as may
travel or reside in the Indian country by permission, according to
the laws and regulations established by the government of the
same."
By the Treaty of August 6, 1846, 9 Stat. 871, providing for an
adjustment of the differences theretofore existing between
different portions of the people constituting and recognized as the
Cherokee Nation of Indians, it was provided in article 1 as
follows:
"That the lands now occupied by the Cherokee Nation shall be
secured to the whole Cherokee people for their common use and
benefit, and a patent shall be issued for the same, including the
eight hundred thousand acres purchased, together with the outlet
west, promised by the United States, in conformity with the
provisions relating thereto, contained in the third article of the
treaty of 1835, and in the third section of the Act of Congress,
approved May 28, 1830, which authorizes the President of the United
States, in making exchanges of lands with the Indian tribes,"
"to assure the tribe or nation with which the exchange is made
that the United States will forever secure and guarantee to them,
and their heirs or successors, the country so exchanged with them;
and, if they prefer it, that the United States will cause a patent
or grant to be made and executed to them for the same:
Provided
always, That such lands shall revert to the United States, if
the Indians become extinct or abandon the same."
The Treaty of July 19, 1866, 14 Stat. 799, does not require
particular notice.