« ForrigeFortsett »
purpose, and every precaution is taken to guard him against fraud, oppression, and wrong. Rev. St. U. S. § 4554 et seq. It is contended that the view taken of this pupillary condition of these Cherokee Indians violates the provisions of the constitution and laws of North Carolina, forbidding perpetuities. A perpetuity is the attempt to forbid the alienation of lands under any circumstances, and to provide for their descent or disposition in a fixed, unchangeable way. But the Indians hold these lands to no such purpose. Their realty can be alienated, but the contract is reviewable by the government for one purpose only,—to protect them from fraud or wrong. A condition attached to alienation does not create a perpetuity. A conveyance or devise to A., in trust for a feme covert in fee, with power of sale upon her written request, or subject to her approval, does not create a perpetuity. There is another consideration. In determining the attitude of the government towards the Indians,—all Indians,—the courts follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs. U. S. v. Holliday, supra. Now, congress has repeatedly recognized the distinctive character of these Cherokees as a body,– the Eastern Band Cherokee Indians. It has legislated for their benefit, and has always treated this band as a distinct unit. They are not dealt with as individuals, who gradually are absorbed into the body of the community, but as a band isolated from, cared for apart from, other inhabitants. See 9 Stat. c. 118; 10 Stat. 291, 700; 16 Stat. 362; 18 Stat. 213; 19 Stat. 176; 22 Stat. 302; 27 Stat. 120. In July, 1868, congress transferred the care of the Indians from the treasury department to that of the interior; and section 3 of this act expressly includes the Eastern or North Carolina Cherokees. The original condition of all the Indians in this country was that of pupilage under the government (Cherokee Nation v. Georgia, 5 Pet. 3); its pupilage continuing until released by the government. The statutes quoted show that it has never been released. The supreme court of North Carolina, in Rollins v. Cherokees, 87 N. C. 229, distinctly recognizes and clearly and forcibly sustains the position taken above. The Case of the Cherokee Trust Funds, 117 U. S. 288, 6 Sup. Ct. 718, does not conflict with these views. That case decides that this Eastern Band of Cherokee Indians is not a part of the Nation of Cherokees with which this government treats, and that they have no recognized separate political existence; but, at the same time, their distinct unity is recognized, and the fostering care of the government over them as such distinct unit. This being so, the United States have the right in their own courts to bring such suits as may be necessary to protect these Indians. The motion to dismiss the bill on this ground is disallowed. The injunction heretofore granted is continued until the further order of this court.
DICK, District Judge (concurring). The rights of the Eastern Band of Cherokee Indians in and to their lands purchased by their agents with their money obtained from the United States, and their civil relations with the state and national governments, have been subjects of frequent discussions and litigation in the local and fed. eral courts of this district for more than 20 years. Suits in various forms have been instituted in the federal courts,—in their tribal name as the “Eastern Band of Cherokee Indians,” and in the name of the United States for their benefit. These suits gave rise to many difficult and perplexing questions of law and fact, and I sincerely hoped that all these matters of controversy had been finally adjudicated and adjusted by a decree of this court at October term, 1894, carrying into effect a compromise agreed upon by the departments at Washington,—the Indian council and the parties defendant,—and reserving the case on further directions to adjust some matters of detail. I was disappointed in this cherished hope when the suit now before us was instituted, presenting other matters of controversy. At my special request, Judge SIMONTON attended the circuit court at May term in Asheville for the purpose of hearing some preliminary questions in this case. We heard full and able argument of counsel upon a motion of defendants to dismiss for the want of jurisdiction, and, upon full conference, we reserved the question presented for further consideration. We regarded the question as one of great importance, for, if the court has not jurisdiction in this case, then it did not have jurisdiction in previous similar cases, and many orders and decrees heretofore made are void. The preliminary question presented for our determination is whether the United States have such supervisory authority and power over the North Carolina Cherokees as to become a party plaintiff in a suit in equity in this court, instituted under the direction of the executive departments of the government, for the purpose of annulling or modifying a contract made by the council of such Indians in relation to their lands purchased by their agent with the per capita money and removal and subsistence money to which they were entitled under the treaty of New Echota, upon the alleged grounds that such contract was induced and procured by means of circumventive, undue influence and fraud, or that the contract was grossly injudicious and unconscionable, and without the approval of the secretary of the interior, having supervisory charge of these Indians under an act of congress. In the suit before us the United States do not claim any right that encroaches upon any of the sovereign powers, duties, and obligations of this state. They claim no police power over the Indians as citizens of the United States, or right to punish for crime committed within the territorial limits of this state. They only insist upon the right to appear as a plaintiff in a suit in equity instituted in their circuit court to invoke the jurisdiction of such court in behalf of their wards,—to obtain such relief as may be granted upon the well-recognized principles of equity jurisprudence. They appear as sovereign of this dependent Indian community, as parens patriae of this helpless and injured race, not yet invested with the full rights of American citizenship, and as guardian, by treaty obligations, of these ignorant and injudicious wards, to control their transactions about lands acquired by the treaty money, and the charitable trust funds bestowed by congress upon a political department of the government to be applied for the benefit of these Indian cestuis que trustent. The United States claim that, under their constitutional power to regulate commerce with Indian tribes, the word “commerce” embraces trade and traffic, and all contracts with the tribes or individuals composing such tribes; that, so long as Indians remain a distinct people, with an existing tribal or quasi tribal organization, recognized by the political departments of the government, congress has the power to say with whom and on what terms they shall deal, and can place them under the supervisory control of an executive department. U. S. v. Holliday, 3 Wall. 407; The Kansas Indians, 5 Wall. 737; U. S. v. 43 Gallons of Whiskey, 93 U. S. 188. It is further insisted by the district attorney that by the act of July 27, 1868, congress authorized and directed the secretary of the interior and the commissioner of Indian affairs to take the same Supervisory charge of the Eastern or North Carolina Cherokees as of other tribes of Indians; and there is a necessary implication of power that if, in the exercise of such supervisory charge, it becomes necessary to resort to a court of equity for remedy and relief, a suit may be properly instituted by such supervisory department in the name of the United States to obtain adequate redress. He cites as a precedent a suit in equity in this court, now pending on further directions, in which the bill was filed by Attorney General Garland, in the name of the United States as plaintiff, for the purpose of enforcing an award made by arbitrators appointed under a decretal order of this court in relation to the rights and title of the North Carolina Cherokees to the lands embraced within the Qualla Boundary,–the lands which are the subject of controversy in the present suit. I am of opinion that, wherever a power is conferred and a duty imposed by statute, everything necessary to accomplish the legislative purpose is given by implication. “A thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter.” U. S. v. Freeman, 3 HoW. 556-565. The suit in equity now before us was instituted by the district attorney under the direction of the secretary of the interior and the attorney general, for the purpose of seeking investigation as to the fairness, justice, and expediency of a contract made by the Indian council disposing of timber on the Indian lands in this state without the approval of the secretary of the interior. It seems to me that the only question for the court now to determine is whether the political departments of the government have clearly and distinctly recognized the North Carolina Indians as a tribal organization under the supervisory care and guardianship of the United States, for the court must be governed upon such subject by the action of such departments. I have read with some care the case of the Cherokee Trust Funds, 117 U. S. 288, 6 Sup. Ct. 718, cited and relied upon by counsel for defendants. That case gives an interesting and instructive history of the dealings of the United States with the Cherokee Indians, but only decides that the North Carolina Cherokees had dissolved their connection with the Cherokee Nation, and were not entitled, while they remain residents and citizens of North Carolina, to a proportionate share of the funds held in trust by the United States for the benefit of the Cherokee Nation. It is true that the North Carolina Cherokees are citizens of this state, and have not been recognized as a separate nation or tribe, with treaty-making power; but it seems to me that the mere fact that they are citizens of this state does not necessarily deprive them of the legitimate guardianship and care of the United States where there is no state or national legislation indicating such a purpose. Their forefathers availed themselves of a provision in the treaty of New Echota, and remained in the state of North Carolina; and the civil laws of the state were extended over them from the period of the removal of the Cherokee Nation to their territory west of the Mississippi river. The North Carolina Cherokees, by reason of their birth and residence, became citizens under the general provisions of the state constitution, and not by any special law conferring the rights of citizenship. The policy of state legislation seems to have recognized their quasi tribal organization, and regarded them as a peculiar class of citizens, worthy of and needing the kindly supervision and care of the state and national governments. For the purpose of securing them against the evil consequences of injudicious. contracts with more intelligent and designing white men, a state Statute was enacted requiring all contracts, equal to $10 or more, with Cherokee Indians, to be in writing, signed in the presence of two witnesses, who shall subscribe the same. 1 Code N. C. § 1553. This law of the state imposed upon them a restriction which was not imposed upon other citizens, except as to transactions coming within the statute of frauds and a few other cases. On the 2d day of January, 1847, “An act in favor of the Cherokee Chief Junaluska” was duly enacted and ratified by the legislature of this state, conferring upon him all the rights of citizenship, and directing the secretary of state to issue a grant conveying to him in fee simple a valuable tract of land in Cherokee county, without the power of alienation by deed; and it was held in this court that such restriction upon the power of alienation was not inconsistent with the rights of citizenship. Smythe v. Henry, 41 Fed. 705. See, also, Eells v. Ross, 64. Fed. 417, 12 C. C. A. 205. The political departments of the federal government have certainly recognized and treated the Eastern Band of Cherokees as a quasi tribal organization for social and business purposes, and have made liberal appropriations of money, appointed Indian agents to reside among them, and employed efficient means to enlighten their minds, increase their comforts, and guard them against the injurious consequences of their own ignorance and indiscretion, and the frauds, aggressions, and wrongs of unscrupulous white men. The act of congress of July 27, 1868, in express terms placed them in the same situation towards the government as other tribes of Indians. I am strongly inclined to the opinion that the act of congress restored them to their former tribal relations as wards of the United States, subject to their control, and entitled to their care and protection. The relations of the United States to all Indian tribes are now regulated by acts of congress, and not, as formerly, by treaties. U. S. v. Kagama, 118 U. S. 375–382, 6 Sup. Ct. 1109. * By numerous acts of congress, the legislative department of the government has recognized the Eastern Band of Cherokee Indians residing in North Carolina as being under the supervisory care of the United States. I will cite only a few of these acts. The act of July 15, 1870, authorized and directed the attorney general to institute and prosecute a suit in equity in this court in the name of the Eastern Band of Cherokees for the purpose of securing to them the lands purchased with their treaty money by their agent, W. H. Thomas. At several times acts were passed by congress making liberal appropriations of money for the purpose of carrying on that suit and other subsequent suits in the name of the United States in relation to such lands. In the Cherokee Trust Funds Case, 117 U. S. 288, 6 Sup. Ct. 718, “the suit by petitioners was authorized by an act of congress, and it was brought against the United States and the Cherokee Nation.” By act of congress approved August 4, 1892, provision was made for the annual payment of the taxes on the lands of the Eastern Band of Cherokee Indians in North Carolina, and all orders or provisions for the sale of timber on said lands to pay the accrued taxes and incumbrances on the same were revoked. On the day of , 189—, congress made an appropriation of a large sum of money for the purpose of effectuating a compromise made by the political department of the government with certain persons claiming lands, adverse to the Indians, within the uncertain, unsettled, and extensive Qualla Boundary, which had long been a subject of vexatious and expensive litigation. The supreme court of North Carolina, in Rollins v. Cherokees, 87 N. C. 229, fully recognized the power and right of the United States to supervise and control the affairs, lands, and contracts of the North Carolina Cherokees. The court refers with approbation to the acts of congress regulating contracts with Indians, and expresses the opinion that such laws apply to contracts made with the North Carolina Indians. From the kind and liberal policy manifested by all the departments of the state government, I am satisfied that North Carolina is not jealous of state rights, or apprehensive that difficulties and conflicts of jurisdiction may arise from an imperium in imperio, controlling to some extent the affairs of her Indian citizens. I understood the counsel of defendants in their argument to insist, in substance, that the Eastern Band of Cherokees in North Carolina is a corporation duly organized under the laws of this state, and holds its lands in fee simple under a deed executed by the standing master in chancery, under a decree of this court made at October term, 1894; that such deed contains no restriction upon the power of alienation; and that the Indian council, as representatives of the corporation, had full power to make the timber contract inW0lved in this Suit. The COunsel further show that at the fall term of this court, in 1894, a decree was made directing a deed to be