
    CHARLES JOURNEYCAKE, PRINCIPAL CHIEF OF THE DELAWARE INDIANS, v. THE UNITED STATES AND THE CHEROKEE NATION.
    [28 C. Cls R., 281; 155 U. S. R., 196.]
    
      On the defendants’ Appeal.
    
    In 1867 the Delawares become members of the Cherokee Nation by virtue of an agreement or treaty. They thereby acquire 157,600 acres of land, for which they pay $157,600. They also contribute, in proportion to their numbers, to the national fund. Subsequently the nation sells a part of its public domain and distributes $600,000 of the proceeds, per capita, among “ citizens of the Cherokee Nation by blood," excluding adopted citizens and their descendants. The Delawares appeal to the United States. The Cherokees suggest that the controversy be submitted to the judiciary. Congress pass an act conferring jurisdiction, legal and equitable, upon this court. (Act 1st October, 1890; 26 Stat. L., p. 638.) Both parties appear voluntarily and the United States as trustee of both litigants.
    The court below decides:
    1. The agreement or treaty, 8th April, 1867, between the Delawares and Cherokees, whereby the former became a part of the Cherokee Nation, expressly excluded the Cherokees from any right of property in the lands conveyed to the Delawares, and, by implication, the Delawares from any right of property in the lands retained by the Cherokees, the result being that there were two communities in the Cherokee country, each in the matter of property independent of the other, but both subject to the constitution and laws of the Cherokee Nation.
    2. All Indian lands were originally communal, the fee being vested in the community as such with a mere right of occupancy in members of the community. But m the Cherokee country the control has passed from the communal owners and become lodged in the state, and the unoccupied lands or “public domain,” analogous to the public lands of the United States, is held absolutely by the' government as a trust for governmental purposes and the general welfare.
    
      3. All citizens of the Cherokee Nation, adopted as well as those of Cherokee blood, must be regarded in the administration of their constitutional rights, civil, political, and personal, as Cherokees-'The national council is prohibited by the constitution from making discriminations between different classes of citizens, and is without power to perceive differences which exist only in race or blood. So much of the acts 18th May, 1883, and 25th November, 1890, as restricts the payment of funds derived from the public domain to “cilizens of the Cherolcee Nation by blood” is unconstitutional and void; and the complainants in this suit are entitled to participate in those funds as if no such restriction had been enacted.
    The decision of the court below is affirmed on substantially the last ground.
   Mr. Justice Brewer

delivered the opinion of the Supreme Court, November 19, 1894.  