1. The treaty of the 29th December, 1835, between the United
States and the Cherokee Indians, was not made in virtue of the act
of 28th of May, 1830, authorizing an "exchange" of lands west of
the Mississippi for the territory claimed or occupied by any tribe
of Indians within the limits of any state or territory, but was
made under the treatymaking power vested by the Constitution in the
President and Senate.
2. The Indian tribes are capable of taking as owners in fee
simple lands by purchase where the United States in form, and for a
valuable and adequate consideration, so sell them to them.
3. Such sale is properly made by a treaty.
4. The above-mentioned Treaty of 29 December, 1835, made such a
sale to the Cherokee Indians of the lands west of the Mississippi,
known as the "Cherokee Neutral Lands," and the fact and validity of
the sale have been recognized by Congress through appropriations
made in execution of the treaty making it.
5. The cession to the United States by the Cherokees, in the
Treaty of June 19, 1866, of the said Neutral Lands owned by them as
aforesaid, in trust that the United States should sell them and
hold the proceeds for the benefit of the said Indians, was a lawful
cession and trust, and in accordance with the policy and practice
of the government.
6. It did not amount to an "abandonment" of the lands, and
therefore cannot raise a question whether the lands reverted to the
United States in pursuance of a condition inserted in the patent
that the land should revert to the government if the Cherokees
abandoned them, assuming that such a condition was lawful and of
any effect, a matter not conceded.
7. Assuming that either this provision in the patent or the
extent to which the Cherokees joined the rebel confederacy in the
late rebellion amounted to any abandonment, the United States, the
grantors, alone could take advantage of the breach of
condition.
8. Their acceptance of the lands in trust, to sell them for the
benefit of the Cherokees, condoned the breach of condition if there
was one.
9. The supplemental article of April 27, 1868, to the
already-mentioned Treaty of June 19, 1866, was valid, and the sale
and potent made to one Joy pursuant to its purpose passed a good
title to the said Joy, though the treaty did not convey,
proprio vigore, the lands meant to be sold, though it
required officers of the United States to do certain acts before
the sale could be consummated, and though the contract of sale to
Joy was signed before the treaty was promulgated.
Prior to the year 1817, the Cherokee Indians all resided
Page 84 U. S. 212
on the east of the Mississippi, largely in Georgia. By treaties
of the year named and of 1819, [
Footnote 1] the tribe was divided into two bodies, one of
which remained where they were, east of the Mississippi, and the
other settled themselves upon United States land in the country on
the Arkansas and White Rivers. The government being desirous to get
the entire tribe to the west of the Mississippi River, treaties
were made by the United States May 6, 1828, and February 14, 1833,
[
Footnote 2] with this western
part of the tribe, by which the United States agreed to "possess"
them as well as those of their brethren who still resided in states
east of the Mississippi and to guarantee to them all forever
7,000,000 acres of land west of the Arkansas. But the part of the
tribe east of the river did not largely emigrate.
On the 28th of May, 1830, Congress passed an act [
Footnote 3] entitled "An act to provide for
an
exchange of lands with the Indians residing in any of
the states or territories and for their removal west of the
Mississippi River." The first and second sections of the act
authorized the President of the United States to
exchange
certain lands west of the Mississippi River with any tribe or
nation of Indians residing within the limits of any of the states
or territories, and with which the United States lead existing
treaties, for the whole or any portion of the territory claimed or
occupied by such Indians. The third section of the act was in these
words:
"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. "
Page 84 U. S. 213
Afterwards, on the 29th of December, 1835, and
while this
act was in fall force -- the United States, being in
possession of a certain 800,000 acres of land west of the
Mississippi known as the "Neutral Lands" [
Footnote 4] (part of the cession made by France to us
April 30, 1803, [
Footnote 5]
originally occupied by the Osage tribe, but of all their right in
which the said tribe had in 1825 [
Footnote 6] made a cession to the United States) -- the
President negotiated a
treaty with the Cherokees.
[
Footnote 7]
The treaty contains these provisions:
"ARTICLE 1. The Cherokee nation hereby cede, relinquish, and
convey to the United States all the lands owned, claimed, or
possessed by them east of the Mississippi River . . . for and in
consideration of the sum of $5,000,000, to be expended, paid, and
invested in the manner stipulated and agreed upon in the following
articles &c."
"ARTICLE 2. Whereas by the Treaty of May 6, 1828, and the
supplemental treaty thereto of February 14, 1833, with the
Cherokees
west of the Mississippi, the United States
guaranteed and secured to be conveyed by patent to the Cherokee
nation of Indians the following tract of country [described as in
the treaty of 1833, and then quoting the following words from the
treaty:] "
"which will make 7,000,000 of acres. . . . In addition . . . ,
the United States further guarantee to the Cherokee nation a
perpetual outlet west, and a free and unmolested use of all the
country west of the western boundary of said 7,000,000 acres, as
far west as the sovereignty of the United States and their right of
soil extend. . . ."
"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
$500,000, 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 [described], estimated to
contain 800,000 acres of land. "
Page 84 U. S. 214
"ARTICLE 3. The United States also agree 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."
By an act making appropriations "for carrying into effect
certain Indian treaties" approved July 2, 1836, [
Footnote 8] Congress appropriated
"For the amount stipulated to be paid for the lands ceded in the
first article of the Treaty with the Cherokees of the 29th of
December, 1835, deducting the cost of the land to be procured for
them west of the Mississippi River, under the second article of
said treaty, $4,500,000."
On the 31st December, 1838, the President, referring to the
already mentioned Treaties of May 6, 1828, February 14, 1833, and
December 29, 1835, and professing to act "in execution of the
agreements and stipulations contained in the said several
treaties," issued a patent giving and granting the 800,000 acres of
land described in the treaty of 1835 "unto the said Cherokee
nation," to have and to hold the same, together with all the
rights, privileges, and appurtenances thereunto belonging, unto the
said Cherokee nation forever.
The grant, however, which included a large body of lands not
part of the Neutral Lands or conveyed under the treaty of 1835, was
made
"Subject to the condition provided by the Act of Congress of 28
May, 1830, and which condition is that the lands hereby granted
shall revert to the United States if the said Cherokees become
extinct or
abandon the same."
On the breaking out of the rebellion, the Cherokee Indians
generally favored it. Some of them actually joined the rebel army,
though a portion of these afterwards deserted and entered the army
of the United States.
Page 84 U. S. 215
On the 5th of July, 1862, Congress, by its Indian Appropriation
Act of that year, provided: [
Footnote 9]
"That in cases where the tribal organization of any Indian tribe
shall be in actual hostility to the United States, the President is
hereby authorized to declare all treaties with such tribe to be
abrogated by such tribe if in his opinion the same can be done
consistently with good faith, and legal and national
obligations."
This power thus entrusted to the President he did not use, and
the treaties with the Cherokee Indians remained in force
notwithstanding the rebellion.
On the 3d of March, 1868, [
Footnote 10] by the fourth section of the Indian
Appropriation Act, the President was authorized to enter into
negotiations with various Indian tribes for the purchase of the
lands occupied by them in the State of Kansas. The section was
thus:
"And be it further enacted that the President of the United
States be and he is hereby authorized to enter into treaties with
the several tribes of Indians respectively, now residing in the
State of Kansas, providing for the extinction of their titles to
lands held in common within said state and for the removal of such
Indians of said tribes as hold their lands in common to suitable
localities elsewhere within the territorial limits of the United
States and outside the limits of any state."
After the close of the rebellion, the Act of March 3, 1863,
being still in force, the President of the United States entered
into negotiations with the Cherokee Indians for that part of their
land situate in the State of Kansas. The result of such
negotiations was a treaty known as that of July 19, 1866. This
treaty, which is entitled "Articles of
agreement and
convention," is voluminous, and relates to many subjects. Its
preamble recites that "existing treaties between the United States
and the Cherokee nation are deemed insufficient," and that "the
contracting parties agree as follows." Article seventeen provides
thus:
"The Cherokee nation cedes in trust to the United States
Page 84 U. S. 216
the parcel of land in the State of Kansas, which was sold to the
Cherokees under provisions of the second article of the treaty of
1835, and also that strip of the land ceded to the nation by the
fourth article of said treaty, which is included in the State of
Kansas, and the Cherokees consent that said land may be included in
the limits and jurisdiction of the said state."
"The lands herein ceded shall be surveyed as the public lands of
the United States are surveyed under the direction of the
Commissioner of the General Land Office, and shall be appraised by
two disinterested persons, one to be designated by the Cherokee
National Council, and one by the Secretary of the Interior, and in
case of disagreement, by a third person to be mutually selected by
the aforesaid appraisers. The appraisement to be not less than an
average of one dollar and a quarter per acre, exclusive of
improvements."
"And the Secretary of the Interior shall from time to time, as
such surveys and appraisements are approved by him, after due
advertisement for sealed bids, sell such lands to the highest
bidder for cash, in parcels not exceeding one hundred and sixty
acres, and at not less than the appraised value, provided, that
whenever there are improvements of the value of $50 made on the
land not being mineral, and owned and personally occupied by any
person for agricultural purposes at the date of the signing hereof,
such persons so owning and in person residing on such improvements,
shall after due proof made under such regulations as the Secretary
of the Interior may prescribe, be entitled to buy at the appraised
value the smallest quantity of land in legal subdivisions, which
will include his improvements, not exceeding in the aggregate one
hundred and sixty acres, the expenses of the sale and improvement
to be paid by the Secretary out of the proceeds of sale of said
land. [Provided that nothing in this article shall prevent the
Secretary of the Interior from selling the whole of said lands not
occupied by actual settlers at the date of the ratification of this
treaty, not exceeding one hundred and sixty acres to each person
entitled to preemption under the preemption laws of the United
States, in a body, to any responsible party for cash, for a sum not
less than one dollar per acre.] [
Footnote 11] "
Page 84 U. S. 217
The twenty-ninth article of the treaty read thus:
"The sum of $10,000, or so much thereof as may be necessary to
pay the expenses of the delegates and representatives of the
Cherokees invited by the government to visit Washington for the
purpose of making this treaty, shall be paid by the United States
on the ratification of this treaty."
By an Act passed on the 29th of July, 1866, [
Footnote 12] this provision was made:
"To enable the Secretary of the Interior to pay the reasonable
costs and expenses actually paid or incurred by the delegates of
the Southern Cherokees in coming to and going from Washington, and
during their stay in and about the negotiation pending the
confirmation of treaties with the Indian tribes, a sum not
exceeding $10,000.
Provided, that sum shall be refunded to
the Treasury
from the proceeds of the sales of the Cherokee
Neutral Lands in Kansas."
The twelfth article of the treaty, section one, read thus:
"After the ratification of this treaty, and as soon as may be
deemed practicable by the Secretary of the Interior, and prior to
the first session of said council, a census or enumeration of each
tribe, lawfully resident in said territory, shall be taken under
the direction of the Commissioner of Indian Affairs, who, for that
purpose, is hereby authorized to designate and appoint competent
persons, whose compensation shall be fixed by the Secretary of the
Interior, and paid by the United States."
The Indian Appropriation Act of 1866 [
Footnote 13] made this provision:
"For this amount, or so much thereof as may be necessary to
enable the Secretary of the Interior to cause a census of each
tribe to be taken, under the provisions of the twelfth article of
the Treaty of July 19, 1866 -- $2500."
The twenty-eighth article of the treaty read thus:
"The United States hereby agree to pay for provisions and
clothing furnished the army, under Ap-pothe-le-ha-la-le, in the
winter of 1861-62, not to exceed the sum of $10,000 on the
account
Page 84 U. S. 218
to be ascertained and settled by the Secretary of the
Interior."
The thirtieth article thus:
"The United States agree to pay to the proper claimants, all
losses of property by missionaries, or missionary societies,
resulting from their being ordered or driven from the country by
United States agents, and from their property being taken and
occupied or destroyed by United States troops, not exceeding in the
aggregate $20,000, to be ascertained by the Secretary of the
Interior."
The Indian Appropriation Act of Congress, just mentioned,
contains appropriations [
Footnote 14]
"For provisions and clothing furnished the army under
Ap-pothe-le-ha-la-le in the winter of 1861-62,
per
twenty-eighth article of the treaty of July 19, 1866,
$10,000."
"For paying of losses of property by missionaries or missionary
societies &c.,
treaty July 19, 1866, thirtieth
article, $30,000."
These and other acts [
Footnote 15] appropriated in the aggregate $84,825 to
carry the treaty into effect.
After this treaty of 1866 was ratified and proclaimed, Mr.
Harlan, while Secretary of the Interior, made an agreement with the
American Emigrant Company for the sale of the Cherokee Neutral
Lands to them. By this agreement, Mr. Harlan "agrees to sell, and
hereby does sell," to the company, the whole tract of 800,000
acres, known as the "Cherokee Neutral Lands," with the restrictions
set forth in the seventeenth article of the treaty of 1866, at $1
per acre, payable in installments.
"The United States agree to cause said lands to be surveyed as
public lands are usually surveyed, in one year from the date
hereof, and on the payment of $50,000, to set apart for said
company a quantity of said lands, in one body, in as compact form
as practicable, extending directly across said tract of land, from
east to west, and containing a number of acres equal to the number
of dollars then paid, and from time to time to convey the same by
patent, to said company or its assigns, whenever
Page 84 U. S. 219
afterward requested so to do, in such quantities, by legal
subdivisions, as said company shall indicate; and on the payment of
each additional installment, with interest as herein stipulated, to
set apart for said company an additional tract of land, in compact
form, where said company may request, but extending directly across
the said Neutral Lands from east to west, containing a number of
acres equal to the number of dollars of principal thus paid, and to
convey the same to said company or its assigns, as hereinbefore
described, and so on from time to time until the whole shall be
paid, and no conveyance of any part of said lands shall be made
until the same shall be paid for as provided in this agreement, but
said company may more payments at earlier periods than those
indicated, or pay the whole, principal and interest, and receive
titles of tracts of land accordingly, if they shall so elect."
Mr. Browning, the successor in office of Mr. Harlan, disapproved
of the sale before it had been consummated, and "agreed," October
9, 1867, with a certain Joy to sell the same lands to
him.
This matter attracted the attention of Congress. The House of
Representatives accordingly, on the 11th of December, 1867, passed
a resolution calling on Secretary Browning for information with
regard to the sale. The secretary answered the inquiries.
The conclusion of Congress being that the original treaty of
1866 had not made such provisions as would produce for the Indians
the greatest amount of money, the Indian commissioners were
summoned a second time to Washington. A supplemental treaty was now
made (April 27, 1868), between the United States and the Cherokees.
This treaty refers to the sales to the Emigrant Company and to Joy,
and recites that for the purpose of harmonizing all interests the
company was about to assign their contract to Joy, and agrees that
this shall be done and that Joy shall cancel and relinquish his
contract made with Mr. Browning.
It then agrees that whenever Joy shall have cancelled and
relinquished this contract with Mr. Browning, and shall have
accepted the assignment of this contract with the Emigrant Company
and entered into a contract with the Secretary of the Interior to
assume and perform the obligations
Page 84 U. S. 220
of the company under it, the contract thus assigned, with some
modifications as to the time &c., of payments, shall stand.
This treaty was proclaimed June 10, 1868.
Two days before the ratification, that is to say on the
8th of June, 1868, Mr. Browning and Joy entered into a new contract
reciting Joy's acceptance of the Emigrant Company's obligation
(which in terms Joy assumed), reciting further the surrender and
cancellation of Joy's old contract, and Mr. Browning, as secretary,
agreeing that he would carry out and execute all the provisions of
the Emigrant Company's contract, except so far as modified by the
supplemental treaty, and "cause patents of said lands to be issued
to the said Joy or his assigns in accordance with the terms and
provisions thereof."
By the Indian Appropriation Act of July 27, 1868, [
Footnote 16] Congress enacted:
"That the sum of $10,356 be appropriated from any money in the
Treasury not otherwise appropriated, to enable the Secretary of the
Interior to defray the expenses of the Cherokee delegation to
Washington, District of Columbia, during the year 1867,
provided that this sum be refunded to the Treasury of the
United States out of that portion of the proceeds of the sale of
the Cherokee Neutral Lands applicable to Cherokee national
purposes."
Afterwards, by the Indian Appropriation Act of 1871, [
Footnote 17] Congress made certain
provisos, in the following terms:
"Provided that hereafter, no Indian nation or tribe within the
territory of the United States shall be acknowledged or recognized
as an independent nation, tribe, or power, with whom the United
States may contract by treaty,
provided further that
nothing herein contained shall be construed to invalidate or impair
the obligations of any treaty heretofore lawfully made and ratified
with any such Indian nation or tribe."
On the 31st of October, 1868 -- that is to say, after the treaty
of 1868 (the supplemental treaty), had been proclaimed, and after
the Act of July 27, 1868, had been passed -- Joy consummated his
purchase of the Cherokee
Page 84 U. S. 221
Neutral Lands, and the same were patented to him or his
assignee.
At the time when Joy's purchase was thus made, the Indian
Intercourse Acts (acts of 1802 and 1834) provided: [
Footnote 18]
"That no purchase, grant, lease, or other conveyance of lands,
or of any title or claim thereto, from any Indian nation or tribe
of Indians, shall be of any validity in law or equity, unless the
same shall be made by treaty or convention entered into pursuant to
the Constitution."
Another law, also, passed January 9, 1837, [
Footnote 19] enacted:
"§ 1. That all moneys received from the sale of lands, that have
been or
may be hereafter ceded to the United States by Indian
tribes by treaties, providing for the investment or payment to
the Indians, parties thereto, of the proceeds of the lands ceded to
them respectively, after deducting the expenses of survey and sale,
any sum stipulated to be advanced, and the expenses of fulfilling
any engagement therein, shall be paid into the Treasury of the
United States in the same manner that moneys received from the sale
of public lands are paid into the Treasury."
"§ 2. That all sums that are or
may be required to be
invested by said treaties are hereby appropriated in conformity
with them, and shall be drawn from the Treasury as other public
moneys are drawn therefrom, under such instructions as may from
time to time be given by the President."
In this state of facts and of statutory law, one Holden filed a
bill in the court below against Joy, setting up that a title had
accrued to him to enter a certain quarter section of a tract of the
lands already mentioned, to-wit, the Neutral Lands, sold as above
said to Joy. The bill alleged that the land claimed was, on the
12th of February, 1867, public land, to which the Indian title had
been extinguished; that he, the complainant, having the
qualifications of a preemptor, on that day settled upon it and took
possession of the same; that he had acquired the legal and
equitable right to enter the same at the proper land office under
the preemption
Page 84 U. S. 222
laws; that he then made settlement for the purpose of entering
it under the said laws, and then took and had ever since had, and
now had, open, notorious, adverse, exclusive, and rightful
possession of the promises; that at the time he took possession,
the tribe of Cherokee Indians did not live in the state, and had
not since lived there; that no individual Indian of the tribe lived
on or near the premises, and that the tract was never settled upon
by any person until it was taken possession of by him, the
complainant; that he took possession of the land at the time and
had continued to occupy it without any objection from the tribe of
Indians or any one of the members of the tribe; that he was the
head of a family and a citizen of the United States &c.
He admitted, however, that there was no public survey of the
tract returned and approved until a later period; that no plat or
survey of the tract made by authority had ever been returned to the
office of the register and receiver, or to the office of the
Surveyor General; that the only record of the survey was in the
office of the Commissioner of the General Land Office; and that no
instructions had ever been given to the register and receiver
respecting the tract by the Secretary of the Interior. But he
alleged that he had at all times been and still was ready and
willing to make proof before the register and receiver of his
settlement and improvement upon the tract, and to pay therefor the
price of $1.25 per acre, and that he had tendered such proof and
payment, and that the register and receiver had at all times
refused to take such evidence or to accept pay for the land.
He averred that a right had thus accrued to him to enter the
said lands under the preemption laws of the United States, and the
grievance alleged was that the respondent had commenced an action
of ejectment against him for the purpose of ejecting him from the
land. He prayed au injunction against the ejectment, and for other
relief.
The bill also set forth in considerable fullness what it alleged
was the title claimed by the respondent, and averred that there was
no other authority of law for the issuing of
Page 84 U. S. 223
the patent of the 31st of October, 1868, to the respondent,
under which he claimed the premises in controversy, than the
several patents, treaties, and contracts set forth and referred to
in the bill of complaint, the same essentially as those mentioned
in the preceding. statement.
The respondent demurred:
(1) Because the facts set forth in the bill did not constitute a
cause of action.
(2) Because they were not sufficient to entitle the complainant
to any relief in a court of equity.
(3) Because the bill, if true, showed that the complainant had a
complete and adequate remedy in a court of law.
The court below sustained the demurrer, and dismissed the bill,
whereupon the complainant appealed to this Court.
Page 84 U. S. 236
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Concessions made in the bill favorable to the respondent are to
be regarded as facts undisputed by the complainant, and matters
well pleaded, in favor of the complainant, are, in view of the
demurrer, to be considered as facts admitted by the respondent.
Viewed in that light, as the pleadings must be, it will be most
convenient to inquire in the first place whether the title claimed
by the respondent is a valid one, as if it is, the decree must be
affirmed, and if it is not, the decree must be reversed, and the
complainant may perhaps be entitled to relief.
Page 84 U. S. 237
Disturbances, and in some instances collisions, of a threatening
character occurred between the Cherokee nation of Indians and
certain citizens of the states or territories in which they
resided, in consequence of which the United States and the Cherokee
nation became anxious to make some arrangement whereby the
difficulties which had arisen by the residence of the Indians
within the settled parts of the United States, under the
jurisdiction and laws of the states or territorial governments,
might be terminated and adjusted. Measures of various kinds had
been devised and tried without effectually accomplishing the
object, as will be seen by reference to some of the early treaties
with that nation and the acts of Congress upon the subject.
[
Footnote 20]
Treaties of the kind were concluded with that nation of Indians
on the 6th of May, 1828, and on the 14th of February, 1833, in both
of which the United States agreed to possess the Cherokees of seven
million acres of land west of the Mississippi River, bounded as
therein described and to guarantee it to them forever upon the
terms and conditions therein stipulated and agreed. Enough appears
in those treaties to show that it was the policy of the United
States to induce the Indians of that nation, resident in any of the
states or organized territories of the United States, to surrender
their lands and possessions to the United States, and emigrate and
settle in the territory provided for them in those treaties.
Sufficient is known, as matter of history, to justify the remark,
that those measures, as well as some of like kind of an earlier
date, were unsuccessful, and that the difficulties continued and
became more and more embarrassing. [
Footnote 21]
Prior measures having failed to accomplish the object of
quieting the disturbances or removing the difficulties; the United
States, on the 29th of December, 1835, concluded a new treaty with
the Cherokee nation, with a view to reunite their people in one
body and to secure to them a permanent
Page 84 U. S. 238
home for themselves and their posterity in the country selected
for that purpose, without the territorial limits of the state
sovereignties, and where they could establish and enjoy a
government of their choice, and perpetuate such a state of society
as might be consonant with their views, habits, and condition.
[
Footnote 22]
By the first article of the treaty the Cherokee nation "cede,
relinquish, and convey to the United States all the lands owned,
claimed, or possessed by them east of the Mississippi River," and
released all their claims for spoliations of every kind, for and in
consideration of the sum of $5,000,000, to be expended, paid, and
invested in the manner stipulated and agreed upon in other articles
of the treaty.
Reference is made in the second article of the treaty to the
respective articles of the two before-mentioned treaties, in which
the United States agreed to possess the Cherokees of seven million
acres of land, situated and hounded as therein described, and
guaranteed it to them forever upon the terms and conditions therein
stipulated and agreed. Apprehension, it seems, was felt by the
Cherokees that the cession contained in those treaties, and
confirmed in the new treaty, did not contain a sufficient quantity
of land for the accommodation of the whole nation on their removal,
and in view of that fact the United States, in consideration of
$500,000, covenanted and agreed to convey to the said Indians and
their descendants, by patent in fee simple, a certain tract of
land, situated and bounded as therein described, estimated to
contain eight hundred thousand acres of land, ever afterwards known
as the Cherokee neutral lands, and it is admitted in the bill of
complaint that it includes the tract in controversy.
Authority was conferred upon the President by the first section
of the Act of the 28th of May, 1830, to cause so much of any
territory belonging to the United States, west of the Mississippi,
not included in any state or organized territory,
Page 84 U. S. 239
and to which the Indian title bad been extinguished, "as he may
judge necessary," to be divided into a suitable number of
districts, far the reception of such tribes or nations of Indians
as may choose to exchange the lands where they now reside, and to
remove there, and to cause each of said districts to be so
described by natural or artificial boundaries as to be easily
distinguished from every other.
Power is also conferred upon the President by the second section
of the act to exchange any or all of such districts with any tribe
or nation of Indians residing within the limits of any of the
states or territories, for the whole or any portion of the
territory, claimed and occupied by such tribe or nation, within the
bounds of anyone or more of the states or territories, subject to
certain conditions therein prescribed. Section three provides that
in making such exchanges the President may solemnly assure the
tribe or nation that the United States will forever secure and
guarantee to them and their heirs and successors the country so
exchanged with them, and that, if they prefer it, the United States
will cause a patent or grant to be made and executed to them for
the same, provided that such lands shall revert to the United
States if the Indians become extinct or abandon the territory.
Much reason exists to suppose that Congress, in framing those
provisions, had in view the stipulations of the treaty concluded
two years earlier, and it is equally probable that the President
and Senate in negotiating and concluding the two treaties of later
date were largely governed by the several provisions in that act of
Congress, but they were not controlled by these enactments, as is
evident from the fact that the later of the two contains many
stipulations differing widely from the provisions of that act, as
for example the United States, in the supplemental article
enlarging the quantity of land set apart for the accommodation of
the nation, expressly covenant and agree to convey the additional
tract to the said Indians and their descendants by patent, in fee
simple title, and the article does not contain any such provision
as that contained in the third section of
Page 84 U. S. 240
the act of Congress, that the land shall revert to the United
States if the Indians become extinct or abandon the territory.
[
Footnote 23]
Attempt is made in argument to show that the last-named treaty
was negotiated by force of the act of Congress to provide for an
exchange of lands with the Indians, but it is clear that the
proposition cannot be sustained, as the treaty differs widely in
many respects from the provisions of that act of Congress.
Doubtless the intent and purpose were the same -- to quiet the
disturbances and to induce the Indians remaining in the states and
territories to emigrate and settle in the district of country set
apart for them without the limits of the several states and
organized territories -- but the treaty, though concluded to
promote the same object as the act of Congress, adopts very
different instrumentalities. It is a treaty to confirm to the
Indians the possession of the seven million acres of land
previously granted to the nation, and to purchase their lands east
of the Mississippi River for the sum of $5,000,000, to be expended,
paid, and invested in the manner therein stipulated and
provided.
Such prior grant of land was made or defined under the two
treaties before mentioned to secure a new home for the Indians,
without the limits of the several states and territories, and to
induce the Indians still residing within those limits to emigrate
and settle in the country long before set apart for that purpose.
Large numbers of the Cherokees emigrated and settled there under
the Treaty of the 8th of July, 1817, and measures of various kinds
had been adopted, at later periods, to induce the residue of the
nation to follow those who had accepted the proffered protection,
but without much success. [
Footnote 24]
Even treaties proved ineffectual, as one after another failed to
accomplish the desired end. They would not emigrate without
compensation for their improvements, and many were reluctant to
accept any of the terms proposed, upon the ground that the quantity
of land set apart for the accommodation
Page 84 U. S. 241
of the whole nation was not sufficient for the purpose. Twice,
the United States offered the seven million acres of land, with
other inducements, but the terms, though formally accepted, did not
have the effect to accomplish the end. Experience showed that
better terms were required, and the government agreed to purchase
their lands for the consideration named in the treaty and to convey
to the Indians in fee simple title, the additional tract of eight
hundred thousand acres, for $500,000, to be deducted from the
consideration stipulated to be paid for the purchase of their
lands.
Other important stipulations are contained in the treaty, among
which are the following:
(1) That the United States agree that the lands ceded shall all
be included in one patent, executed by the President, to the
Cherokee nation, according to the provision of the before-mentioned
act of Congress.
(2) That the United States agree to extinguish, for the benefit
of the Cherokees, the titles to the reservations within their
country, made in the Osage treaty to certain half-breeds, and for
that purpose the United States agree to pay to the persons to whom
the titles belong the sum of $15,000, according to the schedule
accompanying the treaty.
(3) That the United States shall pay the American Board of
Commissioners for Foreign Missions for the improvements they have
on the ceded country the sums at which the same shall be appraised,
and that the money allowed for the improvements shall be expended
in schools among the Osages, and for improving their condition.
(4) That the land ceded to the Cherokee nation shall, in no
future time, be included, without their consent, within the
territorial limits or jurisdiction of any state or territory.
(5) That the United States agree to protect the Cherokee nation
from domestic strifes and foreign enemies and against intestine
wars between the several tribes.
(6) That the United States agree to remove the Cherokees to
their new homes and to subsist them for one year after their
arrival.
(7) That the United States shall liquidate claims for
reservations and pay the sums awarded to the claimants, and many
other stipulations
Page 84 U. S. 242
which were of great value and highly beneficial to the Cherokee
nation.
Valid treaties were made by the President and Senate during that
period with the Cherokee nation, as appears by the decision of this
Court in several cases. [
Footnote 25] Indeed, treaties have been made by the
United States with the Indian tribes ever since the Union was
formed, of which numerous examples are to be found in the seventh
volume of the public statutes. [
Footnote 26] Indian tribes are states in a certain sense,
though not foreign states, or states of the United States, within
the meaning of the second section of the third article of the
Constitution, which extends the judicial power to controversies
between two or more states, between a state and citizens of another
state, between citizens of different states, and between a state or
the citizens thereof and foreign states, citizens, or subjects.
They are not states within the meaning of any one of those clauses
of the Constitution, and yet in a certain domestic sense, and for
certain municipal purposes, they are states, and have been
uniformly so treated since the settlement of our country and
throughout its history, and numerous treaties made with them
recognize them as a people capable of maintaining the relations of
peace and war of being responsible, in their political character,
for any violation of their engagements, or for any aggression
committed on the citizens of the United States by any individual of
their community. Laws have been enacted by Congress in the spirit
of those treaties, and the acts of our government, both in the
executive and legislative departments, plainly recognize such
tribes or nations as states, and the courts of the United States
are bound by those acts. [
Footnote 27]
Express power is given to the President, by and with the advice
and consent of the Senate, to make treaties, provided
Page 84 U. S. 243
two-thirds of the senators present concur, and inasmuch as the
power is given, in general terms, without any description of the
objects intended to be embraced within its scope, it must be
assumed that the framers of the Constitution intended that it
should extend to all those objects which in the intercourse of
nations had usually been regarded as the proper subjects of
negotiation and treaty, if not inconsistent with the nature of our
government and the relation between the states and the United
States. [
Footnote 28]
Beyond doubt, the Cherokees were the owners and occupants of the
territory where they resided before the first approach of civilized
man to the western continent, deriving their title, as they
claimed, from the Great Spirit, to whom the whole earth belongs,
and they were unquestionably the sole and exclusive masters of the
territory, and claimed the right to govern themselves by their own
laws, usages, and customs. Guided by nautical skill, enterprising
navigators were conducted to the New World. They found it, says
Marshall, C.J., in possession of a people who had made small
progress in agriculture or manufactures, and whose general
employment was war, hunting, and fishing. Expeditions were fitted
out by all the great maritime powers of the Old World, and they
visited many parts of the newly discovered continent, and each made
claim to such part of the country as they visited. Disputes arose
and conflicts were in prospect, which made it necessary to
establish some principle which all would acknowledge, and which
should decide their respective rights in case of conflicting
pretensions. Influenced by these considerations they agreed that
discovery should determine the right, that discovery should give
title to the government by whose subjects, or by whose authority,
it was made, against all other governments, and that the title so
acquired might be consummated by possession. [
Footnote 29] As a necessary consequence, the
principle established
Page 84 U. S. 244
gave to the nation making the discovery the sole right of
acquiring the soil and of making settlements on it. Obviously this
principle regulated the right conceded by discovery among the
discoverers, but it could not affect the rights of those already in
possession, either as aboriginal occupants or as occupants by
virtue of a more ancient discovery. It gave the exclusive right to
purchase, but did not found that right on a denial of the right of
the possessor to sell. Colonies were planted by Great Britain and
the United States, by virtue of the devolution and the treaty of
peace, succeeded to the extent therein provided to all the claims
of that government, both political and territorial. Throughout, the
Indians as tribes or nations, have been considered as distinct,
independent communities, retaining their original, natural rights
as the undisputed possessors of the soil, from time immemorial,
subject to the conditions imposed by the discoverers of the
continent, which excluded them from intercourse with any other
government than that of the first discoverer of the particular
section claimed. They could sell to file government of the
discoverer, but they could not sell to any other governments or
their subjects, as the government of the discoverer acquired, by
virtue of their discovery, the exclusive pre-mption right to
purchase, and the right to exclude the subjects of all other
governments, and even their own, from acquiring title to the
lands.
Enough has already been remarked to show that the lands conveyed
to the United
States by the treaty were held by the Cherokees under their
original title, acquired by immemorial possession, commencing ages
before the New World was known to civilized man. Unmistakably their
title was absolute, subject only to the preemption right of
purchase acquired by the United States as the successors of Great
Britain, and the right also on their part as such successors of the
discoverer to prohibit the sale of the land to any other
governments or their subjects, and to exclude all other governments
from any interference in their affairs. [
Footnote 30] Evidently,
Page 84 U. S. 245
therefore, the Cherokees were competent to make the sale to the
United States, and to purchase the lands agreed to be conveyed to
them by the second article of the treaty. Both parties concede that
the title of the United States to the tract known as the Cherokee
neutral lands was perfect and complete, and that the tract includes
the land in controversy. Title to that tract was acquired by the
United States as a part of the Louisiana purchase from the French
Republic. By the treaty between the United States and the French
Republic of April 30, 1803, the chief executive officer of that
republic ceded the said territory to the United States, with all
its rights and appurtenances, forever. [
Footnote 31] When the President took possession of the
territory the absolute fee simple title and right of sovereignty
and jurisdiction became vested in the United States as the
successor of the original discoverer, subject only to the Indian
title and right of occupancy as universally acknowledged by all the
departments of our government throughout our history. All agree
that this land then, and for many years thereafter, was occupied by
the Osage Indians. On the 2d of June, 1825, the Osage tribes, by
the treaty of that date, ceded to the United States all their
right, title, interest, and claims to the lands lying . . . west of
the State of Missouri, with such reservations, and for such
considerations, as are therein specified, which, it is conceded,
extinguished forever the title of the Osage Indians to the neutral
lands. [
Footnote 32]
Prior to the Treaty of the 8th of July, 1817, the Cherokees
resided east of the River Mississippi. Pursuant to that treaty,
they were divided into two parties, one electing to remain east of
the Mississippi and the other electing to emigrate and settle west
of it, and it appears that the latter made choice of the country on
the Arkansas and White Rivers, and that they settled there upon the
lands of the United States described in the treaty. [
Footnote 33]
Possessed as the United States were of the fee simple title to
the neutral lands, discharged of the right of occupancy
Page 84 U. S. 246
by the Osage Indians, it was clearly competent for the proper
authorities of the United States to convey the same to the Cherokee
nation. Subsequent acts of the United States show that the
stipulations, covenants, and agreements of the treaty in question
were regarded by all the departments of the government as creating
binding obligations, as fully appears from the fact that they all
concurred in carrying the provisions into full effect. [
Footnote 34] Appropriations were
made for surveys, and surveys were ordered, and plats were made,
and on the 1st of December, 1838, a patent for the land promised
was issued by the President in full execution of the second and
third articles of the treaty. Among other things it is recited in
the patent that it is issued in execution of the agreements and
stipulations contained in the said several treaties, and that the
United States do give and grant unto the Cherokee nation the two
described tracts of land as surveyed, containing the whole quantity
therein mentioned, to have and to hold the same, together with all
the rights, privileges, and appurtenances thereto belonging, to the
said Cherokee nation forever, subject to certain conditions therein
specified, of which the last one is that the lands hereby granted
shall revert to the United States if the said Cherokee nation
becomes extinct or abandons the premises.
Objection is made by the appellant that the treaty was
inoperative to convey the neutral lands to the Cherokee nation,
which may well be admitted, as none of its provisions purport
proprio vigore, to make any such conveyance. Nothing of
the kind is pretended, but the stipulation of the second article of
the treaty is that the United States covenant and agree to convey
to the said Indians and their descendants, by patent in fee simple,
the described additional tract, meaning the tract known as the
neutral lands; and the third article of the treaty stipulates that
the lands ceded by the treaty, as well as those ceded by a prior
treaty, shall all be included in one patent, to be executed to the
Cherokee nation
Page 84 U. S. 247
of Indians by the President, according to the provisions of the
before-mentioned act of Congress. [
Footnote 35]
Suppose that is so, still it is insisted that the President and
Senate, in concluding such a treaty, could not lawfully covenant
that a patent should issue to convey lands which belonged to the
United States without the consent of Congress, which cannot be
admitted. [
Footnote 36] On
the contrary, there are many authorities where it is held that a
treaty may convey to a grantee a good title to such lands without
an act of Congress conferring it, and that Congress has no
constitutional power to settle or interfere with rights under
treaties except in cases purely political. [
Footnote 37] Much reason exists in view of those
authorities and others which might be referred to, for holding that
the objection of the appellant is not well founded, but it is not
necessary to decide the question in this case, as the treaty in
question has been fully carried into effect, and its provisions
have been repeatedly recognized by Congress as valid. [
Footnote 38] Congress, on the 2d of
July, 1836, appropriated $4,500,000 for the amount stipulated to be
paid for the lands ceded by the Cherokees in the first article of
the treaty, deducting the cost of the land to be conveyed to them
west of the Mississippi under the second article of the same
treaty, which is the precise amount stipulated to be paid for the
concession, deducting the consideration which the Indians agreed to
allow for the neutral lands. Appropriations were also made by that
act to fulfill and execute the stipulations, covenants, and
agreements contained in the
Page 84 U. S. 248
fourth, eleventh, seventeenth, and eighteenth articles of the
treaty, and for the removal of the Cherokees, and for surveying the
lands set apart by treaty stipulations for the Cherokee Indians
west of the Mississippi River. [
Footnote 39] Commissioners were appointed to adjudicate
the claims of individual Cherokees, as provided in the thirteenth
article of the treaty, and their compensation was fixed by
Congress, and appropriations were made by Congress for that
purpose. Such a board was duly constituted, consisting of two
commissioners, and it was made the duty of the Attorney General, in
case of their disagreement, to decide the point in difference.
[
Footnote 40]
Prior treaties between the United States and the Cherokee nation
proving to be insufficient to protect and promote their respective
interests, the contracting parties, on the 15th of July, 1866, made
a new treaty of that date, by the first article of which they
declare that the pretended treaty made with the so-called
Confederate states by the Cherokee nation, on the 7th of October,
1861, is void, which is all that need be said upon the subject, as
both parties repudiate the instrument and concur that it is of no
effect. [
Footnote 41] Many
new regulations are there adopted and many new stipulations made,
but they are all or nearly all foreign to the present investigation
except the provision contained in the seventeenth article. By that
article, the Cherokee nation ceded in trust to the United States
the tract of lard which was sold to the Cherokees by the United
States under the provisions of the second article of the prior
treaty, and also that strip of the land ceded to the nation by the
fourth article of said treaty, which is included in the state where
the land is situated, and the Cherokees consent that said lands may
be included within the limits and under the jurisdiction of the
said state, to be surveyed as the public lands
Page 84 U. S. 249
of the United States are surveyed, under the direction of the
Commissioner of the General Land Office, and that the lands shall
be appraised as therein provided.
Annexed to that stipulation is a proviso that persons owning
improvements and residing on the same, if of the value of $50 and
it appears that they were made for agricultural purposes, may,
after the proof, be entitled to buy the same at the appraised value
under the conditions therein specified. Sales of the kind may be
made under such regulations as the Secretary of the Interior shall
prescribe, but another proviso is annexed to the stipulation that
nothing in that article shall prevent the Secretary of the Interior
from selling for cash the whole of said neutral lands in a body to
any responsible party for a sum not less than $800,000.
When the treaty was submitted to the Senate, the last proviso
was stricken out and another was adopted in its place as follows:
that nothing in the article shall prevent the Secretary of the
Interior from selling the whole of said lands, not occupied by
actual settlers at the date of the ratification of the treaty (not
exceeding one hundred and sixty acres to each person entitled to
preemption under the preemption laws of the United States) in a
body to any responsible party, for cash for a sum not less than one
dollar per acre. Exception is there made of improvements made by
actual settlers, but the amendment in one respect is more
comprehensive than the original treaty, as it extends the authority
of the Secretary of the Interior to lands other than those known as
the neutral lands, to which the original treaty was confined.
Two objections are made to the title of the appellee as affected
by that treaty, in addition to those urged to show that the prior
treaty between the same parties was inoperative and invalid. It is
contended by the appellant that the Cherokee possessory right to
the neutral lands was extinguished by the seventeenth article of
the treaty, which undoubtedly is correct, but the conclusion which
he attempts to deduce from that fact cannot be sustained, that the
Cherokee nation abandoned the lands within the meaning of the
Page 84 U. S. 250
last condition inserted in the patent by which they acquired the
same from the United States.
Strong doubts are entertained whether that condition in the
patent is valid, as it was not authorized by the treaty under which
it was issued. By the treaty, the United States covenanted and
agreed to convey the lands in fee simple title, and it may well be
held that if that condition reduces the estate conveyed to less
than a fee, it is void; but it is not necessary to decide that
point, as it is clear that if it is valid, it is a condition
subsequent, which no one but the grantor in this case can set up
under any circumstances. [
Footnote 42]
Even if the rule was otherwise, still the point could not avail
the appellant, as the parties manifestly waived it in this case,
nor is it true that the sale in trust by the Cherokee nation to
their former grantor constitutes such an abandonment of the
premises as that contemplated by the condition inserted in the
patent.
Unsupported in that proposition, the appellant in the next place
contends that the provisions of the seventeenth article of the
treaty are a mere agreement that the article did not operate to
convey the lands to the United States; but the Court is entirely of
a different opinion, as the proposition is contradicted by the
practice of the government from its origin to the present time.
[
Footnote 43]
Most of the objections urged against the prior treaty are also
urged to show that this treaty is inoperative and invalid, to which
the same answer is made as is given by the Court in response to the
antecedent objections.
Under that article of the treaty, a contract was made and
executed, dated August 30, 1866, by the Secretary of the Interior,
on behalf of the United States and by the American Emigrant Company
for the sale of the so-called Cherokee neutral lands, containing
eight hundred thousand acres, more or less, with the limitations
and restrictions set forth
Page 84 U. S. 251
in that article of the treaty as amended on the terms and
conditions therein mentioned, but the successor of the Secretary of
the Interior came to the conclusion that the sale as made by that
contract was illegal and not in conformity with the treaty and the
amendments thereto, and on the 9th of October of the succeeding
year he entered into a new contract on behalf of the United States
with the appellee for the sale of the aforesaid lands on the terms
and conditions in said contract set forth. Embarrassment to all
concerned arose from these conflicting contracts, and for the
purpose of removing the same, all the parties came to the
conclusion that it was desirable that the Emigrant Company should
assign their contract, and all their right, title, claim, and
interest in and to the said neutral lands, to the appellee, and
that he should assume and conform to all the obligations of the
said company under their said contract. All of the parties having
united in that arrangement, the United States and the Cherokee
nation, on the 27th of April, 1868, adopted a supplemental article
to the last-named treaty, and the same was duly ratified by the
Senate and proclaimed by the President. [
Footnote 44] Acting through commissioners, the
contracting parties agreed that an amendment of the first contract
should be made and that said contract as modified should "be and
the same is hereby, with the consent of all parties, reaffirmed and
made valid;" that the second contract shall be relinquished and
cancelled by the appellee, and that said first contract, as
modified, and the assignment of the same, and the relinquishment of
the second contract,
"are hereby ratified and confirmed whenever said assignment of
the first contract and the relinquishment of the second shall be
entered of record in the Department of the Interior, and when [the
appellee] shall have accepted said assignment and shall have
entered into a contract with the Secretary of the Interior to
assume and perform all the obligations of the Emigrant Company
under said first-named contract, as therein modified."
Important modifications were made in the firs
Page 84 U. S. 252
contract, but it is not important that they should be reproduced
at this time. [
Footnote
45]
After the Indian title was extinguished by the treaty ceding the
neutral lands to the United States, and before the supplemental
treaty was concluded, many settlers, it is claimed, including the
appellant, went on these lands for the purpose of settlement. They
took, and have continued, possession for the purpose of complying
with and procuring titles under the preemption laws passed by
Congress, but the local land offices were not open to them, and of
course they were denied the opportunity to make proof and payment.
Instead of that, patents of the lands, not belonging to actual
settlers, were issued to the appellee, and it is admitted by the
appellant that the patent of October 31, 1868, covers the land in
controversy, and that he, the appellant, is not entitled to relief
if that patent gives to the appellee a valid title.
Precisely the same objections were made to the treaty ceding
back the neutral lands to the United States and to the supplemental
treaty as were taken to the prior treaty under which the United
States covenanted to convey the neutral lands to the Cherokee
nation, and they must be overruled for the reasons given for
overruling the objections to the prior treaty.
Acts of Congress were subsequently passed recognizing the treaty
ceding back the lands to the United States, and the supplemental
treaty as valid, and making appropriations to carry the same into
effect. [
Footnote 46]
Some other objections of a purely technical character are made
by the appellant to the title of the appellee, but these are
satisfactorily answered in the printed argument filed in the case
by the latter party, and are accordingly overruled. [
Footnote 47]
Viewed in any light, the Court is of the opinion that the
Page 84 U. S. 253
title to the land in controversy is in the appellee, and that
there is no error in the record.
[
Footnote 1]
7 Stat. at Large 156, 195.
[
Footnote 2]
Ib., 311, 414.
[
Footnote 3]
Id., 411.
[
Footnote 4]
The name "Neutral Lands" seems to have been given in consequence
of the tract's having been originally one interposited between the
white inhabitants of Missouri and the more wild and fierce portion
of the Osages on the west.
[
Footnote 5]
8 Stat. at Large 200.
[
Footnote 6]
7
id. 240.
[
Footnote 7]
Ib., 478.
[
Footnote 8]
5 Stat. at Large 73.
[
Footnote 9]
12 Stat. at Large 528.
[
Footnote 10]
Ib., 793.
[
Footnote 11]
The proviso in brackets was not in the treaty as originally
signed, but another, in some respects less extensive, for which the
one in brackets was substituted.
[
Footnote 12]
14 Stat. at Large 326.
[
Footnote 13]
Ib., 499.
[
Footnote 14]
14 Stat. at Large 499.
[
Footnote 15]
See ib., 513; 16
id. 359, 569.
[
Footnote 16]
15 Stat. at Large 223.
[
Footnote 17]
16
id. 566.
[
Footnote 18]
See 2 Stat. at Large 143, § 12; 4
id. 730, §
12.
[
Footnote 19]
5
id. 135.
[
Footnote 20]
7 Stat. at Large 311;
ib., 414.
[
Footnote 21]
The Cherokee Nation v.
Georgia, 5 Pet. 15;
Worcester
v. Georgia, 6 Pet. 515.
[
Footnote 22]
7 Stat. at Large 479.
[
Footnote 23]
4 Stat. at Large 412; 7
id. 480.
[
Footnote 24]
7
id. 156.
[
Footnote 25]
United States v.
Rogers, 4 How. 567.
[
Footnote 26]
Cherokee Nation v.
Georgia, 5 Pet. 17;
Worcester v.
Georgia, 6 Pet. 543.
[
Footnote 27]
Doe v. Braden,
16 How. 635;
Fellows v.
Blacksmith, 19 How. 372;
Garcia
v. Lee, 12 Pet. 519.
[
Footnote 28]
Holmes v.
Jennison, 14 Pet. 569; 1 Kent 166; 2 Story on the
Constitution § 1508; 7 Hamilton's Works 501; Duer's Jurisprudence
229.
[
Footnote 29]
Johnson v.
Mclntosh, 8 Wheat. 573.
[
Footnote 30]
Mitchel v. United
States, 9 Pet. 748.
[
Footnote 31]
8 Stat. at Large 200.
[
Footnote 32]
7
id. 240.
[
Footnote 33]
1
ib. 157.
[
Footnote 34]
Minis v. United
States, 15 Pet. 448;
Porterfield
v. Clark, 2 How. 76.
[
Footnote 35]
Gaines v.
Nicholson, 9 How. 356;
Insurance Company v.
Canter, 1 Pet. 542.
[
Footnote 36]
United States v.
Brooks, 10 How. 442;
Meigs v.
McClung, 9 Cranch 11.
[
Footnote 37]
Wilson v.
Wall, 6 Wall. 89;
Insurance Co. v.
Canter, 1 Pet. 542;
Doe v.
Wilson, 23 How. 461;
Mitchell v. United
States, 9 Pet. 749;
United
States v. Brooks, 10 How. 460;
The Kansas
Indians, 5 Wall. 737; 2 Story on the Constitution §
1508;
Foster v.
Neilson, 2 Pet. 254;
Crews
v. Burcham, 1 Black 356;
Worcester v.
Georgia, 6 Pet. 562;
Blair v. Pathkiller,
2 Yerger 407;
Harris v. Barnett, 4 Blackford 369.
[
Footnote 38]
Insurance Co. v.
Canter, 1 Pet. 511; Lawrence's Wheaton 48.
[
Footnote 39]
5 Stat. at Large 73.
[
Footnote 40]
4 Opinions of the Attorneys General, 580, 598, 613, 615-621; 10
Stat. at Large 673, 687; 11
id. 80.
[
Footnote 41]
14 Stat. at Large 799;
ib., 326;
ib., 499.
[
Footnote 42]
4 Kent 127-130;
Cooper v.
Roberts, 18 How. 181;
Kennett v. Plummer,
28 Mo. 145.
[
Footnote 43]
Insurance Co. v.
Canter, 1 Pet. 542;
United
States v. Brooks, 10 How. 460.
[
Footnote 44]
15 Stat. at Large 727.
[
Footnote 45]
16 Stat. at Large 728.
[
Footnote 46]
15
id. 222; 12
id. 793; 10
id. 283;
16
id. 359; 5
id. 73.
[
Footnote 47]
Attorney General v. Deerfield Bridge Co., 105 Mass.
9.
