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UNITED STATES v. D. L. BOYD ET AL.
United States circuit court of appeals. Fourth circuit. Appeal from the cir-
cuit court of the United States for the western district of North Carolina.
The United States, appellaxt. )
V. - No. 229.
D. L. Boyd et al., appellees. )
(Argued May 14, 1897. Decided November 5, 1897.)
Heard bj' Cxoff. circuit judge, and Hughes and Brawley. district judges.
R. B. Glenn. United States attorney -vestern district of North Carolina, for
appellant; Louis M. Bourne, George H. Smathers, and W. T. Crawford, for the
appellees.
GoFF, circuit judge:
This is a suit in equity filed in the circuit court of the United States for the
western district of North Carolina against D. L. Boyd. Harry Dickson. W. T.
Mason, and the Eastern Band of Cherokee Indians, the complainants Ijeing the
United States of America, Sampson Owl, Lewis H. Smith. Comeback Wolf, and
all other of the Cherokee Indians who may choose to come in and make themselves
party plaintiffs.
It is set forth in the bill that one William H. Thomas and wife, for value
received and as directed by a decree of the United States circuit court for the
western district of North Carolina, convej^ed by deed in fee simple to the Eastern
Band of Cherokee Indians a large tract of land containing many thousand acres,
.situated in the State of North Carolina, and known as the Qualla Boundary; that
subsequent to the execution of said deed the Eastern Band of Cherokee Indians
entered into the possession of said lands, which were necessary to their support
and maintenance; that in said deed was inserted the following clause, to wit:
To have and to hold the above-described premises, with the appurtenances
j thereunto belonging, unto the said Eastern Band of North Carolina Cherokee
I Indians, their heirs and successors, forever, but without power of alienation
I exce^Jt by and with the assent of their council and the approval of the President
of the United States:" that after said band of Indians had so- entered into the
posses.sion of the land described some of them, with the approval and assent of
their council, entered into a contract with the defendant D. L. Bcyd, by which
all the timber in and upon a part of said land, containing about ";]o. 0110 acres,
[known as the Cathcart tract, was sold to him for the sum "of Sl.jjOOO, payable in
! three installments of s.5,00() each; that immediately after the execution of such
I contract of sale said Boyd made a sul)contract with tlie defendants Dickson and
Mason, and that they took possession of the land with a large force of men. who
commenced to cut and destroy said timber and to make arrangements to ship the
same to market: that many of the Indians of th> Cherokee band, among whom
are those joined as complainants with the United States, are opposed to said con-
tract, and think it is not for the best interest of the band: that such contract of
.sale was never presented to the President of the United States for his assent and
has never been approved by him, liut that the Department of tlie Interior, acting
for the United Statics in its dealings with the Eastern Band of Cherokee Indian.s.
has refu.sed to ratify and approve such contract: that such contract to cut the
timber from said land was forbidden by the terms of the deed from saiil Thomas
and wife unless the same was assented to and approved 1 ly the President of tlie
United States, and that, as he has refused to ratify the same, it is absolutely void,
and that, therefore, the action nf the defendants in cutting, destroying, hauling,
and removing said timber is unwarranted and without legal authority.
.37y
Pl^llf
580 DECISION U. B. COURT.
It in further alleged in the bill that by certain acts of the Congress of the United
States, and also by certain treaties heretofore made, as well as by the laws of the
State of Nortli Carolina, that the Eastern Band of Cherokee Indians have been rec-
ognized as a tril)e of Indians, under the control and government of the United
States, to the same extent as the Indians on the reservations are governed; that
by reason of such relation between said Indians and the United States the proper
ofificers of the sauae have the right to control the action of said band and to super-
intend all matters appertaining to their welfare, and to that end to reject the con-
tract so made with Boyd as being contrary to the true interests of said Indians;
that the complainants, under the law and acting in the interests of said band of
Indians, have the right to and do object to the waste being committed on said
lands by the removal of said timber; and therefore they ask that the said defend-
ants be restrained from doing so. The complainants ask in their bill that the
court will pass upon and construe all matters in relation to said Eastern Band of
Cherokee Indians, including the right of their council to lease said lands and to
sell the timber thereon, and also to say as to the right of the United States to con-
trol, manage, and superintend the affairs of said Indians, and what right, if any,
the defendants have to cut and remove the timber from the said land.
The complainants claimed that the contract with Boyd was void, and that unless
the defendants were prohibited from cutting and selling the timber mentioned a
lasting and irreparable injury would be done the Eastern Band of Cherokee
Indians, who are the wards of the United States. An injunction was prayed for,
as also an accounting. On the filing of the bill, which was duly sworn to, the
court below, on the 20th day of February, 1895, entered an order requiring the
defendants to appear on the second Monday in April, 1895, and show cause why
they should not l;e restrained and perpetually enjoined from cutting and hauling
the timber from said land, and in the meantime their agents and servants were
restrained from so cutting and hauling.
The Eastern Band of Cherokee Indians, acting by and through Stillwell Saunookee,
principal chief; Will Talalah, vice-chief; Andy Standingdeer, Wesley Standing-
deer, Jesse Reed, Dawson George, Screamer, Sevier Armachame, Oocumma. Mor-
gan Calhoun, Abraham Hill, and Climbing Bear, members of their council, filed its
answer to the bill on the 16th day of April, 1895. In said answer the allegation in
the bill that William H. Thomas and wife conveyed the land known as the Qualla
Boundary to the Eastern Band of Cherokee Indians is denied, and it is claimed that
the same was conveyed by William Johnston and wife in fee simple ; but it is
insisted that said deed was not executed in pursuance of the award therein referred
to, which directed that the deed should be made by said William Johnston "to the
Eastern Band of Cherokee Indians, or to some trustee for them," and hence it is
claimed that the words found therein as follows, " but without the power of aliena-
tion, except bj' and with the assent of their council and the approval of the President
of the United' States," was unauthorized by the award referred to and inconsistent
with the tenure of a fee-simple estate, in that it created a perpetuity, which is
forbidden by the constitution and laws of the State of North Carolina. And it is
also set out in the answer that by a decree entered on the 15th day of October,
1894. in the two suitS pending in the circuit court of the United States for the
western district of North Carolina, entitled, respectively. Eastern Band of Chero-
kee Indians r. William H. Thomas, William Johnston et al., and the United States
V. William H. Thomas, William Johnston et al..it was adjudged that said words
so inserted in the deed were unauthorized and void, and it was ordered that a new
deed should be executed, omitting therefrom the words so found in the proviso
mentioned.
It is also claimed in the answer that the Eastern Band of Cherokees did not in
fact enter into the possession of said land under and subsequent to the date of the
Johnston deed, but that they and their ancestors had been living continiiously on
said Qualla Boundary of land under a contract of purchase of the same made with
William H. Thomas soon after the treaty of New Echota between the United
States and the Cherokee Nation, dated the 29th of December, 1835 (7 Stat. L.,
478), and that title to said land is claimed by said Indians under that con-
tract, the award made concerning the same, and the decree aforesaid entered in
the said two chancery causes mentioned. It is admitted in the answer that the
council of the Eastern Band of Cherokee Indians sold the timber on the Cathcart
tract of the Qualla Boundary of land to the defendant. D. L. Boyd, at the price of
,sl5,000, and that he resold the same to his codefendants. Mason and Dickson, and
also that said timber was being cut and jirepared for the market until the restrain-
ing order was issued in this case. It is also admitted in this answer that the con-
tract with Boyd was not approved by the President of the United States, and also
that the Secretary of the Interior refused to ratify tlie same; biit it is claimed that
it was not necessary to the validity of said contract that it should have either the
CHEROKEE TIMBER CASE. fjSl
approval of the President or the ratification of the Secretary of the Interior, and
therefore it was insisted that the cutting of said timber was not an act of trespass
on the part of the defendants, but that it was lawfully done, as the sale so made
by the council of the Eastern Band of Cherokee Indians to said Boyd was in all
respects valid.
The fiTrther claim is made in said answer that the true status of the Indians
mentioned was that thej' were citizens of the State of North Carolina, and that
they have been such since soon after the said treaty of New Echota, and that as
such citizens they were incorporated a body politic by the general assembly of
North Carolina in the year 1889. and that by the decree mentioned as entered' on
the l.jth daj" of October, 1894, the title to the Qualla Boundary was vested in said
Indians as a corporation; that the general assembly of North Carolina, at the ses-
sion held on the 8th day of jNIarch. 1895, passed an act amending said act of incor-
poration of 1889 and confirming the said contract of the sale to Boj'd; that the
Eastern Band of Cherokee Indians, against whom this suit is brought, are those
Indians and their descendants who, after the treaty of New Echota, remained in
North Carolina and became citizens of that State by virtue of the eighth and
twelfth articles of that treaty, and that they have since said treaty paid taxes on
their real and personal property; that they have A'oted at State and national elec-
tions, and that they have been subject to all the liabilities and entitled to all the
privileges and immunities of other citizens of the State of North Carolina; that
the council of said band of Indians, at different times from the year 1890 to the
j^ear 1893 made application to the Interior Department for permission to sell the
timber on s;iid land, but that authority so to do was refused; tliat the council so
applied to the Interior Department for authority to sell such timber because the
United States have for the past twelve or fifteen years appropriated money to carry
on the Cherokee training school, and the council did not wish to incur the displeasure
of the Commissioner of Indian Affairs and the Secretary of the Interior, and hence it
sought their cooperation in making said sale, and not because the council believed
that the approval of the President or the consent of the Secretary of the Interior was
necessary to a valid sale of said timber. The answer further states that of the
blo.UOO to be paid by Boyd for the timber, the sum of $6,000 has been paid by him
to said council, and that the remaining $9,000 with interest at 6 per cent per annum,
is still due and unpaid, but is secured by a lien on the trees sold, as is shown by
said contract. Other matters not involved in this suit, and not esssential to the
decision of the questions to be disposed of, are mentioned in the answer, but we
do not deem it necessary to refer to them now.
The joint and several answers of the defendants Dickson and Mason was also
filed, and likewise the answer of the Dickson-Mason Lumber Company, to which
company defendants Dickson and Mason had sold and transferred their interest in
the Boyd contract, and which said Dickson-Mason Lumber Company had also
been made a defendant to the bill by order of court. These answers, except
as to certain matters peculiar to the said sejiarate respondents, make the same
defense to the allegations of the bill as was made in the answer of the Eastern
Band of Cherokee Indians, and the same will not be again set forth. No answer
was filed by the defendant Boyd.
The court below, on February 11, 1896, appointed George H. Smathers receiver,
with instructions to collect the unpaid purchase-money notes given for 'said tim-
])er, and to take such steps as might be necessary to protect the interest of the
rightful owner in the timber that had been cut. but which had not been removed
and was liable to deterioration in value.
The court also referred the cause to the standing master, with instructions that
he inquire into all the facts connected with the contract in issue and the circum-
stances under which it was made, the adequacy of the consideration tlierefor.
and the existence of any fraud or unfair dealing therein.
The master duly returned his report, together with the evidence taken before
him. from which it appears that Boyd contracted for the timber on the 08th of
September, 1.S9:3, agreeing to pay $15,000 for the same, and that he sold it to Mason
and Dickson in December, 1893, for $-25,000: that H. (1. Ewart, by a contract with
said Indians made in October, 1891. was to receive ','0 per cent of the amount real-
ized from the sale of tlie timber for services rendered bj' hini in the negotiations
preceding said sale; that in the opinion of the witnesses examined the sum of
$15,000 was an adequate and fair price for the timber sold to Boyd. The master so
reported, and also stated that there was no fraud or unfair dealing in the making
of said contract. The court on the 1 Itli day of February. 189{). entered an order
granting said Ewart the riuht to intervene in this suit, which he did l)y petition,
and the court by decree of that date dissolved the injimction and restraining order
granted when the bill was filed, and authorized the parties to the contract relating
to the timber to carry the same out pursuant to the terms thereof. The court
582 DECisio:^ u. s. court.
below also, on April j, 1897, passed a decree directing the allowance of the claim
of the petitioner. H. G. Etvart. and that provision should be made for paying the
same cat of the funds to be realized from the sale of said timber.
From these decrees the United States appealed, claiming that the court below
erred as follows:
First. Because while it held that the Eastern Band of Cherokees is a ward of
the nation, and is subject to the control of the Department of the Interior, still it
held that the contract of said Indians relating to the sale of the timber on their
land Avas good and binding, unless fraud or undue influence in connection with
the execution of the same was shown. The United States contend that as said
Indians are wards of the nation, all contracts made by them are void, unless they
are approved by the proper officials of the Government.
Second. It is claimed that the court erred in holding that the contract of said
Indians with Ewart was binding and of force, as the same was without the approval
of the Department of the Interior.
Third. That even if the contract with Ewart was a valid one, still the court erred
in holding that he had comi)lied \\ith the same and in directing that he be paid
from the proceeds of said timber.
We fully agree with the insistence of the complainants below that the Eastern
Baud of Cherokee Indians are the wards of the rxation and that tJiey have been
treated as such since the year 1848 by the executive and legislative departments of
the Government: and in this connection we may remark that said Indians them-
selves have recognized such relationship from said date down to the time during
which the negotiations for the sale of the timber now in controversy' were being
carried on. Therefore we hold that the court below had jurisdiction of this suit,
and that it was not only proper, but that it was the diity of the United States to
take such steps and to institute such proceedings as would fully protect the inter-
ests of said band of Indians. We are unable to agree with the elaii a of the appellees
that by virtue of the treaty of New Echota this Eastern Band of Cherokees became
citizens of the State of North Carolina and of the United States. By the twelfth
article of that treaty it was provided, in substance, that those individuals and fam-
ilies of the Cherokee Nation that were averse to a removal to the Cherokee coun-
try west of the Mississippi, and were desirous of becoming citizens of the States
where they resided, and such as were qualified to take care of themselves and of
their property and to become useful citizens, were to be permitted to remain within
said States (North Carolina. Tennessee, and Alabama), and were to be entitled to
receive their due portion of all the ijersonal benefits accruing under said treaty for
their claims, improvements, and per capita, and to a prescriptive right to certain
lands.
This certainly did not confer citizenship on anj- portion of the Cherokee Indians:
and we are unable to find any statute or any treaty that makes them citizens of
the United States, oi* that authorizes them "to become citizens by naturalization.
The action or assent of the United States is absolutely essential in order to enable
the Indian tribes or bands, or individual members of the same, to renounce the
dependent condition caused by the state of pupilage in Avhicli the Indians have
been since the adoi)tion of the Federal Constitutimi. If the treaty of New Echota
can be held to authorize the members of the Eastern Band of Cherokees to apply
to the courts for naturalization on shoAving satisfactory i^roof of fitness for civi-
lized life on their part, still it could not avail as far as this case is concerned, for
there is no pretense that any of them have ever made such application or ever
been declared citizens of the United States by any court of the same or of the _
State of North Carolina. On this subject Judge Deady, in the case of United^
States r. Osborne (6 Sawyer, 406-409), has well said:
'■ But an Indian can not make himself a citizen of the United States without
the consent and cooperation of the Government. The fact that he has abandoned
his nomadic life or tribal relations and adopted the habits and manners of civi-
lized people vaay be a good reason why he shmild be made a citizen of the United
States, but does not of itself make him one. To be a citizen of the United States
is a political privilege which no one not born to can assume without its consent
in some form."
The effort to show that the Eastern Band of Cherokee Indians, in disposing of
the timber in controversy and in making the contract with Boyd, acted as a cor-
poration created by the laws of the State of North Carolina is without force, for
it is well settled that neither the constitution of a State nor an act of its legis-
lature can prevent the application of an act of Congress to the Indian tribes
residing in the States, but subject to the control of the General Government. To
hold otherwise would be to make the constitution of a State and the laws of the
same the supreme law of the land, instead of the Constitution of the United States,
and the laws and treaties made in prirsuance thereof. (Citj" of Minneapolis i",
CHEROKEE TIMBER CASE. 5 So
ReiTiu, 56 Fed., 576, S. C. 6, C. C. A.. ;'.l; United States v. Holliday, :j Vv^all., 419;
Worcester r. State of Georgia, 6 Pet., 515; Rollins v. Cherokees. 87 N, C, 259.)
The Congress of the United States has repeatedly, since the treatj^ of New
Echota, recognized the Eastern Band of Cherokee Indians as a distinct portion of
the Cherokee race, and has dealt with them, not as individuals, but as a band dis-
tinctive in character, dependent on the United States, and entitled to the aid and
protection of the General Government. (9 Stat. L., 118 ['-364] ; 10 Stat. L., 291. 700;
15 Stat. L., 228; 16 Stat. L., 362; 18 Stat. L., 213: 19 Stat. L., 170; 22 Stat. L., 302
[32S] : 2? Stat. L,, 122.)
The act of July 29, 1848 (cited above in 9 Stat. L.) , treated said Indians as under
the care of tlie United States, and provided that the sum of money due them under
the treaty of New Echota should be held in the United States Treasury indeli-
nitely, and that interest thereon should be paid tliem. The act of July 27, 1868
(cited above in 15 Stat. L. ) , contained this provision: "That hereafter the Secre-
tary of the Interior shall cause the Commissioner of Indian Affairs to take the
same supervisor}- charge of the Eastern or North Carolina Cherokees as of other
tribes of Indians."" Theactof July 15. 1870. section 11 (as cited above in 16 Stat. L.),
reads as follows:
'•That the Eastern Band of the Cherokee Indians, by that name and stjde. be,
and they are hereby, authorized and empowered to institiite and carry on a suit
or suits in law or equity in the district or circuit courts of the United States
against the present or foi'mer Indian agent or agents of said Ijand. "••' - * It
shall be the duty of the district attorney and the Attorney-General of the United
States to institute and prosecute all suits or causes v,diich may arise tinder this
section.""
The act of July 23,1874 (cited above in 18 Stat. L.). provides for surveying
the lands of the Cherokee Indians of North Carolina, under the direction of the
Secretary of the Interior. In the act of March 3, 1875 (cited above in 18 Stat. L. ),
theCongress made provision for the payment of the costs, attorneys fees, and other
expenses incurred in the prosecution of the suits of the Eastern Band of Cherokee
Indians v. William H. Thomas ot al., which had been instituted as authorized by
the act of July 15, 1870. The act of August 14, 1876 (cited above in 19 Stat. L.),
directed the Commissioner of Indian Affairs to receive certain lands at their cash
vahie. which was ''to be determined by an appraisal to be approved by the Secre-
tary of the Interior and conveyed to the Eastern Band of Cherokee Indians in fee
simple."" The land here referred to is the land from which the timber was sold
to Boyd by the conti'act in issue in this cause. The act of August 15, 1876 (cited
in 19 Stat. L. ). provides for the salary of a special agent for the Eastern Band of
Cherokees. and then abolishes the office; but the act of August 7. 1882 (cited in
22 Stat. L.), authorizes the Secretary of the Interior to appoint an Indian agent
for said band of Indians. The act of Jiily 1^3, 1892 (cited above in 27 StatL.),
again abolishes the office of Indian agent for the Eastern Band of Cherokee Indi-
ans, and required the superintendent of the Indian school at Cherokee. N. C, an '
officer of the United States Government, to act as such agent for said Indians.
This shows that the original condition of the Indians in this country, that of
pupilage under the Government, has not been released so far as this Eastern Band
of Cherokees is concerned. It thus appears that the political departments of the
■Government have recognized these Indians as constituting a tribe, at least within
the meaning of that word as it is used in the Constitution of the United States, and
it is a rule of the courts in matters of this kind to follow the action of the Executive
"nd the dei^artments, whose duty it is to determine such affairs. ( United States r.
jlliday, 3 Wall., 407. ) The Supreme Court of the United States, in United States
r. Kagama (118 U. S., 375,384), referring to this subject, says:
"The power of the General Gov enunent over these remnants of a race once
powerful, now weak and diminished in number, is necessary to their protection,
as well as to the safety of those among whom they dwell. It must exist in that
Government because it never has existed anywhere else; because the theater of its
exercise is within the geographical limits of the United States; because it has
never been denied, and because it alone can enforce its laws on all the tribes.""
The appellees insist that if the Eastern Baudot Cherokee Indians were not made
citizens by the treaty of New Echota, that they certainly were by the act of Con-
gress of February 8, 1887 (24 Stat. L., 388). That portion of said .statute on
which this insistence is based reads as follows:
"Sec. 6. "•■' * * And every Indian born ■within the territorial limits of the
United States to whom allotments shall have been nrade under the provisions of
this act, or under any law or treaty, and every Indian born within the territorial
limits of the United States who has voluntarily taken up, within said limits, his
resulence separate and apart from any tribe of Indians therein, and has : do]ited
the habits of civilized life, is hereby declared to be a citizen of the United States,
584
DECISION U. S. COURT.
and is entitled to all the rights, privileges, and immunities of such citizens, whether
such Indian has been or not, by birth or otherwise, a member of any tribe of Indians
within the territoi'ial limits of the United States, without in any manner impairing
or otherwise affecting the right of any such Indian to tribal or other property."
This section has no application to a tribe of Indians, but is intended to cover the
case of the individual Indian who lias taken up his residence separate and apart
from his tribe, and has adopted the habits of civilized life. There is no contention
here that any members of the Eastern Band of Cherokees have so separated them-
selves from their band, thereby becoming citizens of the United States, and thatj
as such they made the contract with Boyd, concerning their individual property i
On the contrary, it is the Eastern Band of Cherokee Indians, as such, that endeavl
ors to sell the timber to Boyd and to execute the contract relating to the same]
Said statute is not applicable to the case we are now considering.
We are unable to agree with the court below that because the United Stated
sought the aid of a court of equity concerning the alleged contract, said to have
been made by Boyd with the Eastern Band of Cherokee Indians, that it was the
duty of court, in the absence of fraud or unfair dealing in the making of said con-j
tract, to hold the same valid if the consideration to be paid for the timber mentionec
therein was a fair and adequate price for the same.
It must be kept in mind that the complainants below insisted in their bill tha^
the United States had refused to assent to the arrangements made by the council
of the Eastern Band of Cherokees with Boyd, and that therefore no contract hac
in fact been made for the sale of the timber mentioned in the bill. Finding this tc
be true, we think it follows that the defendants were removing said timber unlaw]
fully, and that therefore they should have been restrained from so doing anc
peri^etually enjoined from further interfering with the same.
It will not do to say that the Indian tribes subject to the control of the Depart]
ment of the Interior may be permitted to dispose of their property, real or personal]
without the approval of that Department, or over its protest, as in this case, anc
that the courts of the United States will sanction such proceedings and decree
them to be valid contracts, in the absence of fraud or unfair dealings. We mus|
presume that the Department had good reasons for declining to approve said sale]
and we think that in the absence of fraud on the part of those representing it its
refusal to sanction negotiations of the character here involved is conclusive of thV
matter. To hold otherwise would produce great confusion and would transfer
from that Department to the courts most of the controversies relating to Indiai
affairs now properly disposed of by it, thereby fostering litigation and producing
continuous strife among the different Indian tribes.
The conclusion we reach is altogether independent of the questions raised conj
cerning the power of the Eastern Band of Cherokees to sell and transfer the lane
conveyed to it by William Johnston and wife, as either with or without the
restrictive clause in the deed from Johnston and wife, before mentioned, we fine"
that the United States have the power to supervise and control the affairs of those
Indians so far as said land is concerned.
For the error indicated, the decrees complained of must be reversed and this
cause remandea to the court from whence it came, with instructions to enter
decree of the character indicated by this opinion. The rights of the parties, ad
affected by the money paid by those claiming under the supposed contract witli
Boyd, as well as by the damages, if any, occasioned by the unlawful removal of
said timber, can be adjusted by that court on such just and equitable principles as
may appear to be proper from the facts as thej' now appear and as they may here-j
after be presented.
Disposing of these questions as above indicated, we find it unnecessary to con-j
sider the other matters presented by the assignments of error.
Reversed and remanded.
Photomount
Pamphlet
Binder
Gaylord Bros.
Makers
Syracyge, N. Y.
PAT. JAN 21, 1308
UNIVERSITY OF N.c"cHAPEUHia
00032197453
FOR USE ONLY IN
THE NORTH CAROLINA COLLECTION