APPEAL FROM THE COURT OF CLAIMS.
MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
This case hinges on the status of the individual Delawares as members and citizens of the Cherokee Nation, and the rights secured to them by the agreement of April 8, 1867. In order to a correct understanding of this agreement it is necessary to refer to the provisions of article XV of the treaty of 1866. That article contemplated the settlement of other Indians within the limits of the Cherokee country east of the ninety-sixth degree of longitude, and provided for such settlement in two ways: one, in which the Indians settled should abandon their tribal organization, in which case, as expressed, they were to "be incorporated into and ever after remain a part of the Cherokee Nation on equal terms in every respect with native citizens." The other was where the removal of the tribe to the Cherokee country should involve no abandonment of the tribal organization, in which case a distinct territory was to be set off, by metes and bounds, to the tribe removed. The one contemplated an absorption of individual Indians into the Cherokee Nation; the other a mere location of a tribe within the limits of the Cherokee reservation. If the removed Indians were to be absorbed into the
Cherokee Nation, they were to be absorbed on equal terms in every respect with native citizens.
In this connection reference may be had to article XVI of the treaty, which authorized the government to settle friendly Indians in any part of the Cherokee country west of the ninety-sixth degree of longitude. This article differs from article XV in that it contemplated a location of any friendly tribe as a tribe, authorized the government to place it anywhere within the reservation west of the ninety-sixth degree of longitude, on a tract in compact form, and provided for a conveyance of such tract in fee simple to the located tribe. It thus provided for taking a body of land out of this part of the Cherokee reservation and removing it wholly from the jurisdiction of the Cherokee Nation, making a new reservation for the occupancy of the tribe to whom it was conveyed; while in the case of Indians removed under the provisions of article XV, even though the tribal organization was preserved, the general jurisdiction of the Cherokee Nation over the territory occupied by the removed tribe was not disturbed.
Turning now to the agreement itself, its purpose, as expressed in its preliminary language, was "a location of the Delawares upon the Cherokee lands and their consolidation with the said Cherokee Nation." There is no provision for the setting apart of a distinct body of land in any portion of the reservation for the Delaware tribe, but the agreement is to sell to them for their occupancy a quantity of land equal in the aggregate to 160 acres for each individual Delaware, who may "elect to remove to the Indian country," and "the selection of the amounts to be purchased by the Delawares may be made by said Delawares in any part of the said Cherokee Nation east of said line of 96 degrees, not already selected and in possession of other parties." This contemplates personal selection of separate tracts by individual Delawares. Further, there is a guarantee "to each Delaware incorporated by these articles into the Cherokee Nation" of the lands thus by him purchased, and that his ownership and occupancy shall not be interfered with in any manner without his consent -- not the consent of the Delaware tribe -- and also that it shall be subject
to the "same conditions and restrictions as are by the laws of the Cherokee Nation imposed upon native citizens thereof." But we are not limited to the plain inferences to be drawn from these expressions. The positive provision at the close of the agreement is as follows:
"On the fulfillment by the Delawares of the foregoing stipulations, all the members of the tribe, registered as above provided, shall become members of the Cherokee Nation, with the same rights and immunities, and the same participations (and no other) in the national funds as native Cherokees, save as hereinbefore provided.
"And the children hereafter born of such Delawares so incorporated into the Cherokee Nation, shall in all respects be regarded as native Cherokees."
If nothing were presented other than the language of the agreement, the conclusion would seem irresistible that the registered Delawares, that is, those of the tribe who chose to remove from Kansas to the Indian Territory, were not only to become members of the Cherokee Nation, but also to stand equal with the native Cherokees in all the rights springing out of citizenship in the Cherokee Nation. Whatever rights the Cherokees had, the registered Delawares were to have, and it was an equality not limited to the living Delawares; but to guard against any misconception there was the express declaration that the children of the registered Delawares should in all respects be regarded as native-born Cherokees. This last clause was not inserted with the view of giving additional rights to such children, but to prevent any question as to their inheritance of all the rights which their fathers received under the agreement.
That the thirteen millions of acres, whether appropriately styled its "common property" or its "public domain," belonged to the Cherokee Nation as a nation, is beyond dispute. By the treaty of May 6, 1828, 7 Stat. 311, it was provided in article 2 that "the United States agree to possess the Cherokees, and to guarantee it to them forever, and that guarantee is hereby solemnly ...