There was an additional provision allowing the Indians referred to in that article to have a preemption right to 160 acres of land to be given to those who were desirous to reside within the States of North Carolina, Tennessee, and Alabama. A supplemental treaty to this, proclaimed May 23, 1836, relinquished and declared void the preemption rights and reservation provided for in the treaty of 1835. These two articles, however, in the treaties of 1817 and 1835, clearly indicate the intention of Congress that such Cherokee Indians as were averse to removal to the country west of the Mississippi might become citizens of the States where they resided.

In the case of the United States v. Boyd et al., decided by the circuit court of the United States for the western district of North Carolina, in June, 1895 (68 Federal Reporter, pp. 577-585), it was held that—

The Indians belonging to the Eastern Band of Cherokees, in the State of North Carolina, have never become citizens of the United States, and the Federal courts have jurisdiction to entertain a suit brought by the United States, as guardian of such Indians, for the protection of their interests.

In the opinion of the circuit court of the United States in this case the court used this language:

By the treaty of New Echota [treaty of 1835], individuals and families who were averse to removal with the nation were suffered to remain in the States in which they were living, if they were qualified to take care of themselves and property, and were desirous of becoming citizens of the United States. Those who exercised these privileges terminated their connection with the Cherokee Nation. (Eastern Band of Cherokee Indians v. United States, 117 U. S., 288; 6 Sup. Ct., 718.)

Did this make them citizens of the United States? The circuit court here quotes with approval the decision of the Supreme Court in the case of Elks v. Wilkins, supra, and then continues as follows:

There is nothing in the record going to show that these Indians [Eastern Band of Cherokees] were ever naturalized.

Have they been made citizens by treaty? Article 12 of the treaty of 1835 is then quoted by the circuit court, and its opinion continues as follows:

This does not confer on them citizenship. It only authorized them to become citizens when it is recognized that they are qualified or calculated to become useful citizens.

The court then pointed out that they could only become citizens of the United States by naturalization. The court continued as follows:

But it must not be understood that these Cherokee Indians, although not citizens of the United States, and still under pupilage, are independent of the State of North Carolina. They live within her territory. They hold lands under her sovereignty, under her tenure. They are in daily contact with her people. They are not a nation or a tribe. They can enjoy privileges she may grant. They are subject to her criminal laws. None of the laws applicable to Indian reservations apply to them. All that is decided is that the Government of the United States has not yet ceased its guardian care over them nor released them from pupilage.

It was also conceded in this opinion that the North Carolina Cherokees were recognized citizens of the State of North Carolina; that they voted, paid taxes, worked roads, and performed all the duties of citizens of said State. The circuit court, in the case above referred to, in its opinion further states as follows:

The case of the Cherokee Trust Funds (117 U. S., 288; 6 Sup. Ct. 718) does not conflict with these views. That case decides that this Eastern Band of Cherokee Indians is not a part of the nation of Cherokees with which this Government treats, and that they have no recognized separate political existence; and at the same time their distinct unity is recognized and the fostering care of the Government over them as such distinct unit.

It is clearly held in this opinion of the circuit court of North Carolina that the Eastern Band of Cherokees is not a part of the Cherokee Nation as now constituted. And if the Eastern Band of Cherokees, which has preserved a distinct tribal organization under the tutelage of the United States, is not a part of the Cherokee Nation as now constituted, it follows even with greater force that those Indians who removed with their effects out of the old Cherokee Nation before the removal of its citizens west of the Mississippi River, as well as those who have moved from the limits of the nation as now constituted and become citizens of any other government, have forfeited all their rights and privileges as citizens of the Cherokee Nation.

The decision of the Supreme Court in the case of Elk v. Wilkins, supra, was handed down November 3, 1884. A little over two years thereafter Congress passed an act February 8, 1887 (24 Stat. L., 388), with the evident purpose to define the status of Indians situated as was Elk, the plaintiff in the case.

This act declares an Indian who has taken up his residence in the United States separate and apart from his tribe, and who has adopted the habits of civilized life, to be a citizen of the United States and entitled to all the rights, privileges, and

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immunities of other citizens thereof, and that such citizenship is conferred "without in any manner impairing or otherwise affecting the right of such citizen to tribal or other property." This act of Congress is important in determining the status of Cherokee Indians who have taken up a residence in the States separate and apart from the tribe and have adopted the habits of civilized life. Such Indians were declared February 8, 1887, to be citizens of the United States. And those Indians who have never been recognized as members of the Cherokee Nation. as it is now constituted, have never had any right to tribal property in said nation and hence they have no rights in the nation which could in any manner be impaired. or otherwise affected by being declared citizens of the United States. If such Indians have any tribal rights to be impaired, they were rights in the old Cherokee Nation or in the Eastern Band of the Cherokee Indians now located as a separate tribe in North Carolina. If there are any Cherokees who have ever been recog nized as citizens of the Cherokee Nation as now constituted who have separated themselves from the nation and taken up their residence in the States and have removed their effects out of the nation, they would, by the act of Congress of February 8, 1887, be citizens of the United States, and by the constitution and laws of the Cherokee Nation they would have forfeited their rights as citizens of the nation. The Cherokee constitution and laws were not abrogated or repealed by the act of Congress of February 8, 1887, for the reason that the United States has conceded to the Cherokee Nation the right to determine who shall be citizens thereof.

A careful examination of the treaties which have been made with the Cherokee Nation by the United States will clearly establish the fact that nowhere does it appear that Cherokee Indians who have separated themselves from the tribe or taken up their residence in the States are taken into consideration, except the provision in reference to the Eastern Band of Cherokees, and those in reference to Cherokees who accepted reservations of land under article 8 of the treaty of 1817, and those who received their due proportion of all personal benefits accruing under the treaty of 1835, article 12. The treaties in reference to those classes of Cherokee Indians recognized the fact that they had separated themselves from and ceased to constitute a part of the Cherokee Nation. And, as is held by the Supreme Court of the United States in the case of the Eastern Band of Cherokees against the Cherokee Nation, supra, these Indians ceased to be a part of the Cherokee Nation, and henceforth they become citizens of, and were subject to the laws of, the States in which they resided. And further, if Cherokee Indians who have separated themselves from the Cherokee Nation and have taken up their residence in any of the States of the Union wish to enjoy the benefits of citizenship in the Cherokee Nation they must comply with the constitution and laws of the Cherokee Nation and be readmitted to citizenship as therein provided. "They can not live out of its territory, evade the obligations and burdens of citizenship, and at the same time enjoy the benefits of the funds and common property of the nation." By the terms of various treaties between the United States and the Cherokee Nation during the time the nation was divided into the Eastern and Western tribes the annuities were divided between the two branches of the nation according to their respective members, to be ascertained by a census to be taken. The annuities thus divided were regularly paid as stipulated until commuted by the treaty of 1835. This clearly shows that the United States regarded those Cherokees only who were citizens of the nation as entitled to annuities and as having any right or interest in Cherokee lands or property.

PURCHASE OF THE CHEROKEE OUTLET.

Counsel for the Cherokee Nation contend that the treaty with the Cherokee Nation for the purchase of what is known as The Cherokee Outlet" expressly recognized the right of the Cherokee Nation to determine for itself who were entitled to citizenship. It is true that two considerations were expressed in the treaty: One of money, and the other in reference to intruders. Article 1 of the treaty ceded the lands in the Cherokee Outlet to the United States. Article 2 is as follows:

For and in consideration of the above cession and relinquishment the United States agrees: First. That all persons now residing, or who may hereafter become residents, in the Cherokee Nation, and who are not recognized as citizens of the Cherokee Nation by the constituted authorities thereof, and who are not in the employment of the Cherokee Nation or not in the employment of citizens of the Cherokee Nation, in conformity of the laws thereof, or in the employment of the United States Government, and all citizens of the United States who are not residents of the Cherokee Nation under the provisions of treaty or acts of Congress, shall be deemed and held to be intruders and unauthorized persons within the intent and meaning of section 6 of the treaty of 1835 and sections 26 and 27 of the treaty of July 19, 1866, and shall, together with their personal effects, be removed without delay from the limits of said nation by the United States, as trespassers, upon the demand of the principal chief of the Cherokee Nation.

Counsel for the Cherokee Nation contend that the foregoing provision was deemed a greater consideration to the Cherokees than the money actually paid them, and that the legislation contained in the act of June 10, 1896, conferring apon the United States commission and this court authority to determine who were citizens of the Cherokee Nation is in violation of the letter and spirit of this treaty and impairs the obligation of the contract of purchase; that contracts made by the Government with individuals are binding upon the Government, and that the Government is subject to the same obligations as individuals.

If it should be conceded for the sake of the argument that this position is correct, the conclusion would follow that the contract for the purchase of the Outlet had been impaired by subsequent legislation and that a portion of the consideration of purchase had failed. In that event, if this position be well taken, the Cherokee Nation might demand additional pecuniary consideration for the sale of the Outlet, the amount to depend upon the damages, if any, which the Cherokee Nation had sustained.

It would not follow, in any event, that the United States had no power to enact the legislation conferring authority upon the United States commission to prepare rolls and the jurisdiction upon this court under which citizenship cases are now being heard and determined.

POWER OF CONGRESS OVER INDIANS.

In the first treaty made between the United States and the Cherokee Nation, which was concluded November 22, 1785, at Hopewell, on the Keowee, it was expressly provided in article 3 as follows:

That said Indians, for themselves and their respective tribes and towns, do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other Sovereign whomsoever.

And by article 9 of said treaty it was provided as follows:

For the benefit and comfort of the Indians, and for the prevention of injuries and oppressions on the part of the citizens or Indians, the United States in Congress assembled shall have the sole and exclusive right to regulate the trade with the Indians and manage all their affairs in such a manner as they (the United States in Congress assembled) think proper.

These provisions have never been abrogated, and the power has always been preserved in Congress of managing all the affairs of the Cherokees in such manner as Congress should think proper.

During the Revolutionary war the Cherokees had adhered to Great Britain, and this first treaty with them provided for a general exchange of prisoners, and the thirteenth or concluding article was as follows:

The hatchet shall be forever buried, and the peace given by the United States and friendship reestablished between the said States on the one part and all the Cherokees on the other shall be universal.

This evidently explains the reasons which induced the United States to incorporate in this treaty the foregoing provisions.

It is true that for many years the United States pursued a policy of making treaties with the Indian nations and tribes, but that policy did not recognize the Indian tribe or nations as independent sovereignties. Their dependence upon and subjection to the authority of the United States have always been conceded. Congress may, in its discretion, legislate for them and concerning them in such manner as Congress may deem proper, subject only to the Constitution of the United States.

SUMMARY.

This court will now proceed to consider the cases now before it on appeal from the United States commission in reference to citizenship in the Cherokee Nation. A separate opinion will be submitted later on in the term in reference to citizenship in the Creek Nation.

In determining who are citizens of the Cherokee Nation, the following propositions will govern this court:

First. That those Indians who have separated themselves from the present Cherokee Nation, or from the Old Cherokee Nation east of the Mississippi River, and have taken up their residence in the States, and have moved their effects out of the limits of the nation, and the Eastern Band of Cherokee Indians, who remained in the States after the treaty of 1835, have forfeited all their rights and privileges as citizens of the nation, and that such persons can not regain their citizenship unless they comply with the constitution and laws of the Cherokee Nation and be readmitted to citizenship as therein provided.

Second. That this court recognizes the legislation of the Cherokee Nation constituting the supreme court, and thereafter the chief justice of the supreme court, tribunals to pass upon certain classes of citizenship cases, and also the legislation | of the Cherokee Nation creating commissions with prescribed powers to pass upon applications for citizenship in the Cherokee Nation, as passed in accordance with the general legislative power of the nation, and will respect such legislation to the extent that it may be in accordance with the Constitution and laws of the United States and the treaties made between the United States and the Cherokee Nation. In construing such legislation the court will apply to it the same general principles of statutory construction which should be applied to the statutes of any of the States of the Union or to the statutes of the United States.

Third. That blood alone is not the test of citizenship in the Cherokee Nation. That those Cherokees, and their descendants, who have separated themselves from the nation, and have removed their effects from it and taken up their residence in any of the States of the Union, have ceased to be citizens of the Cherokee Nation. And further, that bona fide residence in the nation is essential to citizenship. Fourth. Full faith and credit will be given to the judgments of the tribunals and commissions in citizenship cases, unless it is made to appear that the tribunal or commission acted without jurisdiction, or that its judgment was procured by fraud, as more fully explained in this opinion. The acts of the Cherokee council in the determination of applications for citizenship in the nation will be regarded as judgments of a court, and will be subject to the same tests as to their validity,

OPINION OF WILLIAM M. Springer, Judge.

In the northern district of the Indian Territory.

No. 231.

William J. Watts, appellant, v. The Cherokee Nation, appellees.

Appeal from the United States Commission to the Five Civilized Tribes.

SPRINGER, Judge.

Mr. N. A. Gibson, special master, to whom this case was referred, submits the following report:

REPORT OF SPECIAL MASTER.

I, N. A. Gibson, special master herein, respectfully show to the court that under the order of reference herein made by the court, I have examined the pleadings and proof in this cause, which are filed herewith and made a part hereof, and that I find as follows:

I.

That this cause was instituted on September 9, 1896, upon which day application was made to the Commission to the Five Civilized Tribes for enrollment as citizens of the Cherokee Nation. That this application was made to the commission by which the cause was tried and the application denied on November 23, 1896, no reason being given for the decision, and that the claimants appealed therefrom to this court on January 19, 1897.

That this application was made by

II.

William J. Watts, a son of Malachi Watts, for himself and for his children, Jesse W., Charlie G., Noah V., and Fannie E. Watts, and his grandchildren, Owen J. Watts, the child of Jesse W Watts, and Eva C. Watts, the wife of said Jesse W. Watts; by Martha L. Payne, a daughter of Malachi Watts, her husband, James L. Payne, and their children, Thomas, Mattie, Charlie, and Willie W. Payne, and Sue L., the wife, and Maudie and William J., the children of said William W. Payne; by James Payne, jr., a son of the said Martha Payne, his wife, Ollie, and their chil dren, Alford L., Mary S., and Bulah Payne; by Alex. G. Payne, a son of Martha L. Payne, his wife, Emma, and their children, Cora and Allie Payne; by Elbert Caswell, a son of Eva Caswell, a deceased, and who was a daughter of Martha Payne; by Queen Walton, a daughter of Malachi Watts, her husband, George G., and their children, William, Robert, and Okla Wal ton: by Cora and Alma Gleson, children of Laura Gleson, deceased, a daughter of Margaret Norrid; by William H. Norrid, the son of Margaret and Walter Norrid, his wife, Ada, and their children, Ross M. Norrid; by Thomas W. Norrid, a son of Walter and Margaret Norrid, and his

wife, Earle Norrid; by Elizabeth A. Watts, the wife of Solomon Watts, deceased, who was a son of Malachi Watts, and her son, Alford J. Watts, and his children, William H., Thomas J. Watts, and Alice M. Hudleston and Nellie Hudleston, the daughter of the last, claimant; by Mattie Johnson, a daughter of Alford J. Watts, her husband, W. L., and their child, William Johnson; by Samuel M. Watts, the son of Solomon Watts, and his children, Watey, Thomas, Annie, and Solomon J. Watts, and by Julia, Loy C., Charlie T., and Rachel Watts, the wife and children of Solomon J. Watts; by Tenney Blackard, a daughter of Solomon Watts, deceased, her husband, Thomas H., and their children, William and Nora; Charles and Vida Blackard; by John T. Blackard, the husband of Mahala Blackard, deceased, who was a daughter of Solomon Watts, his second wife, Permelia, and his children, John A., Sarah B., William A., and Cleo Blackard; by Ellie Price, a daughter of Mahala Blackard, and her son, Lee T. Price; by Henry M. Paterson, the husband of Nancy Paterson, deceased, who was a daughter of Solomon Watts, and his children, Mabel, Hurley, David, Roland, and Marion Paterson; by William Paterson, a son of Nancy Paterson, deceased, his wife, Susie, and their child, Austin Paterson; by Matishey Watts, the wife of William Watts, deceased, who was a son of Solomon Watts, and their children, James, Fannie, Lizzie, Will, Tenney, Mollie, and Wilburn Watts; by Susan M. Mabry, a daughter of Malachi Watts, and her son, William H. Mabry; by Hannah Woodard, the daughter of Susan Ann Mabry, her husband, Sell J., and their children, John, Ora, Susie, William, Ira, Wilburn, and Archie Woodard; by Lizzie Walts, a daughter of Hannah Woodard, and her husband, Julius Waltz; by Laura Shermer, the daughter of Susan M. Mabry, her husband, Joseph, and their children, Walter, Marion, Oltey, and Jody Shermer; by Fannie Shermer, daughter of Susan M. Mabry, her husband, Charlie, and their children, Harvey, Ivey, Eusetta E., and Charlie Shermer, ir.; by Jacob J. Mabry, the son of Susan Mabry, his wife, Fannie, and their children, May, Gordon, Gunter, and Lesla Mabry; by Marion H. Mabry, a son of Susan Mabry, his wife, Margaret, and their children, Lena, Ben, and Barney Mabry; by Louie Childres, the daughter of Susan Mabry, her husband, William P., and their children, Leona and Hubbard W. Childres; by J. H. Neal, the husband of Lizzie Neal, deceased, who was a daughter of Delila Bayette, and his children, Ida, Winshall, Ada, Ora, and Eva Neal; by John A. Bayette, the son of Delila Bayette, his wife, Mattie, and their daughters, Emma Bayette, Leslie Bayette, and Lessey Bayette; by Mary L. Day, the daughter of Jane Paterson, who was a daughter of Delila Bayette, her husband, John, and their children, Walter, Harvey, Lillie, Shelby, and Charlie Day; by Amanda Paterson, a daughter of Jane Paterson; by Thomas H. Hope, the husband of Tabitha Hope, deceased, who was a daughter of Delila Bayette, Josie Hope, his second wife, and his children, William, Robert. James, Adda, Jesse, and Ethel Hope; by Fannie Taylor, a daughter of Malachi Watts, her husband, Lam, and her son, William Taylor; by Marion J. Taylor, a son of Fannie Taylor; his wife, Lenora, and their children, Cleo and Marion J. Taylor, jr.; by Mary S. Fields, a daughter of Fannie Taylor, her husband, Isom W., and their children, Dora E. and William J. Fields; by Marion J. Watts, a son of Malachi Watts, his wife, Thenia, and his son, Marion J. Watts, jr.; by Thomas F. Watts, a son of Marion Watts, and his wife, Maggie Watts; by Mildona Shackleford, a daughter of Marion J. Watts, her husband, Lafayette Shackleford, and her children by her first husband, Marinda, Delia, Effie, Beulah, Claud, and Comelia Clayborn; by Nellie Nichols, a daughter of Louisa Taylor, deceased, who was a daughter of Malachi Watts, her husband, George M. Nichols, and their children, Emma, Lizzie, Mattie, and Bertha Nichols; by Minnie Jackson, the daughter of Louisa Taylor, her husband, Jesse, and their child, Nellie Jackson; by Mary L. Eddington, a daughter of Louisa Taylor, her husband, J. T., and their children, Elizabeth, Grover, Frank G., Carrie M., Marion W., Willie A., and Emma L. Eddington; by Fannie Morgan, a daughter of Louisa Taylor, her husband, Jeff L. and their children, Nellie, Ellwood, Maud, Clarrie, L. M., and La Fayette Morgan; by Fannie E. Hendrix, a daughter of Fannie Morgan, her husband, Isaac, and their child, Callie Hendrix; by John Shannon, the husband of Allie Shannon, deceased, who was a granddaughter of Malachi Watts; by Dudley Taylor, a son of Louisa Taylor, his wife, Clarrie, and their children, Willie and William Taylor; by Lou Wallace, the daughter of Louisa Taylor, her husband, William Wallace, and her children by a former marriage, Lee, Mattie, Myrtle, and Clara J. Shannon; by Jennie M. Taylor, a daughter of Malachi Watts, her husband, Jonathan H., and George W. Taylor; by Fannie M. Ward, a daughter of Jennie Taylor, her husband, Augustus M., and their children, William T. and Mary Ward; by William T. Taylor, a son of Jennie M. Taylor, his wife, Cora, and their children, Robbie T. and Elmer Taylor; by William D. Blackard, the husband of Matilda Blackard, deceased, who was a daughter of Malachi Watts, and their children, Caswell, Tollie, Mattie, and Annie P. Blackard; by John Hope, a son of Tibitha Hope, who was a daughter of Delila Bayette, his wife, Mary, and their children, Newton and Mary Hope; by Pinkney A., Ola May, Thomas, Pinkney M., Arta, Rachel M., John M., P. A., V. K., E. S., Earl G., Jerman Cherry, Susie J., Effie, and Clinton Duncan, Mary M., Odus, Ellen M., Edwin, Marion G., and Vernon W. Cherry Endoval S., Jasper V., and Ora G. Robinson, all children and grandchildren of Marion J. Watts, a son of Malachi Watts: by Hettie M. Miller and her five children; by Nancy J. Allen, her husband, Jesse Allen, and their children, Sarah, Thomas R., Claud C., Randolph, John W., Pinkney J., Daniel H., and Nannie Allen; by Martha E. Cousins, her husband, J. W., and their children, Effie and Celia Cousins; by R. B. Jenkins, his wife, Bessie, and their children, Mollie, Eva, Mary, Ada Ruth, Lola, and Richard B. Jenkins-these last-named claimants being all descendants of Molinda Watts, a sister of Malachi Watts; by John Nail, his wife, Lizzie, and their child, Homer Nail, and by William Nail, they being descendants of Molinda Watts; by Alice Robison, her husband. J. P., and their children, Sam, Dona, and Josie Robison, she being a daughter of William M. Watts; by the said William M. Watts, his wife, Lusinda, and their children, Alice Robison, William J. Watts, Oscar Watts, John Watts, Oliver Watts, and Sarah McGuire; by Eli McGuire, the husband of Sarah McGuire, and their children, Myrtle, Olie, and Robert McGuire; by Robert Watts, a son of Clinton Watts, who was a brother of Malachi Watts, his wife, Bell, and their children, Claud, Cora, and Pearly Watts these claimants, from Alice Robison down to and including Pearly Watts, all residing in the State of Texas. That the children of Hattie M. Miller, above referred to, who was a granddaughter of Malachi Watts, are James L., Jesse M., Thomas K., William F., Fannie B., Charlie B., and Oscar F. Miller; by Thomas F. Evans, a son of Malachi Evans and grandson of Nancy Evans, who was a full sister of Malachi Watts, and whose husband, Thomas Evans, was the son of Jacky Evans, a Cherokee Indian who lived in the State of Tennessee, and whom the claimants state was enrolled on the Cherokee roll of 1835; by Mary J. Evans, his wife, and their children, Susan E. Brooks, Lee Ellen Tyler; by Jodie Evans and John F. Evans, this last family residing in the State of Tennessee; by Endora Heard, a daughter of Jefferson J. Watts, who was a brother of Malachi Watts, and her children, Lizzie P. Griffing and Ayleen Watts Pope, they residing at Wagoner, Ind. T.; by Lela J. Maddux, a sister of the last-named claimant, and her children, Clement T., N. Watts, Erne E., and Ince L. Maddux, residing at Wagoner, Ind. T.; and by Lou O. Maddux, a sister of the last-named claimant, and her children, Neville N., Emery W., Ola D., Thomas W., Albert L., and Maud E. Maddux, residing in the State of Mississippi; by Bell T. Seaton, for herself and for her husband,