Eastern Band of the Cherokee Indians v. United States

• Decision Date: 01 March 1886
• Citation: 6 S.Ct. 718,29 L.Ed. 880,117 U.S. 288
• Parties: EASTERN BAND OF THE CHEROKEE INDIANS v. UNITED STATES and another. Filed
• Court: U.S. Supreme Court

6 S.Ct. 718

117 U.S. 288

29 L.Ed. 880

EASTERN BAND OF THE CHEROKEE INDIANS v. UNITED STATES and another.

Filed March 1, 1886.

[Statement of Case from pages 289-290 intentionally omitted] S. Shellabarger, J. M. Wilson, S. J. Crawford, and J. H. Gillpatrick, for appellant.

Asst. Atty. Gen. Maury,

[Argument of Counsel from pages 290-293 intentionally omitted] S. S. Burdett, and Wm. A. Phillips, for appellees.

FIELD, J.

This case comes before us on appeal from the court of claims. It was brought to determine the right of the petitioners, called the 'Eastern Band of the Cherokee Indians,' to a proportionate part of two funds held by the United States in trust for the Cherokee nation. One of the funds was created by the treaty with the nation made December 29, 1835, at New Echota, in Georgia, commuting certain annuities into the sum of $214,000. The other arose from sales of certain lands of the nation, lying west of the Mississippi river. The suit by the petitioners was authorized by an act of congress, and it is brought against the United States and the Cherokee nation. 22 St. 581, c. 141. The United States, however, have no interest in the controversy, as they hold the funds merely as trustee. They stand neutral, therefore, in the litigation, although, as a matter of form, they have filed an answer traversing the allegations of the petition. The general ground upon which the petitioners proceed and seek a recovery is that the Cherokee Indians, both those residing east and those residing west of the Mississippi, formerly constituted one people, and composed the Cherokee nation; that by various treaty stipulations with the United States they became divided into two branches, know as the 'Eastern Cherokees' and the 'Western Cherokees;' and that the petitioners constitute a portion of the former, and as such are entitled to a proportionate share of the funds which the United States hold in trust for the nation. This claim is resisted upon the ground that the two branches, into which it is admitted the nation was once divided, subsequently became reunited, and have ever since constituted one nation, known as the 'Cherokee Nation,' and that as such it possesses all the rights and property previously claimed by both, and that the petitioners have not, since the treaty of New Echota, constituted any portion of the nation.

To determine the merits of the respective claims and pretensions of the parties, it will be necessary to give some account of the different treaties between the Cherokees and the United States, and to refer to the several laws passed by congress to carry the treaties into effect, and accomplish the removal of the Indians from their former home east of the Mississippi to their present country west of that river. When that portion of North America which is now embraced within the limits of the United States east of the Mississippi was discovered, it was occupied by different tribes or bands of Indians. These people were destitute of the primary arts of civilization, and, with a few exceptions, had no permanent buildings, occupying only huts and tents. Their lands were cultivated in small patches, and generally by women. The men were chiefly engaged in hunting and fishing. From the chase came their principal food, and the skins of animals were their principal clothing. The different tribes roamed over large tracts, and claimed a right to the country as their territory and hunting grounds. Of these tribes, the Cherokee Indians constituted one of the largest and most powerful. They claimed the principal part of the country now composing the states of North and South Carolina, Georgia, Alabama, and Tennessee. Their title was treated by the governments established by England, and the governments succeeding them, as merely usufructuary, affording protection against individual encroachment, but always subject to the control and disposition of those governments, at least, so far as to prevent, without their consent, its acquisition by others. Such superior right rested upon the claim asserted by England of prior discovery of the country, and was respected by other European nations. There was no nation, therefore, to oppose this assertion of superior right to control the disposition of the lands, and to acquire the title of the Indians, except the Indians themselves; and by treaties with them from time to time their title and interest were ceded to the United States.

On the twenty-eighth of November, 1785, the United States made their first treaty with the Cherokees. 7 St. 18. It was concluded at Hopewell, on the Keowee, between commissioners representing the United States on the one part, and the 'head men and warriors of all the Cherokees on the other.' By it the Indians, for themselves and their respective tribes and towns, acknowledged that all the Cherokees were under the protection of the United States, and of no other sovereign. The treaty promised peace to them, and the favor and protection of the United States, on condition of the restoration to liberty of certain prisoners whom they had captured, and of the return of certain property which they had seized. It also prescribed the boundary between them and citizens of the United States of lands allotted to them for their hunting grounds. These lands embraced large tracts within the states mentioned. The ninth article provided that, for the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States should 'have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper.' By this treaty the Cherokees were recognized as one people, composing one tribe or nation, but subject, however, to the jurisdiction and authority of the government of the United States, which could regulate their trade and manage all their affairs.

On the second of July, 1791, another treaty was made with the Cherokees, in which they were described as the 'Cherokee Nation.' 7 St. 39. Its representatives were designated as the 'chiefs and warriors of the Cherokee nation of Indians,' and the first article declared that 'there shall be perpetual peace and friendship between all the citizens of the United States of America and all the individuals composing the whole Cherokee nation of Indians;' and the chiefs and warriors, 'for themselves and all parts of the Cherokee nation,' acknowledged themselves and the Cherokee nation to be under the protection of the United States and of no other sovereign. The treaty also renewed the agreement, on the part of the Cherokees, that the United States should have the sole and exclusive right of regulating their trade; and readjusted the boundary between citizens of the United States and the 'Cherokee nation,' by which the hunting grounds were reduced in quantity; and in consideration of this reduction the United States agreed to deliver certain valuable goods to the chiefs and warriors for the use of the nation, and to pay to the nation annually the sum of $1,000. A further article increased the amount to $1,500.

The boundary of the hunting grounds was from time to time changed by subsequent treaties, and by each succeeding one their extent was reduced, in consideration of which a larger quantity of goods was promised to the nation; and the annuity was increased until, in the year 1805, it amounted to $10,000. 7 St. 43, 62, 93. This annuity was regularly paid to the Cherokee nation, as represented by the Indians occupying territory east of the Mississippi river, until the treaty of July 8, 1817. 7 St. 156. That treaty originated from a division in opinion among the Cherokees as to their mode of life which existed when the first treaty with the United States was made, in 1785, and which had from that time increased. There were numerous settlements or towns within the territory allotted to the Indians. Those who occupied the upper towns, which were mostly in the state of North Carolina, desired to engage in the pursuits of agriculture and civilized life, while those who occupied the lower towns, in the valley of the Mississippi, desired to continue 'the hunter life,' and, owing to the scarcity of game where they lived, to remove across the Mississippi river to vacant lands of the United States. As early as 1808 a deputation from the upper and lower towns, authorized by the Cherokee nation, came to Washington to declare to the president their desires, and inform him of the impracticability of uniting the whole nation in the pursuits of civilized life, and to request the establishment of a division line between the two classes of towns. The treaty of 1817, which was made with 'the chiefs, head men, and warriors of the Cherokee nation east of the Missippi river, and the chiefs, head men, and warriors of the Cherokees on the Arkansas river,' recites the action of this deputation and the reply of the president to the parties, made on the ninth of January, 1809, which was, in substance, that the United States were the friends of both parties, and, as far as could be reasonably asked, were willing to satisfy the wishes of both; that those who remained might be assured of their patronage, aid, and good neighborhood; that those who wished to remove would be permitted to send an exploring party to reconnoiter the country on the west of the Arkansas and White rivers and higher up; that when this party should have found a tract of country suiting the emigrants, and not claimed by other Indians, the United States would arrange with them to exchange it for a just proportion of the country they should leave, and to a part of which, according to their numbers, they had a right; and that every aid towards their removal, and what would be necessary for them there, would then be freely extended to them.

The treaty recites that, relying upon these promises of the president, the Cherokees explored...