United States v. Wright

• Decision Date: 12 October 1931
• Docket Number: No. 3176.,3176.
• Citation: 53 F.2d 300
• Parties: UNITED STATES v. WRIGHT et al.
• Court: U.S. Court of Appeals — Fourth Circuit

53 F.2d 300 (1931)

UNITED STATES v. WRIGHT et al.

No. 3176.

Circuit Court of Appeals, Fourth Circuit.

October 12, 1931.

Thomas J. Harkins, Sp. Asst. to Atty. Gen. (Chas. A. Jonas, U. S. Atty., of Lincolnton, N. C., on the brief), for the United States.

Felix E. Alley, of Waynesville, N. C. (Edwards & Leatherwood, of Bryson City, N. C., and Alley & Alley, of Waynesville, N. C., on the brief), for appellees.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from an order denying an injunction in a suit brought to restrain the sale for state and county taxes of land of the Eastern Band of Cherokee Indians conveyed to the United States in trust pursuant to the provisions of the Act of June 4, 1924, 43 Stat. 376 (25 USCA § 331 note). The question involved is the constitutionality of the provision of that act which exempts from taxation by the state the land conveyed until same shall have been divided and allotted to the various members of the band of Indians and until restrictions on the alienation of the allotments shall have been removed. Notwithstanding this provision, the land was assessed for taxes for the year 1926 by the commissioners of Swain county, was sold by the sheriff of that county for nonpayment of the taxes so assessed, and was purchased at the tax sale by the commissioners of the county for the amount of the taxes. This suit was then instituted by the United States against the county commissioners, the sheriff, the former sheriff and tax collector, and the register of deeds of the county to enjoin the execution, acceptance, or registration of any deed pursuant to the tax sale, to have the sale itself declared void, and to require that the assessment of taxes be revoked and canceled. The court, being of the opinion that the act of Congress was unconstitutional and void in so far as it attempted to exempt the land from taxation, denied the injunction, and the United States has appealed.

The land in question lies in Swain county, N. C., and is known as the "Qualla Boundary." Fee-simple title thereto was acquired by the Eastern Band of Cherokee Indians by purchases made in behalf of the band and pursuant to decrees of the District Court of the United States for the Western District of North Carolina in suits instituted by the United States in behalf of these Indians. The Eastern Band of Cherokee Indians is a remnant of the Cherokee Tribe which emigrated west after the treaty of New Echota in 1835 and occupied lands beyond the Mississippi pursuant to the provisions of that treaty. This remnant remained behind in North Carolina and continued to occupy a portion of the old hunting grounds of the tribe, being permitted to remain by a statute of the state subsequently enacted, and later receiving from the state a corporate charter under which they exercised a limited form of tribal government. For a clear understanding of the questions involved in the case, it is necessary to consider briefly the history of these Indians with special reference to their title to the land here involved.

The Cherokees were one of the tribes which originally occupied and roamed over territory now embraced within the states of North Carolina, South Carolina, Tennessee, Georgia, and Alabama. After the discovery of North America, England claimed the sovereignty over this territory, but recognized the right of the Indians to occupy the lands of which they had possession and to govern themselves therein. After the colonies had achieved their independence, the thirteen independent states which then came into being succeeded under the treaty of peace to the rights of England in this territory. See Treaty of Paris of June 14, 1784; Johnson v. M'Intosh, 8 Wheat. 543, 5 L. Ed. 681. The result of this was that the sovereignty over the territory embraced within the several states, together with the title to land not previously granted, passed to these states, subject to the possessory right of the Indians over the lands which they occupied. Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162; Worcester v. Georgia, 6 Pet. 515, 8 L. Ed. 483; Eu-che-lah v. Welch, 10 N. C. 155. And, when the right of the Indians was extinguished as to any particular land, this right passed to the state in which the land was situate. The several states thus asserted a title to these lands, which was independent of the will of the Indians, and which took effect, in point of possession, when the right of the Indians ceased. Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L. Ed. 25; Strother v. Cathey, 5 N. C. 162, 3 Am. Dec. 683.

By successive treaties beginning with the Treaty of Hopewell in 1785 (7 Stat. 18) and ending with the Treaty of New Echota in 1835 (7 Stat. 478), the possessory right of the Cherokee Tribe over lands in North Carolina was gradually extinguished, and all of such land was made subject to grant by the state. Under the treaty last named, the tribe surrendered all right to any lands in North Carolina, and agreed to remove from the state, in consideration of a payment of money by the United States and a grant of lands beyond the Mississippi. As originally drafted, article 12 of that treaty provided that such heads of Cherokee families as desired to remain within the states of North Carolina, Tennessee, and Alabama, subject to the laws of those states and qualified to become useful citizens, should be entitled to a "pre-emption rate of 160 acres at the minimum Congress price, to include their improvements." By supplementary articles, this pre-emption was declared void, and article 12 was amended to provide merely that such Cherokees as were averse to removal and desired to become citizens of the states where they resided, if qualified to take care of themselves and their property, should receive their proportion of all the personal benefits accruing under the treaty "for claims, improvements and per capita." Notwithstanding this treaty, great reluctance to go West was manifested on the part of large numbers of the Cherokees, and General Scott was sent to the country with troops, and was instructed to remove all of them, except such as were entitled to remain under article 12. A considerable number were allowed to remain under that article, however; and this number was doubtless augmented by those who escaped the vigilance of the troops. The number remaining in North Carolina in 1838 was estimated at between 1,100 and 1,200. By 1849 the number had increased to 2,133. It is now about 2,800.

The status of the Indians who thus remained in the state was anomalous. Their connection with the Cherokee Tribe had been dissolved, and they were without interest in the lands acquired west of the Mississippi, or in the commuted annuity fund to which the tribe was entitled. Any interest which they may be said to have had in the lands formerly held by the tribe in North Carolina had been divested by the treaty, and even their right of tribal self-government had come to an end. Cherokee Trust Funds, 117 U. S. 288, 6 S. Ct. 718, 29 L. Ed. 880. They became subject to the laws of the state of North Carolina (State v. Tacha-na-tah, 64 N. C. 614; State v. Wolf, 145 N. C. 440, 59 S. E. 40, 13 Ann. Cas. 189), while not admitted to the rights of citizenship in the state (U. S. v. Boyd C. C. A. 4th 83 F. 547, 553). They continued to remain upon the lands which they and their ancestors had occupied, however, continuing their tribal life; and gradually they were restored to something approximating their former status as an Indian tribe under the protection of the United States. Title to the land which they occupied was acquired for them. The government supervised their contracts, educated their children, and made generous provision for their support. And, although they remained subject to the laws of North Carolina, they were granted a charter by the state which authorized them to exercise limited powers of self-government.

The first recognition by the government of the United States of the rights of the Indians who remained in North Carolina was in the act of July 29, 1848, 9 Stat. 252, 264, § 4 (31 USCA § 711 20) and section 5 (page 265), by which it was provided that the number and names of the Cherokees in North Carolina after the Treaty of New Echota be ascertained and a fund set apart for them, the interest on which should be paid annually to the individuals entitled or their legal representatives, with further provision that, whenever they should desire to remove west of the Mississippi, the fund so set apart should be used for that purpose. With funds derived under this act and with other moneys paid him by the Indians, one W. H. Thomas set about to purchase for them the lands of which they were in possession and made contracts for the purchase of the Qualla Boundary here in controversy, comprising 50,000 acres or more. Immediately following the Civil War, the government refused to pay over to the members of the Eastern Band of Cherokees certain moneys to which they were entitled unless they would remove to the Indian Territory or would secure an act of the Legislature of North Carolina permitting them to remain permanently within the state. The Legislature of that state thereupon passed a statute granting this permission. Public Laws of North Carolina of 1866, c. 54, p. 20.

By the purchases of Thomas, therefore, this Eastern Band of Cherokees had acquired the right to the possession of a large boundary of land in North Carolina, and by the North Carolina statute of 1866 they had acquired, with the approval of the government of the United States, permission to remain permanently in that state. Their economic status had thus been practically restored to what it was prior to the Treaty of New Echota; and Congress in the act of July 27, 1868, 15 Stat. 228, recognized this status by providing that the Secretary of the Interior should cause a new roll or census to be made "of the North Carolina or Eastern Cherokees,"...