HOLDEN V. JOY

Decision Date01 January 1872
Citation84 U. S. 211
CourtU.S. Supreme Court

APPEAL FROM THE CIRCUIT COURT

FOR THE DISTRICT OF KANSAS

Syllabus

1. The treaty of the 29th December, 1835, between the United States and the Cherokee Indians, was not made in virtue of the act of 28th of May, 1830, authorizing an "exchange" of lands west of the Mississippi for the territory claimed or occupied by any tribe of Indians within the limits of any state or territory, but was made under the treatymaking power vested by the Constitution in the President and Senate.

2. The Indian tribes are capable of taking as owners in fee simple lands by purchase where the United States in form, and for a valuable and adequate consideration, so sell them to them.

3. Such sale is properly made by a treaty.

4. The above-mentioned Treaty of 29 December, 1835, made such a sale to the Cherokee Indians of the lands west of the Mississippi, known as the "Cherokee Neutral Lands," and the fact and validity of the sale have been recognized by Congress through appropriations made in execution of the treaty making it.

5. The cession to the United States by the Cherokees, in the Treaty of June 19, 1866, of the said Neutral Lands owned by them as aforesaid, in trust that the United States should sell them and hold the proceeds for the benefit of the said Indians, was a lawful cession and trust, and in accordance with the policy and practice of the government.

6. It did not amount to an "abandonment" of the lands, and therefore cannot raise a question whether the lands reverted to the United States in pursuance of a condition inserted in the patent that the land should revert to the government if the Cherokees abandoned them, assuming that such a condition was lawful and of any effect, a matter not conceded.

7. Assuming that either this provision in the patent or the extent to which the Cherokees joined the rebel confederacy in the late rebellion amounted to any abandonment, the United States, the grantors, alone could take advantage of the breach of condition.

8. Their acceptance of the lands in trust, to sell them for the benefit of the Cherokees, condoned the breach of condition if there was one.

9. The supplemental article of April 27, 1868, to the already-mentioned Treaty of June 19, 1866, was valid, and the sale and potent made to one Joy pursuant to its purpose passed a good title to the said Joy, though the treaty did not convey, proprio vigore, the lands meant to be sold, though it required officers of the United States to do certain acts before the sale could be consummated, and though the contract of sale to Joy was signed before the treaty was promulgated.

Prior to the year 1817, the Cherokee Indians all resided

Page 84 U. S. 212

on the east of the Mississippi, largely in Georgia. By treaties of the year named and of 1819, [Footnote 1] the tribe was divided into two bodies, one of which remained where they were, east of the Mississippi, and the other settled themselves upon United States land in the country on the Arkansas and White Rivers. The government being desirous to get the entire tribe to the west of the Mississippi River, treaties were made by the United States May 6, 1828, and February 14, 1833, [Footnote 2] with this western part of the tribe, by which the United States agreed to "possess" them as well as those of their brethren who still resided in states east of the Mississippi and to guarantee to them all forever 7,000,000 acres of land west of the Arkansas. But the part of the tribe east of the river did not largely emigrate.

On the 28th of May, 1830, Congress passed an act [Footnote 3] entitled "An act to provide for an exchange of lands with the Indians residing in any of the states or territories and for their removal west of the Mississippi River." The first and second sections of the act authorized the President of the United States to exchange certain lands west of the Mississippi River with any tribe or nation of Indians residing within the limits of any of the states or territories, and with which the United States lead existing treaties, for the whole or any portion of the territory claimed or occupied by such Indians. The third section of the act was in these words:

"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 the United States will cause a patent or grant to be made and executed to them for the same, provided always that such lands shall revert to the United States if the Indians become extinct or abandon the same. "

Page 84 U. S. 213

Afterwards, on the 29th of December, 1835, and while this act was in fall force -- the United States, being in possession of a certain 800,000 acres of land west of the Mississippi known as the "Neutral Lands" [Footnote 4] (part of the cession made by France to us April 30, 1803, [Footnote 5] originally occupied by the Osage tribe, but of all their right in which the said tribe had in 1825 [Footnote 6] made a cession to the United States) -- the President negotiated a treaty with the Cherokees. [Footnote 7]

The treaty contains these provisions:

"ARTICLE 1. The Cherokee nation hereby cede, relinquish, and convey to the United States all the lands owned, claimed, or possessed by them east of the Mississippi River . . . for and in consideration of the sum of ,000,000, to be expended, paid, and invested in the manner stipulated and agreed upon in the following articles &c."

"ARTICLE 2. Whereas by the Treaty of May 6, 1828, and the supplemental treaty thereto of February 14, 1833, with the Cherokees west of the Mississippi, the United States guaranteed and secured to be conveyed by patent to the Cherokee nation of Indians the following tract of country [described as in the treaty of 1833, and then quoting the following words from the treaty:] "

"which will make 7,000,000 of acres. . . . In addition . . . , the United States further guarantee to the Cherokee nation a perpetual outlet west, and a free and unmolested use of all the country west of the western boundary of said 7,000,000 acres, as far west as the sovereignty of the United States and their right of soil extend. . . ."

"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 0,000, 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 [described], estimated to contain 800,000 acres of land. "

Page 84 U. S. 214

"ARTICLE 3. The United States also agree 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."

By an act making appropriations "for carrying into effect certain Indian treaties" approved July 2, 1836, [Footnote 8] Congress appropriated

"For the amount stipulated to be paid for the lands ceded in the first article of the Treaty with the Cherokees of the 29th of December, 1835, deducting the cost of the land to be procured for them west of the Mississippi River, under the second article of said treaty, ,500,000."

On the 31st December, 1838, the President, referring to the already mentioned Treaties of May 6, 1828, February 14, 1833, and December 29, 1835, and professing to act "in execution of the agreements and stipulations contained in the said several treaties," issued a patent giving and granting the 800,000 acres of land described in the treaty of 1835 "unto the said Cherokee nation," to have and to hold the same, together with all the rights, privileges, and appurtenances thereunto belonging, unto the said Cherokee nation forever.

The grant, however, which included a large body of lands not part of the Neutral Lands or conveyed under the treaty of 1835, was made

"Subject to the condition provided by the Act of Congress of 28 May, 1830, and which condition is that the lands hereby granted shall revert to the United States if the said Cherokees become extinct or abandon the same."

On the breaking out of the rebellion, the Cherokee Indians generally favored it. Some of them actually joined the rebel army, though a portion of these afterwards deserted and entered the army of the United States.

Page 84 U. S. 215

On the 5th of July, 1862, Congress, by its Indian Appropriation Act of that year, provided: [Footnote 9]

"That in cases where the tribal organization of any Indian tribe shall be in actual hostility to the United States, the President is hereby authorized to declare all treaties with such tribe to be abrogated by such tribe if in his opinion the same can be done consistently with good faith, and legal and national obligations."

This power thus entrusted to the President he did not use, and the treaties with the Cherokee Indians remained in force notwithstanding the rebellion.

On the 3d of March, 1868, [Footnote 10] by the fourth section of the Indian Appropriation Act, the President was authorized to enter into negotiations with various Indian tribes for the purchase of the lands occupied by them in the State of Kansas. The section was thus:

"And be it further enacted that the President of the United States be and he is hereby authorized to enter into treaties with the several tribes of Indians respectively, now residing in the State of Kansas, providing for the extinction of their titles to lands held in common within said state and for the removal of such Indians of said tribes as hold their lands in common to...

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    ...543, 5 L.Ed. 681 (1823). Moreover, this right exists independent of the United States' recognition.15 See Holden v. Joy, 84 U.S. 211, 244, 17 Wall. 211, 21 L.Ed. 523 (1872) ("[T]he Indians as tribes or nations, have been considered as distinct, independent communities, retaining their origi......
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    ...543, 5 L.Ed. 681 (1823). Moreover, this right exists independent of the United States’ recognition.54 See Holden v. Joy, 84 U.S. 211, 244, 17 Wall. 211, 21 L.Ed. 523 (1872) ("[T]he Indians as tribes or nations, have been considered as distinct, independent communities, retaining their origi......
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