United States v. Boyd , 68 F. 577 ( 1895 )

Si.MONTON, Circuit Judge.

This is a bill filed in the name of the United States of America, and of Sampson Owl and others, Cherokee Indians, suing in their own behalf, etc., against these defendants. The bill, asserting the paramount authority and guardianship of the United States over the Eastern Band of Cherokee Indians, seeks to set aside'a contract made by their council, a majority thereof making it, with certain of the defendants, for the sale of timber on the lands owned and occupied by the Cherokees iu North Carolina. At the threshold of the case the question is raised as to the jurisdiction of this court, and that question depends upon the relation which the United States bears to these Cherokee Indians. Are they under the guardianship of the United States as tribal Indians are, or are they citizens of the United States, with all the rights, powers, duties, and obligations of citizens? The decision of this question is necessary before discussing any other questions in the cause.

The Cherokee Indians, a powerful and warlike Nation, inhabited the country hounded by the Atlantic Ocean. Tressed back by settlements of white men on the coast, they had established themselves in the mountain regions of Georgia, North Carolina, Alabama,, and Tennessee, and were a fruitful source of danger, anxiety, and discontent to the citizens of the United States living in their neighborhood. For many years, the government made strenuous efforts to induce them to leave these settlements, and to immigrate to lands allotted to them to the west of the Mississippi, with partial success only. Finally, by treaty concluded 29th December, 1835, at New Echota, in the state of Georgia, between the United States and the Cherokee Nation, they, as a Nation, consented to go west) and the large majority of them did so. Some of them, however, preferred to remain. Of these, some --— families settled in the state of North Carolina, and claimed for themselves their due portion of all the personal benefits accruing under the treaty for their claims, improvements, and per capita. Utilizing these claims, they sent an agent to Washington, who obtained the money provided for them, and invested it in lands’ in the state of North Carolina, some-aeres in extent, upon which these families of Oherokees settled. They are known as the “Eastern Band of Cherokee Indians.” Their agent and attorney, W. H. Thomas, purchasing these lands, took title to them in his own name. As serious complications grew out of this fact between the Indians and the creditors of Thomas and some other parties occupying said lands or asserting outstanding claims upon them, the congress of the United States, by a provision in the act of July 15, 1870, made it the duty of the district attorney and the attorney general of the United States to institute and prosecute a suit or suits in law or equity in the district or circuit courts of the United States for the purpose of ascertaining the rights of the parties, and fully adjusting all matters of controversy. Such a suit was instituted 20 years ago, and the matters involved were, by consent of parties, referred to three arbitrators, “whose award was to be final and a rule of court.” After careful and patient investigation and consideration, an award was made, which was fully approved and confirmed by a decree of this court. Many years after-wards a suit in equity was instituted in this court by the attorney general of the United States, in the name of the United States, for the purpose of having fully enforced the terms of the aforesaid award and decree. The progress of this suit was obstructed and greatly delayed by many serious and perplexing difficulties, until the congress of the United States appropriated a large sum of money, sufficient to carry out the terms of compromise agreed upon by the litigarit parties, to pay off all liens in the hands of judgment creditors of W. H. Thomas, to settle questions of boundary, and to extinguish all other claims to said lands, so as to give the Indians a good, clear, and definitely located title. By a decretal order of this court, the standing master in chancery was directed to prepare and have duly executed a new deed conveying said lands in fee simple, omitting a clause in the former deed imposing restrictions upon the power of alienation, which had been inserted by the draftsman, without authority of any order or decree of this court. The contract complained of relates to standing timber on these lands.

Are these Cherokee Indians citizens of the United States ? They or their fathers were members of the tribe of Cherokee Indians recognized by the government as a Nation. Eastern Band of Cherokee Indians v. U. S., 117 U. S. 288, 6 Sup. Ct. 718. By the treaty of New Echota, individuals and families who were averse to removal witli the Nation were suffered to remain in the states in which they were living, if they were qualified to take care of themselves and their property, and were desirous of becoming citizens of the United States. Those who exercised this privilege terminated their connection' with the Cherokee Nation. Id. Did this make them citizens of the United States? “The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States. They were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens, or authorizing individuals of particular tribes to become citizens on application to an United States court for naturalization, and satisfactory proof of fitness for civilized life.” Elk v. Wilkins, 112 U. S. 100, 5 Sup. Ct. 41. There is nothing in the record going to show that these Indians were ever naturalized. Have they been made citizens by treaty? The clause in the treaty relating to those Cherokees who preferred to remain behind the Nation is in these words:

“Art. 12. * * * Such heads of Cherokee families as are desirous to reside within the states of North Carolina, Tennessee, and Alabama, subject to the haws of the same, and who are qualified or calculated to become useful citizens, shall be entitled to a prescriptive right to certain lands.”

This does not confer on them citizenship. It only authorizes them to become citizens when it is recognized that they are qualified or calculated to become useful citizens. This presupposes some sort of examination into the question of their qualification, and a favorable decision therein. If the words of the treaty do not make them citizens of the United States, and only gives them the right to become citizens upon showing the desire to that end, then there was but one way for them to attain citizenship, and that is pointed ont in the statutes relating to naturalization.

But it is urged with great force that the state of North Carolina recognizes these Cherokees as citizens; that they vote, pay taxes, work roads, and perform all the duties of citizens. But a citizen of the United States takes this privilege as the gift of the general government. It can be acquired only under its laws, and in the mode prescribed by it. City of Minneapolis v. Reum, 56 Fed. 576, 6 C. C. A. 31. “Neither the constitution of a state nor any act of its legislature, however formal or solemn, whatever rights it may confer on these Indians or withhold from them, can withdraw them from the influence of an act of congress which that body has the constitutional right to pass concerning them. Any other doctrine would make the legislature of the state the supreme law of the land, instead of the constitution of the United States and the laws and treaties made in pursuance thereof.” U. S. v. Holliday, 3 Wall., at nage 419. But it must not be understood that these Cherokee Indians, although not citizens of the United States, and still under pupilage, are independent of the state of North Carolina. They live within her territory. They hold lands under her sovereignty, under her tenure. They are in daily contact with her people. They are not a nation nor a tribe. They can enjoy privileges she may grant. They are subject to her criminal laws. None of the laws applicable to Indian reservations apply to them. All that is decided is that the government of the United States has not yet ceased its guardian care over them, nor released them from pupilage. The federal courts can, still, in the name of the United States, adjudicate their rights. Nor is this without precedent. The American seaman, born a citizen of the United States, or naturalized as such, lias extended over hi in the guardian care of the government, and is a ward of the nation. The statute books abound with acts requiring his contracts to be looked into by officers appointed for that purpose, and every precaution is taken to guard bim against fraud, oppression, and wrong. Rev. St. U. S. § 4554 et seq.

It is contended that the view taken of this pupillary condition of these Cherokee Indians violates the provisions of the constitution and laws of North Carolina, forbidding perpetuities. A perpetuity is the attempt to forbid the alienation of lands under any circumstances, and to provide for their descent or disposition in a fixed, unchangeable way: • But the Indians hold these lands to no such purpose. Their realty can be alienated, but the contract is reviewable by the government for one purpose only, — to protect them from fraud or wrong. A condition attached to alienation does not create a perpetuity. A conveyance or devise to A., in trust for a feme covert in fee, with power of sale upon her written request, or subject to her approval, does not create a perpetuity.

There is another consideration. In determining the attitude of the government towards the Indians, — all Indians, — the courts follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs. U. S. v. Holliday, supra. Now, congress has: repeatedly recognized the distinctive character of these Cherokees as a body,— the Eastern Band Cherokee Indians. It has legislated for their benefit, and has always treated this band as a distinct unit. They are not dealt with as individuals, who gradually are absorbed into the body of the community, but as a band isolated from, cared for apart from, other inhabitants. See 9 Stat. c. 118; 10 Stat. 291, 700; 16 Stat. 362; 18 Stat. 213; 19 Stat. 176; 22 Stat. 302; 27 Stat. 120.,

In July, 1868, congress transferred the care of the Indians from the treasury department to that of the interior; and section 3 of this act expressly includes the Eastern or North Carolina Cherokees. The original condition of all the Indians in this country was that of pupilage under the government (Cherokee Nation v. Georgia, 5 Pet. 3); its pupilage continuing until released by the government. The statutes quoted show that it has never been released. The supreme court of North Carolina, in Rollins v. Cherokees, 87 N. C. 229, distinctly recognizes and clearly and forcibly sustains the position taken above. The Case of the Cherokee Trust Funds, 117 U. S. 288, 6 Sup. Ct 718, does not conflict with these views. That case decides that this Eastern Band of Cherokee Indians is not a part of the Nation of Cherokees with which this government treats, and that they have no recognized separate political existence; but, at the same time, their distinct unity is recognized, and the foster-, ing care of the government over them as such distinct unit. This being so, the United States have the right in their own courts to bring such suits as may be necessary to protect these Indians.

The motion to dismiss the bill on this ground is disallowed. The injunction heretofore granted is continued until the further order of this court.