Cherokee Nation v. Ethan Hitchcock, 340

CourtUnited States Supreme Court
Writing for the CourtWhite
Citation47 L.Ed. 183,23 S.Ct. 115,187 U.S. 294
PartiesCHEROKEE NATION et al., Appts. , v. ETHAN A. HITCHCOCK, Secretary of the Interior
Docket NumberNo. 340,340
Decision Date01 December 1902

187 U.S. 294
23 S.Ct. 115
47 L.Ed. 183
CHEROKEE NATION et al., Appts.,


ETHAN A. HITCHCOCK, Secretary of the Interior.

No. 340.
Submitted October 23, 1902.
Decided December 1, 1902.

Page 295

This cause was begun on the equity side of the supreme court of the District of Columbia. The complainants named in the bill were the Cherokee Nation, and its principal chief and treasurer and sundry other citizens of the nation, suing on behalf of themselves and of citizens of the nation residing in the Indian territory. Ethan A. Hitchcock, as Secretary of the Interior, was made sole defendant. It was claimed in the bill that, by virtue of certain treaties and a patent based thereon, the Cherokee Nation was vested with a fee-simple title to its tribal lands in the Indian territory, and it was also averred that, by a treaty executed in 1835, there was secured to the nation the right, by its national council, to make and carry into effect all such laws as the Cherokees might deem necessary for the government and protection of the persons and property within their own country belonging to their people, or such persons as had connected themselves with them. A synopsis

Page 296

of the pertinent portions of the treaties above referred to is set out in the margin.

By article 2 of the treaty of May 6, 1828 (7 Stat. at L. 311), the United States, in order to secure to the Cherokee Nation 'a permanent home,' agreed to 'possess the Cherokees, and to guarantee it to them forever,' 7,000,000 acres of land, within described boundaries, and in addition 'guarantee to the Cherokee Nation a perpetual outlet west, and a free and unmolested use of all the country lying west of the western boundary of the above-described limits, and as far west as the sovereignty of the United States and their right of soil extend.'

By article 1 of the treaty of February 14, 1833 (7 Stat. at L. 414), the United States, by a corrected description as to the 7,000,000-acres tract, renewed the guaranty as to such tract, the outlet, etc., contained in article 2 of the treaty of 1828, with the reservation respecting use by other Indians of the salt plain if within the limits of the outlet. The article concluded with the statement that 'letters patent shall be issued by the United States as soon as practicable for the land hereby guaranteed.'

By article 2 of the treaty of December 29, 1835 (7 Stat. at L. 478), after reciting that by the treaties of 1828 and 1833 'the United States guaranteed and secured to be conveyed by patent, to the Cherokee Nation of Indians,' a described tract of 7,000,000 acres of land, and had further guaranteed to the Cherokee Nation a perpetual outlet west, etc., ceded an additional 800,000 acres of land, in the following terms:

'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.'

By article 3 of the same treaty the United States also agreed '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.'

The act of May 28, 1830 (4 Stat. at L. 411, chap. 148), conferred authority upon the President to create districts of territory in lands west of the Mississippi to be exchanged for lands held by Indians in a state or territory. Respecting the title to the lands so to be given in exchange, it was provided in § 3 as follows:

'Sec.3. 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

Page 297

The patent referred to in the bill was executed on December 31, 1838. It conveyed to the Cherokee Nation the lands secured and guaranteed by the treaties of 1828, 1833, and 1835.

Page 298

In the patent the 7,000,000-acre tract, together with the perpetual outlet, was described as one tract, aggregating 13,574,135.14 acres. In addition the patent specified the boundaries of a tract of 800,000 acres ceded by the treaty of 1835. The description of the two tracts was succeeded by the following habendum clause:

'Therefore, in execution of the agreements and stipulations contained in the said several treaties, the United States have given and granted, and by these presents do give and grant, unto the said Cherokee Nation the two tracts of land so surveyed and hereinbefore described, containing in the whole fourteen millions, three hundred and seventy-four thousand, one hundred and thirty-five acres, and fourteen-hundredths of an acre, to have and to hold the same, together with all the rights, privileges, and appurtenances thereto belonging to the said Cherokee Nation forever; subject, however, to the right of the United States to permit other tribes of red men to get salt on the salt plain on the western prairie referred to in the second article of the treaty of the twenty-ninth of December, one thousand eight hundred and thirty-five, which salt plain has been ascertained to be within the limits prescribed for the outlet agreed to be granted by said article, and subject also to all the other rights reserved to the United States, in and by the articles hereinbefore recited, to the extent and in the manner in which the said rights are so reserved; and subject also to the condition provided by the act of Congress of the twenty-eighth of May, one thousand eight hundred and thirty, referred to in the above-recited third article, and which condition is, that the lands hereby granted shall revert to the United States if the said Cherokee Nation becomes extinct or abandons the same.'

Averring that the Cherokee Nation and its citizens possessed the exclusive right to the use, control, and occupancy of its tribal lands, it was alleged that the Secretary of the Interior, without having lawful authority so to do, was assuming the power to, and was about to, pass favorably upon applications for leases, and was about to grant leases of lands belonging to said nation for the purpose of mining for oil, gas, coal, and other minerals, one such successful applicant being stated to

Page 299

be the Cherokee Oil & Gas Company, an Arkansas corporation. Based upon general allegations of the absence of an adequate remedy at law, the necessity of relief to avoid a multiplicity of suits and to prevent the casting of a cloud upon the title of the nation to its said lands, and the claim that irreparable injury would be caused and wrong and oppression result, and that there would be a deprivation of property rights of the complainants and of other citizens of the Cherokee Nation, an injunction was prayed against further action by the Secretary of the Interior in the premises. A demurrer was filed to the bill upon the grounds following:

'1. Said bill is bad in substance and for want of equity, and does not state facts sufficient to entitle complainants to the relief prayed for, or to any relief.

'2. The court has no jurisdiction over the subject-matter of the suit.

'3. There is a defect of parties defendant.'

Without considering or passing upon the objection of a defect of parties defendant, the trial court sustained the demurrer and entered a decree dismissing the bill of complaint. This decree was affirmed, on appeal, by the court of appeals of the District. (20 D. C. App. 185.)

An appeal was thereupon taken to this court.

Mr. William M. Springer for appellants.

Assistant Attorney General Van Devanter and Mr. William C. Pollock for appellee.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

The grounds of demurrer to the bill of complaint were summarized in the following reasons embodied in a statement filed with the demurrer:

'1. The matters named in the bill are matters of administration, which cannot be taken away from an executive department and carried into the courts.

Page 300

'2. That the Cherokee Oil & Gas Company named in the bill is a necessary party to the suit, as shown by the bill.

'3. That the defendant is proceeding in conformity with the act of Congress approved June 28, 1898 (30 Stat. at L. 495, chap. 517), which is a valid exercise of the power of Congress over the property of an Indian tribe.'

Preliminary to considering the fundamental question raised by the demurrer, it is necessary to notice two subjects not expressly referred to in the opinion below. They are, first, the objection to the formal sufficiency of certain of the averments in the bill; and, second, the claim that the Cherokee Oil & Gas Company was an indispensable party defendant. With respect to the first-mentioned ground of objection, without going into detail, we think the statements in the bill were sufficient to show that the jurisdiction of a court of equity was properly invoked. So far as the second ground of objection is concerned, we presume...

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