United States v. Boyd

• Decision Date: 05 November 1897
• Docket Number: 229.
• Citation: 83 F. 547
• Parties: UNITED STATES v. BOYD et al.
• Court: U.S. Court of Appeals — Fourth Circuit

83 F. 547

UNITED STATES v. BOYD et al.

No. 229.

United States Court of Appeals, Fourth Circuit.

November 5, 1897

R. B Glenn, U.S. Atty.

Louis M. Bourne, George H. Smathers, and W. T. Crawford, for appellees.

Before GOFF, Circuit Judge, and HUGHES and BRAWLEY, District Judges.

GOFF Circuit Judge.

This is a suit in equity, filed in the circuit court of the United States for the Western district of North Carolina, against D L. Boyd, Harry Dickson, W. T. Mason, and the Eastern Band of Cherokee Indians; the complainants being the United States of America, Sampson Owl, Lewis H. Smith, Comeback Wolf, and all other of the Cherokee Indians who may choose to come in and make themselves party plaintiffs. It is set forth in the bill that one William H. Thomas and wife, for value received, and as directed by a decree of the United States circuit court for the Western district of North Carolina, conveyed by deed in fee simple, to the Eastern Band of Cherokee Indians, a large tract of land, containing many thousand acres, situated in e state of North Carolina, and known as the 'Qualla Boundary'; that subsequent to the execution of said deed the Eastern Band of Cherokee Indians entered into the possession of said lands, which were necessary to their support and maintenance; that in said deed was inserted the following clause, to wit: 'to have and to hold the above-described premises, with the appurtenances thereunto belonging, unto the said Eastern Band of North Carolina Cherokee Indians, their heirs and successors, forever, but without power of alienation, except by and with the assent of their council, and the approval of the president of the United States'; that, after said band of Indians had so entered into possession of the land described, some of them with the approval and assent of their council, entered into a contract with the defendant D. L. Boyd, by which all the timber in and upon a part of said land, containing about 33,000 acres, known as the 'Cathcart Tract,' was sold to him for the sum of $15,000, payable in three installments of $5,000 each; that immediately after the execution of such contract of sale said Boyd made a subcontract with the defendants Dickson and Mason, and that they took possession of the land with a large force of men, who commenced to cut and destroy said timber, and to make arrangements to ship the same to market; that many of the Indians of the Cherokee Band, among whom are those joined as complainants with the United States, are opposed to said contract, and think it is not for the best interest of the band; that such contract of sale was never presented to the president of the United States for his assent, and has never been approved by him, but that the department of the interior, acting for the United States in its dealings with the Eastern Band of Cherokee Indians, has refused to ratify and approve such contract; that such contract to cut the timber from said land was forbidden by the terms of the deed from said Thomas and wife, unless the same was assented to and approved by the president of the United States, and that, as he has refused to ratify the same, it is absolutely void; and that, therefore, the action of the defendants in cutting, destroying, hauling, and removing said timber is unwarranted and without legal authority. It is further alleged in the bill that by certain acts of the congress of the United States, and also by certain treaties heretofore made, as well as by the laws of the state of North Carolina, the Eastern Band of Cherokee Indians have been recognized as a tribe of Indians, under the control and government of the United States, to the same extent as the Indians on the reservations are governed; that by reason of such relation between said Indians and the United States the proper officers of the same have the right to control the action of said band, and to superintend all matters appertaining to their welfare, and to that end to reject the contract so made with Boyd as being contrary to the true interests of said Indians; that the complainants, under the law, and acting in the interest of said band of Indians, have the right to and do object to the waste being committed on said lands by the removal of said timber, and therefore they ask that the said defendants be restrained from doing so. The complainants ask in their bill that the court will pass upon the construe all matters in relation to said Eastern Band of Cherokee Indians, including the right of their council to lease said lands and to sell the timber thereon, and also to say as to the right of the United States to control, manage, and superintend the affairs of said Indians, and what right, if any, the defendants have to cut and remove the timber from the said land. The complainants claimed that the contract with Boyd was void, and that, unless the defendants were prohibited from cutting and selling the timber mentioned, a lasting and irreparable injury would be done the Eastern Band of Cherokee Indians, who are the wards of the United States. An injunction was prayed for, as also an accounting. On the filing of the bill, which was duly sworn to, the court below, on the 20th day of February, 1895, entered an order requiring the defendants to appear on the second Monday in April, 1895, and show cause why they should not be restrained and perpetually enjoined from cutting and hauling the timber from said land; and in the meantime their agents and servants were restrained from so cutting and hauling.

The Eastern Band of Cherokee Indians, acting by and through Stilwell Saunookee, principal chief; Will Talalah, vice chief; Andy Standingdeer, Wesley Standingdeer, Jesse Reed, Dawson George, Screamer, Sevier Armachame, Cocumma, Morgan Calhoun, Abraham Hill, and Climbing Bear, members of their council,--filed its answer to the bill on the 16th day of April, 1895. In said answer the allegation in the bill that William H. Thomas and wife conveyed the land known as the 'Qualla Boundary' to the Eastern Band of Cherokee Indians is denied, and it is claimed that the same was conveyed by William Johnston and wife, in fee simple; but it is insisted that said deed was not executed in pursuance of the award therein referred to, which directed that the deed should be made by said William Johnston 'to the Eastern Band of Cherokee Indians, or to some trustee for them,' and hence it is claimed that the words found therein as follows, 'but without the power of alienation, except by and with the assent of their council, and the approval of president of the United States,' were unauthorized by the award referred to, and inconsistent with the tenure of a fee-simple estate, in that it created a perpetuity, which is forbidden by the constitution and laws of the state of North Carolina; and it is also set out in the answer that by a decree entered on the 15th day of October, 1894, in the two suits pending in the circuit court of the United States for the Western district of North Carolina, entitled, respectively, 'Eastern Band of Cherokee Indians vs. William H. Thomas, William Johnston, et al.,' and 'The United States vs. William H. Thomas, William Johnston, et al.,' it was adjudged that said words so inserted in the deed were unauthorized and void, and it was ordered that a new deed should be executed, omitting therefrom the words so found in the proviso mentioned. It is also claimed in the answer that the Eastern Band of Cherokees did not in fact enter into the possession of said land under and subsequent to the date of the Johnston deed, but that they and their ancestors had been living continuously on said Qualla boundary of land under a contract of purchase of the same made with William H. Thomas soon after the treaty of New Echota, between the United States and the Cherokee Nation, dated the 29th day of December, 1835 (7 Stat. 478), and that title to said land is claimed by said Indians under that contract, the award made concerning the same, and the decree aforesaid entered in the said two chancery causes mentioned. It is admitted in the answer that the council of the Eastern Band of Cherokee Indians sold the timber on the Cathcart tract of the Qualla boundary of land to the defendant D. L. Boyd at the price of $15,000, and that he resold the same to his co-defendants, Mason and Dickson, and also that said timber was being cut and prepared for the market until the restraining order was issued in this case. It is also admitted in this answer that the contract with Boyd was not approved by the president of the United States, and also that the secretary of the interior refused to ratify the same; but it is claimed that it was not necessary to the validity of said contract that it should have either the approval of the president or the ratification of the secretary of the interior, and therefore it was insisted that the cutting of said timber was not an act of trespass on the part of the defendants, but that it was lawfully done, as the sale so made by the council of the Eastern Band of Cherokee Indians to said Boyd was in all respects valid.

The further claim is made in said answer that the true status of the Indians mentioned was that they were citizens of the state of North Carolina, and that they have been such since soon after the said treaty of New Echota, and that as such citizens they were incorporated a body politic by the general assembly of North Carolina in the year 1889, and that by the decree mentioned as entered on the 15th day of October, 1894 the title to the Qualla boundary was vested in said Indians as a corporation; that the general assembly of North Carolina, at the session held on the 8th day of March, 1895, passed an act amending said act of incorporation of 1889, and confirming the said contract of...