Rollins v. Eastern Band of Cherokee Indians

• Decision Date: 31 October 1882
• Citation: 87 N.C. 229
• Court: North Carolina Supreme Court
• Parties: W. W. ROLLINS v. THE EASTERN BAND OF CHEROKEE INDIANS.

87 N.C. 229

W. W. ROLLINS

v.THE EASTERN BAND OF CHEROKEE INDIANS.

Supreme Court of North Carolina.

October Term, 1882.

CIVIL ACTION tried at Fall Term, 1880, of BUNCOMBE Superior Court, before Gilmer, J.

This action was broght by the plaintiff against Enola or “Black Fox,” Swanooka or “Flying Squirrel,” John Ross and Lloyd R. Welch, chiefs and head-men of the eastern band of Cherokee Indians, and about two thousand other Cherokees, whose names are unknown to the plaintiff, and who are too numerous to be made parties, but who have a common interest with the above named defendants in the matters involved in this litigation. These Indians live in the counties of Cherokee, Graham, Swain, Macon and Jackson, and a few families in Georgia, and Tennessee.

The suit is brought upon a contract made in pursuance of a series of resolutions, in substance as follows:

CHEOAH COUNCIL GROUNDS, October 9th, 1872.

Whereas, it is the sense of this council to employ some discreet person to prosecute all claims of the Eastern Band, or North Carolina tribe of Cherokee Indians, against the government of the United States at Washington, arising under different treaties and laws, from the year 1783 to the present time: Now therefore be it resolved,

1. That John Ross, chief, be authorized to employ some discreet and trusty person to have custody of and prosecute said claims for “Reservations, Spoliation, and Pre-emptions” under the treaties of 1817 and 1819--the payments provided for by the treaty of 1835.

2. To assert and establish before the proper authorities of the United States all claims arising under said treaty and the provisions of an act of congress, approved July 29, 1848.

3. To collect for said tribe such moneys as they are entitled to from a fund derived from the sale of lands, known as the “neutral lands”--the Cherokee strip in the state of Kansas, and other lands, as per treaty of July 19th, 1866; and also, whatever may be due on account of misappropriations of the fund of five millions of dollars, set apart as well for said tribe, as for those of the Cherokee Nation who removed to the west by virtue of the treaty of 1835, which claims are yet unadjusted; and also, to procure payment of so much of an appropriation, now in the Interior Department, as said tribe may be entitled to, under the act approved May 29th, 1872.

4. That John Ross be, and he is hereby instructed to contract with some competent person to carry out the intentions and purposes of this council; provided that the person selected shall not be allowed more than twenty-five per cent. as compensation for his services, and that the contract shall be approved by the Secretary of the Interior, and the Commissioner of Indian Affairs, as required by the act of Congress of May 21st, 1872, regulating the mode of making private contracts with Indians, and that a copy of these resolutions shall accompany the contract.

+-------------------------------------+
                ¦Signed¦JOHN ROSS, Principal Chief,   ¦
                +------+------------------------------¦
                ¦      ¦DAVID ADAMS, Clerk of Council.¦
                +------+------------------------------¦
                ¦      ¦DAVID TUCKER, Interpreter.    ¦
                +-------------------------------------+
                

Witnesses:

JOHN G. LATHAN,

JAMES TAYLOR.

Accordingly, John Ross selected the plaintiff, Rollins, and entered into a contract with him on the 15th of May, 1874, to continue four years from date. The stipulations in the contract, in reference to the prosecution of the claims mentioned in the above resolutions, and the attention to be given by the plaintiff to the business of the Cherokees, material to the case, are incorporated in the opinion of this court. The contract is signed by Jooojoudtjotb and Jdg. F?? Paa, in behalf of the tribe, and by W. W. Rollins, the plaintiff.

And another contract of same date was also entered into with the plaintiff, the terms of which are similar to the above, and signed by the following chiefs and “head-men” of the tribe, namely, Swanooka, Enola, Big Witch, Osanoh, John Jackson, Jonny Light, Jackson Blythe, James Blythe, Tom Skella, Wilson Wolf, Young Squirrel, Hugh Lambert, (his x mark), Sau-ya-ta-owl, Wilson Newcomer, Jim Boss, Jo. Welch, Tauquetla, Chequellette, Minx, Long Bear, Will Peckerwood, and Johnson Graybeard.

The matters of difference involved in the suits pending in the United States circuit court, before Dick, J., at Asheville, in which the said Cherokees were plaintiffs and their agents defendants, were at May term, 1874, referred to Rufus Barringer, John H. Dillard and Thomas Ruffin, whose award, submitted on the 23rd of October following, was to be a rule of court.

In their report, the arbitrators say: We, having taken upon ourselves the burden of this reference, and having considered the pleadings, proofs, &c., in said suits, and heard the arguments of counsel, do make and publish our award in writing, of and concerning all the several matters referred to us, in the manner following:

1. That William H. Thomas became, and was the agent of the Eastern band of Cherokee Indians, living in North Carolina, after the removal of their brethren west in the year 1838, and as such undertook to purchase and did purchase for them land (hereinafter described) with money coming from the United States under treaties and the laws of Congress; and did also from time to time, buy lands from various persons, for them as a tribe or community, being a large tract carved up into towns, and situated on Soco creek and Ocona Lufta river, and their tributaries, and known as “Qualla Boundary”:

Beginning at a stump near the spring on the Jackson county ine at the head of Jonathan creek, where the Soco road crossesl the mountain; thence northerly with said county line to the ridge which divides the waters of Raven's fork from Bradley's or west fork of the Ocona Lufta river, thence with the water-shed of that ridge to the Hughes line; thence eastwardly with said line and the lines of Enloe to Ocona Lufta river, and down the river to the southern boundary of Samuel Monteith, and across the river with Monteith's line to his southwest corner; thence with the lines of an entry made by said Thomas, and other lines of Thomas, keeping on the outside lines, to the dividing ridge between the waters of Adams' creek and Newton's mill creek, so as to include all the Indians living on the head waters of Adam's creek; thence in a southerly direction to Sherrill's line, and with the same to Ocona Lufta river, so as to include all the Indian settlements on the east side of Newton's mill creek; thence with and across the Ocona Lufta to the upper boundary of J. M. Bird, and with his line to the corner of the first tract of what is known as the “state surveys,” and up said river with the line of said survey, (but excluding the tract occupied by Gibbs, and some of the Thomas entries); thence up the river to a tract occupied by an Indian named Ahma-cha-ma, and with the line of that tract and including the same, to the old line of Scroop Enloe, and including the tract occupied by Mason Reckley; thence with the line of his tract, crossing the Soco river below his (Reckley's) house, to the old Enloe line; thence with the same to Thomas' mill tract; thence with the line of the mill tract and of an entry (Thomas' 500 acre entry, but leaving it outside) to the line of J. B. Sherrell; thence with his line to a tract conveyed by J. W. King to Flying Squirrel; thence with the line of that tract, so run as to include it, to Thompson Carter's tract, and with the same, including it, to the top of the ridge between Soco creek and Shoal creek; thence with the water-shed of the ridge to the south corner of the “Cathcart survey,” and with its line to the beginning at the head of Jonathan creek.

2. That within the Qualla Boundary, said Thomas at divers times sold and conveyed tracts of land to the following named Indians, or persons of Indian blood: To Enola or “Black Fox,” forty acres; to One-tah, thirty-three acres; to Standing Wolf and children, two hundred and eighty-six acres; to Catalaska, three tracts, containing together one hundred and ten acres; to Charlie Hornbuckle's heirs, one hundred acres; to Salo-lu-netah, or “Young Squirrel,” fifty-three acres; to Nellie Jonnson, two hundred acres; and to Jimmy Reed, two hundred acres; and received from them, respectively, the purchase money.

3. And he contracted in writing to sell other tracts in the Qualla Boundary to the following named Indians: To Chu-lo-gu-lah, of “Cloud,” fifty acres; to Wilson Oocummah, two tracts--one of twenty acres, and the other known as the ““Cayuatago tract”; to the heirs of Jeff. Hornbuckle, two hundred acres; to Swanooka, the lands surveyed by Dills, being a part of the “Holland old field”; to Ben Quain, fifty acres, where he lives; to the heirs of Long Blanket, the tract on which they live; to the heirs of Little Witch, the place where they live; to Wilson Wolf, the milltract, purchased of Abraham Mungus; to Ta-a-kah, the “Thompson place” tract; to Wilson Reed, one hundred and twenty-five acres, surveyed to him by Terrell; to Standing Water, the place where he lives; to Ta-ya-hah, a part of the “Holland old field”; to Tah-gul se-nah, the tract occupied by him; and received from them, respectively, in whole or in part, the purchase money.

We do therefore award that the Qualla Boundary belongs to, and shall be held by the Eastern Band of Cherokee Indians, living in North Carolina, as a tribe or community, whether living at this time at Qualla, or elsewhere in the state; and that the individual Indians, above named, as holding under said Thomas, either by deed or contract, shall hold and possess their several tracts of land, as their separate property, with the quality of being inheritable, but without the power of alienation, except from one Indian to another, and then only with the assent of their council, and to be subject to the payment of a sum of money, hereinafter provided for.

4. We...