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Statement by Mr. Chief Justice Fuller: 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 24th 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 enrolment of intermarried pèrsons, '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. at L. 1048, 1071, chap. 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."
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 § 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. at L. 485, chap.
116, U. S. Comp. Stat. 1901, p. 748), and Congress, by the act of March 3, 1905, entitled 'An Act Making Appropriations for the Current and Contingent Expenses of the Indian Department 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 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 1st 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
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, § 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 19th of July, 1866 [14 Stat. at L. 799], between the United States and the Cherokee Nation." This request was subsequently duly made and an allotment is taking place accordingly.
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 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 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.
Messrs. John J. Hemphill and K. S. Murchison for appellants in No. 125.
Mr. Edgar Smith for appellant in No. 126. Messrs. James S. Davenport and William T. Hutchings for appellants in No. 127.
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. at L. 478. And § 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 [4 Stat. at L. 729, chap. 161] (carried forward into §§ 2134, 2135, 2147, and 2148 of the Revised Statutes), provided that a citizen of the United States should not go 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,
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:
Article 1 of the treaty of 1846 declared "that the lands now occupied by the Cher
its laws, though free from the laws relating to intruders.
In these circumstances the Cherokee act
"Provided, also, that the rights and priv ileges 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 § 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.
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 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, 39 L. ed. 120, 15 Sup. Ct. Rep. 55, 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 handing that the National Council had authority, 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 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., § 75, reading as follows:
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. Assum
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 be citizens; but be that as it may,
"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 to
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
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 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 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 own-contention that the words "citizens of the ership 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 article 3 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."
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 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 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 win 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 enti tled to the rights of other Cherokees." There is no such language in the acts re
The amendment of § 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 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 with-lating to intermarried whites. in six months from the 19th day of July, The treaty of 1866, between the United 27 S. C.-3.
States and the Cherokee Nation, provided as, having married an Indian by blood, he marto the former slaves, that they should be free and they "and their descendants shall have all the rights of native Cherokees." [Art. 9.]
ries 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. at L. 392, chap. 818; act May 2, 1890, 26 Stat. at L. 96, chap. 182; act June 7, 1897, 30 Stat. at L. 90, chap. 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 citizens by intermarriage." And, after quoting the proviso to § 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.'”
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 citizens." When the Delawares were about to be moved into the Cherokee country as friendly Indians, it was stipulated in the agreement that "on the fulfilment 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 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 citi-izenship merely and the distribution of propzens 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
In Stephens v. Cherokee Nation, 174 U. S. 445, 488, 43 L. ed. 1041, 1056, 19 Sup. Ct. Rep. 722, 738, 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 [30 Stat. at L. 495, chap. 517], a distinction between admission to cit
erty 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 con