
    THE EASTERN BAND OF CHEROKEES v. THE UNITED STATES AND THE CHEROKEE NATION.
    [No. 13828.
    Decided June 1, 1885.]
    
      On the Proofs,
    The claimants bring a suit against the United States, as trustees, and tie Cherokee Nation, as parties in interest. They seek to participate in the benefits of certain trust funds held by the government for educational and other purposes. They concede that they are not entitled to the custody of the funds nor to share in the lands of the nation west of the Mississippi; but contend that when those lands which were ceded by the United States for the use and benefit of the “whole Cherokee people” are transmuted into money, and the money is held in trust by the government, they, as a part of the Cherokee people, are entitled to participate in the benefits of the trust. It appears that the claimants are neither a sovereignty, nor a body corporate, nor an aggregation of individuals; that all tribal relations between them and the Cherokee Nation have been severed, and that they are virtually citizens of States east of the Mississippi ; but they claim authority to bring this suit as an Indian tribe by virtue of the Act 3d March, 1883 (22 Stat. L., p. 585).
    I.A finding of facts is not required in a suit brought under an act con-furring equity jurisdiction.
    
    II.An agreement signed by delegates of the Cherokee Nation and of the Western Cherokees, without authority, authorizing the North Carolina Cherokees to participate in the benefits of a treaty which those delegates had just concluded with the United States, cannot be enforced unless ratified.
    III. The Cherokees who remained east of the Mississippi after the removal of the nation thereby severed their connection with the Cherokee Nation.
    IV. The North Carolina Cherokees were not made parties to the Cherokee Treaty 1846 (9 Stat. L., p. 871), and were not regarded by the treaty-making power as forming a part of the Cherokee Nation.
    V.Article 10 of the Cherokees Treaty 1846 was inserted to satisfy the North Carolina Cherokees that certain claims then presented by them should not be abridged by the treaty.
    
      YI. Article 1 of tire Treaty 1846, socnring the lands west of the Mississippi to “ the whole Cherokee people, for their common use and benefit,” referred to the three parties into which the Cherokee Nation was then divided, and not to individual Cherokees who remained east of the Mississippi.
    VII.The Cherokees east of the Mississippi do not form a nation. Their organization by the Indian Office under the name of the Eastern Band was for the purpose of facilitating business with the government, and is at most a social organization.
    VIII.The Cherokee Nation, as litigants, have a right to stand upon their treaties in relation to the funds in suit, and neither an act of Congress nor the proceedings of the political departments of the government can takp away their vested rights guaranteed by treaty.
    IX.The Eastern Band of Cherokees have neither rights nor equities in the funds held by the United States in trust for the Cherokees west of the Mississippi.
    
      The Reporters statement of the case:
    The following- are the facts as found by the court:
    I. The claimant’s .organization and constitution are shown by the following proceedings from their records :
    “ Oheoah, December 10, 1868.
    “ In general council assembled of the Eastern Cherokees, being desirous of holding our general councils in some organized and established manner andunder a like form as other tribes of Indians who are desirous of adopting a republican form of government, and restricting, controlling, and compensating our rules, do hereby enact as follows:
    u That hereafter each Cherokee settlement or town shall be entitled to one-delegate for each-members of such settlement who shall represent them in general council, and that said general council shall meet once in each year, on-of-; that said general council shall, from their number, when convened, elect one of their number who shall be chairman or president of said council, and who shall be president or chief of said Eastern Cherokees for the term of time so directed by said council, not exceeding four years; and in case of choice each, settlement may petition said council in writing upon any subject. Said council shall have power to elect a secretary and interpreter of the council and marshal of the nation, and fix che duties, compensation of the same.
    “ Said council shall have the power to prepare and adopt by-laws and rules for general government of the people and the duties of each national officer, and also the compensation of said council, and assess the national funds and property to pay the same.
    
      “ Said council may prepare by-laws and police regulations and other rules, and submit the same to the nation in general council assembled, and a majority vote shall adopt or reject the same. They shall also prepare a system of schools in each settlement, and provide for the election of a superintendent or board of trustees who shall organize the same, in accordance with said regulations.
    u Said council may, in their discretion, fix a place and day or days for holding a national fair, where each person may present samples of grain, stock, weaving, knitting, spinning, needlework, butter, and any article of agricultural product or fruit and domestic -or mechanical product, and also a measured proven amount of crop per acre, and the numbers of acres cultivated in any crop, and fix committees to grant premiums thereon, and name the same, and one premium for the best general system of farming, to be shown by general statement.
    “ John Waynona, Chairman.
    
    
      11 Attest:
    “ N. J. SMITH,
    
      u Clerk of Committee and Council.”
    
    • “ December 1,1870.
    “ The council met pursuant to adjournment and proceeded to business.
    “ The election of principal and second chief was then opened and held, and resulted in the election of Flying Squirrel or Callee-high as principal chief, and John Jackson Oo-wah-tun-tee as second chief.
    “ The following form of government was referred to the committee and report favorable.
    “ It was then moved and seconded that the constitution be adopted by the council, which was unanimously adopted as follows:
    
      “ 1st. Whereas the legal representative or councilmen of the different towns or settlements of the Eastern Band of the Cherokee Indians have tiffs day and date, at the place aforementioned, met, accordingto general agreement and understanding.
    2d. Said council be, and is hereby, duly authorized-and empowered by representation, as the undersigned showeth, to provide for the common interest and enact measures by which the aforesaid baud of Indians may be represented in prosecuting and defending all matters pertaining to or touching the interest of said band of Indians with the United States Government, or State or States, or individuals of the United States, inw hat-ever relation said interest may be: Provided, That nothing herein be so construed as an abrogation of any rights, claim, or claims of any individual or individuals of said band to the legislation of said council as common property.
    “ 3d. All members constituting the aforesaid council shall be, and they are hereby, governed and bound by all acts passed in council of delegates and approved by the chief.
    “4tb. All acts done, made, and confirmed in grand council as aforestated shall be an effectual and binding upon all members belonging to or constituting the aforesaid band as a band in all matters held in common or pertaining to the common interests of said band, and not otherwise.
    “ 5th. Provided, further, that there be and the council is hereby authorized to appoint annual session for holding grand councils at such place and time as they may designate and determine on, and no called or appointed council otherwise held shall be held valid or binding upon the aforesaid band or the subjects thereof, unless the chief, in his judgment and reason, thinks the interest of said band demands or justifies such called or appointed council.
    1 ‘Also that there be ordered a stated election to be held in each town or settlement for the purpose of electing first and second chief, whose power and right of governing shall extend over the whole band of Eastern Cherokees for and not exceeding the term of two years. Also for the electing all subaltern officers to legally constitute the aforesaid annual council. The sa.id subordinate term of office shall not exceed one year, only by the annual election of the band. The right of vote by which said band shall be governed shall be exclusive and consist only of its male members of sixteen years of age and upwards. And the aforesaid officers so elected shall have the exclusive right to govern and rule, and all the acts done, made, or had by said officers for the term elected shall be held binding and in full force upon said band. The aforesaid chiefs so elected shall have no power nor hold any right of jurisdiction to enact or enforce laws within themselves over the band of which he presides as chief, but in all cases or interests conflicting or touching the common right of said band the legal representatives shall be duly notified by the chief and the legislative body assembled.
    “AMENDMENTS TO THE CONSTITUTION OE THE EASTERN BAND OE CHEROKEE INDIANS.
    “ The Eastern Band of Cherokees having again reunited and become one body politic under the style aud title of the Eastern Band of Cherokees,
    “ Therefore, We the people of the Eastern Band of the Cherokee Indians, in annual council assembled, in order to establish justice, insure tranquility, promote the common welfare, and to assure to ourselves and our posterity the blessings of freedom, acknowledging with humility and gratitude the goodness of the Sovereign Euler of Universe in permitting us so to do, and imploring His aid and guidance in its accomplishments, do ordain and establish these amendments to the constitution for the government of the Eastern Band of Cherokee Indians :
    
      “ARTICLE 2.
    “Section 1. The power of the Eastern Band of the Cherokee Indians shall be divided into two distinct departments, the executive and the legislative; the executive to consist of the first and second chief and the legislative of the council.
    “Article 3.
    “ Section 1. The legislative power shall be vested in a council, and all enactments of the council shall be signed by the chairman of the council, approved by the principal chief; and in all their deliberations the vote shall be taken by yeas and nays, unless otherwise directed by the council.
    “ Sec. 2. That each member of the annual council before he takes his seat to transact any business of the council shall take the following oath (or affirmation): I, A B, do solemnly swear (or affirm) that I have not obtained my selection or appointment as a member of this council by bribery or any undue or unlawful means or duress or fraud used by myself or others by my desire or approbation for that purpose; that I consider myself constitutionally qualified as a member of this council, and that on all questions and measures which may come before me I will so give my vote and so conduct myself as in my ■judgment shall appear most conducive to the interest and prosperity of the Eastern Band of the Cherokee Indians, and that I will bear true faith and allegiance to the same, and to the utmost of my ability and power observe, conform to, and defend the constitution thereof.
    “Sec. 3. Nopersonshallbeeligibletoauyofficeorappointment of honor, profit, or trust, or seat in the council, who shall have aided or abetted, counseled or encouraged, any person or persons guilty of defrauding the Eastern Band of the Oherokees, or who may hereafter aid or abet, counsel or encourage, any pretended agents or attorneys in defrauding the Eastern Band of Gherolcees.
    
    
      “ Sec. 4. The annual council to make all rules and regulations which they shall deem necessary and proper for the good of the band which shall not be contrary to this constitution.
    
    “ Sec. 5. It shall be the duty of the annual council to pass such rules and regulations as may be necessary and proper to decide differences by arbitration, to be appointed by the parties who may choose that summary mode of settlement.
    
    “Article 4.
    “Section 3. The supreme executive power of this band shall be vested in a principal chief, who shall be styled Principal Chief of the Eastern Band of the Cherokee Indians.
    
      “ The principal chief shall hold his office for four years and shall be elected by the male members of the Eastern Band of the Cherokee Indians of sixteen years of age and upwards.
    “ Sec. 2. No person shall be eligible to the office of principal chief except he be of the Cherokee Indian blood and a member of the Eastern Band of the Cherokee Indians; neither shall any person be eligible to that office who shall not have attained the age of thirty-five years, nor shall any person be eligible to a seat in the annual council of the Eastern Band except he be of Cherokee Indian blood and a member of the Eastern Band of the Cherokee Indians.
    “ Sec. 3. The annual council may, in case of removal, death, resignation,. or disability of both the principal and assistant principal chief, declare what officer shall then act as principal chief, until their disabilities be removed or a principal chief be elected.
    “ Sec. 4. The principal chief and assistant principal chief shall, at stated times, receive for their services a- compensation which shall neither be increased nor diminished during the period for which they shall have been elected.
    “Sec. 5. Before the principal chief enters upon the executive duties of his office he shall take the following oa.th or affirmation: I,-, do solemnly swear (or affirm) that I will faithfully execute the duties of principal chief of the Eastern Band of the Oherokees, and will, to the best of my ability, preserve, protect, and defend the constitution of the Eastern Band of Cherokee Indians.
    “ Sec. 6. He may on extraordinary occasions convene the council at such place as the annual council may designate as the seat of government.
    “ Sec. 7. He shall from time to time give to the annual council information as to the state-of affairs of the Eastern Band, and recommend to their consideration such measures as he may think expedient.
    “ Sec. 8. He shall take care that the rules and regulations of the council are faithfully executed.
    “ Sec. 9. It shall be his duty to visit the different towns and settlements at least once in two years.
    “Sec. 10. Members of the annual council, executive, and all officers shall be bound by oath to sujDport the constitution of the band.
    “ Sec. 11. The members of the annual council shall be chosen for the term of two years.
    “Sec. J2. The treasurer of the Eastern Band shall be chosen by the annual council for a term of four years ; the treasurer shall, before entering upon the duties of his office, give bond to the band, with sureties, to the satisfaction of the annual council, for the faithful discharge of his trust.
    “ Sec. 13. No moneys shall be drawn from the treasury but by warrant from tbe principal chief and in consequence of appropriations made by the council.
    “ Seo. 14. It shall be the duty of the treasurer to receive all public moneys and to make a regular statement and account of the receipts and expenditures of all public moneys at the session of the annual council.
    “Article 5.
    “ Section 1. No person who denies the being of a God or a future state of reward and punishment shall hold any office in the civil department of the Eastern Band of Cherokee Indians.
    “ Seo. 2. The free exercise of religious worship and serving God, without distinction, shall forever be enjoyed within the limits of the Eastern Band, provided that this liberty of conscience shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the Eastern Band of the Cherokees.
    “ Seo. 3. When the annual council shall determine the expediency of appointing a delegation for the purpose of transacting business with the government of the United States, the principal chief shall recommend and, by the advice and consent of the annual council, appoint and commission said delegates accordingly on all matters of interest touching the rights of the Eastern Band which may require the attention of the United States government. The principal chief shall keep up a friendly correspondence through the medium of its proper officers.
    “ Sec. 4. The commissions shall be in the name and by the authority of the Eastern Band of the Cherokee Indians, and be sealed with the seal of the probate judge in the county wherein the council is held, signed by the chairman, attested by the clerk of the council, and approved by the principal chief.
    “Sec 5. Beligion, morality, and knowledge being necessary to good government, the preservation of liberty, and happiness of mankind, schools and the means of education shall forever be encouraged and cherished by the Eastern Band of Cherokee Indians.
    “ Sec. 6. The annual conned may prepare such amendments as two-thirds of council may deem expedient, and such amendments shall not be passed until the meeting of the next annual council. And to the protection and preservation of this constitution we mutually pledge our lives, our fortunes, and our sacred honor.
    “ Article 6.
    “ Section 1. The'council shall consist of two members from each town or settlement having a population of 100 souls, and when a town or settlement shall exceed 200 souls it shall have an additional number: Provided, That when any town or settlement shall have less than 100 souls it shall be entitled to one member.
    “ Sec. 2. All male Cherokees, or persons of Cherokee blood, and all persons who have intermarried with Cherokees, or those of Cherokee blood who shall have attained the age of sixteen years, shall vote at all public elections.
    “ Sec. 3. The annual grand council at its annual session shall appoint two suitable persons as judges, to hold all public elections at the various towns or settlements, and the certificate of such judge shall be evidence of his election or selection: Provided, That when no election is held or selection made in any town or settlement any person or persons may represent such town or settlement by producing a certificate or authority from a majority of the souls of said town or settlement: Provided further, That the certificate or authority shall contain the name of the souls they represent; and, further, that elections shall be held on the first Thursday in September for all officers and councilmen as the constitution prescribes.
    “Sec. 4. There shall be an executive council, consisting of the principal chief, assistant chief, aud three associates, who shall be nominated by the principal chief and confirmed by the council.
    “ Sec. 5. The grand council shall be held after the present session, annually, to be convened on the first Monday in October, at such place as may be designated by the grand council, in case of emergency by the principal chief.
    “Sec. 6. The grand council at its annual session shall be called together by the assistant chief aud organized by the election of chairman and clerk; and in case of death, resignation, inability, or for any other cause said second chief does not act, then any member of the executive council may organize the council.
    “ Sec. 7. The officers of the grand council shall consist of a chairman, assistant chairman, first and second clerk, interpreter, marshal, messenger, and doorkeeper.
    “ Sec. 8. The oaths of principal chief, councilmen, and clerks may be administered by any officer of the government of North Carolina or the United States government authorized to administer oaths.
    “ SÉC. 9. No person who may be convicted of felony shall be eligible to any office or appointment of honor, profit, or trust within the Eastern Baud of Cherokee Indians.
    “ Sec. 10. The grand council may by commission provide for the purchase of lauds for the Eastern Band of the Cherokee Indians: Provided, That any commission provided for under this ordinance may be nominated by the principal chief and confirmed by the grand council: Provided further, That no act of commission shall be construed to interfere with or in any manner impair the rights of individual members of said band.
    
      “ Seo. 11. The grand council shall, by appropriate legislation, provide a public-school system for the Eastern Band of the Cherokee Indians.
    “Sec. 12. The principal chief shall have the right of veto upon all acts or resolutions enacted by the annual or called council of the band: Provided, That the veto power shall not hold good over a two-thirds vote of the grand council.
    “ Seo. 13. The style of the grand council of the Eastern Band of Cherokee Indians shall be—
    “ Be it enacted by the grand council of the Eastern Band of Oherokees.
    “J. W. Hilderbrand.
    “T. Z. P. Enola,
    
      Chairman.
    
    “Attest:
    “John G-. Tatiiam,
    “ Secretary of Coxincil.
    
    “ Henry Smith,
    “ Interpreter.
    
    “Approved.
    “ Loyd K. Welch,
    “ Principal Chief Eastern Band of Cherokee Indians.
    
    “ Oheoah Council Ground,
    “ October 13, 1875.”
    The organization is composed of persons residing mostly in North Carolina, members and descendants of the members and subjects of the Cherokee Nation who did not remove with their brethren to the Indian Territory, west of the Mississippi Biiver, but who remained east. The number of Indians who remained immediately after the general removal incident to the treaty of 1835-’36 (7 Stat. L., 478) was between 1,100 and 1,200, some of whom have since joined the nation west. The latest census of the Indians residing east is shown by finding vii. The organization was effected at the suggestion of the agent of the United States sent down to take the census of the Eastern Cherokees required by the act of July 27, 1868, ch. 259 (15 Stat. L., 228), so that, as he informed them, they could' transact business with the United States government. Exactly what organization or 'organizations existed previously to the foregoing does not appear. The Indians in North Carolina generally kept themselves together, separated from the whites, and to some extent and at some periods in bands, with a chief and headmen, holding councils or meetings occasionally for the purpose of sending delegates to Washington to look after their moneyed, interests, and for the purpose of trying to prevail upon the people to live in peace and as orderly people, and for other purposes. But when and how the chief was chosen, or what was the authority of their councils or meetings, or when they were first held, or how, or how frequently they were held, does not appear. They are registered and have voted at elections in North Carolina and pay taxes on their real and personal property. The common lands of the band are held by the Commissioner of Indian Affairs in trust for the band, and are assessed, the unoccupied land against the chief for the band, and the occupied land against the persons who occupy them.
    II. All the per capita money mentioned in article 12 of the treaty of 1835-’3C (7 Stat. L., 478), and all the removal and subsistence money ($53.33 to each person) mentioned in article 8, have been paid (or funded in part) by the United States, in the manner provided by thefollowing acts of Congress, and as shown by the public documents hereinafter mentioned; as to that money there is now no controversy: Act of July 29,1848, sections 4 and 5, 9 Stat. L., 264; act of August 7,1848, 9 Stat. L., 339; act of September 30, lg50, 9 Stat. L., 556, line 16; act of February 27, 1859, 9 Stat. L., 572; act of March 3, 1851, 9 Stat. L., 617 ; act of February 27, 1851, 9 Stat. L., 573; act of May 31, 1854, 10 Stat. L., 291; act of August 4, 1854, 10 Stat. L., 558; act of July 31, 1854, 10 Stat. L., 300; act of March 3, 1855, 10 Stat. L., 700; act of August 18, 1856, 11 Stat. L., 92; act of June 14, 1858, 11 Stat. L., 362; act of July 27, 1868, 15 Stat. L., 228; act of March 3, 1875, 18 Stat. L., 447; act of August 15, 1S70, 19 Stat. L., 197; act of March 3, 1877, 19 Stat. L., 291.
    Said per capita money had not been paid, and no adjustment of the amount of the per capita money, and no final settlement and determination as to exactly what individuals should be included among those entitled to the removal and subsistence money, had been reached at the date of the treaty of 18-16 (9 Stat. L., 871).
    III. No part of the sum of $214,000 arising from the com-muation of the previously existing permanent annuity of $10,000, mentioned in article 11 of the treaty of 1835-’36 (7 Stat L., 483), has been paid to the present claimant in its organized capacity, nor to any of the Cherokee Indians who have remained east of tbe Mississippi River. And they have received no part of the funds arising from the sale by the Cherokee Nation of any of the lands ceded to it by the United States west of the Mississippi River under the treaties of 1828 (7 Stat. L., 310), of 1833 (7 Stat. L., 415), of 1835-’36 (7 Stat. L., 478), of 1846 (9 Stat. L., 871).
    IV. The Cherokee Nation, made defendant in this action by the act of March 3, 1883 (ch. 141, 22 Stat. L., 585), is organized and exists by virtue of the treaties and laws of the United States and its own constitution and laws. Its history, powers, and jurisdiction, and the composition of membership, are shown thereby, and by the public documents hereinafter mentioned and the public history of the country.
    V. The permanent annuity-fund money, $214,000, mentioned in article 11 of the treaty of 1835-’36, and referred to in finding iii, was appropriated by Congress by the act of July 2, 1836 (5 Stat. L., 73), and has been invested, and the investments thereof are now held by the United States in trust. The net income of these investments has been annually paid to such person or persons as have been authorized or appointed by the Cherokee Nation to receive the same. (Treaty of 1835-’36, art. 10, 7 Stat. L., 482 ; constitution of the Cherokee Nation of 1827, art. 4, sec. 25, p. 126; constitution of 1839, art. 4, sec. 24, p. 12; act of Congress of March 3,1875, ch. 132, sec. 1,18 Stat. L., 448; public documents.)
    VI. Under the provisions of the treaty of July 19, 1866 (14 Stat. L., 799), articles xy, xvi, xyiii, many sales of tracts of land have been made from the domain ceded to the Cherokee Nation under the treaties of 182S, 1833, 1835-’36, and 1846, and the proceeds thereof have been invested as provided in article xxm of the treaty of 1866. (Act of May 11, 1872, 17 Stat. L., 98; act of June 5,1872,17 Stat. L.,228; actof February 28,1877, 19 Stat. L., 265; act of March 3, 1875, 18 Stat. L., 451; act of June 16,1880, 21 Stat. L., 248; act of March 3,1881, 21 Stat. L., 422; act of March 3, 1883, 22 Stat. L., 624; public documents.) The remainder of the lands are unsold.
    Out of these investments of these trust funds payments have been made to the Cherokee Nation under the provisions of said article xxiii and the following acts of Congress: Act of February 14, 1873, sec. 4, 17 Stat. L., 462; act of March 3, 1875. ch. 132. sec. 13. 18 Stat. L., 451: act of June 16, 1880, 21 Stat. L., 248; act of March 3, 1883, eh. 142, 22 Stat. L., 624. There is still remaining a large fund thus invested and held by the United States in trust. The net income of said fund thus invested has been annually paid to the Cherokee Nation, under the provisions of said article xxm, the treasurer thereof having received the same according to the terms of the nation’s constitution.
    ViI. At the time of taking the latest census of the Cherokee Nation (A. D. 1880) there were 20,336 persons belonging thereto. Of this number 4,428 are adopted, being whites, other Indians, and colored persons. At the time of taking the latest census of the Cherokee Indians residing east of the Mississippi River alleged to belong to claimant’s band (A. D. 1883), there were 2,956 persons. This census was taken by an agent appointed by the Secretary of the Interior under the provisions of the act of August 7,1882 (22 Stat. L., 328), and the act therein referred to of July 27, 1868 (15 Stat. L., 228), and was approved by the Secretary and the Commissioner of Indian Affairs. It shows the residences of said Indians as follows: 1,881 in North Carolina, 758 in Georgia, 213 in Tennessee, 71 in Alabama, 3 in South Carolina, 11 in Kentucky, 8 in New Jersey, 5 in Virginia, 1 in Illinois, 3 in Kansas at present, 1 in Colorado at present, 1 in California at present.
    VIII. The following public documents and printed volumes were cited and relied upon for the historical facts involved in the case, and are made part of the findings of fact: Ex. Doc. H. of R. No. 104, first session Twentieth Congress; Doc. No. 71, H. of R., first session Twenty-third Congress; Ex. Doc. H. of R. No. 286, first session Twenty-fourth Congress; Doc. No. 99, H. of R., first session Twenty-fifth Congress; Ex. Doc. Senate No. 120, second sesson Twenty-fifth Congress; Report No. 391, H. of R., first session Twenty-eighth Congress; Ex. Doc. Senate No. 298, first session Twenty-ninth Congress; Ex. Doc. Senate No. 408, first session Twenty-ninth Congress; Ex. Doc. H. of R., No. 65, first session Thirtieth Congress; Senate Report No. 176, first session Thirty-first Congress; Ex. Doc. 169, second session Forty-third Congress; Ex. Doc. H.of R. No. 79, second session Forty-seventh, Congress; Ex. Doc. H. of R. No.196, first session Forty-seventh Congress; Ex. Doc. No. 17, second session Forty-eighth Congress; Cherokee Nation’s constitution and laws, edition óf 1852, in two parts; £i The Public Domain, its History,” &c., A. D. 1882; Memoirs of Lieutenant-General Scott, A. D. 1864, vol. 1, pp. 317-330.
    
      Mr. Jeremiah Wilson, il'Zr. Samuel Shellaba/rger, and Mr. J. II. Gilpatrick for the Eastern Band of Cherokee Indians.
    
      Mr. S. 8. Burdette and Mr. W. A. Phillips for the Cherokee Nation. ■
    
      Mr. John G. Fay (with whom was the Assistant Attorney-General) for the United States.
    
      
       And see Harvey & Livesy’s Case (U. S. R., —), recently decided, where the Supreme Court, after overruling the decision of this court, itself assessed the damages from the evidence in the record.
    
   Richardson, Ch. J.,

delivered the opinion of the court:

Under the provisions of the act of March 3,1883 (ch. 141, 22 Stat. L., 585), the claimant brings this action against the United States and the Cherokee Nation to recover a proportional part of two funds held by the United States in trust.

It is necessary to a correct understanding of the case to review the history of the Cherokee Indians, the Cherokee Nation, the Eastern Band of Cherokee Indians, and their relations to each other as well as to the United.States, and to point out how s the funds now in controversy had their origin. We are not aware of a single material fact in controversy. All parties rely upon facts appearing mostly in treaties, laws, and public documents.

As the act referring the case gives jurisdiction in equity as well as atlaw, afinding of facts is not required. (The Hot Springs Cases, 10 C. Cls. R., 289, 433; affirmed on appeal, 92 U. S. R., 698.) But for convenience, and with the consent of the parties, we have set out such facts outside of the public archives as seemed at the argument to have some bearing on the construction of the treaties involved, and have mentioned all the public documents and printed publications referred to by either party, which, although the court above would probably take judicial notice of their contents as we have done, the parties have agreed may be used on appeal without being reprinted in the findings.

The Cherokee Indians prior to the year 1785 had inhabited or roamed over a large territory of land, having no defined boundaries, extending from the Gulf of Mexico to New York, but were dwelling mostly within wliat are now the States of North Carolina, Georgia, Tennessee, and Alabama.

Previously to that year, in 2783, the State of North Carolina had granted to the Oherdkee Indians a tract of land within its borders, to be “ reserved unto the said Cherokee Indians and their nation forever.” This grant was held by the supreme court of North Carolina to convey a fee-simple estate, instead of a mere usufruct conceded by the white race to the aboriginal Indians by right of .occupancy. (Eu-che-lah v. Welch, 3 Hawkes, 154.)

On the 28th of November, 1785, the United States made their first treaty with these Indians, through the headmen and warriors of all the Cherokees,” at Hopewell, on theKeowee, by which was allotted to the Cherokees for their hunting grounds ” a large tract of land within what are now the States of North Carolina, South Carolina, Alabama, Georgia, and Tennessee, in which were included the lands previously granted to them by the State of North Carolina. (7 Stat. L., 18.)

July 2, 1791 (7 Stat. L., 39), the United States entered into another treaty with the “ chiefs and warriors of the Cherokee Nation, on the part and behalf of the said nation.” The i>riu-cipal features of this treaty are, the readjustment and establishment of the boundary between the United States and the Cherokee Nation, and the agreement of the former to pay annually to the latter the sum $1,000, which was increased to $1,500 by an additional article. (7 Slat. L., 42.)

Here began the annuities, which were all finally commuted by the funding of $214,000 for the benefit of the Cherokee Nation, under article 11 of the treaty of 1835-M0 (7 Stat. L., 483), out of which grows one of the matters here in controversy. Additional annuities were granted for lands ceded, &c., as follows : The treaty of 1794 (7 Stat. L., 43) increased the amount to $5,000; the treaty of 1798 (7 Stat. L., 62), added $1,000; the treaty of 1804 added another $1,000; and the treaty of 1805 (7 Stat. L., 93) granted an addition of $3,000. Thus, in the year 1805 the annuities had reached the sum of $10,000.

This was annually paid to the Cherokee Nation in its organized capacity, as represented by the Cherokee Indians residing within the boundaries of its territory east of the Mississippi liiver, until after the treaties of 1817 and 1819. (7 Stat. L., 156, 195.)

In tbe mean time there were several other treaties made between the parties, adjusting aud curtailing the boundaries of the nation, ceding’ to the United States parts of its lands for cash payments and annuities for limited periods, and making some other provisions not material in this case. (7 Stat. L., 93, 94, 101, 103,139, 148.)

The historical facts which led to the making of the treaties of 1817 and 1819 are matters of considerable importance.

At the time of the first treaty of 1785 there were about fifty Cherokee towns or settlements within the territory confirmed to the Indians. Not many years thereafter the inhabitants of the upper towns, at or near the Smoky Mountain and Blue Ridge, mostly if not wholly in the State of North Carolina, and those of the lower towns, in the valley of the Mississippi, became divided to some extent in their habits and tastes. Those in the upper towns desired to engage in the pursuits of agriculture and civilized life in the country they occupied, and for that purpose they asked for a divisional line between the two classes of towns. Those of the lower towns desired to continue the hunter life, and on account of the scarcity of game where they lived they wished to remove across the Mississippi River and settle on vacant lands of the United States. The President of the United States was appealed to, and on the 9th of January, 1809, he replied to the parties as follows: “ The United States, my children, are the friends of both parties, and, so far as can be reasonably asked, they are willing to satisfy the wishes of both. Those who remain may be assured of our patronage, our aid, and good neighborhood. Those who wish to remove are permitted to send an exploring party to reconnoiter the country on the waters of the Arkansas and White Rivers. * * * When this party shall have found a tract of country suitin g the emigrants, and not claimed by other Indians, we will arrange with them and you the’exchange of that for a just portion of the country they leave, and to a part of which, proportioned to their numbers, they have a right.”

By common consent of the Indians and the approval of the President a divisional line was established along the ridge between the Hiwasse aud Hightower Rivers, on the one side and the other of which the respective parties could reside and there each best preserve the habits of the people. (Senate Hoc. No. 298, first session Twenty-ninth Cong., p. 173, 7 Stat. L., 156.)

A more important result which followed was the emigration, which commenced at once, from the old territory of the Indian nation to the unoccupied lands of the United States on the west side of the Mississippi Itiver, now embraced within the State of Arkansas. This continued regularly until, in the course, of the next following eight years, nearly or quite one-third of all the Cherokees had settled in their new western home in the wilderness.

Those who remained east conducted the affairs of the nation, to which was regularly paid by the United States the annuity of $10,000 heretofore referred to. Of this annuity and of the other common property of the nation east of the Mississippi Elver those who went west had no share or benefit. They lived a hunter’s life on the public domain, but not within any defined boundaries, very much as their ancestors lived in the east before the treaty of 1785. Having increased in numbers and importance, these Western Cherokees desired a cession of land for their exclusive use.

Under such circumstances the treaty of 1817 was entered into. (7 Stat. L., 156.) The parties to it were, first, the United.. States) second, the chiefs, headmen, and warriors of the Cherokee Nation east of the Mississippi Biver; third, the chiefs,, headmen, and warriors of the Cherokees on the Arkansas Biver. Its principal provisions were these: The whole CherokeeNation ceded to the United States certain parts of its lands lying east of the Mississippi. The United States ceded to that part of the Cherokee Nation on the Arkansas as much land on said river and on the White Biver as they received from the Cherokee Nation east, “ acre for acre, as the just proportion due that part of the nation on the Arkansas, agreeably to their numbers.” They agreed to pay for all improvements of real value on the lands ceded- to them by the nation. They further agreed to give a reservation of 640 acres of land to each and every head of any Indian family residing on the east side of the Mississippi Biver, on lands surrendered to the United States, who might wish to become citizens of the United States. They encouraged emigration by promising to give a gun and other articles to each poor warrior who would remove west.

It was further agreed that the annuity should be divided between the two parts of the nation, east and west, agreeably to their number, to be determined by a census taken as therein provided.

The treaties previously made between the United States and the Cherokee Nation were to continue in full force with both parts of the nation.

This was soon followed by the treaty of 1819 (7 Stat. L., 195), the Cherokees on both side of the Mississippi River, east and west, having come together and acknowledged themselves as one nation, by the terms and agreements of the treaty of 1817 entered into by them separately. This treaty of 1819 was made with the “chiefs and headmen of the Cherokee Nation of Indians” as one body-politic. By it the nation makes further cession of lands to the United States from the Indian territory east, “ in full satisfaction of all claims which the United States have on them on account of the cession to a part of their nation who have or may hereafter emigrate to the Arkansas.”

The United States agreed to pay ix»r all improvements on the ceded territory as in the former treaty, and to “ allow a reservation of 640 acres to each head of any Indian family residing within the ceded territory, those enrolled for the Arkansas excepted, who choose to become citizens of the United States in the manner stipulated in said treaty.” Thirty-one persons are also specifically named in article m, and in a list annexed to the treaty, who are to have each a reservation of 640 acres, to be laid out as therein described.

The exact number of those who took reservations under those two treaties does nob appear and is not material to the issues here involved. . But that there were many who did take them is apparent, as the right to do so continued until taken away by the treaty of 1835-’36, the thirteenth article of. which (7 Stat. L., 484) confirmed the title to those reservees whose lands had not been sold by the United States; and some of these titles have been in litigation and upheld by the courts. (Eu-che-la v. Welch, 3 Hawkes, 155, 174; Blair v. Pathkiller, 10 Tenn., 406; Jones v. Evans, 13 Tenn., 323; Ex. Doc. H. of R. No. 104, 1st sess. 20th Cong.)

By the sixth article of the treaty of 1819 it was agreed, apparently to avoid the taking of a census, that the annuity to the Cherokee Nation of $10,000 should be paid two-thirds to the Cherokees east of the Mississippi and one-third to the Cherokees west of that river, as it was estimated that those who had emigrated and who had enrolled for emigration constituted one-third of the whole nation. But this provision was not to take effect if objected to by the Cherokees west before the expiration of one year. No objection was made, and the annuity was thereafter paid in the manner provided by that article until it was funded under the provisions of the treaty of 1835~’36, since which time the net income has been paid to the nation as a body-politic.

Next came the treaty of 1828 (7 Stat. L., 311), which was made exclusively with the ‘'chiefs and headmen of the Cherokee Nation of Indians west of the Mississippi.” Thereby the United States “ agreed to possess the Cherokees, and to guarantee it to them forever, 7,000,000 acres of land,” described by bounds, situated further west, in what is now the Indian Territory. The United States further guaranteed 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 described limits, and as far west as the sovereignty of the United States and their right of soil extended, and further agreed to pay to the Cherokees certain sums of money and the expenses Of removal and the costs of improvements left behind.

The eighth article offered inducements to the Cherokees in the Bast to join their brethren in the West by the agreement on the part of the United States to pay the cost of their emigration, and give to each head of a family a gun and other articles, and to those from Georgia a sum of money in addition.

By the seventh article the Cherokee Nation re-ceded to the United States the land in Arkansas ceded to it by the treaties of 1817 and 1819.

The treaty of 1833 (7 Stat. L., 414) made with the chiefs and headmen of the Cherokee Nation west of the Mississippi did little but readjust the boundaries of their western lands.

It was evidently intended and expected, on the part of the United States government and the white people of North Carolina and Georgia, that all or nearly all of the Indians in those States should remove west. As early as April 24, 1802, the United States had entered into a written agreement with Georgia by which they were to extinguish the Indian title to all the lands within that State, in consideration of the cession of its western lands. (“The Public Domain,” p. 80.) North Carolina also, without having any written agreement to that effect, claimed that the United States were bound in like manner to extinguish the Indian titles to lands within its boundaries on account of a like cession of its western lands. (Doc. H. of R. 71, first session Twenty-third Congress.) But emigration went on slowly, and was little, if any, increased by those treaties.

The white people of Georgia and North Carolina became impatient and often excited at the continuance of the Indians among them, especially in the former State. Severe laws were passed to their detriment and for the purpose of driving them away, among others one in 1830 making it a penal offense for the Cherokees to call a council or legislative assembly in their territory, or to hold such council or assembly, &c. They were persecuted in one way and another until many of those in Georgia fled from their lands and took refuge elsewhere. The acts of oppression are too numerous to mention, but the annals. of history abound in the recital of them. In North Carolina they were not dealt with so harshly, but their removal from that State also was most earnestly desired by the people. (Ex. Doc. H. of R. No. 71, first session Twenty-third Congress.) The case of The Cherokee Nation v. The State of Georgia, 1 Peters, 1, more fully reported in a separate volume by Richard Peters in 1831, where the offensive laws and the complaints of ' the Indians are all set out, shows some of the troubles of the Indians;

On account of the agreement on the part of the United States to extinguish the Indian titles to lands in the States, and the feeling, desire, and earnestness of the white people to get rid of the Indians themselves from the boundaries of their State, it became the fixed, determined, and aggressive policy of the United States government to induce, and in case of necessity to compel, all the Cherokee Indians in the States of Georgia, North Carolina, Alabama, and Tennessee, except those who had become or were to become citizens of those States, to remove and join their brethren in the Indian territory west, and to break up the Indian nation as a body politic in the East. It was with that policy and under those circumstances that the treaty of 1835-’36, called the treaty of New Echota (7 Stat. L., 478), was entered into. To carry out that policy immense sums of money, millions of dollars not promised by treaties, have been appropriated by Congress and paid in the spirit of unbounded liberality, yielding to the demands of the Indians in almost every case, perhaps in every case without exception, and paying in one way and another to an extent more than twice as much as they agreed to pay by the terms of the treaties, as is shown by the numerous appropriation acts scattered through the Statutes at Large.

' The first step in that direction was an effort to negotiate with the Cherokee Nation for the purchase of its territory in the States and for the removal of all the Indians to the territory ceded to those in the West. In 1835 the question of purchase was before the Senate, and a resolution was adopted ■declaring $5,000,000 a fair price to be paid for the lands. Dissensions, however, arose among the Indians themselves in relation to the sale of lands and their own removal. One party, headed by John Boss, the principal chief, with whom were a very large majority of his people, who were willing to sell their common lands if a sufficiently large price could be obtained, with the privilege of remaining east on lands to be purchased by them, were earnestly opposed to removal west on any terms. The other party, composed of a comparatively small number of persons, were disposed to go west and were willing to sell the lands at the Senate’s price.

Delegations went to Washington. The terms of a treaty/ were proposed by officers of the United States after much discussion, but they failed to satisfy the Boss party, who became bitterly opposed to their adoption.

The propositions for a treaty thus prepared were taken to the Cherokee country, and, upon notice given by the United States commissioners, the people of the nation were convened at New Echota, in Georgia, December 21 or 22, 1835, to take them into consideration. A council was organized by the choice of a presiding officer and secretary. Most if not all of the Boss party abstained from attendance. The next day the council received the propositions of the commissioners, who ■explained them in both the English and Cherokee languages.

A committee of twenty Indians was appointed to examine and report upon the same. On the 28th of December, 1835, this committee reported some matters of difference and how they might be remedied. It was then resolved that the committee of twenty be authorized to conclude the treaty and to sign the same in behalf of the Cherokee Nation, and this they did the next day, December 29, 1835. (Doc. H. of R. 286, 1st session 24th Cong., p. 112.)

The treaty was laid before the Senate for ratification at once. Its ratification was actively opposed by Ross and his party. The friends of the measure among the Indians, as well as the administration, desired some changes, and March 1 supplementary articles were agreed upon and signed. The treaty and the supplementary articles were then ratified together by the Senate, and were proclaimed by the President May 23, 1836. (7 Stat. L., 478, 488.)

By this New Echota treaty, among other provisions, the Cherokee Nation ceded, relinquished, and conveyed to the United States all the lands owned, claimed, or possessed by them east of the Mississippi River, for the sum of $5,000,000, &e. (article 1), and the Cherokees agreed that they would remove to their new homes in the Indian territory ceded to the Cherokees west within two years from the ratification of the treaty (article 16), subject to the provision that those individuals and families of the Cherokee Nation that were averse to a removal to the Cherokee country west of the Mississippi, and were desirous to become citizens of the States where they resided, and such as were qualified to take care of themselves and their property, should be entitled to receive their due proportion of all the personal benefits accruing under the treaty for their claims, improvements, and per capita.

On the part of the United States, after reciting the cession of the 7,000,000 acres of western lands to the Western Cherokees by the treaties of 1828 and 1833, described by boundaries, it was agreed to “ guarantee to the Cherokee Nation a perpetual outlet west, and a free and unmolested use of all the country west of the western boundary of said 7,000,000 acres, as far west as the sovereignty of the United States soil extends”; and it being “apprehended by the Cherokees that in the above cession there is not contained a sufficient quantity of land for the accommodation of the whole nation on their removal west,” the United States agreed to convey to said Indians and their descendants, by patent, another adjoining tract of800,000 acres; and the whole was afterwards so conveyed to the nation as a body politic (article 3), by a patent duly issued.

The United States further agreed to pay $5,000,000 for the lands ceded to them, and after deducting out of that sum the amount expended for the improvements, former claims for spoliation, removal, subsistence, and other matters which were to be paid by the United States, they agreed that the balance should be divided equally between all the people belonging to the Cherokee Nation east and such Cherokees as had removed west since June, 1833 (article 15). Thus arose the per capita money about which there Was much controversy afterwards, as there was about the removal and subsistence money, $53.33 to each person, promised by article 8.

There is no controversy now about the per capita money nor about the removal and subsistence money, and their only importance in this case is in explanation of the terms of the subsequent treaty of 1846, which are involved in the present issues.

The eleventh article provided that “the Cherokee Nation of Indians, believing it will be for the interest of their people to have all their funds and annuities under their own direction and future disposition, hereby agree to commute their permanent annuity of $10,000 to the sum of $214,000, the same to be invested by the President of the United States as a part of the general fund of the nation.”

Of the two claims referred to this court and' set out in the petition, one is founded on this article of the treaty. The present claimant band seeks to recover such a share of chis commutation fund, and the interest thereon ever since it was invested by the United States, as will be in proportion to the number •of its members as compared with the citizens of the Cherokee Nation who live west on the common lands; all the income having been paid to the Cherokee Nation as a body politic, and none to the claimant.

The other claim is to the same proportional share of the money received from sales of portions of the common lands ceded to the nation by the United States, which money has been funded and held in trust according to the terms of agreements between the United States and the Cherokee Nation, and the income whereof and part of the principal have been paid to or for the benefit of the Cherokee Nation as a body politic, and none to the claimant.

While this treaty was before the Senate for ratification there appeared at Washington one William H. Thomas, from North Carolina. He was the agent and held a power of attorney to act for most of sixty heads of families, composed of about 333 persons, who claimed to be citizens of North Carolina, either as reservees under former treaties or otherwise, and who intended to remain such and did not wish to remove west. That such was their character is manifest from the public documents. (Ex. Doc. 120, 2d session 25th Cong., pp. 610, 612, 616; Ex. Doc. No. 408, 29th Cong., 1st session, p. 17.) He does not seem to have been given any consideration by the treaty-making power nor by the authorities at Washington. But three days after the treaty was promulgated he succeeded in having a written document signed by a portion of the Cherokee Indians east who signfcd the treaty, and two persons who claimed to represent the Cherokees west, and which he himself signed, purporting to settle some construction to be given to the treaty. That document he filed in the Indian Office, July 4, 1836. (Doc. 120, 2d session 25th Cong., p. 610.)

We do not regard that agreement as entitled to any weight in the present case, for several reasons. The signers of it were never authorized, either by the Cherokee Nation or by the Western Oherokees, to make any such negotiation or agreement. It was never acknowledged or ratified by either branch of the nation. Any defects in the authority to make the treaty itself, if there were such, have been cured by its ratification in subsequent treaties, but it is not so with this paper. The Attorney-General in 1845 advised that it was “ not admissible to establish a construction of the treaty inconsistent with its own provisions and unauthorized by its language.” (4 Opin., 441.)

The meaning of the paper is, in some respects, obscure, much more so than in that of the treaty which it purports to explain, and the contemporaneous construction given to it by Mr. Thomas himself wholly excludes the present claims. (Doc. 298, 1st session 29th Cong., and Doc. 408, 1st session 29th Cong.) By that construction it would seem that the persons represented by Thomas have received all that it purported to concede to them, and all that they ever claimed until after the organization of the present band, more than thirty years later, as far as we have been able to discover from any documents referred to. We shall have occasion to consider this matter more fully in connection with the treaty of 1846.

Immediately upon the ratification of this treaty steps were taken to execute its provisions. Commissioners were appointed to adjust the claims for improvements, &c., but emigration went on as slowly as before. Ross and his party were now as ' violently opposed to the execution of the treaty as they had been to its ratification. They denounced it as made without authority of the nation, and as void and of no binding effect upon them. So large a number' shared those feelings that at the end of the two years assigned for removal only about 2,500 out of 17,000 or 18,000 had gone west.

The authorities at Washington, in 1838, took the matter in hand, with the determination to enforce, by whatever means might be necessary, what had all along been known to be the paramount object of the treaty on the part of the United States— the removal west of the whole Cherokee Indians,’except such as were, or were to become, citizens of the States. In this they were supported by the white people of the States where the Indians resided. Lieutenant-General Scott was sent south with a few regular troops, to which were added volunteer companies from each of the States interested. He was instructed to-remove all Indians except those who were entitled to remain under the 12th article as citizens. (Scott Autobiography, vol. 1, page 317.) When he had assembled his troops among and around the Indians their formidable number indicated to the latter that further resistance was useless, aud that they must go west either peaceablyor by force. Ross yielded to the force of circumstances and the necessities of the case, but not until after some arrangement had been made with him by which a very large sum of money was to be paid to him, as it was afterwards paid, for his assistance and expenses in the removal.

The removal was begun in earnest. The Indians were gathered together at camping grounds preparatory to removal. The country was scoured for runaways and those who concealed themselves, and none were allowed to escape except those who were to become citizens under the 12th article. They were soon sent west under military guard' and put upon the Western Cherokee land.

So complete was the removal of the nation' and of all who intended to remain its subjects that those who went took with them their ancient organization, constitution, and laws, and set them up in their new home without a change of chief, headmen,, or rulers. This their council, at Aquokia Camp, oil the 1st of August, 1838, resolved upon, “ after,” as John Ross expressed it, “ the seizure and captivity of the whole Cherokee people east by tbe military power of tbe United States government.” This resolution was also reaffirmed immediately upon their arrival west.

Tbe whole number thus removed was between sixteen and seventeen thousand, leaving behind between eleven and twelve hundred to become citizens under the 12th article. These last were without an organization and without a collective name. They ceased to constitute the Cherokee Nation and they were not called the Eastern Cherokees. That name followed those who removed, and for a long time was applied to those who involuntary went west after the treaty of 1835, in order to distinguish them from the “ Old Settlers,” who had gone at earlier dates.

The fact that those who remained were Cherokee Indians by blood and race could not be blotted out, and they were so called, but their connection with the Cherokee Nation was completely severed.

They had no further voice in its councils nor in its affairs. They were not subject to its laws and they owed to it no allegiance. The Cherokee Nation, as a body politic, never afterwards recognized them as part of the nation in any form or manner whatever. The only privilege ever accorded to them by the' nation was that they might become citizens and subjects upon removal within its territorial boundaries, and they accord that to all those who are Cherokees by blood or race, wherever they may come from.

They had expatriated themselves from the Cherokee Nation, and had become denizens and subjects, if not citizens,- of the States where they resided. Thomas, their agent and attorney, wrote that by the constitution and laws of the State they had the right to vote, though they seldom exercised it, lest by identifying themselves with one political party they should give offense to the other. (Ex. Doc. No. 298, 1st session 29th Congress, p. 181.) Whatever organizations they subsequently effected must have been mere social organizations, with no power, as an independent nation of their own, to make laws or do other national acts. That follows from their relations to the State of North Carolina.

They were never afterwards recognized by the United States as any part of the Cherokee Nation, as a body politic.

As soon as the Eastern Cherokees reached their new home in the "West new dissensions and troubles arose. The new comers were double the number of the “ Old Settlers.” They set up their own ancient government, and endeavored to make the “ Old Settlers ” submit to their rule. Against this the “ Old Settlers ” rebelled by resisting the domination of the intruders, as they regarded them, as far as they were able to do. The “ Old Settlers ” hadan organization of their own, and while they had been willing to receive emigrants in small numbers from time to time, emigrants who came in and joined their existing organization, they thought it unjust to turn in upon them a body double their number, to occupy their common lands without remuneration, and to subvert their organization.

Those of the Eastern Cherokees who signed the treaty or who favored it were obnoxious to the other Eastern Cherokees who had opposed it. Their leaders were' murdered and they were persecuted. Naturally they sided with the “ Old Settlers ” against the Eastern Cherokees, but the latter were numerically too strong for both of their opponents. The situation of affairs became intolerable to the minority. Discord, disorder, murder, and persecution reduced the whole people to a deplorable condition.

Matters went on in this way until 1845, when each of the three parties sent delegates to Washington with the view of bringing their affairs to a settlement. The “Old Settlers” and the treaty party wanted to divide the territory and the people into two nations. There were other demands to be made on the United States by each of these three parties on account of the terms of the treaty of 1835-36, and the payments made, and to be made, thereunder.

Commissioners had been appointed by the United States to settle the claims for improvements and for other matters connected with the territory ceded to them on the east of the Mississippi River. A large amount of money had been paid out, and much of it had been misappropriated; On account of the construction given by them to the treaty, nearly all of the $5,000,000 purchase-money had been expended, and no per cap-ita money had been paid, and there was no means left for paying it.

These were the circumstances which led to the treaty of 1846. (9 Stat. L., 871.) The delegates of the respective parties were in Washington at the same time, and there presented to the Executive and the Senate their respective grievances, claims, and demands, in two lengthy written documents. These documents, with two from William H. Thomas, of North Carolina, afford much light upon the true meaning and construction of the treaty.

Thomas had been, as we have seen, the agent of some sixty heads of families to prosecute their claims under the treaty of 1835-’36, and had obtained a written paper from some of the delegates who signed that treaty, as to its construction. He now appears at Washington and presents a written “ argument in support of the claims of the North Carolina Cherokee Indians,” as their attorney. (Ex. Doc. H. of B., 1st session 29th Cong., No. 298, p. 171.) Therein he states exactly what their claims are, and it is significant that he not only does not set up either of the claims now in controversy, but he specifies that very commutation fund of $214,000 as having been “ transferred west for the use of the whole Cherokee people west of the Mississippi as a national fund,” and to that he made no objection, referring to it only as an argument why his other claims should be allowed. He claimed for his clients only the per capita money and the removal and subsistence money, under articles eight and twelve of the treaty.

Again, on the 16th of June, 1846, he sent to the Senate a memorial, accompanied by the written agreement signed by the delegates who made the treaty of 1835-’36, and other documents in support of the claims of the North Carolina Indians, with another long argument which he had submitted to the Commissioner of Indian Affairs in March previous. Here also no claim whatever is made either to any part of the permanent fund of $214,000, under the eleventh article of the treaty, or to any share of the common lands west. (Ex. Doc. Senate, 29th Cong., 1st session, No. 408.) In one of the letters to him from William Rogers, which he presents in support of the claims, the vested funds are specially excepted from the claim. (Page 6.) Thomas himself therein says of his clients: “ Regarding themselves as permanently settled under the protection of the laws of North Carolina, provision having been made for the removal of such individuals as might become dissatisfied with the country east and desire again to pursue the hunter life in the West, they did not expect or desire any more to be annoyed with enrolling agents; and in anticipation of remaining permanently as a community on the lands they had purchased, and only occupy the lands which might he assigned them west as they chose to go, they had felled the timber, cleared lands, &c.” From this it is clear that they did not consider that the treaty gave them any interest in the western lands except such as might be assigned to them as they chose to go there. (Ex. Doc. Senate,' 1st session 29th Cong., No. 29B, p. 298.)

Thus were presented to the treaty-making power, when negotiations for the treaty of 1846 were going on at Washington, the exact claims and all the claims made by the Cherokees east-. That treaty was made on the one side by the United States, and on the other side by delegates of those parties constituting the Cherokee Nation — first, “theregular constituted authorities of the Cherokee Nation”; second, the “treaty party”; and, third, “the Western Cherokees,or Old Settlers.” It will be seen that the North Carolina Cherokees were not made parties to this treaty, and it is evident that they were not regarded by the treaty-making power as forming any part of the Cherokee Nation.

The treaty secures the lands occupied by the Cherokee Nation to the “ whole Cherokee people, for their common use and benefit,” and requires a patent to be issued for the same. Such a patent had been issued to the Cherokee Nation, as a body-politic, December 31,1839.

It provided that all difficulties between the several parties of the Cherokee Nation should be and were settled and adjusted. A general amnesty was declared and all the contending parties were united in amity and friendship and in political rights. The money claims against the United States were adjusted, a division of the per capita money provided for, and each of the three parties of the Cherokee Nation were allowed their respective rights and claims as therein set out. These are not now in controversy.

The union of the whole Cherokee Nation, that is, the three divisions of the people mentioned in the treaty, had been consummated in 1839 by “An act of union between the Eastern and Western Cherokees,” and the constitution under which they have always since lived as one nation. The Cherokees in North Carolina have never rejoined the nation, but have con-tinned to live outside of its boundaries, its institutions, and its laws.

The tenth article of the treaty of 1846, which is much relied upon by the claimant in this case, is as follows: “ It is expressly agreed that nothing in the foregoing treaty contained shall be so construed as in any manner to take away or abridge any rights or claims which the Cherokees now residing in the States east of the Mississippi River had, or may have, under the treaty of 1835 and the supplement thereto.”

As the Cherokees here referred to were before the Executive and Senate, by their agent and attorney, with the written statement of their rights and claims, and as they did not then present the claims now in controversy, but did present claims for the per capita monéy, noneof which they had received, and for the removal and subsistence money, their right to which had been denied to them, in accordance with the opinion of the Attorney-General in 1845 (4 Opin., 435), it amounts almost to demonstration that this article of the treaty had no reference to the matter involved in the present claims, but was inserted to satisfy the Cherokees in North Carolina that the claims which they had presented should not be taken away or abridged.

Thus we have a contemporaneous construction by all parties concerned of the meaning of the treaty of 1835-’36, which excludes the present claims, and that construction is confirmed by the action of all parties after the treaty of 1846. TheUnit-ed States issued the patent for the western lands to the Cherokee Nation as a body-politic, and Congress passed acts by which was paid to every Cherokee Indian in the East his proportion of the per capita money, and they funded an amount of money equal to the removal and subsistence allowances for each of such Indians, paid the interest to them regularly, and the principal sum of $53.33 to each one who subsequently went west until after 1852 (act of 1848, July 29, secs. 4, 5, 9 Stat. L., 264), and the balance of principal is held in trust, as will be hereinafer explained.

These settlements with the Indians in North Carolina, so far as the documents show, appear to have entirely satisfied all the claims ever made by Thomas or any of the Eastern Indians until after the present organization of the Eastern Band, now claimant in this case, and long after all those who took part in the negotiation of the treaty of 1835-’36, or who were then immediately affected by it, must be presumed to have died.

Had any such claims as are now put forth existed when the treaty of 1846 was made, it cannot be supposed that they would have been omitted from that treaty. Had anybody claimed that the Indians in North Carolina were entitled to a division of the annuity fund created by the 11th article of the treaty of 1835, so important an element of contention, it must be presumed, would not have been passed over; but if the parties intended any such division, their rights would have been set up and settled then and there. Instead of that the income was permitted, without objection, so far as we can discover, to be paid to the Cherokee Nation, as a body-politic, during the lifetime of the parties concerned in the treaty at its inception.

The claimant relies much upon the language of the first article of the treaty of 1846, securing the lands west to the “ whole Cherokee people, for their common use and benefit,” as giving the North Carolina Cherokees and the claimant band an interest therein whenever any part should be sold. Even independently of the contemporaneous construction by all parties, which strengthens our views, we have no doubt that the “whole Cherokee people” there referred to were the three parties into which the Cherokee Nation was then divided by dissensions, and not by locality — -first, the “Eastern Cherokees,” meaning those who removed west after the treaty of 1835-’36, and who constituted the governing party, or, as their delegates signed themselves, the. “ government party ”; second, the “ treaty j>arty,” and, third, the “ Old Settlers,” all mentioned in that treaty.

If, however, the whole “ Cherokee people ” there mentioned included the North Carolina Cherokees, the very language repels the idea of any partition between them. To enjoy the benefit of the common lands they must go and enjoy the same with their brethren, according to the customs, laws, and usages of the nation. There is not a single word in either of the treaties that implies a partition of lands or a division of the funds of the Cherokee Nation. All is distinctly either declared or implied to be “in common.” In clear violation of the idea of common property, the present claimant is seeking a division of it.

Two other treaties have been made with the Cherokee Nation, in neither of which are the Cherokees remaining east provided for or noticed. The treaties of 1866 (14 Stat. L., 799) and 1868 (16 Stat. L., 727) relate principally to the internal government of the nation, authorize the settlement of friendly Indians on their lands by paying for such right and obtaining the consent of the Cherokee council, cede certain lands to the United States in trust for sale, and provide for the investment and disposition of the funds arising from the sales, all for the benefit of the Cherokee Nation as a body politic. It is out of sales under these treaties that the land fund now in controversy arises.

We will now return to the Cherokee Indians in North Carolina. Up to 1856, as we have shown, they individually, not as a tribe or band or other organization, had received the interest on $53.33 each, funded for their removal and subsistence west when any of them should go there. The act of 1855 contemplated paying out the whole principal, but that object was never consummated. The act of 1868 (15 Stat. L., 228) provides for taking a new roll or census of North Carolina Indians, upon which payments should be made. It also provided that the Commissioner of Indian Affairs should take the same charge of the North Carolina Indians as of other tribes of Indians.

This money finally, in 1875 and 1876, passed into the trust fund held by the United States for the benefit of the Eastern Band. (Act of March 3,1875,18 Stat., 447 ; act of August 15,1876,19 Stat., 197.)

This Eastern Band was organized at the suggestion of an officer from the Indian Office, after 1868, for the purpose of enabling the Indians in North Carolina and vicinity to transact business with the government. It is not a nation of itself, and has no connection with the Cherokee Nation, and has never been recognized by the United States or by that nation in any treaty as so connected. It has no power to make laws, its members being all subject to the laws of the States where they live. At most it can be but a social organization, a little more developed than anything of the kind which had existed there before since the nation went west in 1838, fostered and encouraged by the United States in some matters, but not recognized as a nation in whole or in part. This is manifest from the articles of its constitution, set out in the findings, and from the statute provisions in relation to investments held in trust by the United States for their benefit and otherwise. (18 Stat. L., 447; 19 Stat. L., 197, 291.)

It is not the successor of any organization known to the laws or treaties of the United States, and as a band it has none of the individual rights or claims of those to whom money was promised under the treaty of 1835-’36, nor to any grants of Congress, except' such as have been gratuitously given to it. The individual claimants under the treaty of 1835-’36 have probably all died, and if any of their claims were not settled before their deaths, such claims do not pass to the Eastern Band, but belong to their legal representatives. Whether that be so or not is immaterial, as the claimant band is now seeking to recover not individual property, but a divided share of the common property of the nation.

No treaty was ever made with this band nor with the people composing its membership. All the connection the band has with the United States is such as has been created by the laws of Congress, which may be altered by the same power that enacted them; and Congress can make no laws in relation to the band which are in conflict with the laws and constitution of the State of North Carolina, to which these Indians are subject. \

The status of the Cherokee Nation, one of the defendants, is entirely different. It has its territorial possession and boundaries, its constitution (very much like the Constitution of the United States), its laws, its executive, legislative, and judicial departments, with none of which can any State or the United States interfere.

Its relations to the United States are fixed by contracts, set out in treaties and laws, to which, as a-nation, it has given its assent. The United States, by the terms of those contracts, have become trustee of its funds, which they have agreed to administer according to the provisions of those contracts. As late as January, 1885, in a communication to the Senate, the Secretary of the Interior stated, what has always been understood, that “ the department has not considered it the duty of the Commissioner of Indian Affairs or the Secretary of the Interior to interfere with the affairs of the Cherokee Nation, except in the case especially provided for by treaty with that nation.” (Éx. Doc. No. 17, 48th Cong., p. 6.)

The Revised Statutes, section 2097, enact, what would be the law without the enactment, that “ no funds belonging to any Indian tribe with which treaty relations exist shall be applied in any manner not authorized by such treaty or by express provisions of law.” And in several instances where the funds of this nation, or the money appropriated therefor, have been misapplied by the officers of the United States, through wrong ■construction of treaty provisions or otherwise, Congress has made appropriation for the restoration of the same out of the public Treasury.

The Cherokee Nation has a right to stand upon the contracts of its treaties in relation to the funds now in question, and no acts of Congress and no proceedings of the jjolitical departments of the government in connection therewith can take away its vested rights guaranteed by such treaties.

On the part of the claimant, the Eastern Band, it is alleged that its members being descendants of the ancient Cherokees, they are a part of the Cherokee Nation, and thus entitled to share in its common property, and upon this assumption its claims are principally founded.

If that were so their ease would be in no better condition, but rather worse. If they are part of the Cherokee Nation they are subject to its constitution and laws, and must take and enjoy the rights and benefits of the nation, its property, and its privileges, precisely as other citizens or members enjoy them, and not otherwise.

As early as May 6, 1817, when the national organization existed where now mostly reside the members of the claimant band, whose ancestors were acknowledged as part of the nation, it was resolved by its council that u the authority and claim of our common property shall cease with the person or persons who shall think proper to remove themselves without the limits of the Cherokee Nation.” (Laws of Cherokee Nation, edition of 1852, p. 5.) This was understood to be common law of all Indian tribes and nations, and only reaffirmed by this enactment. While a large number of the nation, as it then existed, were living on Arkansas public lands, they received no share of the annuities and common funds of the nation until the nation consented, b,y the treaty of 1817, to a division with them, and even then they did not receive any of the past annunities which since their removal had been paid wholly to those of the nation who remained, in accordance with their ancient rules and traditions.

In 1825 it was resolved by the national council that “the lands within the sovereign limits of the Cherokee Nation, as defined by treaties, are, and shall be, the common property of the nation.” (Laws, &c., p. 45.)

By the constitution of 1827, made at New Echota, where was signed the treaty of 1835, it was declared that “the sovereignty and jurisdiction of this government shall extend over the country within the boundaries above described, and the lands therein are, and shall remain, the common property of the nation: * * * Provided, * * * That whenever any of such citizen or citizens shall remove, with their effects, out of the limits of this nation, and become citizens of any other government, all their rights and privileges as citizens of this nation shall cease.” (Laws, &c., p. 119.) Again, in the “ act of union between the Eastern and Western Oherokees,” signed by the president of the Eastern Oherokees, the president of the Western Oherokees, and by delegates and officers of each division, July 12,1839, it was declared that “all rights and title to public Cherokee lands on the east or west of the river Mississippi, with all other public interests which may have vested in either branch of the Cherokee family, whether inherited from our fathers or derived from any other source, shall henceforth vest entire and unimpaired in the Gherolcee Nation, as constituted by this union.” (Same volume of laws, &c., A. D. 1852, part 2, p. 1.)

The constitution which followed the above declaration of union provides, in article 1, section 2: “The lands of the Cherokee Nation shall remain common property. Whenever any citizen shall remove, with his effects, out of the limits of this nation, and become a citizen of any other government, all Ms rights a/nd privileges as a citizen of this nation shall cease: Provided, nevertheless, That the national council shall have power to readmit, by law, to all the rights of citizenship, any person or persons who may, at anytime, desire to return to the nation, on memorializing the national council for such readmission.” ■ (Same vol., part 2, pp. 5, 6.)

The demands of the present Eastern Band of Oherokees and its members are in conflict with these express provisions of the constitution and laws of the Cherokee Nation, to which they are claiming to belong. They are demanding a division of trust funds which the United States hold as the common property, and that, too, while they are living without the limits of the nation and are to all intents and purposes citizens of another government, in utter disregard of the traditions, constitution, and laws of the Cherokee people.

Throughout this opionin we have treated the proceeds of the sale of the common lands as the common property of the nation, precisely as were the lands before such sale. Those proceeds have been invested, and the income of the investments is paid out, in accordance with the terms of the treaty of 1866 (14 Stat. L., 805), for the benefit of the Cherokee Nation as a body politic.

If the Indians east of the Mississippi Elver wish to enjoy the common benefits of the common property of the nation, in whatever form it may be, whether in permanentjEund or in the proceeds of the sale of common lands, they must comply with its constitution and laws and become readmitted to citizenship as therein provided. They cannot have a divided share of the common property of the nation, and thus gain rights and privileges not accorded to any other Cherokee Indians — the living out of national territory, avoiding subjecting themselves to the laws of the nation, dividing its common fund and common property, and managing their affairs wholly independent of national authority. Such an admission of right might break the nation into innumerable bands and scatter into fractions funds which, by treaties with the United States and by the constitutions and laws of the Indians themselves, have been dedicated as common funds to the common and not divided benefit of the nation.

In our opinion the Eastern Band of Cherokee Indians, claimants in this case, have no rights in law or in equity in and to the moneys, stocks, and bonds held by the United States in trust for the Cherokees, arising out of the sales of lands lying west of the Mississippi Eiver, nor in and to a certain other fund, commonly called the permanent annuity fund, mentioned in the act of March 3, 1883 (22 Stat. L., 585), referring the case to this court; and a decree will be entered to that effect.  