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Statement by Mr. Chief Justice Fuller: 116, U. S. Comp. Stat. 1901, p. 748), and
The subject matter of this suit consists of Congress, by the act of March 3, 1905, en4,420,406 acres of land in the Cherokee titled 'An Act Making Appropriations for country about to be allotted among the Cher- the Current and Contingent Expenses of the okee people entitled to participate in the Indian Department and
for Fulfilling distribution of the common property of the Treaty Stipulations with Various Indian Cherokee Nation. The case was transmitted Tribes for the Fiscal Year Ending June 30, to the court of claims by the Secretary of the 1906, and for Other Purposes,' having made Interior, on the 24th of February, 1903, the the following enactment: nature of the controversy being thus stated: "That in the case entitled “In the Mat
“A controversy has arisen as to the rights ter of Enrolment of Persons Claiming of white persons intermarried with Cherokee Rights in the Cherokee Nation by Intermarcitizens, and a protest has been filed with riage against the United States, Departthis Department on behalf of a large number mental, Numbered Seventy-six,” now pendof citizens of the Cherokee Nation by blooding in the court of claims, the said court is against the enrolment of intermarried per- hereby authorized and empowered to render sons, ‘so as to recognize their right to par- final judgment in said case, and either party ticipate in the distribution of any of the feeling itself aggrieved by said judgment common property of the Cherokee Nation of shall have the right of appeal to the Supreme whatever kind or character.' It is asserted, Court of the United States within thirty on the one hand, that the Cherokee laws have days from the filing of said judgment in the never recognized the right of 'intermarried court of claims. And the said Supreme citizens' to share in the distribution of the Court of the United States shall advance property of the Nation, and, on the other said case on its calendar for early hearing;' hand, that the Cherokee laws as well as the “And the cause coming on to be heard laws of Congress recognize those persons who upon the petition, answers, agreed facts, have been married to Cherokee citizens in proofs, and arguments submitted by the ataccordance with the laws of the Cherokee torneys of the parties to the cause, respecNation relating to marriage as full citizens tively, and the court having heard and fully of such nation, entitled to share equally with considered the same; full-blooded citizens in the property of the “And it appearing to the court that all tribe.”
those white persons who married Cherokee Thereafter, Congress, by the act of March Indians by blood subsequently to the enact3, 1905 (33 Stat. at L. 1048, 1071, chap. ment of the Cherokee law which became ef1479), provided as follows:
fective November 1, 1875, and which de “That in the case entitled 'In the Matter clared that such persons by intermarriage of Enrolment of Persons Claiming Rights acquired no rights of soil or interest in the in the Cherokee Nation by Intermarriage vested funds of the Nation, had due nouice against the United States, Departmental, of the limitations set upon their rights and Numbered Seventy-six,' now pending in the privileges as citizens; and that those white court of claims, the said court is hereby persons who married Cherokee citizens by authorized and empowered to render final blood prior to said date acquired rights as judgment in said case, and either party citizens in the lands belonging to the Nation feeling itself aggrieved by said judgment and held and owned as national lands, exshall have the right of appeal to the Su-cept such of these intermarried persons as preme Court of United States within thirty lost their rights as Cherokee citizens by days from the filing of said judgment in abandoning their Cherokee wives or by marthe court of claims. And the said Supreme rying other white or nontribal men Court of the United States shall advance women having no rights of citizenship by said case on its calendar for early hearing.” blood in said Cherokee Nation :
The court of claims filed its opinion May "It is by the court ordered, adjudged, and 15, 1905, and on May 18 findings of fact and decreed that such white persons residing in conclusions of law, and on that day entered the Cherokee Nation as became Cherokee its decree as follows:
citizens under Cherokee laws by intermar"This case having been transmitted to riage with Cherokees by blood prior to the this court by the Secretary of the Interior 1st day of November, 1875, are equally inby letter dated February 24, 1903, for the terested in and have equal per capita rights findings and opinion of the court in accord with Cherokee Indians by blood in the lands ance with the provisions of $ 2 of the act of constituting the public domain of the CherCongress of March 3, 1883, entitled 'An Act okee Nation, and are entitled to be enrolled to Afford Assistance and Relief to Congress for that purpose; but such intermarried and the Executive Departments in the In- whites acquired no rights and have no intervestigation of Claims and Demands against est or share in any funds belonging to the the Government (22 Stat. at L. 485, chap. Cherokee Nation except where such funds were derived by lease, sale, or otherwise, okee Nation shall be secured to the whole from the lands of the Cherokee Nation con- Cherokee people for their common use and veyed to it by the United States by the pat-benefit” [9 Stat. at L. 871]; and article 4, ent of December, 1838; and that the rights that these lands "shall be and remain the and privileges of those white citizens who common property of the whole Cherokee peointermarried with Cherokee citizens subse-ple." quent to the 1st day of November, 1875, do Section 2 of article 1 of the Cherokee Connot extend to the right of soil or interest institution (1839) provided that “the lands any of the vested funds of the Cherokee Na- of the Cherokee Nation shall remain comtion, and such intermarried persons are not mon property." entitled to share in the allotnient of the The amendments of 1866 (art. 1, § 2) lands or in the distribution of any of the declared that the lands of the Cherokee Nafunds belonging to said Nation, and are not tion "shall remain common property until entitled to be enrolled for such purpose; the National Council shall request the surthat those white persons who intermarried vey and allotment of the same, in accordwith Delaware or Shawnee citizens of the ance with the provisions of article 20 of Cherokee Nation, either prior or subsequent the treaty of 19th of July, 1866 [14 Stat. at to November 1, 1875, and those who inter- | L. 799], between the United States and the married with Cherokees by blood, and, Cherokee Nation.” This request was subsubsequently, being left a widow or widower sequently duly made and an allotment is by the death of the Cherokee wife or hus- taking place accordingly. band, intermarried with persons not of The intermarried whites have not acCherokee blood, and those white men who quired the right to share in the lands or having married Cherokee women and subse- funds of the Cherokee Nation by grant in quently abandoned their Cherokee wives, express terms, but that right is claimed in have no part or share in the Cherokee prop- virtue of an alleged citizenship in
in the erty, and are not entitled to participate in Cherokee Nation derived from intermarriage the allotment of the lands or in the distri. under Oherokee laws. bution of the funds of the Cherokee Nation The Nation, under the treaties, possessed or people, and are not entitled to be en the right of local self-government with aurolled for such purpose.”
thority to make such laws as it deemed necCherokee citizens by blood took an appeal essary for the government and protection to this court from so much of that decree of persons and property within the country, as adjudged that persons intermarrying belonging to its people, "or such persons as with Cherokee citizens prior to November 1, have connected themselves with them.” 1875, were entitled to share in the Cherokee Treaty, Dec. 29, 1835, art. 5, 7 Stat. at L. property, which appeal is numbered in this 478. And § 14 of article 3 of the Cherokee court 125; and the Cherokee Nation prose-Constitution provided: “The National Councuted a similar appeal, numbered 126. Then cil shall have power to make all laws and certain intermarried whites appealed from regulations which they shall deem necessary the decree except that portion which held and proper for the good of the Nation, which that the whites who intermarried prior to shall not be contrary to this Constitution.” November 1, 1875, were entitled to share,
Prior to 1855 certain white persons had numbered 127. And thereafter other inter- married Cherokees, which had given rise to married whites appealed generally, num- serious questions respecting the status of bered 128.
these persons and the jurisdiction of the The case is reported in 40 Ct. Cl. 411, Nation over them. The act of Congress of where will be found an elaborate statement June 30, 1834 [4 Stat. at L. 729, chap. 161] of the facts, including the acts of the Cher- (carried forward into $8 2134, 2135, 2147, okee National Council, etc., bearing on the and 2148 of the Revised Statutes), providsubject matter.
ed that a citizen of the United States
should not go into the Indian country withMessrs. John J. Hemphill and K. S. Murch-out a passport, and that he might be reison for appellants in No. 125.
moved therefrom as an intruder. The Mr. Edgar Smith for appellant in No. 126. promise of the United States to remove un
Messrs. James S. Davenport and William authorized citizens from the Nation appears T. Hutchings for appellants in No. 127. in the treaties, and even as late as 1893,
Messrs. William Henry White and A. E. in the convention by which the Cherokee L. Leckie for appellants in No. 128.
outlet was ceded to the United States.
But the Council could permit certain white Mr. Chief Justice Fuller delivered the persons to reside in the Nation, subject to opinion of the court:
its laws, though free from the laws relatArticle 1 of the treaty of 1846 declared ing to intruders. that the lands now occupied by the Cher- In these circumstances the Cherokee act of 1855 "regulating intermarriage with deemed a Cherokee to all intent, and be enwhite men” was passed. Its purpose is titled to all the rights of other Cherokees." plain and is disclosed by the preamble in On November 28, 1877, the Council amendthese words: “Whereas the peace and pros-ed this proviso by striking out all after the perity of the Cherokee people require that, words “this Nation” in the second line in the enforcement of the laws, the jurisdic- thereof, so that the proviso read: tion should be exercised over all persons "Provided, also, that the rights and priv. whatever who may, from time to time, be ileges herein conferred shall not extend to privileged to reside within the territorial | right of soil or interest in the vested funds limits of this Nation, therefore," etc., etc. of this Nation.” The act was administrative and aimed at The court of claims found that the Cherosubjecting the intermarried whites to the kee law remained unchanged, in this particcontrol and dominion of the Cherokee laws ular, from 1877 to the date of the decree. instead of leaving them responsible solely to Something is said about certain compilations the laws and authorities of the government of the Cherokee laws of 1880 and 1892, which of the United States. It contains nothing omitted this part of $ 75, but we agree that indicating the intention to confer property this omission did not operate to change the rights on intermarried whites. But in re-existing law, as the acts providing for the spect of the public domain, the court of compilations did not provide that they claims, in the present case, because of the should be effective as laws of the Nation, opinion in Cherokee Nation v. Journeycake, and, where an error was committed by the 155 U. S. 196, 39 L. ed. 120, 15 Sup. Ct. Rep. compiler, the original law, as duly passed 55, assumed that the acquisition of citizen- and approved, must prevail. ship under Cherokee laws carried the right
Thus it is seen that the privilege of payto share therein, unless forbidden by such ing $500 into the Cherokee treasury and belegislation. And Mr. Chief Justice Nott, coming thereby entitled to "all the rights of speaking for the court, said: "In 1874 the other Cherokees” existed only from Novemrapidly growing value of the Cherokee lands ber 1, 1875, to November 28, 1877. Assumwas becoming perceptible. On the one hand ing that the National Council had authority, there were white men who desired to marry under the Cherokee Constitution of 1839 into the tribe, and, marrying and residing and the amendments of 1866, to confer on in the Nation, desired the rights and privi- white intermarried citizens the privilege of leges of citizens; on the other hand, there purchasing a right in the soil and funds of were white adventurers desiring to share in the Nation, that privilege was withdrawn the wealth of the Nation, soon, it was be in two years, and, according to the facts lieved, to become available to individual cit- found, was only availed of by two persons, izens. The public welfare might be benefited neither of whom was an individual party to by allowing the one, and most certainly the suit. No right in the Nation's property would be conserved by excluding the other. flowed from the Cherokee citizenship act, No restriction appeared to exist in the Con- which merely subjected the white man to stitution which would forbid the National the jurisdiction of the Nation, but that right Council from admitting white men to citi- resulted from express grant and the payzenship upon the condition that they should ment of a price. As to the Delawares and not acquire an estate or interest in the com- Shawnees, their participation was specificmunal or common property of the Nation." ally provided for by convention, approved
Accordingly, in 1874, the Cherokee Na- by the United States, and depended upon tional Council adopted a new code contain: payments made. As to the freedmen, their ing sections relating to intermarriage, which participation in property distribution was became effective November 1, 1875, and car- secured by the terms of the treaty of 1866 ried a provision in article XV., & 75, read (the result of the Civil War), and of the ing as follows:
constitutional amendments thereupon adopt"Provided, also, that the rights and priv. ed. The court of claims referred to them ileges herein conferred shall not extend to thus: "These constitutional amendments right of soil or interest in the vested funds were brought about by the action of the of this Nation, unless such admitted citizen United States at the close of the Civil War shall pay into the general funds of the na- in dictating that the slaves or freed persons tional treasury a sum of money, to be ascer- of color in the Cherokee country should not tained and fixed by the National Council, only be admitted to the rights of citizenship, equal to the 'pro rata' share of each native but to an equal participation in the comCherokee in the lands and vested wealth of munal or common property of the Cherokees. the Nation, estimated at $500, and there. The Cherokees seem to have veiled their huafter conform to the Constitution of the Na miliation by these general declarations of tion, and the laws made or to be made in the persons who should be taken and deemed pursuance thereof, in which case he shall be to be citizens; but be that as it may,
the overthrow of the Cherokee Nation and , 1866, and their descendants who reside withthe treaty of peace, 1866, and the terms dic- in the limits of the Cherokee Nation, shall tated by the United States, whereby their be taken and deemed to be citizens of the former slaves were made their political Cherokee Nation.” equals, and the common property of the We cannot accept the view that this Cherokees was to be shared in with their amendment amounted to a grant of property servants and dependents, was in effect a rights, or operated to enlarge the authority revolution. The constitutional amendment of the National Council in respect of the requoted was simply declaratory of the new admission of former members of the Nation. order of things. It is not necessarily pro- The amendment (found in that part of the spective, and does not impose limitations Constitution in respect to offices and elecupon the legislative power with regard to tions) must be taken as a whole, and rethe naturalization or future adoption of lated to eligibility to a seat in the National aliens as citizens. Under the polity of the Council, and not to property rights. The Cherokees, citizenship and communal own contention that the words "citizens of the ership were distinct things. The citizen who Cherokee Nation” should be construed as annually received an annuity derived from relating to the constitutional provision or the communal fund held by the United 1839, that the lands of the Nation should be States, and the citizen who never received a common property, is without merit in view dollar from the fund, or never so much as of the provisions themselves. thought of receiving it, form a concrete ob- By § 2 of article 1 of the Constitution of ject lesson in constitutional law not easily | 1839 it was provided that “whenever any effaced from the common mind.”
citizen shall remove with his effects out of Section 5 of article 3 of the Constitution the limits of this Nation, and becomes a citof 1839 was as follows:
izen of any other government, all his rights “Sec. 5. No person shall be eligible to a and privileges as a citizen of this Nation seat in the National Council but a free Cher shall cease; provided, nevertheless, that the okee male citizen, who shall have attained National Council shall have power to readto the age of twenty-five years.
mit, by law, to all the rights of citizenship, "The descendants of Cherokee men by all any such person or persons who may, at any free women, except the African race, whose time, desire to return to the Nation, on parents may have been living together as memorializing the National Council for such man and wife according to the customs and readmission." By its terms this referred to laws of this Nation, shall be entitled to all those who had been citizens, and their readthe rights and privileges of this Nation, as mission gave no rights not originally poswell as the posterity of Cherokee women by sessed, and this was true under the anendall free men. No person who is of negro or ments of 1866. Many special Cherokee laws mulatto parentage, either by the father's or demonstrate that the Council did not venmother's side, shall be eligible to hold any ture to assume, nor desire to assume, the office of profit, honor, or trust under this power to impart to the white adopted citi. government.
zen other than civil and political rights. “Sec. 6. The electors and members of the For instance, the acts of 1878, readmitNational Council shall in all cases, except ting Greenway and his children and Allen those of treason, felony, or breach of the and his family “to all the rights and privi. peace, be privileged from arrest during their leges of citizens of the Cherokee Nation" attendance at elections and at the National specifically provided that no rights should Council in going to and returning.”
be acquired except such as attach to white The amendment of $5, in 1866, reads: men, "adopted citizens of the Cherokee Na
“Sec. 5. No person shall be eligible to a tion.” seat in the National Council but a male cit- The acts relating to intermarriage wiin izen of the Cherokee Nation, who shall have whites contained mạny restrictions, but by attained to the age of twenty-five years and the act in respect of the intermarriage of who shall have been a bona fide resident of Cherokees with other Indians no such rethe district in which he may be elected at strictions were imposed. Cherokee act of least six months immediately preceding such Nov. 27, 1880. That act provided that the election. All native-born Cherokees, all In- marriage should be contracted according to dians and whites legally members of the Na- the law regulating marriages between "our tion by adoption, and all freedmen who have own citizens," and declared that such Inbeen liberated by voluntary act of their for- dian “shall be and is hereby deemed a Chermer owners, or by law, as well as free col- okee to all intents and purposes, and enti. ored persons who were in the country at the tled to the rights of other Cherokees." commencement of the Rebellion and are now There is no such language in the acts rerezidents therein, or who may return with-lating to intermarried whites. in six months from the 19th day of July, The treaty of 1866, between the United States and the Cherokee Nation, provided as having married an Indian by blood, he marto the former slaves, that they should be ries the second time a citizen not by blood, free and they “and their descendants shall he loses all of his rights as a citizen. And have all the rights of native Cherokees.” the same distinction between citizens as such [Art. 9.]
27 S. C.-3.
and citizens with property rights has also Article 15 of the same treaty, after pro- been recognized by Congress in enactments viding for the settlement of friendly Indians relating to other Indians than the Five Civamongst the Cherokees and the manner in ilized Tribes. Act August 9, 1888, 25 Stat. which the latter shall be paid therefor, then at L. 392, chap. 818; act May 2, 1890, 26 stipulates that "they shall be incorporated Stat. at L. 96, chap. 182; act June 7, 1897, into and ever after remain a part of the 30 Stat. at L. 90, chap. 3. Cherokee Nation on equal terms in every In Whitmire v. Cherokee Nation, 30 Ct. respect with native citizens." When the cl. 138, 152, the court of claims said: “Here Delawares were about to be moved into the it should be noted that when the treaty was Cherokee country as friendly Indians, it made there had long been a peculiar class was stipulated in the agreement that “on the of citizens in the Cherokee country, fulfilment by the Delawares of the fore- white men who became citizens by intermargoing stipulations, all the members of the riage.” And, after quoting the proviso to tribe registered as above provided, shall be $ 75, art. 15, of the Cherokee Code of 1874, come members of the Cherokee Nation, with the court added: “The idea, therefore, exthe same rights and immunities and the isted both in the mind and in the laws of the same participation (and no other) in the Cherokee people, that citizenship did not national funds as native Cherokees . necessarily extend to or invest in the citiAnd the children hereafter born of such Del-zen a personal or individual interest in what awares so incorporated into the Cherokee the Constitution termed the 'common propNation shall in all respects be regarded as erty,'-'the lands of the Cherokee Nation.'” native Cherokees.” Later, when an agree- In Stephens v. Cherokee Nation, 174 U. ment was made with the Shawnees, after S. 445, 488, 43 L. ed. 1041, 1056, 19 Sup. the amount of money to be paid was pro- ct. Rep. 722, 738, this court, in respect of vided for, the rights of Shawnees were de certain acts of Congress, observed : fined as follows: "and that the said Shaw. “It may be remarked that the legislation nees shall be incorporated into and ever seems to recognize, especially the act of after remain a part of the Cherokee Nation, June 28, 1898 [30 Stat. at L. 495, chap. on equal terms in every respect and with all 517], a distinction between admission to citthe privileges and immunities of native citi- izenship merely and the distribution of propzens of said Cherokee Nation."
erty to be subsequently made, as if there These intermarried whites show no grant might be circumstances under which the of equal rights as members of the Cherokee right to a share in the latter would not necNation by treaty or otherwise, nor have they essarily follow from the concession of the (excepting the two individuals heretofore former.” referred to) paid any sum into the Nation's Referring to this, the court of claims said treasury for a pro rata share of its money in its opinion in the present case, 40 Ct. Cl. and lands.
411, 442: The Delawares, the Shawnees, and the “It cannot be supposed for a moment that freedmen acquired their property rights by Congress intended by this legislation to take the express words of treaties, but the inter- away from some of the Cherokee people propmarried whites cannot point out any such erty which was constitutionally theirs, or to in their favor. Doubtless because of this confer upon white citizens property which they have heretofore asserted no claim, al- they were not legally entitled to have. The though the Cherokee courts were open to term 'citizens' in these statutes of the United them to do so, and have allowed repeated States must be construed to mean those citipayments of money to be made to every other zens who were constitutionally or legally encitizen without question.
titled to share in the allotment of the The distinction between different classes lands." of citizens was recognized by the Cherokees The doctrine is familiar that the language in the differences in their intermarriage of a statute is to be interpreted in the light law, as applicable to the whites and to the of the particular matter in hand and the Indians of other tribes; by the provision in object sought to be accomplished, as manithe intermarriage law that a white man in- fested by other parts of the act, and the termarried with an Indian by blood acquires words used may be qualified by their surcertain rights as a citizen, but no provision roundings and connections. that if he marries a Cherokee citizen not of In accepting the conclusion of the court of Indian blood he shall be regarded as a citi- claims in this regard we, nevertheless, deem zen at all; and by the provision that if, once it proper to somewhat consider the con