United States v. Choctaw Nation

Assistant Attorney General Pradt for the United States.

These are cross appeals from a decree of the court of claims, entered in a suit brought under an agreement between the United States and the Choctaw and the Chickasaw Indians, made the 21st of March, 1902, and ratified and affirmed by the act of July 1, 1902 (32 Stat. at L. 649, chap. 1362).

The controversy is as to the relations of the Chickasaw freedmen to the Chickasaw Nation, and the rights of such freedmen, independent of such agreement, in the lands of the said Indian nations under the 3d article of the treaty of 1866 [14 Stat. at L. 769] between the United States and the said nations, and under any and all laws subsequently enacted by the Chickasaw legislature or by Congress.

There is no dispute about the facts. They are substantially as follows: By treaty of October 20, 1832 [7 Stat. at L. 381] the Chickasaw Indians ceded to the United States, for the purpose of sale, their land east of the Mississippi river, and later were permitted to migrate west of that river. By the treaty between the Choctaw and Chickasaw tribes of June 17, 1837, the Chickasaw tribe was permitted to occupy, with the Choctaw tribe, certain territory within the United States, the United States confirming the treaty and such occupation by a treaty with the tribes June 22, 1855 [11 Stat. at L. 611]. By this treaty the lands were guaranteed 'to the members of the Choctaw and Chickasaw tribes, their heirs and successors, to be held in common; so that each and every member of either tribe shall have an equal undivided interest in the whole.' By said treaty the said tribes leased to the United States 'all that portion of their common territory west of the ninety-eighth degree of west longitude' for the settlement of the Wichita and other tribes of Indians. The leased territory was also to be opened to the settlement by Choctaws and Chickasaws. This is the 'leased district' hereinafter referred to. The Choctaws and Chickasaws are separate nations. Upon the breaking out of the Civil War they entered into relations with the Southern confederacy, and took up arms against the United States. On January 1, 1863 [12 Stat. at L. 1268], the President of the United States, in pursuance of the proclamation of September 22, 1862 [12 Stat. at L. 1267], issued a proclamation abolishing slavery.

The appellants in No. 323 are the survivors or descendants of the slaves held by the Chickasaw Nation, and number about 9,066. The Creeks, Cherokees, and Seminoles also rebelled against the United States, and on the 10th of September, 1865, a treaty was entered into at Fort Smith, Arkansas, between them, said Choctaws and Chickasaws and the United States, by which they and the said Choctaws and Chickasaws renewed their allegiance to the United States, and acknowledged themselves to be under the protection of the United States, and covenanted and agreed that thereafter they would in all things recognize the government of the United States, which should exercise exclusive jurisdiction over them. The United States on its part promised to afford ample protection for the security of the persons and property of the respective nations or tribes. The treaty was ratified by the legislature of the Chickasaw Nation.

A treaty was concluded between the United States and the Choctaw and Chickasaw Indians, and proclaimed July 10, 1866. It provided, among other things, as follows:

'Article II. The Choctaws and Chickasaws hereby covenant and agree that henceforth neither slavery nor involuntary servitude, otherwise than in punishment of crime, whereof the parties shall have been duly convicted in accordance with laws applicable to all members of the particular nation, shall ever exist in said nations.

'Article III. The Choctaws and Chickasaws, in consideration of the sum of three hundred thousand dollars, hereby cede to the United States the territory west of the 98° west longitude, known as the leased district, provided that the said sum shall be invested and held by the United States, at an interest not less than five per cent, in trust for the said nations, until the legislatures of the Choctaw and Chickasaw Nations, respectively, shall have made such laws, rules, and regulations as may be necessary to give all the persons of African descent, resident in the said nations at the date of the treaty of Fort Smith, and their descendants, heretofore held in slavery among said nations, all the rights, privileges, and immunities, including the right of suffrage, of citizens of said nations, except in the annuities, moneys, and public domain claimed by or belonging to said nations, respectively; and also to give to such persons who were residents, as aforesaid, and their descendants, forty acres each of the land of said nations on the same terms as the Choctaws and Chickasaws, to be selected on the survey of said land, after the Choctaws and Chickasaws and Kansas Indians have made their selections as herein provided; and immediately on the enactment of such laws, rules, and regulations the said sum of three hundred thousand dollars shall be paid to the said Choctaw and Chickasaw Nations in the proportion of three-fourths to the former and one-fourth to the latter,-less such sum, at the rate of one hundred dollars per capita, as shall be sufficient to pay such persons of African descent before referred to as, within ninety days after the passage of such laws, rules, and regulations, shall elect to remove and actually remove from the said nations, respectively. And should said laws, rules, and regulations not be made by the legislatures of the said nations, respectively, within two years from the ratification of this treaty, then the said sum of three hundred thousand dollars shall cease to be held in trust for the said Choctaw and Chickasaw Nations, and be held for the use and benefit of such of said persons of African descent as the United States shall remove from the said Territory in such manner as the United States shall deem proper,-the United States agreeing, within ninety days from the expiration of the said two years, to remove from said nations all such persons of African descent as may be willing to remove; those remaining or returning after having been removed from said nations to have no benefit of said sum of three hundred thousand dollars, or any part thereof, but shall be upon the same footing as other citizens of the United States in the said nations.' [14 Stat. at L. 769.]

The legislature of the Chickasaw Nation has taken action at various times in regard to the said Chickasaw freedmen, as follows:

On November 9, 1866, the Chickasaw legislature passed an act declaring it to be the unanimous desire of the legislature that the United States hold the share of the Chickasaw Nation in the $300,000, stipulated for the cession of the 'leased district,' for the benefit of the Chickasaw freedmen, and remove them beyond the limits of the Chickasaw Nation, according to the 3d article of the treaty of 1866.

In 1868 similar action was taken by the Chickasaw legislature, asking for the removal, by the United, states, of the Chickasaw freedmen from the Chickasaw country.

January 10, 1873, the Chickasaw legislature passed an act by which the freedmen were declared to be adopted in conformity by the United States, of the Chickasaw Certain conditions were expressed, and it was provided that the act should 'be in full force and effect from and after its approval by the proper authority of the United States.'

That act was transmitted by the governor of the Chickasaw Nation, by letter of the same date, to the President of the United States, and was submitted by the Secretary of the Interior to the Speaker of the House of Representatives on February 10, 1873, with recommendation for appropriate legislation for extending the time for the execution of the 3d article of the treaty. The papers were referred to the committee on freedmen affairs, but no action thereon was had at that time.

In October, 1876 or 1877, another act was passed, § 3 of which was as follows:

'Sec. 3. Be it further enacted, that the provisions contained in article 3 of the said treaty, giving the Chickasaw legislature the choice of receiving and appropriating the three hundred thousand dollars therein named for the use and benefit, or passing such laws, rules, and regulations as will give all persons of African descent certain rights and privileges, be, and it is hereby, declared to be the unanimous consent of the Chickasaw legislature that the United States shall keep and hold said sum of three hundred thousand dollars for the benefit of the said negroes, and the governor of the Chickasaw Nation is hereby requested to notify the government of the United States that it is the wish of the legislature of the Chickasaw Nation that the government of the United States remove the said negroes beyond the limits of the Chickasaw Nation, according to the requirements of the third article of the treaty of April 28, 1866.'

An act passed October 22, 1885, provided, inter alia, as follows:

'Sec. 1. Be it enacted by the legislature of the Chickasaw Nation, That the Chickasaw people hereby refuse to accept or adopt the freedmen as citizens of the Cherokee Nation upon any terms or conditions whatever, and respectfully request the governor of our nation to notify the department at Washington of the action of the legislature in the premises.

'Sec. 2. Be it further enacted, that the governor is hereby authorized and directed to appoint two competent and discreet men of good judgment and business qualifications to visit Washington city, D. C., during the next session of Congress, and memorialize that bokdy to provide a means of removal of the freedmen from the Chickasaw Nation to the country known as Oklahoma, in the Indian that body to provide a means of removal of of the freedmen question, so that they be not forced upon us as equal citizens of the Chickasaw Nation.'

Congress took no action until August 15, 1894, when it passed an act, § 18 of which provided—

'That the approval of Congress is hereby given to 'An Act to Adopt the Negroes of the Chickasaw Nation,' and so forth, passed by the legislature of the Chickasaw Nation and approved by the governor thereof January 10, 1873, particularly as set forth in a letter from the Secretary of the Interior transmitting to Congress a copy of the aforesaid act contained in House Executive Document numbered two hundred and seven, Forty-second Congress, third session.' 28 Stat. at L. 336, chap. 290.

Subsequently, April 23, 1897, an agreement was entered into between the United States and the Choctaw and Chickasaw tribes. The agreement, ratified and confirmed by the act of June 28, 1898, § 29 (30 Stat. at. L. 505, chap. 517), provides, inter alia, as follows:

'That all the lands within the Indian territory belonging to the Choctaw and Chickasaw Indians shall be allotted to the members of said tribes, so as to give to each member of these tribes, so far as possible, a fair and equal share thereof, considering the character and fertility of the soil and the location and value of the lands. . ..

'The lands allotted to the Choctaw and Chickasaw freedmen are to be deducted from the portion to be allotted under this agreement to the members of the Choctaw and Chickasaw tribe so as to reduce the allotment to the Choctaws and Chickasaws by the value of the same.

'That the said Choctaw and Chickasaw freedmen who may be entitled to allotments of 40 acres each shall be entitled each to land equal in value to 40 acres of the average land of the two nations.'

These provisions relative to the freedmen are previously qualified as to their holdings of such lands by this clause in the statute: 'to be selected, held, and used by them until their rights under said treaty shall be determined, in such manner as shall hereafter be provided by act of Congress.'

Then came the agreement of 1902. It provides for the allotment of land to each member of the Choctaw and Chickasaw tribes of 320 acres, and to each freedman 'land equal in value to 40 acres of the average allottable land of the Choctaw and Chickasaw Nations.'

The agreement provides also as follows:

'36. Authority is hereby conferred upon the court of claims to determine the existing controversy respecting the relations of the Chickasaw freedmen to the Chickasaw Nation and the rights of such freedmen in the lands of the Choctaw and Chickasaw Nations under the third article of the treaty of eighteen hundred and sixty-six between the United States and the Choctaw and Chickasaw Nations and under any and all laws subsequently enacted by the Chickasaw legislature or by Congress.

'37. To that end the Attorney General of the United States is hereby directed, on behalf of the United States, to file in said court of claims, within sixty days after this agreement becomes effective, a bill of interpleader against the Choctaw and Chickasaw Nations and the Chickasaw freedmen setting forth the existing controversy between the Chickasaw Nation and the Chickasaw freedmen, and praying that the defendants thereto be required to interplead and settle their respective rights in such suit.'

'Sec. 40. In the meantime the commission to the Five Civilized Tribes shall make a roll of the Chickasaw freedmen and their descendants, as provided in the Atoka agreement, and shall make allotments to them as provided in this agreement, which said allotments shall be held by the said Chickasaw freedmen, not as temporary allotments, but as final allotments, and in the event that it shall be finally determined in said suit that the Chickasaw freedmen are not, independently of this agreement, entitled to allotments in the Choctaw and Chickasaw lands, the court of claims shall render a decree in favor of the Choctaw and Chickasaw Nations according to their respective interests, and against the United States, for the value of the lands so allotted to the Chickasaw freedmen as ascertained by the appraisal thereof made by the commission to the Five Civilized Tribes for the purpose of allotment, which decree shall take the place of the said lands and shall be in full satisfaction of all claims by the Choctaw and Chickasaw Nations against the United States or the said freedmen on account of the taking of the said lands for allotment to said freedmen: Provided, That nothing contained in this paragraph shall be construed to affect or change the existing status or rights of the two tribes as between themselves respecting the lands taken for allotment to freedmen, or the money, if any, recovered as compensation therefor, as aforesaid.' [32 Stat. at L. 649, chap. 1362.]

The agreement was ratified by the Choctaws and Chickasaws by elections September 25, 1902, and became effective on that date. The court of claims found the averments in the bill to be true, and found that the 3d article of the treaty of 1866 remained unaffected by any and all laws subsequently thereto enacted by the said Indian nations or by Congress independently of the agreement of March 21, 1902, and confirmed by act of Congress of July 1, 1902; that the Chickasaw Nation had not conferred the rights upon their freedmen as provided in said treaty, or given to them 40 acres of land as provided. And further found that none of the said freedmen elected to remove or were willing to remove from said nation, but they did and now do remain therein; that the United States only agreed to remove them if they were willing to be removed. And further, the freedmen, by not electing to remove from the nation, and remaining therein, forfeited all benefit to the money mentioned in the treaty, 'became in said nation upon the same footing as other citizens of the United States in said nation, and were entitled only to the rights and privileges of such citizens, and were not entitled to the 40 acres of land mentioned and described' in said treaty. It was therefore adjudged that, independently of said agreement, the relations of the freedmen to said nation were only those 'of citizens of the United States residing in the said nation,' and that the said freedmen, independently of said agreement and the aforesaid act of 1902, 'have no rights in the lands of the Chickasaw Nation, nor are they, or any of them, under said article, entitled to allotments in the lands of the said Chickasaw Nation.' The decree concluded as follows:

'And it is further ordered that, upon the coming in of the roll and appraisal to be made by the Dawes Commission, as referred to in the said statute, the defendants, the Choctaw and Chickasaw Nations, have leave to apply for an additional decree to be entered at the foot of this decree, determining the amount which shall be paid and allowed by the United States to the said Choctaw and Chickasaw Nations, as directed by said statute; and that the complainant, the United States, be at the same time heard in regard to such amount for which judgment shall be rendered against the United States.'

Mr. Charles W. Needham for the Chickasaw freedmen.

Messrs. George A. Mansfield, A. A. Hoehling, Jr., and Messrs. Mansfield, McMurray, & Cornish for the Choctaw and Chickasaw Nations.

Statement by Mr. Justice McKenna:

Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court: