The Multiracial Activist - www.multiracial.com

 

Messrs. Geo. W. Wickersham, of New York City, and David L. Withington, of Honolulu, T. H., for Takao Ozawa.

{page 186} Mr. Solicitor General Beck, of Washington, D. C., for the United States.

{page 189}

Mr. Justice SUTHERLAND delivered the opinion of the Court.

The appellant is a person of the Japanese race born in Japan. He applied, on October 16, 1914, to the United States District Court for the Territory of Hawaii to be admitted as a citizen of the United States. His petition was opposed by the United States District Attorney for the District of Hawaii. Including the period of his residence in Hawaii appellant had continuously resided in the United States for 20 years. He was a graduate of the Berkeley, Cal., high school, had been nearly three years a student in the University of California, had educated his children in American schools, his family had attended American churches and he had maintained the use of the English language in his home. That he was well qualified by character and education for citizenship is conceded.

The District Court of Hawaii, however, held that, having been born in Japan and being of the Japanese race, {page 190} he was not eligible to naturalization under section 2169 of the Revised Statutes (Comp. St. 4358), and denied the petition. Thereupon the appellant brought the cause to the Circuit Court of Appeals for the Ninth Circuit and that court has certified the following questions, upon which it desires to be instructed:

"1. Is the act of June 29, 1906 (34 Stats. at Large, pt. 1, p. 596), providing 'for a uniform rule for the naturalization of aliens' complete in itself, or is it limited by section 2169 of the Revised Statutes of the United States?

"2. Is one who is of the Japanese race and born in Japan eligible to citizenship under the naturalization laws?

"3. If said act of June 29, 1906, is limited by section 2169 and naturalization is limited to aliens being free white persons and to aliens of African nativity and to persons of African descent, is one of the Japanese race, born in Japan, under any circumstances eligible to naturalization?"

These questions for purposes of discussion may be briefly restated:

1. Is the Naturalization Act of June 29, 1906 (Comp. St. 4351 et seq.), limited by the provisions of section 2169 of the Revised Statutes of the United States?

2. If so limited, is the appellant eligible to naturalization under that section?

First. Section 2169 is found in title XXX of the Revised Statutes, under the heading "Naturalization," and reads as follows:

"The provisions of this title shall apply to aliens, being free white persons and to aliens of African nativity and to persons of African descent."

The act of June 29, 1906, entitled "An act to establish a Bureau of Immigration and Naturalization, and to provide for a uniform rule for the naturalization of aliens {page 191} throughout the United States," consists of 31 sections and deals primarily with the subject of procedure. There is nothing in the circumstances leading up to or accompanying the passage of the act which suggests that any modification of section 2169, or of its application, was contemplated.

The report of the House Committee on Naturalization and Immigration, recommending its passage, contains this statement:

"It is the opinion of your committee that the frauds and crimes which have been committed in regard to naturalization have resulted more from a lack of any uniform system of procedure in such matters than from any radical defect in the fundamental principles of existing law governing in such matters. The two changes which the committee has recommended in the principles controlling in naturalization matters and which are embodied in the bill submitted herewith are as follows: First, the requirement that before an alien can be naturalized he must be able to read, either in his own language or in the English language and to speak or understand the English language; and, second, that the alien must intend to reside permanently in the United States before he shall be entitled to naturalization."

This seems to make it quite clear that no change of the fundamental character here involved was in mind.

Section 26 of the Act (Comp. St. 4381) expressly repeals sections 2165, 2167, 2168, 2173 of title XXX, the subject-matter thereof being covered by new provisions. The sections of title XXX remaining without repeal are: Section 2166, relating to honorably discharged soldiers; section 2169 (Comp. St. 4358), now under consideration; section 2170 (section 4360), requiring five years' residence prior to admission; section 2171 (section 4352), forbidding the admission of alien enemies; section 2172 (section 4367), relating to the status of children of naturalized persons; and section 2174 (section 4352), making special provision in respect of the naturalization of seamen.

{page 192} There is nothing in section 2169 which is repugnant to anything in the act of 1906. Both may stand and be given effect. It is clear, therefore, that there is no repeal by implication.

But it is insisted by appellant that section 2169, by its terms is made applicable only to the provisions of title XXX, and that it will not admit of being construed as a restriction upon the act of 1906. Since section 2169, it is in effect argued, declares that "the provisions of this title shall apply to aliens being free white persons, ..." it should be confined to the classes provided for in the unrepealed sections of that title, leaving the act of 1906 to govern in respect of all other aliens, without any restriction except such as may be imposed by that act itself.

It is contended that, thus construed, the act of 1906 confers the privilege of naturalization without limitation as to race, since the general introductory words of section 4 (Comp. St. 4352) are:

"That an alien may be admitted to become a citizen of the United States in the following manner, and not otherwise."

But, obviously, this clause does not relate to the subject of eligibility but to the "manner," that is, the procedure, to be followed. Exactly the same words are used to introduce the similar provisions contained in section 2165 of the Revised Statutes. In 1790 the first naturalization act provided that --

"Any alien being a free white person ... may be admitted to become a citizen. ..." 1 Stat. 103, c. 3.

This was subsequently enlarged to include aliens of African nativity and persons of African descent. These provisions were restated in the Revised Statutes, so that section 2165 included only the procedural portion, while the substantive parts were carried into a separate section ( 2169) and the words "An alien" substituted for the words "Any alien."

In all of the naturalization acts from 1790 to 1906 the privilege of naturalization was confined to white persons {page 193} (with the addition in 1870 of those of African nativity and descent), although the exact wording of the various statutes was not always the same. If Congress in 1906 desired to alter a rule so well and so long established it may be assumed that its purpose would have been definitely disclosed and its legislation to that end put in unmistakable terms.

The argument that, because section 2169 is in terms made applicable only to the title in which it is found, it should now be confined to the unrepealed sections of that title, is not convincing. The persons entitled to naturalization under these unrepealed sections include only honorably discharged soldiers and seamen who have served three years on board an American vessel, both of whom were entitled from the beginning to admission on more generous terms than were accorded to other aliens. It is not conceivable that Congress would deliberately have allowed the racial limitation to continue as to soldiers and seamen to whom the statute had accorded an especially favored status, and have removed it as to all other aliens. Such a construction cannot be adopted unless it be unavoidable.

The division of the Revised Statutes into titles and chapters is chiefly a matter of convenience, and reference to a given title or chapter is simply a ready method of identifying the particular provisions which are meant. The provisions of title XXX affected by the limitation of section 2169, originally embraced the whole subject of naturalization of aliens. The generality of the words in section 2165, "An alien may be admitted, ..." was restricted by section 2169 in common with the other provisions of the title. The words "this title" were used for the purpose of identifying that provision (and others), but it was the provision which was restricted. That provision having been amended and carried into the act of 1906, section 2169 being left intact and unrepealed, it will require some thing {page 194} more persuasive than a narrowly literal reading of the identifying words "this title" to justify the conclusion that Congress intended the! res triction to be no longer applicable to the provision.

It is the duty of this Court to give effect to the intent of Congress. Primarily this intent is ascertained by giving the words their natural significance, but if this leads to an unreasonable result plainly at variance with the policy of the legislation as a whole, we must examine the matter further. We may then look to the reason of the enactment and inquire into its antecedent history and give it effect in accordance with its design and purpose, sacrificing, if necessary, the literal meaning in order that the purpose may not fail. See Church of the Holy Trinity v. United States, 143 U.S. 457, 12 Sup. Ct. 511; Heydenfeldt v. Daney Gold, etc., Co., 93 U.S. 634, 638. We are asked to conclude that Congress, without the consideration or recommendation of any committee, without a suggestion as to the effect, or a word of debate as to the desirability, of so fundamental a change, nevertheless, by failing to alter the identifying words of section 2169, which secti! on we may assume was continued for some serious purpose, has radically modified a statute always theretofore maintained and considered as of great importance. It is inconceivable that a rule in force from the beginning of the government, a part of our history as well as our law, welded into the structure of our national polity by a century of legislative and administrative acts and judicial dec isions, would have been deprived of its force in such dubious and casual fashion. We are, therefore, constrained to hold that the act of 1906 is limited by the provisions of section 2169 of the Revised Statutes.

Second. This brings us to inquire whether, under section 2169, the appellant is eligible to naturalization. The language of the naturalization laws from 1790 to 1870 had been uniformly such as to deny the privilege of {page 195} naturalization to an alien unless he came within the description "free white person." By section 7 of the act of July 14, 1870 (16 Stat. 254, 256 [Comp. St. 4358]), the naturalization laws were "extended to aliens of African nativity and to persons of African descent." Section 2169 of the Revised Statutes, as already pointed out, restricts the privilege to the same classes of persons, viz. "to aliens [being free white persons, and to aliens] of African nativity and to persons of African descent." It is true that in the first edition of the Revised Statutes of 1873 the words in brackets, "being free white persons, and to aliens" were omitted, but this was clearly an error of the compilers and was corrected by the ! subsequent legislation of 1875 (18 Stat. 316, 318). Is appellant, therefore, a 'free white person,' within the meaning of that phrase as found in the statute?

On behalf of the appellant it is urged that we should give to this phrase the meaning which it had in the minds of its original framers in 1790 and that it was employed by them for the sole purpose of excluding the black or African race and the Indians then inhabiting this country. It may be true that those two races were alone thought of as being excluded, but to say that they were the only ones within the intent of the statute would be to ignore the affirmative form of the legislation. The provision is not that Negroes and Indians shall be excluded, but it is, in effect, that only free white persons shall be included. The intention was to confer the privilege of citizenship upon that class of persons whom the fathers knew as white, and to deny it to all who could not be so classified. It is not enough to say that the framers did not have in mind the brown or yellow races of Asia. It is necessary to go farther and be able to say that had these particular races been sugges! ted the language of the act would have been so varied as to include them within its privileges. As said by Chief Justice Marshall in Dartmouth College {page 196} v. Woodward, 4 Wheat. 518, 644 (4 L. Ed. 629), in deciding a question of constitutional construction:

"It is not enough to say that this particular case was not in the mind of the convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The case, being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the Constitution in making it an exception."

If it be assumed that the opinion of the framers was that the only persons who would fall outside the designation "white" were Negroes and Indians, this would go no farther than to demonstrate their lack of sufficient information to enable them to foresee precisely who would be excluded by that term in the subsequent administration of the statute. It is not important in construing their words to consider the extent of their ethnological knowledge or whether they thought that under the statute the only persons who would be denied naturalization would be Negroes and Indians. It is sufficient to ascertain whom they intended to include and having ascertained that it follows, as a necessary corollary, that all others are to be excluded,

The question then is: Who are comprehended within the phrase "free white persons"? Undoubtedly the word "free" was originally used in recognition of the fact that slavery then existed and that some white persons occupied that status. The word, however, has long since ceased to have any practical significance and may now be disregarded.

We have been furnished with elaborate briefs in which the meaning of the words "white person" is discussed {page 197} with ability and at length, both from the standpoint of judicial decision and from that of the science of ethnology. It does not seem to us necessary, however, to follow counsel in their extensive researches in these fields. It is sufficient to note the fact that these decisions are, in substance, to the effect that the words import a racial and not an individual test, and with this conclusion, fortified as it is by reason and authority, we entirely agree. Manifestly the test afforded by the mere color of the skin of each individual is impracticable, as that differs greatly among persons of the same race, even among Anglo-Saxons, ranging by imperceptible gradations from the fair blond to the swarthy brunette, the latter being darker than many of the lighter hued persons of the brown or yellow races. Hence to adopt the colo! r test alone would result in a confused overlapping of races and a gradual merging of one into the other, without any practical line of separation. Beginning with the decision of Circuit Judge Sawyer, in In re Ah Yup, 5 Sawy. 155, Fed. Cas. No. 104 (1878), the federal and state courts, in an almost unbroken line, have held that the words "white person" were meant to indicate only a person of what is popularly known as the Caucasian race. Among these decisions, see, for example: In re Camille (C. C.) 6 Fed. 256; In re Saito (C. C.) 62 Fed. 126; In re Nian, 6 Utah, 259, 21 Pac. 993, 4 L. R. A. 726; In re Kumagai (D. C.) 163 Fed. 922; In re Yamashita, 30 Wa sh. 234, 237, 70 Pac. 482, 94 Am. St. Rep. 860; In re Ellis (D. C.) 179 Fed. 1002; In re Mozumdar (D. C.) 207 Fed. 115, 117; In re Singh (D. C.) 257 Fed. 209, 211, 212; and In re Charr ( D. C.) 273 Fed. 207. With the conclusion reached in these several decisions we see no reason to differ. Moreover, that conclusion has become so well established by judicial and executive concurrence and legislative acquiescence that we should not at this late day feel at liberty to disturb it, in the absence of reasons far more cogent than any that have been suggested. United States v. Midwest Oil Co., 236 U.S. 459, 472, 35 S. Sup. Ct. 309. {page 198} The determination that the words "white person" are synonymous with the words "a person of the Caucasian race" simplifies the problem, although it does not entirely dispose of it. Controversies have arisen and will no doubt arise again in respect of the proper classification of! ind ividuals in border line cases. The effect of the conclusion that the words "white person" means a Caucasian is not to establish a sharp line of demarcation between those who are entitled and those who are not entitled to naturalization, but rather a zone of more or less debatable ground outside of which, upon the one hand, are those clearly eligible, and outside of which, upon the other hand, are those clearly ineligible for citizenship. Individual cases falling within this zone must be determined as they arise from time to time by what this court has called, in another connection (Davidson v. New Orleans, 96 U.S. 97, 104), "the gradual process of judicial inclusion and exclusion."

The appellant, in the case now under consideration, however, is clearly of a race which is not Caucasian and therefore belongs entirely outside the zone on the negative side. A large number of the federal and state courts have so decided and we find no reported case definitely to the contrary. These decisions are sustained by numerous scientific authorities, which we do not deem it necessary to review. We think these decisions are right and so hold.

The briefs filed on behalf of appellant refer in complimentary terms to the culture and enlightenment of the Japanese people, and with this estimate we have no reason to disagree; but these are matters which cannot enter into our consideration of the questions here at issue. We have no function in the matter other than to ascertain the will of Congress and declare it. Of course there is not implied -- either in the legislation or in our interpretation of it -- any suggestion of individual unworthiness or racial inferiority. These considerations are in no manner involved. {page 199} The questions submitted are therefore answered as follows:

Question No. 1. The act of June 29, 1906, is not complete in itself, but is limited by section 2169 of the Revised Statutes of the United States.

Question No. 2. No.

Question No. 3. No.

It will be so certified.

Be first to comment this article | Add as favourites (13) | Quote this article on your site | Views: 573

The subject-matter of this suit consists of 4,420,406 acres of land in the Cherokee country about to be allotted among the Cherokee people entitled to participate in the distribution of the common property of the Cherokee Nation. The case was transmitted to the court of claims by the Secretary of the Interior, on the 24th of February, 1903, the nature of the controversy being thus stated:

'A controversy has arisen as to the rights of white persons intermarried with Cherokee citizens, and a protest has been filed with this Department on behalf of a large number of citizens of the Cherokee Nation by blood against the enrolment of intermarried persons, 'so as to recognize their right to participate in the distribution of any of the common property of the Cherokee Nation of whatever kind or character.' It is asserted, on the one hand, that the Cherokee laws have never recognized the right of 'intermarried citizens' to share in the distribution of the property of the Nation, and, on the other hand, that the Cherokee laws as well as the laws of Congress recognize those persons who have been married to Cherokee citizens in accordance with the laws of the Cherokee Nation relating to marriage as full citizens of such nation, entitled to share equally with full-blooded citizens in the property of the tribe.'

Thereafter, Congress, by the act of March 3, 1905 (33 Stat. at L. 1048, 1071, chap. 1479), provided as follows:

'That in the case entitled 'In the Matter of Enrolment of Persons Claiming Rights in the Cherokee Nation by Intermarriage against the United States, Departmental, Numbered Seventy-six,' now pending in the court of claims, the said court is hereby authorized and empowered to render final judgment in said case, and either party feeling itself aggrieved by said judgment shall have the right of appeal to the Supreme Court of United States within thirty days from the filing of said judgment in the court of claims. And the said Supreme Court of the United States shall advance said case on its calendar for early hearing.' The court of claims filed its opinion May 15, 1905, and on May 18 findings of fact and conclusions of law, and on that day entered its decree as follows:

'This case having been transmitted to this court by the Secretary of the Interior by letter dated February 24, 1903, for the findings and opinion of the court in accordance with the provisions of 2 of the act of Congress of March 3, 1883, entitled 'An Act to Afford Assistance and Relief to Congress and the Executive Departments in the Investigation of Claims and Demands against the Government' (22 Stat. at. L. 485, chap. 116, U. S. Comp. Stat. 1901, p. 748), and Congress, by the act of March 3, 1905, entitled 'An Act Making Appropriations for the Current and Contingent Expenses of the Indian Department and for Fulfilling Treaty Stipulations with Various Indian Tribes for the Fiscal Year Ending June 30, 1906, and for Other Purposes,' having made the following enactment:

"That in the case entitled 'In the Matter of Enrolment of Persons Claiming Rights in the Cherokee Nation by Intermariage against the United States, Departmental, Numbered Seventy-six,' now pending in the court of claims, the said court is hereby authorized and empowered to render final judgment in said case, and either party feeling itself aggrieved by said judgment shall have the right of appeal to the Supreme Court of the United States within thirty days from the filing of said judgment in the court of claims. And the said Supreme Court of the United States shall advance said case on its calendar for early hearing;'

'And the cause coming on to be heard upon the petition, answers, agreed facts, proofs, and arguments submitted by the attorneys of the parties to the cause, respectively, and the court having heard and fully considered the same;

'And it appearing to the court that all those white persons who married Cherokee Indians by blood subsequently to the enactment of the Cherokee law which became effective November 1, 1875, and which declared that such persons by intermarriage acquired no rights of soil or interest in the vested funds of the Nation, had due notice of the limitations set upon their rights and privileges as citizens; and that those white persons who married Cherokee citizens by blood prior to said date acquired rights as citizens in the lands belonging to the Nation and held and owned as national lands, except such of these intermarried persons as lost their rights as Cherokee citizens by abandoning their Cherokee wives or by marrying other white or nontribal men or women having no rights of citizenship by blood in said Cherokee Nation:

'It is by the court ordered, adjudged, and decreed that such white persons residing in the Cherokee Nation as became Cherokee citizens under Cherokee laws by intermarriage with Cherokees by blood prior to the 1st day of November, 1875, are equally interested in and have equal per capita rights with Cherokee Indians by blood in the lands constituting the public domain of the Cherokee Nation, and are entitled to be enrolled for that purpose; but such intermarried whites acquired no rights and have no interest or share in any funds belonging to the Cherokee Nation except where such funds were derived by lease, sale, or otherwise from the lands of the Cherokee Nation conveyed to it by the United States by the patent of December, 1838; and that the rights and privileges of those white citizens who intermarried with Cherokee citizens subsequent to the 1st day of November, 1875, do not extend to the right of soil or interest in any of the vested funds of the Cherokee Nation, and such intermarried persons are not entitled to share in the allotment of the lands or in the distribution of any of the funds belonging to said Nation, and are not entitled to be enrolled for such purpose; that those white persons who intermarried with Delaware or Shawnee citizens of the Cherokee Nation, either prior or subsequent to November 1, 1875, and those who intermarried with Cherokees by blood, and, subsequently, being left a widow or widower by the death of the Cherokee wife or husband, intermarried with persons not of Cherokee blood, and those white men who having married Cherokee women and subsequently abandoned their Cherokee wives, have no part or share in the Cherokee property, and are not entitled to participate in the allotment of the lands or in the distribution of the funds of the Cherokee Nation or people, and are not entitled to be enrolled for such purpose.'

Cherokee citizens by blood took an appeal to this court from so much of that decree as adjudged that persons intermarrying with Cherokee citizens prior to November 1, 1875, were entitled to share in the Cherokee property, which appeal is numbered in this court 125; and the Cherokee Nation prosecuted a similar appeal, numbered 126. Then certain intermarried whites appealed from the decree except that portion which held that the whites who intermarried prior to November 1, 1875, were entitled to share, numbered 127. And thereafter other intermarried whites appealed generally, numbered 128.

The case is reported in 40 Ct. Cl. 411, where will be found an elaborate statement of the facts, including the acts of the Cherokee National Council, etc., bearing on the subject-matter.

Messrs. John J. Hemphill and K. S. Murchison for appellants in no. 125.

Mr. Edgar Smith for appellant in No. 126.

Messrs. James S. Davenport and William T. Hutchings for appellants in No. 127.

Messrs. William Henry White and A. E. Leckie for appellants in No. 128.

Statement by Mr. Chief Justice Fuller:

Mr. Chief Justice Fuller delivered the opinion of the court:

Article 1 of the treaty of 1846 declared 'that the lands now occupied by the Cherokee Nation shall be secured to the whole Cherokee people for their common use and benefit' [9 Stat. at L. 871 ]; and article 4, that these lands 'shall be and remain the common property of the whole Cherokee people.'

Section 2 of article 1 of the Cherokee Constitution (1839) provided that 'the lands of the Cherokee Nation shall remain common property.'

The amendments of 1866 (art. 1, 2) declared that the lands of the Cherokee Nation 'shall remain common property until the National Council shall request the survey and allotment of the same, in accordance with the provisions of article 20 of the treaty of 19th of July, 1866 [14 Stat. at L. 799], between the United States and the Cherokee Nation.' This request was subsequently duly made and an allotment is taking place accordingly.

The intermarried whites have not acquired the right to share in the lands or funds of the Cherokee Nation by grant in express terms, but that right is claimed in virtue of an alleged citizenship in the Cherokee Nation derived from intermarriage under Cherokee laws.

The Nation, under the treaties, possessed the right of local self- government with authority to make such laws as it deemed necessary for the government and protection of persons and property within the country, belonging to its people, 'or such persons as have connected themselves with them.' Treaty, Dec. 29, 1835, art. 5, 7 Stat. at L. 478. And 14 of article 3 of the Cherokee Constitution provided: 'The National Council shall have power to make all laws and regulations which they shall deem necessary and proper for the good of the Nation, which shall not be contrary to this Constitution.'

Prior to 1855 certain white persons had married Cherokees, which had given rise to serious questions respecting the status of these persons and the jurisdiction of the Nation over them. The act of Congress of June 30, 1834 [4 Stat. at L. 729, chap. 161] (carried forward into 2134, 2135, 2147, and 2148 of the Revised Statutes), provided that a citizen of the United States should not go into the Indian country without a passport, and that he might be removed therefrom as an intruder. The promise of the United States to remove unauthorized citizens from the Nation appears in the treaties, and even as late as 1893, in the convention by which the Cherokee outlet was ceded to the United States. But the Council could permit certain white persons to reside in the Nation, subject to its laws, though free from the laws relating to intruders.

In these circumstances the Cherokee act of 1855 'regulating intermarriage with white men' was passed. Its purpose is plain and is disclosed by the preamble in these words: 'Whereas the peace and prosperity of the Cherokee people require that, in the enforcement of the laws, the jurisdiction should be exercised over all persons whatever who may, from time to time, be privileged to reside within the territorial limits of this Nation, therefore,' etc., etc. The act was administrative and aimed at subjecting the intermarried whites to the control and dominion of the Cherokee laws instead of leaving them responsible solely to the laws and authorities of the government of the United States. It contains nothing indicating the intention to confer property rights on intermarried whites. But in respect of the public domain, the court of claims, in the present case, because of the opinion in Cherokee Nation v. Journeycake, 155 U.S. 196 , 39 L. ed. 120, 15 Sup. Ct. Rep. 55, assumed that the acquisition of citizenship under Cherokee laws carried the right to share therein, unless forbidden by such legislation. And Mr. Chief Justice Nott, speaking for the court, said: 'In 1874 the rapidly growing value of the Cherokee lands was becoming perceptible. On the one hand there were white men who desired to marry into the tribe, and, marrying and residing in the Nation, desired the rights and privileges of citizens; on the other hand, there were white adventurers desiring to share in the wealth of the Nation, soon, it was believed, to become available to individual citizens. The public welfare might be benefited by allowing the one, and most certainly would be conserved by excluding the other. No restriction appeared to exist in the Constitution which would forbid the National Council from admitting white men to citizenship upon the condition that they should not acquire an estate or interest in the communal or common property of the Nation.'

Accordingly, in 1874, the Cherokee National Council adopted a new code containing sections relating to intermarriage, which became effective November 1, 1875, and carried a provision in article XV., 75, reading as follows:

'Provided, also, that the rights and privileges herein conferred shall not extend to right of soil or interest in the vested funds of this Nation, unless such admitted citizen shall pay into the general funds of the national treasury a sum of money, to be ascertained and fixed by the National Council, equal to the 'pro rata' share of each native Cherokee in the lands and vested wealth of the Nation, estimated at $500, and thereafter conform to the Constitution of the Nation, and the laws made or to be made in pursuance thereof, in which case he shall be deemed a Cherokee to all intent, and be entitled to all the rights of other Cherokees.'

On November 28, 1877, the Council amended this proviso by striking out all after the words 'this Nation' in the second line thereof, so that the proviso read:

'Provided, also, that the rights and privileges herein conferred shall not extend to right of soil or interest in the vested funds of this Nation.'

The court of claims found that the Cherokee law remained unchanged, in this particular, from 1877 to the date of the decree. Something is said about certain compilations of the Cherokee laws of 1880 and 1892, which omitted this part of 75, but we agree that this omission did not operate to change the existing law, as the acts providing for the compilations did not provide that they should be effective as laws of the Nation, and, where an error was committed by the compiler, the original law, as duly passed and approved, must prevail. [203 U.S. 76, 84] Thus it is seen that the privilege of paying $500 into the Cherokee treasury and becoming thereby entitled to 'all the rights of other Cherokees' existed only from November 1, 1875, to November 28, 1877. Assuming that the National Council had authority, under the Cherokee Constitution of 1839 and the amendments of 1866, to confer on white intermarried citizens the privilege of purchasing a right in the soil and funds of the Nation, that privilege was withdrawn in two years, and, according to the facts found, was only availed of by two persons, neither of whom was an individual party to the suit. No right in the Nation's property flowed from the Cherokee citizenship act, which merely subjected the white man to the jurisdiction of the Nation, but that right resulted from express grant and the payment of a price. As to the Delawares and Shawnees, their participation was specifically provided for by convention, approved by the United States, and depended upon payments made. As to the freedmen, their participation in property distribution was secured by the terms of the treaty of 1866 (the result of the Civil War), and of the constitutional amendments thereupon adopted. The court of claims referred to them thus: 'These constitutional amendments were brought about by the action of the United States at the close of the Civil War in dictating that the slaves or freed persons of color in the Cherokee country should not only be admitted to the rights of citizenship, but to an equal participation in the communal or common property of the Cherokees. The Cherokees seem to have veiled their humiliation by these general declarations of the persons who should be taken and deemed to be citizens; but be that as it may, the overthrow of the Cherokee Nation and the treaty of peace, 1866, and the terms dictated by the United States, whereby their former slaves were made their political equals, and the common property of the Cherokees was to be shared in with their servants and dependents, was in effect a revolution. The constitutional amendment quoted was simply declaratory of the new order of things. It is not necessarily prospective, and does not impose limitations upon the legislative power with regard to the naturalization or future adoption of aliens as citizens.. Under the polity of the Cherokees, citizenship and communal ownership were distinct things. The citizen who annually received an annuity derived from the communal fund held by the United States, and the citizen who never received a dollar from the fund, or never so much as thought of receiving it, form a concrete object lesson in constitutional law not easily effaced from the common mind.'

Section 5 of article 3 of the Constitution of 1839 was as follows:

'Sec. 5. No person shall be eligible to a seat in the National Council but a free Cherokee male citizen, who shall have attained to the age of twenty-five years.

'The descendants of Cherokee men by all free women, except the African race, whose parents may have been living together as man and wife according to the customs and laws of this Nation, shall be entitled to all the rights and privileges of this Nation, as well as the posterity of Cherokee women by all free men. No person who is of negro or mulatto parentage, either by the father's or mother's side, shall be eligible to hold any office of profit, honor, or trust under this government.

'Sec. 6. The electors and members of the National Council shall in all cases, except those of treason, felony, or breach of the peace, be privileged from arrest during their attendance at elections and at the National Council in going to and returning.'

The amendment of 5, in 1866, reads:

'Sec. 5. No person shall be eligible to a seat in the National Council but a male citizen of the Cherokee Nation, who shall have attained to the age of twenty-five years and who shall have been a bona fide resident of the district in which he may be elected at least six months immediately preceding such election. All native-born Cherokees, all Indians and whites legally members of the Nation by adoption, and all freedmen who have been liberated by voluntary act of their former owners, or by law, as well as free colored persons who were in the country at the commencement of the Rebellion and are now residents therein, or who may return within six months from the 19th day of July, 1866, and their descendants who reside within the limits of the Cherokee Nation, shall be taken and deemed to be citizens of the Cherokee Nation.'

We cannot accept the view that this amendment amounted to a grant of property rights, or operated to enlarge the authority of the National Council in respect of the readmission of former members of the Nation.

The amendment (found in that part of the Constitution in respect to offices and elections) must be taken as a whole, and related to eligibility to a seat in the National Council, and not to property rights. The contention that the words 'citizens of the Cherokee Nation' should be construed as relating to the constitutional provision of 1839, that the lands of the Nation should be common property, is without merit in view of the provisions themselves.

By 2 of article 1 of the Constitution of 1839 it was provided that 'whenever any citizen shall remove with his effects out of the limits of this Nation, and becomes a citizen of any other government, all his rights and privileges as a citizen of this Nation shall cease; provided, nevertheless, that the National Council shall have power to readmit, by law, to all the rights of citizenship, any such person or persons who may, at any time, desire to return to the Nation, on memorializing the National Council for such readmission.' By its terms this referred to those who had been citizens, and their readmission gave no rights not originally possessed, and this was true under the amendments of 1866. Many special Cherokee laws demonstrate that the Council did not venture to assume, nor desire to assume, the power to impart to the white adopted citizen other than civil and political rights.

For instance, the acts of 1878, readmitting Greenway and his children and Allen and his family 'to all the rights and privileges of citizens of the Cherokee Nation' specifically provided that no rights should be acquired except such as attach to white men, 'adopted citizens of the Cherokee Nation.'

The acts relating to intermarriage with whites contained many restrictions, but by the act in respect of the intermarriage of Cherokees with other Indians no such restrictions were imposed. Cherokee act of Nov. 27, 1880. That act provided that the marriage should be contracted according to the law regulating marriages between 'our own citizens,' and declared that such Indian 'shall be and is hereby deemed a Cherokee to all intents and purposes, and entitled to the rights of other Cherokees.' There is no such language in the acts relating to intermarried whites.

The treaty of 1866, between the United States and the Cherokee Nation, provided as to the former slaves, that they should be free and they 'and their descendants shall have all the rights of native Cherokees.' [Art. 9.]

Article 15 of the same treaty, after providing for the settlement of friendly Indians amongst the Cherokees and the manner in which the latter shall be paid therefor, then stipulates that 'they shall be incorporated into and ever after remain a part of the Cherokee Nation on equal terms in every respect with native citizens.' When the Delawares were about to be moved into the Cherokee country as friendly Indians, it was stipulated in the agreement that 'on the fulfilment 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 participation (and no other) in the national funds as native Cherokees . . . And the children hereafter born of such Delawares so incorporated into the Cherokee Nation shall in all respects be regarded as native Cherokees.' Later, when an agreement was made with the Shawnees, after the amount of money to be paid was provided for, the rights of Shawnees were defined as follows: 'and that the said Shawnees shall be incorporated into and ever after remain a part of the Cherokee Nation, on equal terms in every respect and with all the privileges and immunities of native citizens of said Cherokee Nation.'

These intermarried whites show no grant of equal rights as members of the Cherokee Nation by treaty or otherwise, nor have they (excepting the two individuals heretofore referred to) paid any sum into the Nation's treasury for a pro rata share of its money and lands.

The Delawares, the Shawnees, and the freedmen acquired their property rights by the express words of treaties, but the intermarried whites cannot point out any such in their favor. Doubtless because of this they have heretofore asserted no claim, although the Cherokee courts were open to them to do so, and have allowed repeated payments of money to be made to every other citizen without question.

The distinction between different classes of citizens was recognized by the Cherokees in the differences in their intermarriage law, as applicable to the whites and to the Indians of other tribes; by the provision in the intermarriage law that a white man intermarried with an Indian by blood acquires certain rights as a citizen, but no provision that if he marries a Cherokee citizen not of Indian blood he shall be regarded as a citizen at all; and by the provision that if, once having married an Indian by blood, he marries the second time a citizen not by blood, he loses all of his rights as a citizen. And the same distinction between citizens as such and citizens with property rights has also been recognized by Congress in enactments relating to other Indians than the Five Civilized Tribes. Act August 9, 1888, 25 Stat. at L. 392, chap. 818; act May 2, 1890, 26 Stat. at L. 96, chap. 182; act June 7, 1897, 30 Stat. at L. 90, chap. 3.

In Whitmire v. Cherokee Nation, 30 Ct. Cl. 138, 152, the court of claims said: 'Here it should be noted that when the treaty was made there had long been a peculiar class of citizens in the Cherokee country,-white men who became citizens by intermarriage.' And, after quoting the proviso to 75, art. 15, of the Cherokee Code of 1874, the court added: 'The idea, therefore, existed both in the mind and in the laws of the Cherokee people, that citizenship did not necessarily extend to or invest in the citizen a personal or individual interest in what the Constitution termed the 'common property,'-'the lands of the Cherokee Nation."

In Stephens v. Cherokee Nation, 174 U.S. 445, 488 , 43 S. L. ed. 1041, 1056, 19 Sup. Ct. Rep. 722, 738, this court, in respect of certain acts of Congress, observed:

'It may be remarked that the legislation seems to recognize, especially the act of June 28, 1898 [30 Stat. at L. 495, chap. 517], a distinction between admission to citizenship merely and the distribution of property to be subsequently made, as if there might be circumstances under which the right to a share in the latter would not necessarily follow from the concession of the former.'

Referring to this, the court of claims said in its opinion in the present case, 40 Ct. Cl. 411, 442:

'It cannot be supposed for a moment that Congress intended by this legislation to take away from some of the Cherokee people property which was constitutionally theirs, or to confer upon white citizens property which they were not legally entitled to have. The term 'citizens' in these statutes of the United States must be construed to mean those citizens who were constitutionally or legally entitled to share in the allotment of the lands.'

The doctrine is familiar that the language of a statute is to be interpreted in the light of the particular matter in hand and the object sought to be accomplished, as manifested by other parts of the act, and the words used may be qualified by their surroundings and connections.

In accepting the conclusion of the court of claims in this regard we, nevertheless, deem it proper to somewhat consider the congressional legislation relied on by the claimants.

The act of Congress of July 1, 1902 (32 Stat. at L. 716, chap. 1375), ratified by the Cherokee Nation, August 7, 1902, and often called the Cherokee agreement, contained these sections: 'Sec. 25. The roll of citizens of the Cherokee Nation shall be made as of September first, nineteen hundred and two, and the names of all persons then living and entitled to enrolment on that date shall be placed on said roll by the Commission to the Five Civilized Tribes.

'Sec. 26. The names of all persons living on the first day of September, nineteen hundred and two, entitled to be enrolled as provided in section twenty-five hereof, shall be placed upon the roll made by said Commission, and no child born thereafter to a citizen, and no white person who has intermarried with a Cherokee citizen since the sixteenth day of December, eighteen hundred and ninety-five, shall be entitled to enrolment or to participate in the distribution of the tribal property of the Cherokee Nation.

'Sec. 27. Such rolls shall, in all other respects, be made in strict compliance with the provisions of section twenty-one of the act of Congress approved June twenty-eighth, eighteen hundred and ninety-eight ( 30 Stat. at L. 495, chap. 517), and the act of Congress approved May thirty-first, nineteen hundred (31 Stat. at L. 221, chap. 598).

'Sec. 28. No person whose name appears upon the roll made by the Dawes Commission as a citizen or freedman of any other tribe shall be enrolled as a citizen of the Cherokee Nation.

'Sec. 29. For the purpose of expediting the enrolment of the Cherokee citizens and the allotment of lands as herein provided, the said Commission shall, from time to time, and as soon as practicable, forward to the Secretary of the Interior lists upon which shall be placed the names of those persons found by the Commission to be entitled to enrolment. The lists thus prepared, when approved by the Secretary of the Interior, shall constitute a part and parcel of the final roll of citizens of the Cherokee tribe, upon which allotment of land and distribution of other tribal property shall be made. When there shall have been submitted to and approved by the Secretary of the Interior lists embracing the names of all those lawfully entitled to enrolment, the roll shall be deemed complete. The roll so prepared shall be made in quadruplicate, one to be deposited with the Secretary of the Interior, one with the Commissioner of Indian Affairs, one with the principal chief of the Cherokee Nation, and one to remain with the Commission to the Five Civilized Tribes.

'Sec. 30. During the months of September and October, in the year nineteen hundred and two, the Commission to the Five Civilized Tribes may receive applications for enrolment of such infant children as may have been born to recognized and enrolled citizens of the Cherokee Nation on or before the first day of September, nineteen hundred and two, but the application of no person whomsoever for enrolment shall be received after the thirty-first day of October, nineteen hundred and two.

'Sec. 31. No person whose name does not appear upon the roll prepared as herein provided shall be entitled to in any manner participate in the distribution of the common property of the Cherokee tribe, and those whose names appear thereon shall participate in the manner set forth in this act: Provided, That no allotment of land or other tribal property shall be made to any person, or to the heirs of any person, whose name is on said roll and who died prior to the first day of September, nineteen hundred and two. The right of such person to any interest in the lands or other tribal property shall be deemed to have become extinguished and to have passed to the tribe in general upon his death before said date, and any person or persons who may conceal the death of any one on said roll as aforesaid for the purpose of profiting by said concealment, and who shall knowingly receive any portion of any land or other tribal property or of the proceeds so arising from any allotment prohibited by this section, shall be deemed guilty of a felony, and shall be proceeded against as may be provided in other cases of felony, and the penalty for this offense shall be confinement at hard labor for a period of not less than one year nor more than five years, and in addition thereto a forfeiture to the Cherokee Nation of the lands, other tribal property, and proceeds so obtained.'

It thus appears that the roll of citizens of the Cherokee Nation was to be made up as of September 1, 1902, of the persons then living and entitled to enrolment on that date; that all such persons should be placed upon the roll, and that ( 29) on the lists to be finally approved by the Secretary of the Interior there should be placed only the names of those persons found to be entitled to enrolment. In all other respects the roll was to be made in compliance with 21 of the Act of Congress of June 28, 1898, and of the Act of Congress of May 31, 1900

Section 21 provided: 'That in making rolls of citizenship of the several tribes, as required by law, the Commission to the Five Civilized Tribes is authorized and directed to take the roll of Cherokee citizens of eighteen hundred and eighty (not including freedmen) as the only roll intended to be confirmed by this and preceding acts of Congress, and to enroll all persons now living whose names are found on said roll, . . . with such intermarried white persons as may be entitled to citizenship under Cherokee laws.' The roll of 1880, made by the Cherokees, was a census roll, and its confirmation was not intended to create any rights which citizens of the Cherokee Nation had not before enjoyed, but merely to furnish the basis for making up the roll of citizens. Section 21 was in reality a statement that no previous act of Congress was intended to confirm any other roll of the Cherokee Nation.

The act of May 31, 1900 (31 Stat. at L. 221, 236, chap. 598), provided: 'That said Commission shall continue to exercise all authority heretofore conferred on it by law. But it shall not receive, consider, or make any record of any application of any person for enrolment as a member of any tribe in Indian territory who has not been a recognized citizen thereof, and duly and lawfully enrolled or admitted as such, and its refusal of such application shall be final when approved by the Secretary, of the interior.' Section 31 of the act of July 1, 1902, says that no person whose name does not appear on the roll made by the Commission to the Five Civilized Tribes 'shall be entitled to in any manner participate in the distribution of the common property of the Cherokee tribe, and those whose names appear thereon shall participate in the manner set forth in this act.' In other words, the roll must be made up of citizens who, under the lasw of the Cherokee Nation, were entitled to participation in the distribution of the common property of the Cherokee tribes.

The concluding words of 21, 'with such intermarried white persons as may be entitled to citizenship under Cherokee laws,' emphatically indicate that Congress had the Indian citizen in mind in all that went before and limited enrolment of white persons to such as might be entitled to citizenship under Cherokee laws.

Counsel for claimants speak of the act of 1902 as a 'treaty,' but it is only an act of Congress, and can have no greater effect. It is a singular commentary on the situation that the majority of the native Cherokees voted against its acceptance, which was carried by the vote of the whites. The suggestion is wholly inadmissible that they could vote themselves an interest in the property of the Cherokee people, including a share in the money paid in by the Delawares and the Shawnees, and become thereby wards of this government.

Referring to 26 of the act of 1902, which declares that no white person intermarried since December 16, 1895, shall be entitled to enrolment or to participate in the distribution of the tribal property of the Cherokee Nation, and to an act of the Cherokee Council to the same effect, approved December 16, 1895, counsel contend that the act of Congress shows that there was a class of persons who, having married prior to December 16, 1895, were to be enrolled, embracing all lawfully married according to the law of the Nation, and were to participate in the distribution of the tribal property. The doctrine that the denial of a right is the grant of a right is a poor basis for a grant of land. Not a single word of the act intimates that these intermarried persons have or are to have any interest in the property of the Nation, and to hold that because the act of 1902 declares that white persons intermarrying after 1895 should acquire no property rights the Indians, in accepting the act, conceded property rights to all who intermarried prior thereto, would put a construction on the act utterly inconsistent with the settled rule that, as between the whites and the Indians, the laws are to be construed most favorably to the latter.

After the decision in Journeycake's Case, 155 U.S. 196 , 39 L. ed. 120, 15 Sup. Ct. Rep. 55, and in that of Whitmore v. Cherokee Nation, 30 Ct. Cl. 138, 180, the Cherokee National Council passed the act of December 16, 1895, amending certain sections of the compiled laws, from which the provisions of the act of November, 1877, which denied intermarrying whites any right in Cherokee property, had been erroneously omitted, by re- enacting the same, but this only evidenced the determination to prevent the encroachment of the whites upon the property rights of the Cherokee people. The act was clearly passed out of abundant caution, and was quite unnecessary in view of the fact that the act of 1877 remained in force, as was found by the court of claims.

We are dealing with the right of enrolment so as to entitle the persons enrolled to participate in the distribution of the lands and vested funds of the Cherokee Nation, and not with questions arising in respect of improvements on the public domain. As to improvements, they seem to have been treated as those of a tenant who had made them under an agreement that they should remain his. Any citizen of the Nation could use the public domain, and it is not asserted that the intermarried whites failed to obtain their share of such use, but because they have enjoyed that benefit, free from tax or burden, is no reason for giving them a share in the lands and vested funds, which has never been granted to them, and for which they have never paid. We concur in the conclusions of the court of claims, including the disposition of the particular contention presented in appeal No. 128.

This involved certain claimants, before the court, known as 'married out and abandoned whites,' who alleged that they became citizens of the Cherokee Nation by intermarriage, but conceded that they had since married persons having no rights of Cherokee citizenship by blood, or had abandoned their Cherokee wives. They contended that they could not be deprived of the rights and privileges acquired by intermarriage save by proceedings in the nature of office found. As to this the court of claims said:

'These intermarried whites are not grantees or devisees seised and in possession of land, occupying the position of defendants. They occupy the contrary position-of plaintiffs seeking to recover money-and it is obligatory upon them to establish their right to it. To say that a white man can share in the property of the Cherokees for the reason that at one time in his life he was the husband of a Cherokee woman, and to say that this court or the Secretary of the Interior must hold that he is still the husband of a Cherokee woman because the contrary has not been established in another proceeding, is an appeal to technicality which the court cannot uphold. These claimants, like other plaintiffs, must prove their case; asserting a present right, they must establish present conditions. The laws and usages of the Cherokees, their earliest history, the fundamental principles of their national policy, their Constitution and statutes, all show that citizenship rested on blood or marriage; that the man who would assert citizenship must establish marriage; that when marriage ceased ( with a special reservation in favor of widows or widowers), citizenship ceased; that when an intermarried white married a person having no rights of Cherokee citizenship by blood, it was conclusive evidence that the tie which bound him to the Cherokee people was severed and the very basis of his citizenship obliterated. 'The Cherokee statute which has been cited (Laws of 1892, 669) gives a proceeding in the nature of office found, but, nevertheless, is confirmatory of the views hereinbefore expressed. It relates to cases where the Cherokee government takes the initiative to accomplish a purpose. That is to say, where an intermarried white man has forfeited his rights of citizenship in the Nation by acts which declare such forfeiture 'and the Nation requires his removal beyond the limits of its territory,' this proceeding must be resorted to, to be followed by a call on the United States Indian agent 'to remove such a white man.' It is in principle precisely like the common-law procedure of office found, and exists for the same reason,-that the government may exercise a right dependent upon only the alienage of a person living within its territory, presumably a citizen.'

Decree affirmed.

Be first to comment this article | Add as favourites (11) | Quote this article on your site | Views: 504

May 15, 1899. By the sixteenth section of the Indian appropriation act of March 3, 1893 (27 Stat. 612, 645, c. 209), the president was authorized to appoint, by and with the advice and consent of the senate, three commissioners 'to enter into negotiations with the Cherokee Nation, Choctaw Nation, Chickasaw Nation, the Muscogee (or Creek) Nation, the Seminole Nation, for the purpose of the extinguishment of the national or tribal title to any lands within that territory now held by any and all of such nations or tribes, either by cession of the same or some part thereof to the United States, or by the allotment and division of the same in severalty among the Indians of such nations or tribes, respectively, as may be entitled to the same, or by such other method as may be agreed upon between the several nations and tribes aforesaid, or each of them, with the United States, with a view to such an adjustment, upon the basis of justice and equity, as may, with the consent of such nations or tribes of Indians, so far as may be necessary, be requisite and suitable to enable the ultimate creation of a state or states of the Union which shall embrace the lands within said Indian Territory.'

The commission was appointed, and entered on the discharge of its duties, and under the sundry civil appropriation act of March 2, 1895 (28 Stat. 939, c. 189), two additional members were appointed. It is commonly styled the 'Dawes Commission.'

The senate, on March 29, 1894, adopted the following resolution:

'Resolved, that the committee on the Five Civilized Tribes of Indians, or any subcommittee thereof appointed by its chairman, is hereby instructed to inquire into the present condition of the Five Civilized Tribes of Indians, and of the white citizens dwelling among them, and the legislation required and appropriate to meet the needs and welfare of such Indians; and for that purpose to visit Indian Territory, to take testimony, have power to send for persons and papers, to administer oaths, and examine witnesses under oaths; and shall report the result of such inquiry, with recommendations for legislation; the actual expenses of suc inquiry to be paid on approval of the chairman out of the contingent fund of the senate.'

The committee visited the Indian Territory accordingly, and made a report May 7, 1894. Sen. Rep. No. 377, 53d Cong., 2d Sess. In this report it was stated: 'The Indian Territory contains an area of 19,785,781 acres, and is occupied by the Five Civilized Tribes of Indians, consisting of the Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles. Each tribe occupies a separate and distinct part, except that the Choctaws and Chickasaws, though occupying separately, have a common ownership of that part known as the 'Choctaw and Chickasaw Territory,' with rights and interests as recognized in their treaties as follows: the Choctaws, three- fourths, and the Chickasaws, one-fourth. The character of their title, the area of each tribe, together with the population and an epitome of the legislation concerning these Indians during the last sixty-five years, is shown by the report of the committee on Indian affairs submitted to the senate on the 26th day of July, 1892' (Sen. Rep. No. 1079, 52d Cong., 1st Sess.), and so much of that report as touched on those points was set forth.

The committee then gave the population from the census of 1890 as follows: Indians, 50,055; colored Indians, colored claimants to Indian citizenship, freedmen and colored, wholly or in part, 18,636; Chinese, 13; whites, 109,393; whites and colored on military reservation, 804; population of Quapaw Agency, 1,281,-or a total of 180, 182; and said: 'Since the taking of the census of 1890, there has been a large accession to the population of whites who make no claim to Indian citizenship, and who are residing in the Indian Territory with the approval of the Indian authorities. It is difficult to say what the number of this class is, but it cannot be less than 250,000, and it is estimated by many well-informed men as much larger than that number, and as high as 300,000.' After describing the towns and settlements peopled by whites, and the character of the Indian Territory, its climate, soil, and natural wealth, the report continued:

'This section of country was set apart to the Indian with the avowed purpose of maintaining an Indian community beyond and away from the influence of white people. We stipulated that they should have unrestricted self-government, and full jurisdiction over persons and property within their respective limits, and that we would protect them against intrusion of white people, and that we would not incorporate them in a political organization without their consent. Every treaty, from 1828 to and including the treaty of 1866, was based on this idea of exclusion of the Indians from the whites, and nonparticipation by the whites in their political and industrial affairs. We made it possible for the Indians of that section of country to maintain their tribal relations, and their Indian polity, laws, and civilization if they wished so to do. And, if now, the isolation and exclusiveness sought to be given to them by our solemn treaties is destroyed, and they are overrun by a population of strangers five times in number to their own, it is not the fault of the government of the United States, but comes from their own acts in admitting whites to citizenship under their laws, and by inviting white people to come within their jurisdiction, to become traders, farmers, and to follow professional pursuits.

'It must be assumed, in considering this question, that the Indians themselves have determined to abandon the policy of exclusiveness, and to freely admit white people within the Indian Territory, for it cannot be possible that they can intend to demand the removal of the white people either by the government of the United States or their own. They must have realized that when their policy of maintaining an Indian community isolated from the whites was abandoned for a time it was abandoned forever.'

The committee next referred to the class of white people denominated by the Indians as intruders, n respect of whom there had been but little complaint in other sections of the Indian Territory than that of the Cherokee Nation; and went on to say:

'The Indians of the Indian Territory maintain an Indian government, have legislative bodies, and executive and judicial officers. All controversies between Indian citizens are