OCR Text |
Show REPOIlT OF THE COMMISSIONER OF INDIAN AFFAIRS. 77 used in the treaty was not necessary and that it did uot enlarge or extend the duties of the Government with respeot to the matter. There has been no controversy with respect to the right of the Cherokees to call on t,he Government for the removal of intruders in their eoui~trjn~o, r as to the obligation of the Government to remove them when they are properly identified; but it has been held by the execntivedepa.rtment of the Government as expressed by the Attorney- General iu all opinion dated December 12,1879 (1G Opinions, 404), that in executing the provisions of the Cherokee treaties relative to the removal of intruders- The Cnited Ststes is not hound to regard simply the Cherokee Jaw and its constrno-tion bythe counoilof the nation, but that any Department required toremovealleged intruders must determine for itself under the general law of the land the existenoe md e xtent of the exigency upon which ~ u c hre quisition is fountled. Prior to the decision by the Supreme Court in the Cherokee Trust Funds Case, abovecited, this Department had held that, as the treaties with the Cherokees were with the whole Cherokee people and not 'with the authorities of the Cherokee Nation, the Government was bound under them to see that every individual Cherokee was fully protected in his rights (6 Opinions Attorney-General, 320), and that as a Cherokee could not expatriate himself or be expatriated by Cherokee author it,^ (14 ibid., 296-297; 5 Peters, I), he must, wherever he resides within the limits of ' the United States, without respect to the degree of consan-guinity, be regarded as a Cherokee citizen, with indefeasible vested interests in the property and funds of that nation. Therefore the Department also held that, when called on to remove an alleged intruder, the Government had the right to determine for itself whether or not he was entitled by blood to rights in the nat,ion before oomplying with the demand for his removal. But, while it was held that the right of the Government to determine questions of citizen-ship was independent of any action on the part of the Cherokee author-ities with respect thereto, several propositions were made to the nation I ! for the appointment of a joint commission toinvestigate and determine all claims to citizenship, and all mere rejected by the Cherokee author- ~ , ities, who strenuously insisted that the question of citizenship was one over which they had exolnsive jurisdiction, and one to be determined under Cherokee law and not under the Iaws of the United States. Pending a settlement of the differences between the Department and 1 the Cherokee authorities on this question, the Department direoted that the agent for the Union Agency be instraoted to iovestigate the claims of parties charged with being intruders, and to issue certificates to all such as could satisfy him prima facie that they were by blood entitled to rights in the nation, which certificates would give them the right to remain in the natiou undisturbed until their cases could be finally determined; a11 others he was to remove. In acoordance with these directions, Agent Marston was instructed by this office May 3, 18?7, and similar instructions were given to Agent Tufts July 20,1880. .., -. .. |