Judgment of the Court of Claims affirmed to effect that all
those white persons who married Cherokee Indians by blood
subsequently to the enactment of the Cherokee law, which became
effective November 1, 1875, acquired no rights of soil or interest
in the lands and vested funds of the Nation as citizens, and that
those white persons who married Cherokee citizens by blood prior to
said date did acquire rights as citizens in the lands belonging to
the Nation, and held and owned as national lands, except such of
them as lost their rights as Cherokee citizens by abandoning their
Cherokee wives or by marrying other white or nontribal men or women
having no rights of citizenship by blood in said Cherokee
Nation.
The rule that the language of a statute is to be interpreted in
the light of the particular matter in hand and the object sought to
be accomplished as manifested by other parts of the act, and that
the words used may be qualified by their surroundings and
connections, applied to the construction of the acts of Congress
relating to citizenship in, and distribution of tribal property of,
the Cherokee Nation.
It is a settled rule of construction that, as between the whites
and the Indians, the laws are to be construed most favorably to the
latter.
40 Ct.Cl. 411 affirmed.
Page 203 U. S. 77
The subject matter of this suit consists of 4,420,406 acres of
land in the Cherokee country about to be allotted among the
Cherokee people entitled to participate in the distribution of the
common property of the Cherokee Nation. The case was transmitted to
the Court of Claims by the Secretary of the Interior, on the
twenty-fourth of February, 1903, the nature of the controversy
being thus stated:
"A controversy has arisen as to the rights of white persons
intermarried with Cherokee citizens, and a protest has been filed
with this Department on behalf of a large number of citizens of the
Cherokee Nation by blood against the enrollment of intermarried
persons, 'so as to recognize their right to participate in the
distribution of any of the common property of the Cherokee Nation
of whatever kind or character.' It is asserted, on the one hand,
that the Cherokee laws have never recognized the right of
'intermarried citizens' to share in the distribution of the
property of the Nation, and, on the other hand, that the Cherokee
laws as well as the laws of Congress recognize those persons who
have been married to Cherokee citizens in accordance with the laws
of the Cherokee Nation relating to marriage as full citizens of
such nation, entitled to share equally with full-blooded citizens
in the property of the tribe."
Thereafter, Congress, by the Act of March 3, 1905 (33 Stat.
1048, 1071, c. 1479), provided as follows:
"That in the case entitled 'In the Matter of Enrolment of
Persons Claiming Rights in the Cherokee Nation by Intermarriage
against the United States, Departmental, Numbered Seventy-six,' now
pending in the Court of Claims, the said court is hereby authorized
and empowered to render final judgment in said case, and either
party feeling itself aggrieved by said judgment shall have the
right of appeal to the Supreme Court of United States within thirty
days from the filing of said judgment in the Court of Claims. And
the said Supreme Court of the United States shall advance said case
on its calendar for early hearing. "
Page 203 U. S. 78
The Court of Claims filed its opinion May 15, 1905, and on May
18, findings of fact and conclusions of law, and on that day
entered its decree as follows:
"This case having been transmitted to this Court by the
Secretary of the Interior by letter dated February 24, 1903, for
the findings and opinion of the court in accordance with the
provisions of section 2 of the Act of Congress of March 3, 1883,
entitled 'An Act to Afford Assistance and Relief to Congress and
the Executive Departments in the Investigation of Claims and
Demands against the government' (22 Stat. 485), and Congress, by
the Act of March 3, 1905, entitled 'An Act Making Appropriations
for the Current and Contingent Expenses of the Indian Department
and for Fulfilling Treaty Stipulations with Various Indian Tribes
for the Fiscal Year Ending June 30, 1906, and for Other Purposes,'
having made the following enactment:"
" That in the case entitled 'In the Matter of Enrolment of
Persons Claiming Rights in the Cherokee Nation by Intermarriage
against the United States, Departmental, Numbered Seventy-six,' now
pending in the Court of Claims, the said court is hereby authorized
and empowered to render final judgment in said case, and either
party feeling itself aggrieved by said judgment shall have the
right of appeal to the Supreme Court of the United States within
thirty days from the filing of said judgment in the Court of
Claims. And the said Supreme Court of the United States shall
advance said case on its calendar for early hearing;"
"And, the cause coming on to be heard upon the petition,
answers, agreed facts, proofs, and arguments submitted by the
attorneys of the parties to the cause, respectively, and the court
having heard and fully considered the same;"
"And it appearing to the court that all those white persons who
married Cherokee Indians by blood subsequently to the enactment of
the Cherokee law which became effective November 1, 1875, and which
declared that such persons by intermarriage acquired no rights of
soil or interest in the
Page 203 U. S. 79
vested funds of the Nation, had due notice of the limitations
set upon their rights and privileges as citizens, and that those
white persons who married Cherokee citizens by blood prior to said
date acquired rights as citizens in the lands belonging to the
Nation and held and owned as national lands, except such of these
intermarried persons as lost their rights as Cherokee citizens by
abandoning their Cherokee wives or by marrying other white or
nontribal men or women having no rights of citizenship by blood in
said Cherokee Nation:"
"It is by the court ordered, adjudged, and decreed that such
white persons residing in the Cherokee Nation as became Cherokee
citizens under Cherokee laws by intermarriage with Cherokees by
blood prior to the first day of November, 1875, are equally
interested in and have equal per capita rights with Cherokee
Indians by blood in the lands constituting the public domain of the
Cherokee Nation, and are entitled to be enrolled for that purpose;
but such intermarried whites acquired no rights and have no
interest or share in any funds belonging to the Cherokee Nation
except where such funds were derived by lease, sale, or otherwise
from the lands of the Cherokee Nation conveyed to it by the United
States by the patent of December, 1838, and that the rights and
privileges of those white citizens who intermarried with Cherokee
citizens subsequent to the first day of November, 1875, do not
extend to the right of soil or interest in any of the vested funds
of the Cherokee Nation, and such intermarried persons are not
entitled to share in the allotment of the lands or in the
distribution of any of the funds belonging to said Nation, and are
not entitled to be enrolled for such purpose; that those white
persons who intermarried with Delaware or Shawnee citizens of the
Cherokee Nation, either prior or subsequent to November 1, 1875,
and those who intermarried with Cherokees by blood, and,
subsequently, being left a widow or widower by the death of the
Cherokee wife or husband, intermarried with persons not of Cherokee
blood, and those white men who having married Cherokee women and
subsequently abandoned
Page 203 U. S. 80
their Cherokee wives, have no part or share in the Cherokee
property, and are not entitled to participate in the allotment of
the lands or in the distribution of the funds of the Cherokee
Nation or people, and are not entitled to be enrolled for such
purpose."
Cherokee citizens by blood took an appeal to this Court from so
much of that decree as adjudged that persons intermarrying with
Cherokee citizens prior to November 1, 1875, were entitled to share
in the Cherokee property, which appeal is numbered in this Court
125, and the Cherokee Nation prosecuted a similar appeal, numbered
126. Then certain intermarried whites appealed from the decree
except that portion which held that the whites who intermarried
prior to November 1, 1875, were entitled to share, numbered 127.
And thereafter, other intermarried whites appealed generally,
numbered 128.
The case is reported in 40 Ct.Cl. 411, where will be found an
elaborate statement of the facts, including the acts of the
Cherokee National Council, etc., bearing on the subject matter.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Article 1 of the Treaty of 1846 declared "that the lands now
occupied by the Cherokee Nation shall be secured to the
Page 203 U. S. 81
whole Cherokee people for their common use and benefit," and
Article 4 that these lands "shall be and remain the common property
of the whole Cherokee people."
Section 2 of Article 1 of the Cherokee Constitution (1839)
provided that "the lands of the Cherokee Nation shall remain common
property."
The amendments of 1866 (Art. 1, sec. 2) declared that the lands
of the Cherokee Nation
"shall remain common property until the National Council shall
request the survey and allotment of the same, in accordance with
the provisions of Article 20 of the Treaty of nineteenth of July,
1866, between the United States and the Cherokee Nation."
This request was subsequently duly made and an allotment is
taking place accordingly.
The intermarried whites have not acquired the right to share in
the lands or funds of the Cherokee Nation by grant in express
terms, but that right is claimed in virtue of an alleged
citizenship in the Cherokee Nation derived from intermarriage under
Cherokee laws.
The Nation, under the treaties, possessed the right of local
self-government with authority to make such laws as it deemed
necessary for the government and protection of persons and property
within the country, belonging to its people, "or such persons as
have connected themselves with them." Treaty, Dec. 29, 1835, Art.
5, 7 Stat. 478. And section 14 of Article 3 of the Cherokee
Constitution provided:
"The National Council shall have power to make all laws and
regulations which they shall deem necessary and proper for the good
of the Nation, which shall not be contrary to this
Constitution."
Prior to 1855, certain white persons had married Cherokees,
which had given rise to serious questions respecting the status of
these persons and the jurisdiction of the Nation over them. The Act
of Congress of June 30, 1834 (carried forward into sections 2134,
2135, 2147, and 2148 of the Revised Statutes), provided that a
citizen of the United States should not go
Page 203 U. S. 82
into the Indian country without a passport, and that he might be
removed therefrom as an intruder. The promise of the United States
to remove unauthorized citizens from the Nation appears in the
treaties, and even as late as 1893, in the convention by which the
Cherokee outlet was ceded to the United States. But the Council
could permit certain white persons to reside in the Nation, subject
to its laws, though free from the laws relating to intruders.
In these circumstances, the Cherokee Act of 1855, "regulating
intermarriage with white men," was passed. Its purpose is plain,
and is disclosed by the preamble in these words:
"Whereas the peace and prosperity of the Cherokee people require
that, in the enforcement of the laws, the jurisdiction should be
exercised over all persons whatever who may, from time to time, be
privileged to reside within the territorial limits of this Nation
therefore,"
etc., etc. The act was administrative and aimed at subjecting
the intermarried whites to the control and dominion of the Cherokee
laws instead of leaving them responsible solely to the laws and
authorities of the government of the United States. It contains
nothing indicating the intention to confer property rights on
intermarried whites. But, in respect of the public domain, the
Court of Claims, in the present case, because of the opinion in
Cherokee Nation v. Journeycake, 155 U.
S. 196, assumed that the acquisition of citizenship
under Cherokee laws carried the right to share therein, unless
forbidden by such legislation. And Mr. Chief Justice Nott, speaking
for the court, said:
"In 1874, the rapidly growing value of the Cherokee lands was
becoming perceptible. On the one hand, there were white men who
desired to marry into the tribe, and, marrying and residing in the
Nation, desired the rights and privileges of citizens; on the other
hand, there were white adventurers desiring to share in the wealth
of the Nation, soon, it was believed, to become available to
individual citizens. The public welfare might be benefited by
allowing the one, and most certainly would be conserved by
excluding the
Page 203 U. S. 83
other. No restriction appeared to exist in the Constitution
which would forbid the National Council from admitting white men to
citizenship upon the condition that they should not acquire an
estate or interest in the communal or common property of the
Nation."
Accordingly, in 1874, the Cherokee National Council adopted a
new code containing sections relating to intermarriage, which
became effective November 1, 1875, and carried a provision in
Article XV., section 75, reading as follows:
"
Provided, also, that the rights and privileges herein
conferred shall not extend to right of soil or interest in the
vested funds of this Nation unless such admitted citizen shall pay
into the general funds of the national treasury a sum of money, to
be ascertained and fixed by the National Council, equal to the
'
pro rata' share of each native Cherokee in the lands and
vested wealth of the Nation, estimated at $500, and thereafter
conform to the Constitution of the Nation, and the laws made or to
be made in pursuance thereof, in which case he shall be deemed a
Cherokee to all intent, and be entitled to all the rights of other
Cherokees."
On November 28, 1877, the Council amended this proviso by
striking out all after the words "this Nation" in the second line
thereof, so that the proviso read:
"
Provided also that the rights and privileges herein
conferred shall not extend to right of soil or interest in the
vested funds of this Nation."
The Court of Claims found that the Cherokee law remained
unchanged in this particular from 1877 to the date of the decree.
Something is said about certain compilations of the Cherokee laws
of 1880 and 1892, which omitted this part of section 75, but we
agree that this omission did not operate to change the existing
law, as the acts providing for the compilations did not provide
that they should be effective as laws of the Nation, and, where an
error was committed by the compiler, the original law, as duly
passed and approved, must prevail.
Page 203 U. S. 84
Thus, it is seen that the privilege of paying $500 into the
Cherokee treasury and becoming thereby entitled to "all the rights
of other Cherokees" existed only from November 1, 1875, to November
28, 1877. Assuming that the National Council had authority under
the Cherokee Constitution of 1839 and the amendments of 1866 to
confer on white intermarried citizens the privilege of purchasing a
right in the soil and funds of the Nation, that privilege was
withdrawn in two years, and, according to the facts found, was only
availed of by two persons, neither of whom was an individual party
to the suit. No right in the Nation's property flowed from the
Cherokee citizenship act, which merely subjected the white man to
the jurisdiction of the Nation, but that right resulted from
express grant and the payment of a price. As to the Delawares and
Shawnees, their participation was specifically provided for by
convention, approved by the United States, and depended upon
payments made. As to the freedmen, their participation in property
distribution was secured by the terms of the Treaty of 1866 (the
result of the Civil War), and of the constitutional amendments
thereupon adopted. The Court of Claims referred to them thus:
"These constitutional amendments were brought about by the
action of the United States at the close of the Civil War in
dictating that the slaves or freed persons of color in the Cherokee
country should not only be admitted to the rights of citizenship,
but to an equal participation in the communal or common property of
the Cherokees. The Cherokees seem to have veiled their humiliation
by these general declarations of the persons who should be taken
and deemed to be citizens; but, be that as it may, the overthrow of
the Cherokee Nation and the treaty of peace, 1866, and the terms
dictated by the United States, whereby their former slaves were
made their political equals, and the common property of the
Cherokees was to be shared in with their servants and dependents,
was in effect a revolution. The constitutional amendment quoted was
simply declaratory of the new order
Page 203 U. S. 85
of things. It is not necessarily prospective, and does not
impose limitations upon the legislative power with regard to the
naturalization or future adoption of aliens as citizens. Under the
polity of the Cherokees, citizenship and communal ownership were
distinct things. The citizen who annually received an annuity
derived from the communal fund held by the United States, and the
citizen who never received a dollar from the fund, or never so much
as thought of receiving it, form a concrete object lesson in
constitutional law not easily effaced from the common mind."
Section 5 of the Constitution of 1839 was as follows:
"SEC. 5. No person shall be eligible to a seat in the National
Council but a free Cherokee male citizen, who shall have attained
to the age of twenty-five years."
"The descendants of Cherokee men by all free women, except the
African race, whose parents may have been living together as man
and wife according to the customs and laws of this Nation, shall be
entitled to all the rights and privileges of this Nation, as well
as the posterity of Cherokee women by all free men. No person who
is of negro or mulatto parentage, either by the father's or
mother's side, shall be eligible to hold any office of profit,
honor, or trust under this government."
"SEC. 6. The electors and members of the National Council shall
in all cases except those of treason, felony, or breach of the
peace, be privileged from arrest during their attendance at
elections and at the National Council in going to and
returning."
The amendment of section 5 in 1866 reads:
"SEC. 5. No person shall be eligible to a seat in the National
Council but a male citizen of the Cherokee Nation who shall have
attained to the age of twenty-five years and who shall have been a
bona fide resident of the district in which he may be
elected at least six months immediately preceding such election.
All native-born Cherokees, all Indians and whites legally members
of the Nation by adoption, and all freedmen
Page 203 U. S. 86
who have been liberated by voluntary act of their former owners,
or by law, as well as free colored persons who were in the country
at the commencement of the Rebellion and are now residents therein,
or who may return within six months from the nineteenth day of
July, 1866, and their descendants who reside within the limits of
the Cherokee Nation, shall be taken and deemed to be citizens of
the Cherokee Nation."
We cannot accept the view that this amendment amounted to a
grant of property rights, or operated to enlarge the authority of
the National Council in respect of the readmission of former
members of the Nation.
The amendment (found in that part of the Constitution in respect
to offices and elections) must be taken as a whole, and related to
eligibility to a seat in the National Council, and not to property
rights. The contention that the words "citizens of the Cherokee
Nation" should be construed as relating to the constitutional
provision of 1839, that the lands of the Nation should be common
property, is without merit in view of the provisions
themselves.
By section 2 of Article 1 of the Constitution of 1839, it was
provided that
"whenever any citizen shall remove with his effects out of the
limits of this Nation, and becomes a citizen of any other
government, all his rights and privileges as a citizen of this
Nation shall cease;
provided, nevertheless, that the
National Council shall have power to readmit, by law, to all the
rights of citizenship, any such person or persons who may at any
time, desire to return to the Nation, on memorializing the National
Council for such readmission."
By its terms, this referred to those who had been citizens, and
their readmission gave no rights not originally possessed, and this
was true under the amendments of 1866. Many special Cherokee laws
demonstrate that the Council did not venture to assume, nor desire
to assume, the power to impart to the white adopted citizen other
than civil and political rights.
For instance, the acts of 1878 readmitting Greenway and his
children and Allen and his family "to all the rights and
Page 203 U. S. 87
privileges of citizens of the Cherokee Nation" specifically
provided that no rights should be acquired except such as attach to
white men, "adopted citizens of the Cherokee Nation."
The acts relating to intermarriage with whites contained many
restrictions, but, by the act in respect of the intermarriage of
Cherokees with other Indians, no such restrictions were imposed.
Cherokee Act of Nov. 27, 1880. That act provided that the marriage
should be contracted according to the law regulating marriages
between "our own citizens," and declared that such Indian "shall be
and is hereby deemed a Cherokee to all intents and purposes, and
entitled to the rights of other Cherokees." There is no such
language in the acts relating to intermarried whites.
The Treaty of 1866 between the United States and the Cherokee
Nation provided as to the former slaves that they should be free,
and they "and their descendants shall have all the rights of native
Cherokees."
Article 15 of the same treaty, after providing for the
settlement of friendly Indians amongst the Cherokees and the manner
in which the latter shall be paid therefor, then stipulates that
"they shall be incorporated into and ever after remain a part of
the Cherokee Nation on
equal terms in every respect with
native Cherokees." When the Delawares were about to be
moved into the Cherokee country as friendly Indians, it was
stipulated in the agreement that,
"on the fulfillment by the Delawares of the foregoing
stipulations, all the members of the tribe registered as above
provided shall become
members of the Cherokee Nation, with
the
same rights and immunities and the same participation
(and no other) in the national funds as
native Cherokees.
. . . And the children hereafter born of such Delawares so
incorporated into the Cherokee Nation shall
in all respects be
regarded as native Cherokees."
Later, when an agreement was made with the Shawnees, after the
amount of money to be paid was provided for, the rights of Shawnees
were defined as follows:
"and that
Page 203 U. S. 88
the said Shawnees shall be incorporated into and ever after
remain a part of the Cherokee Nation, on equal terms
in every
respect and with all the privileges and immunities of native
citizens of said Cherokee Nation."
These intermarried whites show no grant of equal rights as
members of the Cherokee Nation by treaty or otherwise, nor have
they (excepting the two individuals heretofore referred to) paid
any sum into the Nation's treasury for a
pro rata share of
its money and lands.
The Delawares, the Shawnees, and the freedmen acquired their
property rights by the express words of treaties, but the
intermarried whites cannot point out any such in their favor.
Doubtless because of this, they have heretofore asserted no claim,
although the Cherokee courts were open to them to do so, and have
allowed repeated payments of money to be made to every other
citizen without question.
The distinction between different classes of citizens was
recognized by the Cherokees in the differences in their
intermarriage law, as applicable to the whites and to the Indians
of other tribes, by the provision in the intermarriage law that a
white man intermarried with an Indian by blood acquires certain
rights as a citizen, but no provision that, if he marries a
Cherokee citizen not of Indian blood, he shall be regarded as a
citizen at all, and by the provision that if, once having married
an Indian by blood, he marries the second time a citizen not by
blood, he loses all of his rights as a citizen. And the same
distinction between citizens as such and citizens with property
rights has also been recognized by Congress in enactments relating
to other Indians than the Five Civilized Tribes. Act August 9,
1888, 25 Stat. 392, c. 818; Act May 2, 1890, 26 Stat. 96, c. 182;
Act June 7, 1897, 30 Stat. 90, c. 3.
In
Whitmire v. Cherokee Nation, 30 Ct.Cl. 138, 152, the
Court of Claims said:
"Here it should be noted that, when the treaty was made there
had long been a peculiar class of citizens in the Cherokee country,
white men who became
Page 203 U. S. 89
citizens by intermarriage."
And, after quoting the proviso to section 75, Art. 15, of the
Cherokee Code of 1874, the court added:
"The idea therefore existed both in the mind and in the laws of
the Cherokee people that citizenship did not necessarily extend to
or invest in the citizen a personal or individual interest in what
the Constitution termed the 'common property,' -- the lands of the
Cherokee Nation."
In
Stephens v. Cherokee Nation, 174 U.
S. 445,
174 U. S. 488,
this Court, in respect of certain acts of Congress, observed:
"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."
Referring to this, the Court of Claims said in its opinion in
the present case, 40 Ct.Cl. 411, 442:
"It cannot be supposed for a moment that Congress intended by
this legislation to take away from some of the Cherokee people
property which was constitutionally theirs, or to confer upon white
citizens property which they were not legally entitled to have. The
term 'citizens' in these statutes of the United States must be
construed to mean those citizens who were constitutionally or
legally entitled to share in the allotment of the lands."
The doctrine is familiar that the language of a statute is to be
interpreted in the light of the particular matter in hand and the
object sought to be accomplished, as manifested by other parts of
the act, and the words used may be qualified by their surroundings
and connections.
In accepting the conclusion of the Court of Claims in this
regard, we nevertheless deem it proper to somewhat consider the
congressional legislation relied on by the claimants.
The Act of Congress of July 1, 1902, 32 Stat. 716, c. 1375,
ratified by the Cherokee Nation, August 7, 1902, and often called
the Cherokee Agreement, contained these sections:
Page 203 U. S. 90
"SEC. 25. The roll of citizens of the Cherokee Nation shall be
made as of September first, nineteen hundred and two, and the names
of all persons then living and entitled to enrollment on that date
shall be placed on said roll by the Commission to the Five
Civilized Tribes."
"SEC. 26. The names of all persons living on the first day of
September, nineteen hundred and two, entitled to be enrolled as
provided in section twenty-five hereof, shall be placed upon the
roll made by said Commission, and no child born thereafter to a
citizen, and no white person who has intermarried with a Cherokee
citizen since the sixteenth day of December, eighteen hundred and
ninety-five, shall be entitled to enrollment or to participate in
the distribution of the tribal property of the Cherokee
Nation."
"SEC. 27. Such rolls shall, in all other respects, be made in
strict compliance with the provisions of section twenty-one of the
act of Congress approved June twenty-eighth, eighteen hundred and
ninety-eight (Thirtieth Statutes, page four hundred and
ninety-five), and the Act of Congress approved May thirty-first,
nineteen hundred (Thirty-first Statutes, page two hundred and
twenty-one)."
"SEC. 28. No person whose name appears upon the roll made by the
Dawes Commission as a citizen or freedman of any other tribe shall
be enrolled as a citizen of the Cherokee Nation."
"SEC. 29. For the purpose of expediting the enrollment of the
Cherokee citizens and the allotment of lands as herein provided,
the said Commission shall, from time to time, and as soon as
practicable, forward to the Secretary of the Interior lists upon
which shall be placed the names of those persons found by the
Commission to be entitled to enrollment. The lists thus prepared,
when approved by the Secretary of the Interior, shall constitute a
part and parcel of the final roll of citizens of the Cherokee
tribe, upon which allotment of land and distribution of other
tribal property shall be made. When there shall have been submitted
to and approved by the
Page 203 U. S. 91
Secretary of the Interior lists embracing the names of all those
lawfully entitled to enrollment, the roll shall be deemed complete.
The roll so prepared shall be made in quadruplicate, one to be
deposited with the Secretary of the Interior, one with the
Commissioner of Indian Affairs, one with the principal chief of the
Cherokee Nation, and one to remain with the Commission to the Five
Civilized Tribes."
"SEC. 30. During the months of September and October in the year
nineteen hundred and two, the Commission to the Five Civilized
Tribes may receive applications for enrollment of such infant
children as may have been born to recognized and enrolled citizens
of the Cherokee Nation on or before the first day of September,
nineteen hundred and two, but the application of no person
whomsoever for enrollment shall be received after the thirty-first
day of October, nineteen hundred and two."
"SEC. 31. No person whose name does not appear upon the roll
prepared as herein provided shall be entitled to in any manner
participate in the distribution of the common property of the
Cherokee tribe, and those whose names appear thereon shall
participate in the manner set forth in this act:
Provided,
That no allotment of land or other tribal property shall be made to
any person, or to the heirs of any person, whose name is on said
roll and who died prior to the first day of September, nineteen
hundred and two. The right of such person to any interest in the
lands or other tribal property shall be deemed to have become
extinguished and to have passed to the tribe in general upon his
death before said date, and any person or persons who may conceal
the death of any one on said roll as aforesaid for the purpose of
profiting by said concealment, and who shall knowingly receive any
portion of any land or other tribal property or of the proceeds so
arising from any allotment prohibited by this section, shall be
deemed guilty of a felony, and shall be proceeded against as may be
provided in other cases of felony, and the penalty for this offense
shall be confinement at hard
Page 203 U. S. 92
labor for a period of not less than one year nor more than five
years, and in addition thereto a forfeiture to the Cherokee Nation
of the lands, other tribal property, and proceeds so obtained."
It thus appears that the roll of citizens of the Cherokee Nation
was to be made up as of September 1, 1902, of the persons then
living and entitled to enrollment on that date; that all such
persons should be placed upon the roll, and that (section 29) on
the lists to be finally approved by the Secretary of the Interior
there should be placed only the names of those persons found to be
entitled to enrollment. In all other respects, the roll was to be
made in compliance with section 21 of the Act of Congress of June
28, 1898, and of the Act of Congress of May 31, 1900.
Section 21 provided:
"That, in making rolls of citizenship of the several tribes, as
required by law, the Commission to the Five Civilized Tribes is
authorized and directed to take the roll of Cherokee citizens of
eighteen hundred and eighty (not including freedmen) as the only
roll intended to be confirmed by this and preceding acts of
Congress, and to enroll all persons now living whose names are
found on said roll, . . . with such intermarried white persons as
may be entitled to citizenship under Cherokee laws."
The roll of 1880, made by the Cherokees, was a census roll, and
its confirmation was not intended to create any rights which
citizens of the Cherokee Nation had not before enjoyed, but merely
to furnish the basis for making up the roll of citizens. Section 21
was in reality a statement that no previous act of Congress was
intended to confirm any other roll of the Cherokee Nation.
The Act of May 31, 1900, 31 Stat. 221, 236, provided:
"That said Commission shall continue to exercise all authority
heretofore conferred on it by law. But it shall not receive,
consider, or make any record of any application of any person for
enrollment as a member of any tribe in Indian territory who has not
been a recognized citizen thereof, and duly and lawfully enrolled
or admitted as such, and its refusal
Page 203 U. S. 93
of such application shall be final when approved by the
Secretary, of the interior."
Section 31 of the Act of July 1, 1902, says that no person whose
name does not appear on the roll made by the Commission to the Five
Civilized Tribes
"shall be entitled to in any manner participate in the
distribution of the common property of the Cherokee tribe, and
those whose names appear thereon shall participate in the manner
set forth in this act."
In other words, the roll must be made up of citizens who, under
the law of the Cherokee Nation, were entitled to participation in
the distribution of the common property of the Cherokee tribes.
The concluding words of section 21, "with such intermarried
white persons as may be entitled to citizenship under Cherokee
laws," emphatically indicate that Congress had the Indian citizen
in mind in all that went before and limited enrollment of white
persons to such as might be entitled to citizenship under Cherokee
laws.
Counsel for claimants speak of the act of 1902 as a "treaty,"
but it is only an act of Congress, and can have no greater effect.
It is a singular commentary on the situation that the majority of
the native Cherokees voted against its acceptance, which was
carried by the vote of the whites. The suggestion is wholly
inadmissible that they could vote themselves an interest in the
property of the Cherokee people, including a share in the money
paid in by the Delawares and the Shawnees, and become thereby wards
of this government.
Referring to section 26 of the act of 1902, which declares that
no white person intermarried since December 16, 1895, shall be
entitled to enrollment or to participate in the distribution of the
tribal property of the Cherokee Nation, and to an act of the
Cherokee Council to the same effect approved December 16, 1895,
counsel contend that the act of Congress shows that there was a
class of persons who, having married prior to December 16, 1895,
were to be enrolled, embracing all lawfully married according to
the law of the Nation, and were to participate in the distribution
of the tribal property.
Page 203 U. S. 94
The doctrine that the denial of a right is the grant of a right
is a poor basis for a grant of land. Not a single word of the act
intimates that these intermarried persons have or are to have any
interest in the property of the Nation, and to hold that, because
the act of 1902 declares that white persons intermarrying after
1895 should acquire no property rights the Indians, in accepting
the act, conceded property rights to all who intermarried prior
thereto, would put a construction on the act utterly inconsistent
with the settled rule that, as between the whites and the Indians,
the laws are to be construed most favorably to the latter.
After the decision in
Journeycake's case,
155 U.
S. 196, and in that of
Whitmore v. Cherokee
Nation, 30 Ct.Cl. 138, 180, the Cherokee National Council
passed the Act of December 16, 1895, amending certain sections of
the compiled laws, from which the provisions of the Act of
November, 1877, which denied intermarrying whites any right in
Cherokee property, had been erroneously omitted, by reenacting the
same, but this only evidenced the determination to prevent the
encroachment of the whites upon the property rights of the Cherokee
people. The act was clearly passed out of abundant caution, and was
quite unnecessary in view of the fact that the act of 1877 remained
in force, as was found by the Court of Claims.
We are dealing with the right of enrollment so as to entitle the
persons enrolled to participate in the distribution of the lands
and vested funds of the Cherokee Nation, and not with questions
arising in respect of improvements on the public domain. As to
improvements, they seem to have been treated as those of a tenant
who had made them under an agreement that they should remain his.
Any citizen of the Nation could use the public domain, and it is
not asserted that the intermarried whites failed to obtain their
share of such use, but because they have enjoyed that benefit, free
from tax or burden, is no reason for giving them a share in the
lands and vested funds, which has never been granted to them, and
for which they have never paid.
Page 203 U. S. 95
We concur in the conclusions of the Court of Claims, including
the disposition of the particular contention presented in appeal
No. 128.
This involved certain claimants before the court, known as
"married out and abandoned whites," who alleged that they became
citizens of the Cherokee Nation by intermarriage, but conceded that
they had since married persons having no rights of Cherokee
citizenship by blood or had abandoned their Cherokee wives. They
contended that they could not be deprived of the rights and
privileges acquired by intermarriage save by proceedings in the
nature of office found. As to this the Court of Claims said:
"These intermarried whites are not grantees or devisees seised
and in possession of land, occupying the position of defendants.
They occupy the contrary position -- of plaintiffs seeking to
recover money -- and it is obligatory upon them to establish their
right to it. To say that a white man can share in the property of
the Cherokees for the reason that, at one time in his life, he was
the husband of a Cherokee woman, and to say that this Court or the
Secretary of the Interior must hold that he is still the husband of
a Cherokee woman because the contrary has not been established in
another proceeding, is an appeal to technicality which the court
cannot uphold. These claimants, like other plaintiffs, must prove
their case; asserting a present right, they must establish present
conditions. The laws and usages of the Cherokees, their earliest
history, the fundamental principles of their national policy, their
Constitution and statutes, all show that citizenship rested on
blood or marriage; that the man who would assert citizenship must
establish marriage; that, when marriage ceased (with a special
reservation in favor of widows or widowers), citizenship ceased;
that, when an intermarried white married a person having no rights
of Cherokee citizenship by blood, it was conclusive evidence that
the tie which bound him to the Cherokee people was severed and the
very basis of his citizenship obliterated. "
Page 203 U. S. 96
"The Cherokee statute which has been cited (Laws of 1892,
section 669) gives a proceeding in the nature of office found, but,
nevertheless, is confirmatory of the views hereinbefore expressed.
It relates to cases where the Cherokee government takes the
initiative to accomplish a purpose. That is to say, where an
intermarried white man has forfeited his rights of citizenship in
the Nation by acts which declare such forfeiture 'and the Nation
requires his removal beyond the limits of its territory,' this
proceeding must be resorted to, to be followed by a call on the
United States Indian agent 'to remove such a white man.' It is in
principle precisely like the common law procedure of office found,
and exists for the same reason -- that the government may exercise
a right dependent upon only the alienage of a person living within
its territory, presumably a citizen."
Decree affirmed.