HOLDEN V. JOY, 84 U. S. 211 (1872)

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U.S. Supreme Court

Holden v. Joy, 84 U.S. 17 Wall. 211 211 (1872)

Holden v. Joy

84 U.S. (17 Wall.) 211


1. The treaty of the 29th December, 1835, between the United States and the Cherokee Indians, was not made in virtue of the act of 28th of May, 1830, authorizing an "exchange" of lands west of the Mississippi for the territory claimed or occupied by any tribe of Indians within the limits of any state or territory, but was made under the treatymaking power vested by the Constitution in the President and Senate.

2. The Indian tribes are capable of taking as owners in fee simple lands by purchase where the United States in form, and for a valuable and adequate consideration, so sell them to them.

3. Such sale is properly made by a treaty.

4. The above-mentioned Treaty of 29 December, 1835, made such a sale to the Cherokee Indians of the lands west of the Mississippi, known as the "Cherokee Neutral Lands," and the fact and validity of the sale have been recognized by Congress through appropriations made in execution of the treaty making it.

5. The cession to the United States by the Cherokees, in the Treaty of June 19, 1866, of the said Neutral Lands owned by them as aforesaid, in trust that the United States should sell them and hold the proceeds for the benefit of the said Indians, was a lawful cession and trust, and in accordance with the policy and practice of the government.

6. It did not amount to an "abandonment" of the lands, and therefore cannot raise a question whether the lands reverted to the United States in pursuance of a condition inserted in the patent that the land should revert to the government if the Cherokees abandoned them, assuming that such a condition was lawful and of any effect, a matter not conceded.

7. Assuming that either this provision in the patent or the extent to which the Cherokees joined the rebel confederacy in the late rebellion amounted to any abandonment, the United States, the grantors, alone could take advantage of the breach of condition.

8. Their acceptance of the lands in trust, to sell them for the benefit of the Cherokees, condoned the breach of condition if there was one.

9. The supplemental article of April 27, 1868, to the already-mentioned Treaty of June 19, 1866, was valid, and the sale and potent made to one Joy pursuant to its purpose passed a good title to the said Joy, though the treaty did not convey, proprio vigore, the lands meant to be sold, though it required officers of the United States to do certain acts before the sale could be consummated, and though the contract of sale to Joy was signed before the treaty was promulgated.

Prior to the year 1817, the Cherokee Indians all resided

Page 84 U. S. 212

on the east of the Mississippi, largely in Georgia. By treaties of the year named and of 1819, [Footnote 1] the tribe was divided into two bodies, one of which remained where they were, east of the Mississippi, and the other settled themselves upon United States land in the country on the Arkansas and White Rivers. The government being desirous to get the entire tribe to the west of the Mississippi River, treaties were made by the United States May 6, 1828, and February 14, 1833, [Footnote 2] with this western part of the tribe, by which the United States agreed to "possess" them as well as those of their brethren who still resided in states east of the Mississippi and to guarantee to them all forever 7,000,000 acres of land west of the Arkansas. But the part of the tribe east of the river did not largely emigrate.

On the 28th of May, 1830, Congress passed an act [Footnote 3] entitled "An act to provide for an exchange of lands with the Indians residing in any of the states or territories and for their removal west of the Mississippi River." The first and second sections of the act authorized the President of the United States to exchange certain lands west of the Mississippi River with any tribe or nation of Indians residing within the limits of any of the states or territories, and with which the United States lead existing treaties, for the whole or any portion of the territory claimed or occupied by such Indians. The third section of the act was in these words:

"And be it further enacted that in the making of any such exchange or exchanges, it shall and may be lawful for the President solemnly to assure the tribe or nation with which the exchange is made that the United States will forever secure and guarantee to them and their heirs or successors the country so exchanged with them, and if they prefer it, that the United States will cause a patent or grant to be made and executed to them for the same, provided always that such lands shall revert to the United States if the Indians become extinct or abandon the same. "

Page 84 U. S. 213

Afterwards, on the 29th of December, 1835, and while this act was in fall force -- the United States, being in possession of a certain 800,000 acres of land west of the Mississippi known as the "Neutral Lands" [Footnote 4] (part of the cession made by France to us April 30, 1803, [Footnote 5] originally occupied by the Osage tribe, but of all their right in which the said tribe had in 1825 [Footnote 6] made a cession to the United States) -- the President negotiated a treaty with the Cherokees. [Footnote 7]

The treaty contains these provisions:

"ARTICLE 1. The Cherokee nation hereby cede, relinquish, and convey to the United States all the lands owned, claimed, or possessed by them east of the Mississippi River . . . for and in consideration of the sum of $5,000,000, to be expended, paid, and invested in the manner stipulated and agreed upon in the following articles &c."

"ARTICLE 2. Whereas by the Treaty of May 6, 1828, and the supplemental treaty thereto of February 14, 1833, with the Cherokees west of the Mississippi, the United States guaranteed and secured to be conveyed by patent to the Cherokee nation of Indians the following tract of country [described as in the treaty of 1833, and then quoting the following words from the treaty:] "

"which will make 7,000,000 of acres. . . . In addition . . . , the United States further guarantee to the Cherokee nation a perpetual outlet west, and a free and unmolested use of all the country west of the western boundary of said 7,000,000 acres, as far west as the sovereignty of the United States and their right of soil extend. . . ."

"And whereas it is apprehended by the Cherokees that in the above cession there is not contained a sufficient quantity of land for the accommodation of the whole nation on their removal west of the Mississippi, the United States, in consideration of the sum of $500,000, therefore hereby covenant and agree to convey to the said Indians and their descendants, by patent in fee simple the following additional tract of land [described], estimated to contain 800,000 acres of land. "

Page 84 U. S. 214

"ARTICLE 3. The United States also agree that the lands above ceded by the Treaty of February 14, 1833, including the outlet and those ceded by this treaty, shall all be included in one patent executed to the Cherokee nation of Indians by the President of the United States, according to the provisions of the Act of May 28, 1830."

By an act making appropriations "for carrying into effect certain Indian treaties" approved July 2, 1836, [Footnote 8] Congress appropriated

"For the amount stipulated to be paid for the lands ceded in the first article of the Treaty with the Cherokees of the 29th of December, 1835, deducting the cost of the land to be procured for them west of the Mississippi River, under the second article of said treaty, $4,500,000."

On the 31st December, 1838, the President, referring to the already mentioned Treaties of May 6, 1828, February 14, 1833, and December 29, 1835, and professing to act "in execution of the agreements and stipulations contained in the said several treaties," issued a patent giving and granting the 800,000 acres of land described in the treaty of 1835 "unto the said Cherokee nation," to have and to hold the same, together with all the rights, privileges, and appurtenances thereunto belonging, unto the said Cherokee nation forever.

The grant, however, which included a large body of lands not part of the Neutral Lands or conveyed under the treaty of 1835, was made

"Subject to the condition provided by the Act of Congress of 28 May, 1830, and which condition is that the lands hereby granted shall revert to the United States if the said Cherokees become extinct or abandon the same."

On the breaking out of the rebellion, the Cherokee Indians generally favored it. Some of them actually joined the rebel army, though a portion of these afterwards deserted and entered the army of the United States.

Page 84 U. S. 215

On the 5th of July, 1862, Congress, by its Indian Appropriation Act of that year, provided: [Footnote 9]

"That in cases where the tribal organization of any Indian tribe shall be in actual hostility to the United States, the President is hereby authorized to declare all treaties with such tribe to be abrogated by such tribe if in his opinion the same can be done consistently with good faith, and legal and national obligations."

This power thus entrusted to the President he did not use, and the treaties with the Cherokee Indians remained in force notwithstanding the rebellion.

On the 3d of March, 1868, [Footnote 10] by the fourth section of the Indian Appropriation Act, the President was authorized to enter into negotiations with various Indian tribes for the purchase of the lands occupied by them in the State of Kansas. The section was thus:

"And be it further enacted that the President of the United States be and he is hereby authorized to enter into treaties with the several tribes of Indians respectively, now residing in the State of Kansas, providing for the extinction of their titles to lands held in common within said state and for the removal of such Indians of said tribes as hold their lands in common to suitable localities elsewhere within the territorial limits of the United States and outside the limits of any state."

After the close of the rebellion, the Act of March 3, 1863, being still in force, the President of the United States entered into negotiations with the Cherokee Indians for that part of their land situate in the State of Kansas. The result of such negotiations was a treaty known as that of July 19, 1866. This treaty, which is entitled "Articles of agreement and convention," is voluminous, and relates to many subjects. Its preamble recites that "existing treaties between the United States and the Cherokee nation are deemed insufficient," and that "the contracting parties agree as follows." Article seventeen provides thus:

"The Cherokee nation cedes in trust to the United States

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the parcel of land in the State of Kansas, which was sold to the Cherokees under provisions of the second article of the treaty of 1835, and also that strip of the land ceded to the nation by the fourth article of said treaty, which is included in the State of Kansas, and the Cherokees consent that said land may be included in the limits and jurisdiction of the said state."

"The lands herein ceded shall be surveyed as the public lands of the United States are surveyed under the direction of the Commissioner of the General Land Office, and shall be appraised by two disinterested persons, one to be designated by the Cherokee National Council, and one by the Secretary of the Interior, and in case of disagreement, by a third person to be mutually selected by the aforesaid appraisers. The appraisement to be not less than an average of one dollar and a quarter per acre, exclusive of improvements."

"And the Secretary of the Interior shall from time to time, as such surveys and appraisements are approved by him, after due advertisement for sealed bids, sell such lands to the highest bidder for cash, in parcels not exceeding one hundred and sixty acres, and at not less than the appraised value, provided, that whenever there are improvements of the value of $50 made on the land not being mineral, and owned and personally occupied by any person for agricultural purposes at the date of the signing hereof, such persons so owning and in person residing on such improvements, shall after due proof made under such regulations as the Secretary of the Interior may prescribe, be entitled to buy at the appraised value the smallest quantity of land in legal subdivisions, which will include his improvements, not exceeding in the aggregate one hundred and sixty acres, the expenses of the sale and improvement to be paid by the Secretary out of the proceeds of sale of said land. [Provided that nothing in this article shall prevent the Secretary of the Interior from selling the whole of said lands not occupied by actual settlers at the date of the ratification of this treaty, not exceeding one hundred and sixty acres to each person entitled to preemption under the preemption laws of the United States, in a body, to any responsible party for cash, for a sum not less than one dollar per acre.] [Footnote 11] "

Page 84 U. S. 217

The twenty-ninth article of the treaty read thus:

"The sum of $10,000, or so much thereof as may be necessary to pay the expenses of the delegates and representatives of the Cherokees invited by the government to visit Washington for the purpose of making this treaty, shall be paid by the United States on the ratification of this treaty."

By an Act passed on the 29th of July, 1866, [Footnote 12] this provision was made:

"To enable the Secretary of the Interior to pay the reasonable costs and expenses actually paid or incurred by the delegates of the Southern Cherokees in coming to and going from Washington, and during their stay in and about the negotiation pending the confirmation of treaties with the Indian tribes, a sum not exceeding $10,000. Provided, that sum shall be refunded to the Treasury from the proceeds of the sales of the Cherokee Neutral Lands in Kansas."

The twelfth article of the treaty, section one, read thus:

"After the ratification of this treaty, and as soon as may be deemed practicable by the Secretary of the Interior, and prior to the first session of said council, a census or enumeration of each tribe, lawfully resident in said territory, shall be taken under the direction of the Commissioner of Indian Affairs, who, for that purpose, is hereby authorized to designate and appoint competent persons, whose compensation shall be fixed by the Secretary of the Interior, and paid by the United States."

The Indian Appropriation Act of 1866 [Footnote 13] made this provision:

"For this amount, or so much thereof as may be necessary to enable the Secretary of the Interior to cause a census of each tribe to be taken, under the provisions of the twelfth article of the Treaty of July 19, 1866 -- $2500."

The twenty-eighth article of the treaty read thus:

"The United States hereby agree to pay for provisions and clothing furnished the army, under Ap-pothe-le-ha-la-le, in the winter of 1861-62, not to exceed the sum of $10,000 on the account

Page 84 U. S. 218

to be ascertained and settled by the Secretary of the Interior."

The thirtieth article thus:

"The United States agree to pay to the proper claimants, all losses of property by missionaries, or missionary societies, resulting from their being ordered or driven from the country by United States agents, and from their property being taken and occupied or destroyed by United States troops, not exceeding in the aggregate $20,000, to be ascertained by the Secretary of the Interior."

The Indian Appropriation Act of Congress, just mentioned, contains appropriations [Footnote 14]

"For provisions and clothing furnished the army under Ap-pothe-le-ha-la-le in the winter of 1861-62, per twenty-eighth article of the treaty of July 19, 1866, $10,000."

"For paying of losses of property by missionaries or missionary societies &c., treaty July 19, 1866, thirtieth article, $30,000."

These and other acts [Footnote 15] appropriated in the aggregate $84,825 to carry the treaty into effect.

After this treaty of 1866 was ratified and proclaimed, Mr. Harlan, while Secretary of the Interior, made an agreement with the American Emigrant Company for the sale of the Cherokee Neutral Lands to them. By this agreement, Mr. Harlan "agrees to sell, and hereby does sell," to the company, the whole tract of 800,000 acres, known as the "Cherokee Neutral Lands," with the restrictions set forth in the seventeenth article of the treaty of 1866, at $1 per acre, payable in installments.

"The United States agree to cause said lands to be surveyed as public lands are usually surveyed, in one year from the date hereof, and on the payment of $50,000, to set apart for said company a quantity of said lands, in one body, in as compact form as practicable, extending directly across said tract of land, from east to west, and containing a number of acres equal to the number of dollars then paid, and from time to time to convey the same by patent, to said company or its assigns, whenever

Page 84 U. S. 219

afterward requested so to do, in such quantities, by legal subdivisions, as said company shall indicate; and on the payment of each additional installment, with interest as herein stipulated, to set apart for said company an additional tract of land, in compact form, where said company may request, but extending directly across the said Neutral Lands from east to west, containing a number of acres equal to the number of dollars of principal thus paid, and to convey the same to said company or its assigns, as hereinbefore described, and so on from time to time until the whole shall be paid, and no conveyance of any part of said lands shall be made until the same shall be paid for as provided in this agreement, but said company may more payments at earlier periods than those indicated, or pay the whole, principal and interest, and receive titles of tracts of land accordingly, if they shall so elect."

Mr. Browning, the successor in office of Mr. Harlan, disapproved of the sale before it had been consummated, and "agreed," October 9, 1867, with a certain Joy to sell the same lands to him. This matter attracted the attention of Congress. The House of Representatives accordingly, on the 11th of December, 1867, passed a resolution calling on Secretary Browning for information with regard to the sale. The secretary answered the inquiries.

The conclusion of Congress being that the original treaty of 1866 had not made such provisions as would produce for the Indians the greatest amount of money, the Indian commissioners were summoned a second time to Washington. A supplemental treaty was now made (April 27, 1868), between the United States and the Cherokees. This treaty refers to the sales to the Emigrant Company and to Joy, and recites that for the purpose of harmonizing all interests the company was about to assign their contract to Joy, and agrees that this shall be done and that Joy shall cancel and relinquish his contract made with Mr. Browning.

It then agrees that whenever Joy shall have cancelled and relinquished this contract with Mr. Browning, and shall have accepted the assignment of this contract with the Emigrant Company and entered into a contract with the Secretary of the Interior to assume and perform the obligations

Page 84 U. S. 220

of the company under it, the contract thus assigned, with some modifications as to the time &c., of payments, shall stand. This treaty was proclaimed June 10, 1868.

Two days before the ratification, that is to say on the 8th of June, 1868, Mr. Browning and Joy entered into a new contract reciting Joy's acceptance of the Emigrant Company's obligation (which in terms Joy assumed), reciting further the surrender and cancellation of Joy's old contract, and Mr. Browning, as secretary, agreeing that he would carry out and execute all the provisions of the Emigrant Company's contract, except so far as modified by the supplemental treaty, and "cause patents of said lands to be issued to the said Joy or his assigns in accordance with the terms and provisions thereof."

By the Indian Appropriation Act of July 27, 1868, [Footnote 16] Congress enacted:

"That the sum of $10,356 be appropriated from any money in the Treasury not otherwise appropriated, to enable the Secretary of the Interior to defray the expenses of the Cherokee delegation to Washington, District of Columbia, during the year 1867, provided that this sum be refunded to the Treasury of the United States out of that portion of the proceeds of the sale of the Cherokee Neutral Lands applicable to Cherokee national purposes."

Afterwards, by the Indian Appropriation Act of 1871, [Footnote 17] Congress made certain provisos, in the following terms:

"Provided that hereafter, no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may contract by treaty, provided further that nothing herein contained shall be construed to invalidate or impair the obligations of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe."

On the 31st of October, 1868 -- that is to say, after the treaty of 1868 (the supplemental treaty), had been proclaimed, and after the Act of July 27, 1868, had been passed -- Joy consummated his purchase of the Cherokee

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Neutral Lands, and the same were patented to him or his assignee.

At the time when Joy's purchase was thus made, the Indian Intercourse Acts (acts of 1802 and 1834) provided: [Footnote 18]

"That no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same shall be made by treaty or convention entered into pursuant to the Constitution."

Another law, also, passed January 9, 1837, [Footnote 19] enacted:

"§ 1. That all moneys received from the sale of lands, that have been or may be hereafter ceded to the United States by Indian tribes by treaties, providing for the investment or payment to the Indians, parties thereto, of the proceeds of the lands ceded to them respectively, after deducting the expenses of survey and sale, any sum stipulated to be advanced, and the expenses of fulfilling any engagement therein, shall be paid into the Treasury of the United States in the same manner that moneys received from the sale of public lands are paid into the Treasury."

"§ 2. That all sums that are or may be required to be invested by said treaties are hereby appropriated in conformity with them, and shall be drawn from the Treasury as other public moneys are drawn therefrom, under such instructions as may from time to time be given by the President."

In this state of facts and of statutory law, one Holden filed a bill in the court below against Joy, setting up that a title had accrued to him to enter a certain quarter section of a tract of the lands already mentioned, to-wit, the Neutral Lands, sold as above said to Joy. The bill alleged that the land claimed was, on the 12th of February, 1867, public land, to which the Indian title had been extinguished; that he, the complainant, having the qualifications of a preemptor, on that day settled upon it and took possession of the same; that he had acquired the legal and equitable right to enter the same at the proper land office under the preemption

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laws; that he then made settlement for the purpose of entering it under the said laws, and then took and had ever since had, and now had, open, notorious, adverse, exclusive, and rightful possession of the promises; that at the time he took possession, the tribe of Cherokee Indians did not live in the state, and had not since lived there; that no individual Indian of the tribe lived on or near the premises, and that the tract was never settled upon by any person until it was taken possession of by him, the complainant; that he took possession of the land at the time and had continued to occupy it without any objection from the tribe of Indians or any one of the members of the tribe; that he was the head of a family and a citizen of the United States &c.

He admitted, however, that there was no public survey of the tract returned and approved until a later period; that no plat or survey of the tract made by authority had ever been returned to the office of the register and receiver, or to the office of the Surveyor General; that the only record of the survey was in the office of the Commissioner of the General Land Office; and that no instructions had ever been given to the register and receiver respecting the tract by the Secretary of the Interior. But he alleged that he had at all times been and still was ready and willing to make proof before the register and receiver of his settlement and improvement upon the tract, and to pay therefor the price of $1.25 per acre, and that he had tendered such proof and payment, and that the register and receiver had at all times refused to take such evidence or to accept pay for the land.

He averred that a right had thus accrued to him to enter the said lands under the preemption laws of the United States, and the grievance alleged was that the respondent had commenced an action of ejectment against him for the purpose of ejecting him from the land. He prayed au injunction against the ejectment, and for other relief.

The bill also set forth in considerable fullness what it alleged was the title claimed by the respondent, and averred that there was no other authority of law for the issuing of

Page 84 U. S. 223

the patent of the 31st of October, 1868, to the respondent, under which he claimed the premises in controversy, than the several patents, treaties, and contracts set forth and referred to in the bill of complaint, the same essentially as those mentioned in the preceding. statement.

The respondent demurred:

(1) Because the facts set forth in the bill did not constitute a cause of action.

(2) Because they were not sufficient to entitle the complainant to any relief in a court of equity.

(3) Because the bill, if true, showed that the complainant had a complete and adequate remedy in a court of law.

The court below sustained the demurrer, and dismissed the bill, whereupon the complainant appealed to this Court.

Page 84 U. S. 236

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