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CHEROKEE INTERMARRIAGE CASES. RED BIRD ET AL. v. UNITED STATES. CHEROKEE NATION V. UNITED STATES. FITE ET AL.

decided: November 5, 1906.

CHEROKEE INTERMARRIAGE CASES.

RED BIRD ET AL., CITIZENS OF THE CHEROKEE NATION BY BLOOD
v.
UNITED STATES.

CHEROKEE NATION
v.
UNITED STATES.

FITE ET AL., INTERMARRIED WHITE PERSONS, CLAIMING TO BE ENTITLED TO CITIZENSHIP IN THE CHEROKEE NATION
v.
UNITED STATES.

PERSONS CLAIMING RIGHTS IN THE CHEROKEE NATION BY INTERMARRIAGE
v.
UNITED STATES.



APPEALS FROM THE COURT OF CLAIMS.

Author: Fuller

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 MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

Article 1 of the treaty of 1846 declared "that the lands now occupied by the Cherokee Nation shall be secured to the

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     whole Cherokee people for their common use and benefit," and article 4, that these lands "shall be and remain the common property of the whole Cherokee people."

Section 2 of article 1 of the Cherokee constitution (1839) provided that "the lands of the Cherokee Nation shall remain common property."

The amendments of 1866 (Art. 1, sec. 2) declared that the land 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 the nineteenth of July, 1866, between the United States and the Cherokee Nation." This request was subsequently duly made and an allotment is taking place accordingly.

The intermarried whites have not acquired the right to share in the lands or funds of the Cherokee Nation by grant in express terms, but that right is claimed in virtue of an alleged citizenship in the Cherokee Nation derived from intermarriage under Cherokee laws.

The Nation, under the treaties, possessed the right of local self government with authority to make such laws as it deemed necessary for the government and protection of persons and property within the country, belonging to its people, "or such persons as have connected themselves with them." Art. 5, treaty of Dec. 29, 1835, 7 Stat. 478. And section 14 of article 3 of the Cherokee constitution provided: "The National Council shall have have power to make all laws and regulations which they shall deem necessary and proper for the good of the Nation, which shall not be contrary to this Constitution."

Prior to 1855 certain white persons had married Cherokees, which had given rise to serious questions respecting the status of these persons and the jurisdiction of the Nation over them.The act of Congress of June 30, 1834 (carried forward into sections 2134, 2135, 2147 and 2148 of the Revised Statutes), provided that a citizen of the United States should not go

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     into the Indian country without a passport, and that he might be removed therefrom as an intruder. The promise of the United States to remove unauthorized citizens from the Nation appears in the treaties, and even as late as 1893 in the convention by which the Cherokee outlet was ceded to the United States. But the Council could permit certain white persons to reside in the Nation, subject to its laws, though free from the laws relating to intruders.

In these circumstances the Cherokee act of 1855 "regulating intermarriage with white men" was passed. Its purpose is plain and is disclosed by the preamble in these words: "Whereas the peace and prosperity of the Cherokee people required that in the enforcement of the laws the jurisdiction should be exercised over all persons whatever who may from time to time be privileged to reside within the territorial limits of this Nation, therefore," etc. 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 Journeycake's case, 155 U.S. 196, assumed that the acquisition of citizenship under Cherokee laws carried the right to share therein, unless forbidden by such legislation. And Mr. Chief Justice Nott, speaking for the court, said: "In 1874 the rapidly growing value of the Cherokee lands was becoming perceptible. On the one hand there were white men who desired to marry into the tribe, and, marrying and residing in the Nation, desired the rights and privileges of citizens; on the other hand there were white adventurers desiring to share in the wealth of the Nation, soon, it was believed, to become available to individual citizens. The public welfare might be benefited by allowing the one, and most certainly would be conserved by excluding the

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     other. No restriction appeared to exist in the constitution which would forbid the National Council from admitting white men to citizenship upon the condition that they should not acquire an estate or interest in the communal or common property of the Nation."

Accordingly, in 1874 the Cherokee National Council adopted a new code containing sections relating to intermarriage, which became effective November 1, 1875, and carried a provision in article XV, section 75, reading as follows:

"Provided, also, That the rights and privileges herein conferred shall not extend to right of soil or interest in the vested funds of this Nation, unless such admitted citizen shall pay into the general funds of the national treasury, a sum of money to be ascertained and fixed by the National Council equal to the 'pro rata' share of each native Cherokee, in the lands and vested wealth of the Nation, estimated at five hundred dollars, and thereafter conform to the constitution of the Nation, and the laws made or to be made in pursuance thereof, in which case he shall be deemed a Cherokee to all intent, and be entitled to all the rights of other Cherokees."

On November 28, 1877, the Council amended this proviso by striking out all after the words "this Nation" in the second line thereof, so that the proviso read:

"Provided, also, That the rights and privileges herein conferred shall not extend to right of soil or interest in the vested funds of this Nation."

The Court of Claims found that the Cherokee law remained unchanged, in this particular, from 1877 to the date of the decree. Something is said about certain compilations of the Cherokee laws of 1880 and 1892, which omitted this part of section 75, but we agree that this omission did not operate to change the existing law, as the acts providing for the compilations did not provide that they should be effective as laws of the Nation, and where an error was committed by the compiler the original law as duly passed and approved must prevail.

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     Thus it is seen that the privilege of paying $500 into the Cherokee treasury and becoming thereby entitled to "all the rights of other Cherokees" existed only from November 1, 1875, to November 28, 1877. Assuming that the National Council had authority under the Cherokee constitution of 1839 and the amendments of 1866 to confer on white intermarried citizens the privilege of purchasing a right in the soil and funds of the Nation, that privilege was withdrawn in two years and, according to the facts found, was only availed of by two persons, neither of whom was an individual party to the suit. No right in the Nation's property flowed from the Cherokee citizenship act, which merely subjected the white man to the jurisdiction of the Nation, but that right resulted from express grant and the payment of a price. As to the Delawares and Shawnees, their participation was specifically provided for by convention, approved by the United States, and depended upon payments made. As to the Freedmen, their participation in property distribution was secured by the terms of the treaty of 1866 (the result of the civil war), and of the constitutional amendments thereupon adopted. The Court of Claims referred to them thus (p. 441): "These constitutional amendments were brought about by the action of the United States at the close of the civil war in dictating that the slaves or freed persons of color in the Cherokee country should not only be admitted to the rights of citizenship, but to an equal participation in the communal or common property of the Cherokees. The Cherokees seem to have veiled their humiliation by these general declarations of the persons who should be taken and deemed to be citizens. But, be that as it may, the overthrow of the Cherokee Nation and the treaty of peace, 1866, and the terms dictated by the United States, whereby their former slaves were made their political equals and the common property of the Cherokees was to be shared in with their servants and dependents, was in effect a revolution. The constitutional amendment quoted was simply declaratory of the new order

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     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 policy of the Cherokees citizenship and communal ownership were distinct things. The citizen who annually received an annuity derived from the communal fund held by the United States, and the citizen who never received a dollar from the fund or never so much as ...


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