
    IN THE MATTER OF ENROLLMENT OF PERSONS CLAIMING RIGHTS IN THE CHEROKEE NATION.
    [Departmental,
    76.
    Decided May 15, 1905.]
    
      On the Proofs.
    
    The subject-matter of this suit consists of 4,420,070 acres of land in the Cherokee country about to be allotted in severalty among the Cherokee people. The principal question involved is as to the right of white persons intermarried with Cherokee citizens to share in the allotment either as Cherokee citizens or as communal owners.
    I. Under the decision of the Supreme Court in the Cherokee nation v. Journey cake (155 ü. S. R., 196, 208) the lands now to be allotted among Cherokees are not communal property, but constitute the public domain of the nation.
    II. In this public domain all Cherokees by blood and those whites by intermarriage who became citizens prior-to the 1st November, 1875, are equally interested and have equal per capita rights in the allotment of those lands.
    
      III. The rights ancl privileges of those intermarried white citizens • whose marriages with persons of Cherokee blood were subsequent to the 1st November, 1875, do not extend to a right of soil or interest in the vested funds of the nation, and they are not entitled to share in the allotment of the public domain unless they paid into the National Treasury $500 each.
    IV. Those white citizens who, subsequent to marriage with persons of Cherokee blood, have married persons not of Cherokee blood, and those white men who, being husbands of women of Cherokee blood, have abandoned their wives, are not citizens of the Cherokee Nation, and are not entitled to participate in the allotment.
    V.Office found is a proceeding preliminary to the eviction of an alien in possession who wotílcl be entitled to hold if he were not an alien. It is nothing more than a form of action. In the cases of the intermarried whites, the loss of citizenship is a matter of defence, and need not be established by office found.
    
      The Reporters’ statement of the case :
    The following are the facts of the case as agreed upon by the parties ancl accepted and found by the court:
    First. The subject-matter of and the questions involved in this cause are as set forth in the letter of the Secretary of the Interior, dated February 24, 1903, to be found on pages 60 and 61 of the printed record.
    Second. The parties to this cause are as follows:
    
      Males marrying Cherokees prior to 1875.— (a) Solon James, and other male white persons in the Cherokee Nation, who shall possess the residence qualifications, and whose names shall appear upon one or more of the census or other rolls of the Cherokee'Nation, and who claim the right to be enrolled as citizens of the Cherokee Nation, entitled to share equally with full-blood Cherokees in the distribution of the property of the tribe by virtue of marriages entered into subsequent to November 26, 1866, under and in accordance with the-'law of the Cherokee Nation of October 15, 1855 (regulating the intermarriages of white men), with Cherokee citizens b}r blood (ancl who prior to September 1, 1902, made application, as intermarried white claimants, ü> the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1,1902.)
    
      
      Males marrying Delawares prior to 1875. — (Z>) John Doe and other male white persons in the Cherokee Nation who, prior to September 1, 1902, made application, as intermarried white claimants, to the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1, 1902, who shall possess the residence qualifications and ivhose names shall appear upon one or more of the census or other rolls of the Cherokee Nation, and who claim the right to be enrolled as citizens of the Cherokee Nation, entitled to share equally with full: blood Cherokees in the distribution of the property of the tribe by virtue of marriages under the law of the Cherokee Nation of October 15,1855, subsequent to April 8, 1867, with those Delaware Indians who, by virtue of the treaty of July 1, 1866, and the contract thereunder of April 8, 1867, acquired the rights of native Cherokees in said nation.
    
      Males marrying Shawnees prior to 1875.— (e) Eichard Eoe and other male white persons in the Cherokee Nation-who, prior to September 1, 1902, made application as intermarried white claimants to the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1, 1902, who shall possess the residence qualifications and whose names shall appear upon one or more of the census or other rolls of the Cherokee Nation, and who claim the right to be enrolled as citizens of the Cherokee Nation, entitled to share equally with full-blood Cherokees in the distribution of the property of the tribe by virtue of marriages subsequent to June 9, 1869, under the law of the Cherokee Nation of October 15, 1855, with those Shawnee Indians who, by virtue of the treaty of July 1, 1866, and the contract thereunder of June 9, 1869, acquired the rights' of native Cherokees in said nation.
    
      Males marrying Gherohees. 1875-1877.— (cl) Thomas Little and other male white and foreign persons in the Cherokee Nation who, prior to September 1, 1902, made application as intermarried white claimants to the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1, 1902, who shall possess the residence qualifications, and whose names shall appear upon one or more of the census or other rolls of the Cherokee Nation, and who claim the right to be enrolled as citizens of the Cherokee Nation, entitled to share equally with full-blood Cherokees in the distribution of the property of the tribe, by virtue of marriages with Cherokee citizens by blood entered into under and in accordance with the law of the Cherokee Nation regulating the intermarriage of white men and foreigners subsequent to January 1, 1875, and prior to November 28, 1877, none of whom paid or offered to pay into the general fund of the national treasury of the Cherokee Nation the sum of $500 or any other sum estimated as equivalent to the pro rata of each native Cherokee in the lands and vested wealth of the Cherokee Nation.
    
      Males marrying Delawares, 1875-1877. — (e) Jacob Bartles and other male white and foreign persons in the Cherokee Nation who, prior to September 1, 1902, made application as intermarried white claimants to the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1, 1902, who shall possess the residence qualifications and whose names shall appear upon one or more of the census or other rolls of the Cherokee Nation, and who claim the right to be enrolled as citizens of the Cherokee Nation, entitled to share equally with full-blood Cherokees in the distribution of the property of the tribe, by virtue of marriages entered into under and in acordance with the law of the Cherokee Nation subsequent to January 1, 1875, and prior to November 28, 1877, with those Delaware Indians who, by virtue of the treaty of July 1, 1866, and the contract thereunder of April 8, 1867, acquired the rights of native Cherokees in said nation, none of said intermarried white persons, however, paying or offering to pay into the general fund of the national treasury of the Cherokee Nation the sum of $500 or any other sum estimated as equivalent to the pro rata share of each native Cherokee in the lands and vested wealth of the Cherokee Nation.
    
      Males marrying Shawnees, 1875 to 1877. — •(/) Thomas Jones and other male white and foreign persons in the Cherokee Nation who, prior to September 1, 1902, made application, as intermarried white claimants, to the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1, 1902, who shall possess the residence qualifications and whose names shall appear upon one or more of the census rolls of the Cherokee Nation, and who claim the right to be enrolled as citizens of the Cherokee Nation entitled to share equally with the full-blood Cherokees in the distribution of the property of the tribe, by virtue of marriages entered into under and in accordance with the law of the Cherokee Nation subsequent to January 1, 1875, and prior to November 28, 1877, with those Shawnee Indians who, by virtue of the treaty of July 1, 1866, and the contract thereunder o.f June 9, 1869, acquired the rights of native Cherokees in said nation; none of said intermaried white persons, however, paid or offered to pay into the general fund of the national treasury of the Cherokee Nation the sum of $500 or any other sum estimated as equivalent to' the pro rata share of each native Cherokee in the lands and vested wealth of the Cherokee Nation.
    
      Males marrying Cherokees, 1877 to 1880. — (g) James H. Cohee and other male white and foreign persons in the Cherokee Nation who, prior to September 1, 1902, made application as intermarried white claimants to the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1, 1902, who shall possess the residence qualifications and whose names shall appear upon one or more of the census or other rolls of the Cherokee Nation, and who claim the right to be enrolled as citizens of the Cherokee Nation entitled to share equally with full-blood Cherokees in the distribution of the property of the tribe, by virtue of marriages with Cherokee citizens by blood, entered into under and in accordance with the law of the Cherokee Nation regulating intermarriage of white men and foreigners, subsequent to November 28, 1877, and prior to December 11,1880.
    
      Males marrying Delawares, 1877 to 1880. — (h) William Warren and other male white and .foreign persons in the Cherokee Nation, who, prior to September 1, 1902, made application, as intermarried white claimants, to the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1, 1902', who shall possess the residence qualifications and whose names shall appear upon one or more of the census or other rolls of the Cherokee Nation, and who shall claim the right to be enrolled as citizens of the Cherokee Nation entitled to share equally with full-blood Cherokees in the distribution of the property of the tribe by virtue of marriages entered into under and in accordance with the law of the Cherokee Nation regulating intermarriage of white men and foreigners, subsequent to November 28,1877, and prior to December 11, 1880, with Delaware Indians, who, by virtue of the treaty of July 1, 1866, and the contract thereunder of April 8, 1867, acquired the rights of native Cherokees in said nation.
    
      Males marrying Shawnees, 1877 to 1880.— (i) Richard Smith and other male white and foreign persons in the Cherokee Nation who, prior to September 1, 1902, made application, as intermarried white claimants, to the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1, 1902, who shall possess the residence qualifications and whose names shall appear upon one or more of the census or other rolls of the Cherokee Nation, and who claim the right to be enrolled as citizens of the Cherokee Nation entitled to share equally with full-blood Cherokees in the distribution of the property of the tribe, by virtue of marriages entered into under and in accordance with the laws of the Cherokee Nation regulating intermarriage of white men and foreigners, subsequent to November 28, 1877, and prior to December 11, 1880, with Shawnee Indians, who by virtue of the treaty of July 1,1866, and the contract thereunder of June 9,1869, acquired the rights of native Cherokees in said nation.
    
      Males on the 1880 roll. — (j) William Jackson and other male white and foreign persons among those included within one of the foregoing classes and whose names shall appear upon the authenticated .census roll of the Cherokee Nation for the year 1880.
    
      Females on the 1880 roll.— (7c) Amanda Jones and other female • white and foreign pers(ms among those included within one of the foregoing classes and whose names shall appear upon the authenticated census roll of the Cherokee Nation for the year 1880.
    
      Males^ marrying Gherohées, 1880 to 1895.— (Z) George W. Seigel and other male white and foreign persons who, prior to September 1, 1902, made application, as intermarried white claimants, to the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1, 1902, who shall possess the residence qualifications and whose names shall appear upon one or more of the census or other rolls of the Cherokee Nation, and who claim the right to be enrolled as citizens of the Cherokee Nation entitled to share equally with full-blood Cherokees in the distribution of the property of the tribe by virtue of marriages entered into under and in accordance with the law of the Cherokee Nation regulating the intermarriage of white men and foreigners (as amended on December 11, 1880), from said date to December 16, 1895, with Cherokee citizens by blood.
    
      Males marrying Delawares, 1880 to 1895. — (m) William Johnstone and other male Avhite and foreign persons who, prior to September 1, 1902, made application, as intermarried white claimants, to the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1, 1902, who shall possess tin. residence qualifications and whose names shall appear upon one or more of the census or other rolls of the Cherokee Nation, and who claim the right to be enrolled as citizens of the Cherokee Nation, entitled to share equally with full-bloods in the distribution of the property of the tribe, by virtue of marriages entered into subsequent to December 11, 1880, and prior to December 16, 1895, under and in accordance with the law of the Cherokee Nation regulating the intermarriage of white men and foreigners, as amended on December 11, 1880, with Delaware Indians, wlio by virtue of the treaty of July 1, 1866, and the contract thereunder of April 8,1861, acquired the rights of native Cherokees in said nation.
    
      Males married to Cherokees, hut are on no roll. — (n) Samuel G. Mills, and other male or female white and foreign persons, if there be airy, who, prior to September 1, 1902, made application, as intermarried claimants, to the Commission to the Five Civilized Tribes, for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1, 1902, who shall possess the residence qualifications, and who claim that they have been recognized by the tribal authorities of the Cherokee Nation as citizens thereof, but whose names are not found on any of the census or other rolls of the Cherokee Nation, nor have they in any wise been admitted to the privileges of citizenship therein by the national council or other authority, and who claim the right to be enrolled as citizens of the Cherokee Nation entitled to share equally with full-blood Cherokees in the distribution of the property of the tribe by virtue of marriages with Cherokee citizens bjr blood, entered into under and in accordance with the law of the Cherokee Nation regulating intermarriage of white men and foreigners subsequent to December 11, 1880, and prior to December 16, 1895.
    
      Whites admitted by act of council.— (o) Seoonse, husband of Eliza Woodall, A. G. Greenway, and other male and female white and foreign persons in the Cherokee Nation who, prior to September 1, 1902, made application to the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28, 1898, May 31, 1900, and July 1, 1902, who shall possess the residence qualifications and who claim the right to be enrolled as citizens of the Cherokee Nation entitled to share equally with full-blood Cherokees in' the distribution of the property of the tribe, by virtue of a marriage with a Cherokee citizen by blood, not contracted and. solemnized under any law of the Cherokee Nation, but under the law of some other jurisdiction, as to whom the national council of the Cherokee Nation has passed special acts, providing that they were “ ad-mittecl ” or “ readmitted ” to citizenship the same as other adopted citizens of the nation, rights, benefits, etc., such as the law gives adopted citizens, provided they comply with the law regulating intermarriage with white men.
    
      (¶>) Talitha J. Adair and other female white persons in the Cherokee Nation who shall possess the residence qualifications and whose names appear upon one or more of the census or other rolls of the Cherokee Nation and who claim the rights to be enrolled as citizens entitled to share equally with full-blood Cherokees in the distribution of the property of the tribe by virtue of a marriage with a Cherokee male citizen by blood or with a Delaware-Cherokee male citizen by blood or with a Shawnee-Cherokee male citizen by blood, entered into subsequent to November 26, 1866, and prior to December 16, 1895, under and in accordance with the laws and customs of the Cherokee Nation, as shown by the evidence in this' case, in force and applicable to such marriages at the time such marriages were entered into, and who, prior to September 1, 1902, made application as intermarried white claimants to the Commission to the Five Civilized Tribes for enrollment under the acts of Congress of June 28,1898, May 31,1900, and July. 1,1902.
    
      2/arried out and abandonment. — In the event this court should conclude that any of the foregoing white or foreign-persons have a right to be. enrolled as citizens of the Cherokee Nation entitled to share equally with full-blood Cherokees in the distribution of the property of the tribe, then two other questions arise affecting a limited number of claimants:
    
      (q) Robert Kraus and - those other, white and foreign claimants who may come within the class that may be determined by the court entitled to enrollment and whose Cherokee husbands or wives have died, and of whom it is alleged they were afterwards remarried to persons not’citi- ■ zens of the Cherokee Nation by blood, in violation of the law of the Cherokee Nation under which the privileges of citizenship were extended to them. No proceeding was ever instituted or had against any of these claimants in nor was there any adjudication had concerning these claimants by the circuit court of the Cherokee Nation, nor any other court; but the Commission to the Five Civilized Tribes and the Secretary of the Interior refused to enroll these claimants, independent of the question as to whether they might otherwise be entitled to enrollment, basing such refusal upon their interpretatioin of the laws of the Cherokee Nation and testimony of witnesses before said Commission as to the alleged facts of such death and remarriage.
    
      (r) James H. Akin and those other white and foreign claimants who may come within the class that may be determined by the court entitled to enrollment, but who it is alleged have abandoned their Cherokee wives or husbands, in violation of the law of the Cherokee Nation, under which the privileges of citizenship were extended to them. No proceeding was ever instituted or had against any of these claimants, nor was there ever any adjudication had concern-' ing these claimants by the circuit court of the Cherokee Nation, or any other court; but the Commission to the Five Civilized Tribes and the Secretary of the Interior refused to enroll these claimants independent of the questions as to whether they might otherwise be entitled to enrollment, basing their refusal upon their interpretation of the laws of the Cherokee Nation and testimony of witnesses before said Commission as to the facts of such abandonment.
    That the matter contained in the above stipulation may be considered by this honorable court and the Supreme Court of the United States on appeal, as if fully proved, and that the persons mentioned as parties may be deemed to be properly before this honorable court, which it is hereby agreed has jurisdiction to pass on the merits of the case of each and every of said claimants.
    That in the event that this court or the Supreme Court of the United States on appeal is of opinion that any or all of the claimants are entitled to participate in the distribution of the lands and funds of the Cherokee Nation, that the Secretary of the Interior may be authorized to make up a roll of such claimants in accordance with the decree of this honorable court or of the said Supreme Court of the United States on appeal.
    
      Third. That the Cherokee national council, with the approval of the principal chief, on the 15th of October, 1855, passed the following act: ' •
    “AN ACT Regulating intermarriages with white men.
    “ Whereas the peace and prosperity of the Cherokee people require that in the enforcement of the laws jurisdiction should be exercised over all persons whatever, who may from, time to time be privileged to reside within the territorial limits of this nation: Therefore,
    
      “Be it enacted by the national council, That any ‘ unmarried J white man desiring to marry a Cherokee woman shall be, and is hereby, required to obtain a license for the same from any of the clerks of the district courts of the several districts.
    
      “Be it further enacted, That before any license as provided above shall be issued, the person applying shall be, and is hereby, required to pay to the clerk to whom application is made the sum of five dollars, and also required to take the following oath:
    
      “ ‘ I do solemnly swear that I will honor, defend, and submit to the constitution and laws of the Cherokee Nation, and will neither claim nor seek from the United States Government or its judicial tribunals any protection, privileges, or redress, incompatible with the'same as guaranteed to the Cherokee Nation by the United States in treaty stipulations entered into between them.’
    
      “Be it further enacted, That all white men applying for license, as provided in the first section of this act, shall, before obtaining the same, be required, to present to the said clerk a certificate of good moral character, signed by at least seven respectable Cherokee citizens.
    
      "■Be it further enacted, That all judges of this nation, and every regular minister of all evangelical denominations having the care of souls, are hereby authorized and empowered to solemnize the rights of matrimony, according to the ceremonies usually observed and performed in such cases, under the provisions of this act.
    
      “Be it further enacted, That no marriage between a citizen of the United States and a female citizen of this nation, entered into within the limits of this nation, except as here-inbefore authorized and provided, shall be legal; and any judge or minister who shall engage or assist in solemnizing any such marriage shall, upon conviction before any district court of this nation, be fined one hundred dollars, and it shall be the duty of the solicitor of the district in which such judge or minister may reside to collect the same, who shall be entitled for his services to twenty per cent of the amount collected, and who shall place the remainder in the hands of the national treasurer for public benefit.
    
      “Be it further enacted, That persons performing the mar.riage ceremony under the authority of a license, provided for above, shall be required to attach a certificate of marriage ■to the back of the license, which shall be returned. The holder of the license and certificate shall then place the same in the hands of the clerk of the district court, whose duty it shall be to record the same in his office.
    
      11 Be it further enacted, That any white citizen of the Cherokee Nation, by marriage, etc., who shall use the intercourse law or laws (as they are termed), in the prosecution of a Cherokee Indian, for any criminal offense committed within the limits of the Cherokee Nation, shall forfeit his right of citizenship to the same, and be subject to be dealt with as other white intruders in the country, and shall be removed out of this nation.
    
      “Be it further enacted, That should any white man or woman become a citizen of the Cherokee Nation by marriage and be left a widow or widower by the decease of the Cherokee wife or husband, such surviving widower or widow shall continue to enjoy Cherokee privileges, unless such white widower or widow shall marry a white man or woman (as the case may be) ; then, in that case, all of his or her right to Cherokee citizenship shall cease.
    
      “Be it further enacted, That any white man who shall lawfully marry under the provisions of this act, and then or afterwards abandon his wife, shall not be entitled to any of the rights and privileges of a citizen of the Cherokee Nation, but shall be, and is hereby, considered, and shall be removed, as an intruder.”
    Fourth. That the act of the national council approved December 11, 1880, is the only act passed by the national council and approved by the principal chief in the year 1880 upon the subject of intermarriage of white persons and foreigners in the Cherokee Nation, and that said act is the only act passed bjr the national council on December 10, 1880, upon that subject, and that the quotation on page 1 of the answer in this cause is taken from the compilation of the laws of the Cherokee Nation made in 1892.
    Fifth. In chapter 12, article 15, section 75, relating to “ Intermarriage of white men and foreigners,” of the new code of Cherokee laws which became effective November 1, 1875, the following proviso was enacted by the national council, to wit:
    “ That the rights and privileges herein conferred shall not extend to right of soil or interest in the vested funds of this nation, unless such adopted citizen shall pay into the general fund of the national treasury a sum of money to be ascertained and fixed by the national council, equal to the ‘ pro-rata ’ share of each native Cherokee in the lands and vested wealth of the nation, estimated at five hundred dollars, and thereafter conform to the constitution of the nation and to the law's made or to be made in pursuance thereof, in which case he shall be deemed a Cherokee to all intent and be entitled to all the rights of other Cherokees.”
    Sixth. That by the act of the Cherokee council approved November 28, 1877, chapter 12, article 15, section 75, above referred to, vras amended by striking out all of said section after the words “ this nation,” where said words occur in the third line in such proviso of said section. By such amendment that portion of said section permitting intermarried persons to acquire a share in the lands and vested wealth of the Cherokee Nation by the payment of the sum of $500 was repealed, and said proviso, as amended, reads as follows:
    
      “Provided also, That the rights and privileges herein conferred shall not extend to right of soil or inerest in the vested funds of this nation.”
    Seventh. November 27,1880, the following act was passed:
    “ Whereas quite a number of our citizens have intermarried with Indians, members of other tribes in this Territory, and it has always been the custom of our people to recognize such marriages as legal until the taking of the last census, when their rights as citizens were called in question: Therefore,
    
      “Be it enacted by the national council, That an Indian, a member of any of the tribes of this Territory, who has married or shall hereafter marry a Cherokee citizen of this nation, at the time of such marrige, in accordance with the law regulating marriage between our own citizens, shall be, and is "hereby, deemed a Cherokee citizen to all intents and purposes, and entitled to all the rights of other Cherokees.”
    
      Eighth. December 11, 1880, the following act was passed:
    “ ‘ Ten respectable citizens of the Cherokee Nation, who are Cherokees, Delawares, or Shawnees by blood, be.authorized to sign a certificate of moral character of any white man or foreigner desiring a license to marry a Cherokee, Delaware, or Shawnee woman.
    “ ‘Be it further- enacted, That all citizens of the United States and foreigners obtaining a license to marry a Cherokee,. Delaware, or Shawnee woman under the provisions of section 09, article 15, New Code, be required to pay the district clerk the additional sum of $5, to be turned over to the national treasurer for the benefit of the Cherokee Nation on the first Monday in November of each year, beginning with
    “ Tahlequali, Cherokee Nation, December 10, 1880.
    “ Osi Haire, Speaker of Gouneil.
    
    
      “ D. R. TIicks, Clerk of Council.
    
    
      “ Concurred in by Senate, with the following amendments:
    “ ‘Be it further enacted, That all United States citizens or foreigners desirous of marrying a Cherokee, Delaware, or Shawnee woman, citizen of this nation, shall, on application for marriage licenses, present to the clerk of the district in which he is desirous of marrying a certificate of good moral character, signed by the county clerk and sealed with the seal of the county of which he is a legal voter.’
    “ December, 1880.
    “ S. PI. Benge,
    “ President of Senate.
    
    
      “ J. L. Seringster,
    “ Clerk of Senate.
    
    “ Amendment concurred in by council December 11,1880.
    “ Osi PIaire, Speaker of Council.
    
    
      “ D. R. IPicks, Clerk of Council.
    
    
      “ Approved, December 11, 1880.
    “ D. W. Busiiyi-iead,
    
      “Principal Chief of Cherokee Nation.”
    
    Ninth. December 9,1880, the following act was passed:
    AN ACT Authorizing tlie census returns of 1880, and providing for a copy thereof. v
    “ SectioN 1. Be it enacted by the national council, That the register or schedule of citizens of the Cherokee Nation submitted to the principal chief by the census takers of the year 1880, under requirement of the act providing for taking the census of the Cherokee Nation, as the said register or schedule has been examined, revised, and amended by the committees of the present national council, duly appointed for the purpose and by them submitted to and accepted by the council, is hereby approved as a true and correct list of persons acknowledged and recognized to be citizens of the Cherokee Nation at and within the time the said census was authorized to be taken.
    “ Sec 2. Be it further enacted, That there shall be made in fair and legible handwriting and under the supervision of the principal chief, as a neat and complete alphabetical transcript or copy of all names of citizens and noncitizens to be found in the-census returns revised and amended as before mentioned, with such descriptive matters and things as are attached to each name. The work of making such copy shall be clone by two clerks of the executive department, duly appointed and instructed by the principal chief to perform the same; and who shall receive as compensation therefor, when the said work shall have been finished, approved, and filed as provided by this act, the sum of ($250.00) two hundred and fifty dollars each, for which amounts the principal chief is authorized to draw “ preferred ” warrants .upon the general fund.
    
      “ The said transcript or copy shall be made upon blank forms of the like kind furnished the census takers to take the census of 1880.
    “ Seo. 3. Be it further enacted, That when the said -copy shall be made and completed as hereinbefore provided, the “ returns ” of each district as copied shall be by the said clerks submitted to the principal chief duly certified to by them as to pages, number of names in each schedule," and that the copy has been made correctly according to the provisions of this act. When so certified, and upon the examination of the principal chief approved by him, he shall be authorized to indorse the copy of the returns of each district as so approved and place the same on file in the executive office for safe-keeping and general reference under his care and direction.
    “ Sec. 4. Be it further enacted, That any person, citizen of this nation at the time of taking the census of 1880 (March and April), who shall have been inadvertently omitted to be so registered by the census takers or the committee appointed to revise the census, and whose name does not appear enrolled or recorded otherwise, and who shall desire to be enrolled as a citizen shall be required to make satisfactory showing- to the principal 'chief, bjr methods and evidence which he may consider sufficient in each case, that such jierson was a citizen of the nation when the census was being taken and of what district, and the principal chief is requested to report the names of all persons who shall apply under this section, with the material facts ascertained by him in each case, to the national council of 1881 for their information and action.
    “ Sec. o. Be it further enacted, That all persons whose names have been reported by the census takers in schedule 1 as citizens, and whom the revising committees of this council have marked and signified as not entitled to be returned, shall be summoned by the principal chief to appear before the commission on citizenship at their next September session (1881) for the adjudication of their claims according to-the provisions of law relating to “ doubtful citizens,” and the names of all persons who have appeared shall • appear before said commission as “ doubtful citizens,” either by authority of the acts of December 3, 1879, and authorizing the taking of the census (not including “ new claimants ” enrolled in schedule 4) or by authority of this act, in whose favor the said commission have decided or shall decide, shall be by the, executive secretary attached to the official copy of citizens hereinbefore authorized to be made and filed in the executive office.
    “ (Tahlequah, Cherokee Nation), December 6, 1880.
    “ S. TI. Benge, President Senate.
    
    “ J. L. SpRingston, Clerk of Senate.
    
    “ Concurred in by the council December 9, 1880.
    “ Osi HaiRE, Speaker Council.
    
    “ D. E. PIicKS, Clerk Council.
    
    “Approved December 9, 1880.
    “ D. W. Bushyhead,
    
      “Principal Chief Cherokee Nation.”
    Tenth. The national council requested the survey and allotment of the lands of the Cherokee Nation in accordance with the provisions of article 20 of the treaty of the 19th of July, 1866, between the United States and the Cherokee Nation, as provided for by section 2, article 1, amendments to the constitution of the Cherokee Nation.
    Eleventh. That the Cherokee national council, with the approval of the principal chief, on December 6, 1890, passed the following act:
    
      “AN ACT Giving the circuit courts authority to declare the forfeiture of the rights of certain adopted citizens.
    “ Be it enacted by the national council, That the circuit courts shall have authority to hear and determine all cases that may be brought before it by the solicitors of the several districts or other persons wherein it may be alleged that any citizen of the United States or other government, adopted by intermarriage' under the laws of the Cherokee Nation, has forfeited the rights of citizenship by acts which declare such forfeiture. Proceedings in such cases shall be by citation, if the party be. resident in the Cherokee Nation, or by thirty .days’ notice of such proceedings in the Cherokee Advocate, and be conducted as are civil suits before such courts. On the finding of verdict bjr the jury against such person it shall be the duty of the clerk of the court to notify the principal chief of such finding, and it shall be the duty of the principal chief to make known such finding to, and call on, the United States Indian agent for the removal of such person beyond the limits of the Cherokee Nation. It shall not be laAvful thereafter for any clerk to issue a marriage license or permit to reside in the Cherokee Nation, in any capacity whatever, to any person so declared to have forfeited his rights to citizenship in the Cherokee Nation.”
    That during the time the law contained in the New Code of 1875, chapter 12, sections 67 to 76, inclusive, was in force, and until the same was amended on November 28, 1877, but two intermarried white persons availed themselves of the opportunity offered by the proviso of section 75 of said law, and paid into the Cherokee treasury the sum of $500 each; and that neither of said persons is a party to this suit.
    That on the 8th day of April, 1867, articles of agreement were entered into between the Cherokee Indians and the Delaware tribe of Indians; that said agreement is fully set forth commencing at page 277 of Exhibit A (New Code of 1875).
    That on the 7th day of June, 1869, articles of agreement were entered into between the Cherokee Indians and the Shawnee tribe of Indians; that said agreement is fully set forth commencing at page 281 of Exhibit A (New Code, 1875).
    That the Cherokee national council (in the exercise of its power to construe treaty stipulations) did, on the 27th day of April, 188G, pass an act construing the rights designed to be conferred upon freedmen and civilized Indians by the ninth and fifteenth articles of the treaty of 18G6, and that the copy of said act, as found in the compilation. of the Cherokee laws of 1892 at pages 370 to 373, inclusive, is a true and correct copy of the original act, and that said printed copy may be used and considered to the same extent as if it was the original.
    Twelfth. That the Cherokee national council, with the approval of the principal chief, on the 19th of May, 1883, passed the following act:
    “AN ACT providing for the payment of the balance clue on lands west 9C degrees per capita.
    
      “Be it enacted by the national council, That when the additional amount appropriated by the act of Congress of March 3rd, 1883, shall have been received by the treasurer of the Cherokee Nation the principal chief shall cause the same to be paid out ‘ per capita to the citizens of the Cherokee Nation by Cherokee blood.
    “ Be it further enacted, That for the purpose of carrying out the provisions of this act the principal chief shall at his earliest convenience appoint two competent persons in each district to make correct census roll of the persons entitled and turn over the same, certified to by him, to the treasurer .of the Cherokee Nation, who shall file the same in his office.
    “ Be it further enacted, That the persons appointed by the principal chief to take the census shall each be entitled to three dollars ($3.00) a day while in actual service.
    “ Be it further enacted, That as soon as advised by the proper authority that the funds are ready, it shall be the duty of the treasurer to make requisition for the same, and on receiving said funds, it shall be his duty to pay the same out per capita to citizens of the Cherokee Nation by blood according to the census roll. In making said payments the treasurer is hereby directed to pay the funds in person to all adult persons entitled to the same, and to parents, guardians, and heads of families representing minors and disabled persons, and to no other person or persons whomsoever; it shall be the duty of the treasurer to keep a receipt roll of the payments marie and to whom, and which shall be reported to the national council next following said payment.
    
      “ Be it further enacted, That the sum of three hundred dollars, or so much thereof as may be necessary to defray the expenses of taking the census and preparing the proper rolls, is hereby appropriated out of the funds'to be .received for this purpose.
    
      “ Be it further enacted, That the treasurer shall make the . payment at Tahlequah, Vinita, Ft. Gibson, and Webbers Falls.”
    Thirteenth. That the Cherokee national council, with the approval of the principal chief, on November 26, 1890, passed an act providing for the distribution of the proceeds from lease of lands in the Cherokee Outlet to Cherokees by blood only.
    Fourteenth. That the Cherokee national council, with the approval of the principal chief, on November 29, 1878, passed the following act:
    “ Be it enacted by the national council, That A. G. Green-way, a white man, and his two children, Alonzo and Minnie Greenway, be, and they are hereb}’', readmitted into the rights and privileges of citizens of the Cherokee Nation; provided that the same rights and n.o other attach to A. G. Greenway than as an adopted citizen and (white) man in the Cherokee Nation.”
    Fifteenth. That the Cherokee national council, with the approval of the principal chief, on December 3, 1878, passed the following act:
    “ Be it enacted by the national council, That David N. Allen, Mary Allen, and -Toe Allen be, and are hereby, readmitted to all the rights and privileges of the Cherokee citizens.”
    Concurred in by council Avith following amendment:
    “ Provided that David N. Allen, the petitioner, shall not acquire any rights except such as attach to white men, adopted citizens of (the) Cherokee Nation.”.
    Sixteenth. That subsequent to the joassage of the act approved on October 15, 1855, and particularly since the law enacted in the new code of 1875, a large number of white persons have intermarried with Cherokees, and resided continuously thereafter in the Cherokee Nation, and did so reside at the time the distributions of funds belonging to the Cherokee people were made, in accordance with the various acts of the national council passed subsequent to 1875, or under judgments of the courts, and they were advised of said payments and were present when the same were made; and that a large number of said intermarried white persons participated in such payments by receiving moneys thereat for and on behalf of different members of their families who were entitled to the same by reason of their Cherokee blood, or because such members of their family were Delawares, Shawnees, or freedmen who had acquired the rights of native Cherokees by purchase or express grant.
    Seventeenth. That no action at law or suit in equity was ever brought against the Cherokee Nation under the act respecting the liability of the nation to her own citizens, found in sections 130, 131,. 132, 133, inclusive, chapter 26, New Code (1875), for or on behalf of any intermarried white person, asserting any claim to a share or interest in the funds or any portion thereof which have been distributed since 1875.
    Eighteenth. That Pauline Shannon, a Cherokee Indian woman by blood, and claiming rights of property as such, married George Shannon, a white man, prior to January 1, 1895, in accordance with the laws of the Cherokee Nation governing the intermarriage of white men and foreigners, and that children had been born of such marriage.
    That S; M. Barbee, a Cherokee Indian woman by blood, and claiming rights of property as such, married Samuel Barbee, a white man, prior to January 1,1895, in accordance with the laws of the Cherokee Nation governing the intermarriage of white persons and foreigners.
    That in the year 1895 said Pauline Shannon and said S. M. Barbee, each for herself, and the first named for her children also, brought suit against Stephen Tehee, as assistant and acting chief of the Cherokee Nation, under the provision of the act respecting the liability of the Cherokee Nation to her own citizens, found in sections 130 to 133, inclusive, article 26, of the New Code (1875), demanding a distributive share for themselves, and Pauline Shannon for her children likewise, in the funds distributed by the Cherokee Nation theretofore; that judgment was rendered in favor of said parties and against the Cherokee Nation in the Circuit Court of said, nation, and upon appeal to the Supreme Court of the Cherokee Nation that judgment was affirmed.
    At the time said suits were instituted, and during the pendency of each in the courts of the nation, and at the time final judgment was entered, both George Shannon and Samuel Barbee, intermarried white persons, and husbands: of the said Pauline Shannon and S. M. Barbee, respectively, lived with his wife and was acknowledged as a citizen of the. Cherokee Nation by intermarriage; that neither of them had participated in the distribution of said funds; that neither of them were parties to either of said suits; nor did either of thenr make application to be made a party; nor was any claim made theretofore; nor has there been since on behalf of either of them for a distributive share of said funds, or any portion thereof, under said law (secs. 130-133, art. 12,, Code, 1875).
    Nineteenth. That the Cherokee national council, with the-approval of the principal chief, on December 3, 1879, passed, the following act :
    “AN ACT for taking a census of tlie Cherokee Nation for the year 1880.
    “ Section 1. Be it enacted by the national council, That two expert and responsible persons, one of whom talks' (speaks) the Cherokee language, to be appointed by the-principal chief (in each district), and who shall be resident of the district from which they are áppointed, be, and they are hereby, directed and authorized to take the census of their respective districts between the first day of March and the first day of May, 1880, and make full and certified returns thereof to the principal chief on or before the first day of June of said year. That said census takers before-entering upon the duty hereby assigned to them shall take an oath for the full, impartial, and correct performance of the same, as hereinafter defined.
    “ Sec. 2. That it shall be the duty of said census takers to take a full and complete return of all persons found residing- or sojourning ‘within the limits of the respective districts at the time of making the enumeration, as required by the foregoing section. And said returns shall show the names of all heads of families, giving a complete registration of births, deaths, and marriages; also the age and sex; the námes of all males above the age of eighteen years; the names of all females above the age of eighteen; the names of all males under the age of eighteen years; the names of all females under the age of eighteen years; the names, sex, and ages of all orphans under sixteen years; the names of all whites entitled by law to citizenship within the ages specified; the names of all whites not so entitled; the names of all colored persons entitled by law to citizenship, within said ages, and the names of all such persons not so entitled, and the names of all Indians not so entitled; also a report of the chief production of agriculture, including the number of horses, cattle, hogs, sheep, etc., during the year ending May first, 1880.
    “ Sec. 3. That it shall be the duty of the principal chief to cause ruled blanks to be prepared, of a suitable and convenient form, and furnish to said census takers, for the purpose of making the enumeration herein provided for, and said census takers shall be allowed three dollars a day in the performance of the duties hereinbefore imposed upon them.
    “ Sec. 4. That it shall be the duty of the principal chief to cause a summary of the returns of said census to be prepared and paid before the national council, together with the full returns of the same, at the beginning of the annual session thereof in 1880. And said returns shall serve as a basis for the representation of the several districts of the Cherokee Nation in the national council, in accordance with the amendment to the constitution dated November 21, 1866.
    “ Sec. 5. Be it further enacted, That all persons whose rights to citizenship in the Cherokee Nation shall be called in question, and who shall be reported to by the persons authorized by this act to take the census of the Cherokee people, on the list of doubtful persons, shall be required by the principal chief to appear before the commission on citizenship at Tahlequah during the month of September, 1880, for the adjudication of their claims to Cherokee citizenship.
    “ Sec. 6. Be it further enacted, That the sum of two thousand four hundred and sixty dollars ($2,460) be, and the same is hereby, appropriated, out of the money in the general fund not otherwise appropriateed, to defray the expenses of census takers and for necessary stationery, and the principal chief is hereby authorized to draw preferred warrant for the same.”
    
      Twentieth. That the names of the following intermarried white persons appear upon the census roll of 1880, referred to in section 1, act of Congress of July 28, 1898, and show the manner in which the admitted whites were enrolled:
    
      
    
    That an examination of said census roll discloses that it was made as provided and required by the act of the national council, approved December 3, 1879, and that appended to each name upon said roll is a memorandum or descriptive matter which shows whether or not, and if so, how such person became and was a citizen of the nation — that is to say, whether he was a Cherokee by blood, a Delaware, a Shawnee, a freedman, or an intermarried white person.
    Twenty-first. That on the 12th day of August, 1902, the same being the day on which the act of Congress of July 1, 1902, was voted upon at a special election held in the Cherokee Nation for that purpose, there were then residing in the Cherokee Nation, approximately, 2,800 intermarried white men of voting age under the laws of said nation, and whose only claim to rights therein was and is based upon a marriage, prior to said election, in accordance with the laws of the Cherokee Nation respecting intermarriage of white men and foreigners; and that at said election, held for said purpose, practically all of said white persons of voting age who had intermarried into the Cherokee Nation as aforesaid were permitted to vote and did vote, and that more than 2,500 of said white persons voted in favor of said act of Congress; cthat the majority in favor of said act of Congress, on' the face of the returns, including the votes of said 2,500 intermarried white persons, was 1,800 votes,
    
      Twenty-second. Under the customs of the Cherokees a white woman intermarrying with a Cherokee citizen acquires the same rights in respect to property as a white man intermarrying with a Cherokee woman.
    And upon the foregoing findings of fact the court decided. as conclusions of law :
    That such white persons residing in the Cherokee Nation as became Cherokee citizens under Cherokee laws by intermarriage with Cherokees by blood prior to the 1st day of November, 1875, are equally interested in and have equal per capita rights with Cherokee Indians by blood in the lands constituting the public domain of the Cherokee Nation, and are entitled to be enrolled for that purpose, but such intermarried whites acquired no rights and have no interest or share in any funds belonging to the Cherokee Nation except where such funds were derived by lease, sale, or otherwise from the lands of the Cherokee Nation conveyed to it by the United States by the patent of December, 1838; that the rights and privileges of those white citizens who intermarried with Cherokee citizens subsequent to the 1st clay of November, 1875, do not exceed the right of soil or interest in any of the vested funds of the Cherokee Nation, and such intermarried persons áre not entitled to share in the allotment of the lands or in the distribution of any of the funds belonging to said nation, and are not entitled to be enrolled for such purpose; that, those white persons who intermarried with Delaware or Shawnee citizens of the Cherokee Nation either prior or subsequent to November 1, 1875, and those who intermarried with Cherokees by blood and subsequently, being left a widow or widower by the death of the Cherokee wife or husband, intermarried with persons not of Cherokee blood, :and those white men who, having married Cherokee women and subsequently abandoned their Cherokee wives, have no part or share in the Cherokee property and are -not entitled to participate in the allotment of the lands or in the distribution of the funds of the Cherokee Nation or people, and are not entitled to be enrolled for such purpose.
    
      
      Mr. John J. Hemphill and K. S. Murchison for the Cherokees by blood. Mr. D. F. Parker, jr., was on the brief.
    
      Mr. William P. Hutchings and Mr. William Henry White for the intermarried whites. Mr. James S. Davenport, Mr. Harry G-. Kimball, Mr. A. E. L. Decide, and Mr. Greed M. Fulton were on the brief.
   Nott, Ch. J.,

delivered the opinion of the court:

The subject-matter of this suit consists of 4,420,076 acres of land in the Cherokee country about to be allotted in severalty among the Cherokee people entitled to participate in the distribution of the common property of the Cherokee Nation. The case was transmitted to the court by the Secretary of the Interior on the 24th of February, 1903. The Secretary thus states in his letter of transmittal the nature of the controversy:

“A controversy has arisen as to the rights of white persons intermarried with Cherokee citizens, and a protest has been filed with this Department on behalf of a large number of citizens of the Cherokee Nation by blood against the enrollment of intermarried persons, ‘ so as.to recognize their right to participate in the distribution of any of the common property of the Cherokee Nation of whatever kind or character.’ It is asserted, on the one hand, that the Cherokee laws have never recognized the right of ‘ intermarried citizens ’ to share in the distribution of the property of the nation, and, on the other hand, that the Cherokee laws as well as the laws of Congress recognize those persons who have been married to Cherokee citizens in accordance with the laws of the Cherokee Nation relating to marriage as full citizens of such nation entitled to share equally with full-blooded citizens in the property of the tribe.” ■

Since the case was transmitted and tried Congress have made the following enactment:

“ That in the case entitled 1 In the matter of enrollment of persons claiming rights in the Cherokee Nation by intermarriage against the United States, departmental, numbered seventy-six,’ now pending in the Court of Claims, the 'said court is hereby authorized and empowered to render final judgment in said case, and either party feeling itself aggrieved by said judgment shall have the right of appeal to the Supreme Court of the United States within thirt}^ days from the filing of said judgment in the Court of Claims. And the said Supreme Court of the United States shall advance said case on its calendar for early hearing.” (Act 3d March, 1905, 33 Stat. L., p. 1071.)

Upon the facts presented, and after carefully considering the questions discussed, the court has reached the following conclusions:

1. The constitution and laws of the Cherokee Nation contemplate three classes of citizens: First, those who are Cherokees by blood; secondj those who are Cherokees bjr intermarriage and the payment of $500'; third, those who are citizens by intermarriage alone. As to the first class, tliejf are communal owners according to Indian tradition and Indian law, and their citizenship, under the constitution of the Cherokee Nation, is indefeasible save by expatriation and becoming citizens of another power, As to the second class, they possess the political rights of Cherokees by virtue of marriage, and become communal owners of the soil and of the vested funds of the nation by virtue of their payment “ into the general fund of the national treasury of a sum of money to be ascertained and fixed by the national council equal to the pro rata share of each native Cherokee in the lands and vested value of the nation, estimated at $500.” (Revised Code, 1874, p. 224.) As to the third class, according to special provisions and necessary implication and long-continued usage, “ the rights and ju’ivileges ” of their limited citizenship do not extend to sharing in the communal property of Cherokees by blood or to an interest in the vested funds of-the nation.

The constitution of the Cherokee Nation, 1839, relates to Cherokees by blood, to their communal ownership of land, and to their citizenship indefeasible save bj'- expatriation (art. 2). The provisions of Cherokee law relating to intermarriage with whites and to citizenship thereby acquired are statutory.

Under the primitive law of the Cherokees, derived from that of the Iroquois, descent was through the mother, and the nation was subdivided into clans or tribes. Within a clan or tribe the members were deemed brothers and sisters and marriage between them unlawful. Consequently intermarriage could only be between members of one tribe and members of another tribe. Such being the fundamental and moral basis of marriage and descent, it followed that when a man married a woman of another tribe he left his own and became a resident in the tribe of his wife. When she died he might continue, through courtesy, to dwell among and b.e a member of the tribe. If he afterwards married a woman of another tribe, he went to dwell with her and among her people. He was not excluded or expelled from the tribe of his first wife, but by his second marriage and change of domicile he necessarily withdrew from it. (Morgan’s League of the Iroquois, pp. 79, 87.)

The law of Indian tribal citizenship or membership was in principle like our own law of domicile — a man does not lose his domicile until he acquires another. When he acquires a new domicile the old one ceases to exist for him. So the Indian widower remained' a quasi citizen or member of his wife’s tribe until he married into another, and then on the acquirement of a new membership in another tribe the old one ceased to be.

If the Indian husband abandoned his wife, abandonment meant withdrawing from her tribe; and, again, necessarily he ceased to have any right or interest therein for the simple reason that whatever right or interest he had within the tribe was due to his being the actual husband of a daughter of the tribe. The statutes of the Cherokees are but a written codification of the primitive law, somewhat adapted in form to the changed conditions of civilization. But the fundamental, primitive idea runs through them, insistent, constant, that all of the man’s rights who marries into the nation are dependent upon and linked to his wife as a daughter of the nation; and when that link is broken, whether by abandonment or by marriage with some woman who is not a daughter of the Cherokee Nation by blood, he thereby drops out of the nation and ceases to be a citizen.

But the fact that there are citizens in the Cherokee country who are communal owners and that there are citizens who are not communal owners presents the question of law whether the lands which form the subject-matter of this suit — lands which are to be divided by allotment among the citizens of the Cherokee Nation — are communal property and belong' exclusively to one class of citizens, or whether they constitute national property in which each and every citizen of the nation has an equal interest independently of the character of his citizenship.

2. That all lands of the Cherokees were primarily communal is too well settled to need reiteration. (Western Cherokees v. United States, 27 C. Cls. R., 1; Journey cake v. Cherokee Nation, 28 id., 281, 303, 305; Whitmire v. Cherokee Nation, 30 id., 138, 158.)

That the United States have repeatedly recognized in their transactions with the Cherokees the dual character of the people — sometimes national, sometimes communal — has appeared in many decisions. (Eastern Cherokees v. United States, 20 C. Cls. R., 449; Western Cherokees v. Same, 27 id., 1; Shawnees v. Same, 28 id., 447; Delawares v. Cherokee Nation, 28 id., 281.)

That the intermarried whites are not communal owners except in cases where they paid into the general fund of the National Treasury a sum of money equal to the pro rata of each native Cherokee in the lands and vested wealth of the nation is a legal condition which appears clearly in the history and statutes of the nation. The controlling principle has been that the “ rights and privileges ” acquired by marriage and residence were political rights and privileges which did “ not extend to right of soil or interest in the vested funds of the nation.” The right to an estate or interest in' the communal property has alwaj^s had to be paid with a price. In the case of the Delawares they became communal owners bjr virtue of the treaty, but they also had to pay, 'first, an amount proportionate to their numbers into the national fund of the Cherokees, and, second, an amount equal to $1 per acre for 160 acres fqr each .individual of the Delaware tribe, ’ analogous to the payment of $500 by an intermarried white Avho would become a communal owner. In the case of the freedmen nothing was paid, because their incorporation with the Cherokees as citizens and communal owners ivas enforced by the United States as a condition to the .continued existence of the Cherokee Nation. “At the close of the civil war the Cherokee country was virtually conquered territory and the Cherokee Nation at the merc)^ of the United States.” (Whitmire v. Cherokee Nation, 30 C. Cls. R., 138, 150.) The Cherokee Nation had taken sides in the civil war, it had been overthrown when the Confederate States fell, and the will of the conqueror was superior to the constitution and statutes.

These facts make a strong case against the intermarried whites, and if they were the only facts probably would be deemed sufficient to establish conclusively the exclusive communal rights of those who are Cherokees b}^ blood.

But in the case of the Delaivares (Cherokee Nation v. Journeycake, 155 U. S. R., 196, 208) the Supreme Court has said: “In December, 1838, a patent was issued to the Oherokees for these lands. By that patent whatever of title toas conveyed toas conveyed to the Cherokees as a nation, and no title was vested in severalty in the Oherokees or any of them." And again: “Not only does the Gherokee constitution thus provide that the lands shall be common property, but also the legislation of the Gherokee Nation from 1839 on to the present time abounds with acts speaking of these lands as public domainor common property of the Gherokee Nation." And again (p. 208) : “Noto, if these lands be the public domain, the common property of the Gherokee Nation, all who are recognized as members and citizens of that nation are alike interested and alike entitled to share in the profits and proceeds thereof.” And again (p. 212) : “It must be borne in mind that the rights and interest which the native Gherokees had in the reservation and outlet sprang solely from citizenship in the Gherokee Nation, and that the grant of equal rights as members of the Gherokee Nation naturally carried with it the grant of all rights springing from citizenship.”

In that case this court had previously reviewed the statutes relating to the “ public domain ” of the Cherokee Nation and said (28 C. Cls. R., 281, 314) : “ With this power of legislation and control of the public domain and the jus dispo-nendi lodged in the government of the nation it is plain that the communal element has been reduced to a minimum and exists only in the occupied lands.” The decision of the Supreme Court affirming the decision of this court goes further and holds that all lands ceded by the treaties of February 14, 1833, and December 29, 1835, embraced in the patent issued in 1838, were “ conveyed to the Cherokees as a nation,” and consequently were never communal property.

The question whether all intermarried white citizens are entitled to share as such in the distribution of these lands, and the question whether all intermarried whites are citizens, are distinct questions.

3. The constitution of the Cherokee Nation (1839) found the lands of the Cherokees communal, and decreed that they “shall remain common property ” (sec. 2). It made the improvements thereon “ the exclusive and indefeasible j>rop-erty of the citizens, respectively, who made -or may rightfully be in possession of them,” but made no provision concerning citizenship or the admission of aliens by adoption or naturalization. The grant of the legislative power is brief, but comprehensive: “ The national council shall have power to make all laws and regulations which, they shall deem necessary and proper for the good of the nation, which shall not be contrary to this constitution ” (sec. 14). .

The amendments to the constitution (1866) still declare that “ the lands of the Cherokee Nation shall reinain common property,” but at the same time introduce, a modification, “ until the national council shall request a survey and allotment of the same in accordance with the provisions of article 20 of the treaty of 19th of July, 1866, between the United States and the Cherokee Nation ” (sec 2).

The right of a white person to become a citizen of the Cherokee Nation therefore was granted by statute and not by the constitution. It ivas a statutory, not a constitutional, right. It seems, therefore, clear that the pow'er which created — the legislative power — might restrict so long as it did not infringe upon any requirement of the constitution.

In 1874 the rapidly growing value of the Cherokee lands was becoming perceptible. On the one hand, there were white men who desired to marry into the tribe, and, marrying and residing in the nation, desired the rights and privileges of citizens; on the other hand, there were white adventurers desiring to share in the wealth of the nation, soon, it was believed, to become available to individual citizens. The public welfare might be benefited by allowing the one, and most certainly would be conserved by excluding the other. No restriction appeared to exist in the constitution which would forbid the national council from admitting* white men to citizenship upon the condition that they should not acquire an estate or interest in the communal or common property of the nation. Accordingly, the national council enacted, what was already the law by implication, an express proviso to section 75 of the Code of 1874, “ That the rights and privileges herein conferred [the right of white persons to acquire citizenship by intermarriage] shall not extend to right of soil or interest in the vested funds of this nation,” which provision, however, did not take effect until November 1,1875.

Whoever married after that enactment married with due-notice of the limitation set upon his rights and privileges as a citizen. The statute seems just to the then communal or common owners,, and seems but simple prudence and wisdom in looking to the exclusion of persons coming into the nation with unworthy, ulterior designs. There is" no reason for overruling it unless it be contrary to the Cherokee constitution or the statutes of the United States.

The constitutional amendments of 1866 set forth that “All. native-born Cherokees, all Indians, and whites legally members of the nation by adoption, and all freedmen who have-been liberated by voluntary acts of their former owners or by law, as well as free colored persons who were in the country at the commencement of the rebellion * * * shall be taken and deemed to be citizens of the Cherokee Nation ” (sec. 5).

These constitutional amendments were brought about by the action of the United States at the close of the civil war in dictating that the slaves or freedmen or free persons of color in the Cherokee country should not only be admitted to the rights of citizenship, but to an equal participation in the communal or common property of the Cherokees. The Cherokees seemed to have veiled their humiliation by these general declarations of the persons who should be taken and deemed to be citizens. But, be that as it may, the overthrow of the Cherokee Nation and the treaty of peace, 1866, and the terms dictated by the United States whereby their former slaves were made their political equals and the common property of the Cherokees was to be shared equally with their servants and dependents was in effect a revolution. The constitutional amendment quoted was simply declaratory of the new order of things. It is not necessarily prospective, and it does not impose limitations upon the legislative power with regard to the naturalization or future adoption of aliens as citizens. Under the polity of the Cherokees citizenship and communal ownership were distinct things. The citizen who annually received an annuity derived from a communal fund held by the United States, and the citizen who never received a dollar from the fund and never so much as thought of receiving it, formed a concrete object lesson in constitutional law not easily effaced from the common mind.

There are provisions in the statutes of the United States relating to the enrollment of the Cherokees for the purposes of the allotment of lands which have been relied upon as controlling the court and securing the property rights of all intermarried whites. But, in the language of Chief Justice Fuller in Stephens v. Cherokee Nation (174 U. S., 445, 488) : “ It may be remarked that the legislation seems to recognize, especially the act of June 28, 1898, a distinction between admission to citizenshixo merely and the distribution of property to be subsequently made, as if there might be circumstances under which the right to a share in the latter would not necessarily follow from the concession of the former.” It can not be supposed for a moment that Congress intended by this legislation to take away from some of the Cherokee people property which was constitutionally theirs or to confer upon white citizens property which they were not legally entitled to have. The term “ citizens ” in these statutes of the United States must be construed to mean those citizens who were constitutionally or legally entitled to share in the allotment of the lands.

4. The question whether all intermarried whites are citizens is a distinct question. There come before the court a_ class of claimants known as the “ married out and abandonment cases,” claimants who allege, on the one hand, that they became citizens of the Cherokee Nation by intermarriage, but concede, on the other hand, that they have since married persons, white persons, having no rights of Cherokee citizenship by blood, or that they have abandoned their Cherokee wives. It is ■ contended on behalf of these claimants that the question of their continued citizenship or loss of citizenship can not be inquired into; that having once been entitled to the rights and privileges of citizenship as intermarried whites, they can only be deprived of them by a proceeding in the nature of office found.

“Every person is supposed.to be a natural-born subject that is resident in the kingdom,” says Bacon. (11 Wheat., p. 356.) If some such person, resident in the United States, and therefore owing a local allegiance to this Government (Carlisle & Henderson's case, 16 Wall., 147), should bring an action in this court and the Government should file a plea to the jurisdiction averring that the claimant was an alien not entitled to maintain an action against the Government of this country within the intent- and meaning of Eevised Statutes, section 1068, could such a claimant turn around and say that the question of his citizenship could be inquired into only by office found? Assuredly not. The fact that there has been no proceeding in the nature of office found against 'these -claimants does not, in the opinion of the court, control the case. Office found is a proceeding preliminary to the eviction of an alien in possession who would be entitled to hold if he were not an alien. The King should not evict him forcibly, and could not maintain an action ■ of ejectment, not having a superior title. The proceeding is nothing more than a form of action. A man alleging one state of facts must sue in ejectment; alleging another state of facts, he must sue in trespass, etc. So the King, seeking the aid of a court to establish the fact that the person in possession is incapable of .holding the land as against the Crown, must do so by the proceeding .of office found. These intermarried whites are not grantees or devisees seized and in possession of land, occupying the position of defendants. They occupy the contrary position — of plaintiffs seeking to recover money — and it is obligatory upon them to establish their right to it. To say that a white man can share in the property of the Cherokees for the reason that at one time in his life he was the husband of a Cherokee woman, and to say that this court, or the Secretary of the Interior, must hold that he is still the husband of a Cherokee woman because the contrary has not been established in another proceeding, is an appeal to technicality which the court can not uphold. These claimants, like other plaintiffs, must prove their case; asserting a present right, they 'must establish present conditions. The laws and usages of the Cherokees, their earliest history, the fundamental principles of their national policy, their constitution and statutes, all show that citizenship rested on blood or marriage; that the man who would assert citizenship must establish marriage; that when marriage ceased (with a special reservation in favor of widows and widowers), citizenship ceased; that when an intermarried white married a person having no rights of Cherokee citizenship by blood it was conclusive evidence that the tie which bound him to the Cherokee people was severed and the very basis of his citizenship obliterated.

The Cherokee statute which has been cited (Laws of 1892, section 669) gives a proceeding in the nature of office found, but, nevertheless, is confirmatory of the views hereinbefore expressed. It relates to cases where the Cherokee government takes the initiative to accomplish a purpose. That is to say, where an intermarried white man has forfeited his rights of citizenship in the nation by acts which declare such forfeiture “ and the nation requires his removal beyond the limits of its territory,” this proceeding must be resorted to, to be followed by a call on the United States Indian agent “ to remove such a white man.” It is in principle precisely like the common-law procedure of office found, and exists for the same reason — that the Government maj’- exercise a right dependent only upon the alienage of a person living within its territor)'- presumably a citizen.

To prevent misapprehension, it is stated and to be understood that the onty things intended to be decided by this opinion are: First, that, under the decision of the Supreme Court in Cherokee Nation v. Journey cake (155 U. S., 196, 208), the lands which are to be allotted among the Cherokees are not communal property, but constitute the public domain of the nation; second, that in this public domain all Cherokees bjr blood and whites by intermarriage who became citizens prior to the 1st November, 1875, are equally interested and have equal per capita rights in the allotment of lands; third, that the rights and privileges of those intermarried white citjzens who married persons of Cherokee blood subsequent to the 1st dajr of November, 1875, do not extend to right of soil or interest in the vested funds of the nation, and that they are not entitled to share in the allotment of the public domain except in cases where they paid into the general fund of the National Treasury the sum of $500 each; fourth, that those ivhite citizens who, subsequent to their marriage with persons of Cherokee blood, have married persons not of Cherokee blood, and those white men who, being husbands of women of Cherokee blood, have abandoned their wives, are not. citizens of the Cherokee Nation and are not entitled to participate in the allotment of these lands.

A decree will be entered in this case following the form of that which was entered in the case of Journeycake v. Cherokee Nation (28 C. Cls. R., 281), in accordance with the directions heretofore set forth in this opinion.

The facts stipulated by the parties (Record, p. 99) and any additional facts which may be stipulated, will stand as the findings of the court for the purposes of appeal, if any. If no .appeal be taken by any party the foregoing opinion will be certified to the Secretary of the Interior for his information and guidance, as provided b}*' law, and in response to his communication of February 24, 1903.

Pursuant to the opinion of the court and in conformity with the conclusions of law (ante) the following decree was entered on the 18th May, 190o:

This case having been transmitted to this court by the Secretary of the Interior by letter dated February 24, 1903, for the findings and opinion of the court in accordance with the provisions of section 2 of the act of Congress of March 3, 1883, entitled “An act to afford assistance and relief to Congress and the Executive Departments in the investigation of claims and demands against the Government ” (22 Stat. L., 485) ; and Congress, by the act of March 3, 1905, entitled “An act making appropriations for the current and contingent expenses of the Indian Department and for fulfilling treaty stipulations with various Indian tribes for the fiscal year ending June 30, 1906, and for other purposes,” having made the following enactment:

“ That in the case entitled ‘ In the matter of enrollment of persons claiming rights in the Cherokee Nation by intermarriage against the United States (Departmental, No. 76),’ now pending in the Court of Claims, the said court is hereby authorized and empowered to render final judgment in said case, and either party feeling itself aggrieved by said judgment shall have the right of appeal to the Supreme Court of the United States'within thirty days from the filing of said judgment in the Court of Claims. And - the said Supreme Court of the United States shall advance said case on its calendar for earfy hearing.”

AncV the cause coming on to be heard upon the petition, answers, agreed facts, proofs, and arguments submitted by the attorneys óf the parties to the cause, respectively, and the court having heard and fulty considered the same;

And it appearing to the court that all those white jiersons who married Cherokee Indians by blood subsequently to the enactment of the Cherokee law, which became effective November 1, 1875, and which declared that such persons by intermarriage acquired no rights of soil or interest in the vested funds of the nation, had due notice of the limitations set upon their rights and privileges as citizens; and that those white persons who married Cherokee citizens by blood prior to said date acquired rights as citizens in the lands belonging to the nation, and held and owned as national lands, except such of these intermarried persons as lost their rights as Cherokee citizens by abandoning their Cherokee wives or by marrying other white or nontribal men or women having no rights of citizenship by blood in said Cherokee Nation:

It is by the court ordered, adjudged, and decreed that such white persons residing in the Cherokee Nation as become Cherokee citizens under Cherokee laws by intermarriage with Cherokeés by blood prior to the 1st day of November, 1875, are equally interested in and have equal per capita rights with Cherokee Indians by blood in the lands constituting the public domain of the Cherokee Nation, and are entitled to be enrolled for that purpose, but such intermarried whites acquired no rights and have no interest or share in any funds belonging to the Cherokee Nation except where such funds were derived by lease,' sale, or otherwise from the lands of the Cherokee Nation conveyed to it by the United States by the patent of December, 1838; that the rights' and privileges of those white citizens who intermarried with Cherokee citizens ‘ subsequent to the 1st day of November, 1875, do not extend to the right of soil or interest in any of the vested funds of the Cherokee Nation, and such intermarried persons are not entitled to share in the allotment of the lands or in the distribution of airy of the funds belonging to said nation, and are not entitled to be enrolled for such purpose; that those white persons who intermarried with Delaware or Shawnee citizens of the Cherokee Nation either prior or subsequent to November 1, 1875, and those who intermarried with Cherokees by blood and subsequently being left a widow or Avidower by the death of the Cherokee Avife or husband, intermarried with persons not of Cherokee blood, and those white men who having married Cherokee Avomen and subsequently abandoned their Cherokee wives have no part or share in the’ Cherokee property, and are not entitled to participate in the allotment of the lands or in the distribution of the funds of the Cherokee Nation or people, and are not entitled to be enrolled for such purpose.  