OCR Text |
Show 102 REPORT OF THE COMMISSIONER OP INDIAN AFFAIRS. On appeal to the circuit court of appeals in this case, it was held November 5,1897, (83 Fed. Rep., 54'1) as to citizenship, that the Eastern Band of Cherokee Indins did not, by virtue of the treaty of New Echota, become citizens of North Carolina and of theunitedstates; that the act of February 8,1887 (24 Stat., 388, sec. 6), declaring certain Indians to be citizens had no application to a tribe of Indians; that the political departments of the Government have recognized the Eastern Band of Cherokee Indians as constituting a tribe, at least, as that word is used in the United States Constitution; that it is a rule of the courts to follow the action of the Executive and the depart-ments in matters which it is the duty of the latter to determine; that as to constitutional law, neither the constitution of a, State nor an act of its legislature can prevent the application of an act of Congress to the Indian tribes residing in the States, but subject to the control of the General Government; that in the absence of fraud on the part of those representing the Department of the Interior, its refusal to sanction negotiation8 by the Eastern Band of Cherokee Indians for the sale of their standing timber is conclusive of the matter and that it is both the right and the duty of the United States to institute such proceedings as will fully protect the interest and property rights of its Indian wards. Judge Goff, in delivering this decision (p. 552), stated: We fully agree with the insistence of the complainants below that the Eastern Band of Cherokee Indians are the wards of the nation and that they h a ~ bee en treated as such since the vear 1848 hv the executive and lerrislative de~artmenta of the- Ciovernrrtent; and in this connection we "ray remark that vlid Indian* them-x , 4 r e ~i iaw r<ru-y lrired ~ l r rlel~at ion~biof rom mid tldre down to the time durin-e which thenegotiations for the sale of the timber now in controversy were being carried on. Therefore we hold that the court below had jurisdictior of this suit, and that it was not only proper, hut that it was the duty of the United States to take such steps and to institute such proceedings as would fully protect the interests of saia band of Indians. We are unable to agree with the cbim of the appellees that by virtue of the treaty of New Echota this Eastern band of Cherokees became citi-zens of the State of North Carolina and of the United States. By the twelfth article of that treaty it was provided, in substance, that those individuals and families of theCherokee Nation that were adverse to a removal to the Cherokee country weetof the Mismaaippi, and were desirous of becoming citizens of the States where they resided, and such as were qualified to take care of themselves and of their property and to become useful citizens, were to he permitted to remain within said States (North Carolina, Tennessee, and Alabama), and were to he entitled to receive their due portioil of all the personal benefits accruing under said treaty for their claims, improvements, and per capita, and to a prescriptive right to certain lands. This certainly did not confer citizenship on any portion of the Cherokee Indians, and we are unable to find any statute or any treaty that makes them citizens of the United States, or that authorizes them to become citizens by naturalization. The action or assent of the United States is absolutely essential in order to enable the Indian tribes or hands, or individual members oi the same, to renounce the dependent condition caused by the state of pupilage in which the Indians have been since the adoption af the Federal Constitution. If the treaty of New Echota can be held to |