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    CHEROKEE NATION v. HITCHCOCK, 187 U.S. 294 (1902)

    U.S. Supreme Court

    CHEROKEE NATION v. HITCHCOCK, 187 U.S. 294 (1902)

    187 U.S. 294

    CHEROKEE NATION et al., Appts.,
    ETHAN A. HITCHCOCK, Secretary of the Interior.
    No. 340.

    Submitted October 23, 1902.
    Decided December 1, 1902.

    [187 U.S. 294, 295]   This cause was begun on the equity side of the supreme court of the District of Columbia. The complainants named in the bill were the Cherokee Nation, and its principal chief and treasurer and sundry other citizens of the nation, suing on behalf of themselves and of citizens of the nation residing in the Indian territory. Ethan A. Hitchcock, as Secretary of the Interior, was made sole defendant. It was claimed in the bill that, by virtue of certain treaties and a patent based thereon, the Cherokee Nation was vested with a fee-simple title to its tribal lands in the Indian territory, and it was also averred that, by a treaty executed in 1835, there was secured to the nation the right, by its national council, to make and carry into effect all such laws as the Cherokees might deem necessary for the government and protection of the persons and property within their own country belonging to their people, or such persons as had connected themselves with them. A synopsis [187 U.S. 294, 296]   of the pertinent portions of the treaties above referred to is set out in the margin.

    By article 2 of the treaty of May 6, 1828 (7 Stat. at L. 311), the United States, in order to secure to the Cherokee Nation 'a permanent home,' agreed to 'possess the Cherokees, and to guarantee it to them forever,' 7, 000,000 acres of land, within described boundaries, and in addition 'guarantee to the Cherokee Nation a perpetual outlet west, and a free and unmolested use of all the country lying west of the western boundary of the above-described limits, and as far west as the sovereignty of the United States and their right of soil extend.'

    By article 1 of the treaty of February 14, 1833 (7 Stat. at L. 414), the United States, by a corrected description as to the 7,000,000-acres tract, renewed the guaranty as to such tract, the outlet, etc., contained in article 2 of the treaty of 1828, with the reservation respecting use by other Indians of the salt plain if within the limits of the outlet. The article concluded with the statement that 'letters patent shall be issued by the United States as soon as practicable for the land hereby guaranteed.'

    By article 2 of the treaty of December 29, 1835 (7 Stat. at L. 478), after reciting that by the treaties of 1828 and 1833 'the United States guaranteed and secured to be conveyed by patent, to the Cherokee Nation of Indians,' a described tract of 7,000,000 acres of land, and had further guaranteed to the Cherokee Nation a perpetual outlet west, etc., ceded an additional 800,000 acres of land, in the following terms:

    By article 3 of the same treaty the United States also agreed '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.'

    The act of May 28, 1830 (4 Stat. at L. 411, chap. 148), conferred authority upon the President to create districts of territory in lands west of the Mississippi to be exchanged for lands held by Indians in a state or territory. Respecting the title to the lands so to be given in exchange, it was provided in 3 as follows:

    [187 U.S. 294, 298]   In the patent the 7,000,000-acre tract, together with the perpetual outlet, was described as one tract, aggregating 13,574,135.14 acres. In addition the patent specified the boundaries of a tract of 800,000 acres ceded by the treaty of 1835. The description of the two tracts was succeeded by the following habendum clause:

    Averring that the Cherokee Nation and its citizens possessed the exclusive right to the use, control, and occupancy of its tribal lands, it was alleged that the Secretary of the Interior, without having lawful authority so to do, was assuming the power to, and was about to, pass favorably upon applications for leases, and was about to grant leases of lands belonging to said nation for the purpose of mining for oil, gas, coal, and other minerals, one such successful applicant being stated to [187 U.S. 294, 299]   be the Cherokee Oil & Gas Company, an Arkansas corporation. Based upon general allegations of the absence of an adequate remedy at law, the necessity of relief to avoid a multiplicity of suits and to prevent the casting of a cloud upon the title of the nation to its said lands, and the claim that irreparable injury would be caused and wrong and oppression result, and that there would be a deprivation of property rights of the complainants and of other citizens of the Cherokee Nation, an injunction was prayed against further action by the Secretary of the Interior in the premises. A demurrer was filed to the bill upon the grounds following:

    Without considering or passing upon the objection of a defect of parties defendant, the trial court sustained the demurrer and entered a decree dismissing the bill of complaint. This decree was affirmed, on appeal, by the court of appeals of the District. (20 D. C. App. 185.)

    An appeal was thereupon taken to this court.

    Mr. William M. Springer for appellants.

    Assistant Attorney General Van Devanter and Mr. William C. Pollock for appellee.

    Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

    The grounds of demurrer to the bill of complaint were summarized in the following reasons embodied in a statement filed with the demurrer:

    Preliminary to considering the fundamental question raised by the demurrer, it is necessary to notice two subjects not expressly referred to in the opinion below. They are, first, the objection to the formal sufficiency of certain of the averments in the bill; and, second, the claim that the Cherokee Oil & Gas Company was an indispensable party defendant. With respect to the first-mentioned ground of objection, without going into detail, we think the statements in the bill were sufficient to show that the jurisdiction of a court of equity was properly invoked. So far as the second ground of objection is concerned, we presume that the courts below omitted to pass expressly thereon, because it was deemed that the company named was properly omitted from the bill. As the bill assailed generally the want of power in the Secretary of the Interior to execute leases affecting lands owned by the tribe, and referred to the application pending for a lease made by the Cherokee Oil & Gas Company, as manifesting but a particular instance in which it was charged that the Secretary of the Interior might exercise the power conferred by the statute, the corporation named was not an indispensable party to the bill. Clearly, every person with whom the Secretary might contract, if he exercised the discretion vested in him by the statute, were not indispensable parties to the determination of the question whether the statute had lawfully conferred such discretionary power upon the official in question. This brings us to consider the fundamental question which the case involves, that is, the contention on behalf of the government that the decree below should be sustained because the act of June 28, 1898, is a valid exercise of power vested in Congress, and fully authorized the Secretary of the Interior to do and perform the things which the complainants seek to have him enjoined from doing.

    Before noticing the pertinent provisions of the act of June 28, [187 U.S. 294, 301]   1898, reference will be made to antecedent legislation by Congress, which led up to the enactment of the statute in question. In the statement preceding the opinion, delivered through Mr. Chief Justice Fuller, in Stephens v. Cherokee Nation, 174 U.S. 445 , 43 L. ed. 1041, 19 Sup. Ct. Rep. 722, it was said:

    On November 20, 1894, and November 18, 1895, the Dawes commission made reports of the condition of affairs in the Indian territory. These reports, as also a report of the Senate committee on the five civilized tribes, of date May 7, 1894, were referred to and were quoted from in the statement of facts made by the court in the Stephens Case. The reports asserted the existence of a state of affairs in the Indian territory 'abhorrent to the spirit of our institutions,' and declared the ne- [187 U.S. 294, 302]   cessity of assumption by the United States of 'responsibility for future conditions in the territory' and the need of independent legislation by Congress in that behalf. Thus, the Senate committee on the five civilized tribes of Indians, in a report on May 7, 1894 (Sen. Rep. No. 377, 53d Cong. 2d sess.), said in part:

    By a provision in the act of June 10, 1896 (29 Stat. at L. 321, 339, chap. 398), said commission was directed to continue the exercise of the authority already conferred upon it, and was invested with further powers in respect of hearing and determining applications for citizenship in said tribes and making rolls of the members thereof.

    A provision in the act of June 7, 1897 (30 Stat. at L. 62, 84, chap. 3), directed said commission to continue to exercise all authority theretofore conferred upon it to negotiate with said five tribes, and gave further direction respecting the making of rolls of citizenship.

    The act of June 28, 1898 (30 Stat. at L. 495, chap. 517), entitled 'An Act for the Protection of the People of the Indian Territory, and for Other Purposes,' contains provisions for the completion of the rolls of citizenship of said tribes, for the reservation of town sites [187 U.S. 294, 303]   and the sale of lots therein, and for the allotment of the exclusive use and occupancy of the surface of all lands susceptible of allotment among the citizens of the respective tribes, with a provision as follows ( 11):

    Section 13 of said act contains provisions for leasing the oil, coal, asphalt, and mineral deposits as follows:

    Section 16 contains a provision as to the payment and distribution of rents and royalties due said tribes, as follows:

    As the acts done and contemplated to be done by the appellee and assailed by the bill of complaint are presumably not the subject of criticism, in the event that the act of June 28, 1898, was a constitutional and valid exercise of power by Congress, we will now address ourselves to a consideration of that statute.

    Prior to the act of March 3, 1871 (16 Stat. at L. 544, 566, chap. 120, now 2079 of the Revised Statutes), which statute, in effect, voiced the intention of Congress thereafter to make the Indian tribes amenable directly to the power and authority of the laws of the United States by the immediate exercise of its legislative power over them, the customary mode of dealing with the Indian tribes was by treaty. As, however, held in Cherokee Nation v. Southern K. R. Co. 135 U.S. 641, 653 , 34 S. L. ed. 295, 300, 10 Sup. Ct. Rep. 965, reaffirmed in Stephens v. Cherokee Nation, 174 U.S. 445, 484 , 43 S. L. ed. 1041, 1055, 19 Sup. Ct. Rep. 722, while the Cherokee Nation and other Indian tribes domiciled within the United States had been recognized by the United States as separate communities, and engagements entered into with them by means of formal treaties, they were yet regarded as in a condition of pupilage or dependency, and subject to the paramount authority of the United States.

    Reviewing decisions of this court rendered prior to the act of 1871, and particularly considering the status of the very tribe of Indians affected by the present litigation, the court commented upon a declaration made in a previous decision that this government had 'admitted, by the most solemn sanction, the existence of the Indians as a separate and distinct people, and as being invested with rights which constitute them a state, or separate community.' It was observed of this declaration that it fell 'far short of saying that they are a sovereign state, with no superior within the limits of its territory.' Considering the treaty of 1835 with the Cherokee Nation, under which it is now [187 U.S. 294, 306]   claimed, on behalf of the appellants, that the Cherokees became vested with the sole control over the lands ceded to them, the court observed (p. 485, L. ed. p. 1055, Sup. Ct. Rep. p. 737):

    It results, then, from the doctrine of the decisions of this court, that the demurrer was properly sustained, because of the fact that the matters named in the bill were matters of administration, to which the act of June 28 was applicable, and they were solely cognizable by the executive department of the government. The decision in Stephens v. Cherokee Nation, 174 U.S. 445 , 43 L. ed. 1041, 19 Sup. Ct. Rep. 722, is particularly in point, as that case involved the validity of the very act under consideration, and the precedent correlative legislation, wherein the United States practically assumed the full control over the Cherokees as well as the other nations constituting the five civilized tribes, and took upon itself the determination of membership in the tribes for the purpose of adjusting their rights in the tribal property. The plenary power of control by Congress over the Indian tribes and its undoubted power to legislate, as it had done through the act of 1898, directly for the protection of the tribal property, was in that case reaffirmed. Thus, in the course of its opinion, [187 U.S. 294, 307]   after alluding to the legislation concerning the Dawes commission, the court said:

    The holding that Congress had power to provide a method for determining membership in the five civilized tribes, and for ascertaining the citizenship thereof preliminary to a division of the property of the tribe among its members, necessarily involved the further holding that Congress was vested with authority to adopt measures to make the tribal property productive, and secure therefrom an income for the benefit of the tribe.

    Whatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members. The Cherokee Trust Funds, 117 U.S. 288 , 308, sub nom. Eastern Band of Cherokee Indians v. United States, 29 L. ed. 880, 886, 6 Sup. Ct. Rep. 718. The manner in which this land is held is described in Cherokee Nation v. Journeycake, 155 U.S. 196, 207 , 39 S. L. ed. 120, 124, 15 Sup. Ct. Rep. 55, 60, where this court, referring to the treaties and the patent mentioned in the bill of complaint herein, said: 'Under these treaties, and in December, 1838, a patent was issued to the Cherokees for these lands. By that patent, whatever of title was conveyed, was conveyed to the Cherokees as a nation, and no title was vested in severalty in the Cherokees, or any of them.'

    There is no question involved in this case as to the taking of property; the authority which it is proposed to exercise, by virtue of the act of 1898, has relation merely to the control and [187 U.S. 294, 308]   development of the tribal property, which still remains subject to the administrative control of the government, even though the members of the tribe have been invested with the status of citizenship under recent legislation.

    We are not concerned in this case with the question whether the act of June 28, 1898, and the proposed action thereunder, which is complained of, is or is not wise, and calculated to operate beneficially to the interests of the Cherokees. The power existing in Congress to administer upon and guard the tribal property, and the power being political and administrative in its nature, the manner of its exercise is a question within the province of the legislative branch to determine, and is not one for the courts.



    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.'

    The article of the treaty of 1835 upon which is based the claim that an exclusive right is vested in the Cherokee Nation to the use, control, and occupancy of its tribal lands is the following (7 Stat. at L. 481):

    By the treaty of August 6, 1846 (9 Stat. at L. 871), providing for an adjustment of the differences theretofore existing between different portions of the people constituting and recognized as the Cherokee Nation of Indians, it was provided in article 1 as follows:

    The treaty of July 19, 1866 (14 Stat. at L. 799), does not require particular notice.

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