Argument for the appellee. Secretary Browning signed the contract upon the 8th, that is to say, two days before its promulgation. Messrs. B. R. Curtis and W. P. Hall, contra: The treaty of 1835 was not negotiated by force of the act of 1830. That treaty is not one to lay off a district west of the Mississippi, and "exchange" it for a district or lands east of the Mississippi. It is a treaty to purchase the lands of the Cherokees for $5,000,000, and a further agreement fo sell the Neutral Lands to the Cherokees, 800,000 acres, for the consideration of $500,000 to be paid therefor. Neither of those objects was within the act of 1830, or authorized thereby. The treaty was made under the treaty-making power, by the President and Senate, and by and under that power alone. That Congress so regarded the treaty is shown by the Appropriation Act of July 2d, 1836,* where Congress ratified and interpreted the treaty, so far as Congress could ratify or interpret a treaty. The act refers both to the article by which the eastern lands were bought for $5,000,000, and to the article by which the neutral or western lands were sold for $500,000. Both the articles are designated in that act by Congress, and one is treated as a purchase, and the other as a sale. The Indians, indeed, paid no money. They had no occasion to pay any money; they bought the land of their debtor, and they extinguished so much of the debt as the price of the land amounted to. The United States, as already said, stipulated, by the treaty of 1835, to sell these lands, and make a valid title in fee simple to the Cherokee nation of Indians. Nothing was said in that article of the treaty (and certainly nothing can be implied) concerning any conditions which were to be inserted in the patent. Nevertheless, when the patent was issued, it embraced not merely the Neutral Lands, but other large tracts of lands, which were to be conveyed independent of these Neutral Lands. And it contained two couditions; that the land should revert to the United States provided the nation should become extinct, or the land should * See supra, p. 214. Argument for the appellee. be abandoned by the nation. Now, the first of these conditions is one which would be silently engrafted on the grant independent of any express words. When there is a grant and the grantee and his heirs become extinct the land escheats to the state, whether the grantee be an individual or a body of individuals. Therefore, we need not quarrel with the first condition. But the other condition-that in regard to the abandonment of the land-is one, which if it were necessary, we could show was wholly unwarranted by the article in the treaty, which stipulated absolutely-not conditionally, but absolutely-to make a title in fee simple. But the matter is unimportant, because there has been no abandonment. A conveyance to a trustee to sell for the benefit of the grantor is not an abandonment. Whether the President could have issued his proclamation, and declared the treaty with the Cherokees terminated by their having gone over to the rebels, we need not consider. He never issued any proclamation in regard to the treaties in force with the Cherokees. On the contrary, in the year 1866, immediately after the war, this treaty of June 19th was made with the Cherokee nation. And the United States never did insist upon the prior hostility of the Cherokees, nor attempt to insist upon it, for any purpose. Now, if it be a condition lawfully inserted in this patent, that if the Cherokees should abandon the lands, they shall revert to the United States, it is a condition subsequent, and no one but the United States can take advantage of it. If it be a lawful condition, the United States could enter through its officers for the breach of that condition, or the United States might waive the breach, and release the condition itself. And by this treaty they have done both; because they have accepted a cession of those lands from the Cherokees in trust to sell them for the benefit of the Cherokees. After this, manifestly not the United States themselves could take advantage of a breach of this condition, or insist on its existence for any purpose. A fortiori, a mere stranger to the title could not do so. So the title stood when the treaty of 1866 was made. Now Argument for the appellee. consider how far, and with what effect, Congress has interposed in reference to this treaty of 1866, and the supplemental article of 1868, by which this title was acquired. We see in the first place, the negotiation of the original treaty; the recognition of that fact by Congress, in making an appropriation for the expenses, and in making other appropriations under the treaty, specifying the articles to carry out what was promised in the treaty by those articles. We find also that in doing this, Congress has expressly provided, that although these moneys are to be thus advanced out of the treasury, they are to be reimbursed from the sales of "neutral lands." What neutral lands? Only these. What sales? Those provided for in the treaty. The principal treaty bore date on the 19th day of July, 1866. The provisions just referred to, for the payment of the expenses of the commissioners and other obligations, applied to expenses accruing in the negotiation of that treaty. But the commissioners had again been summoned to negotiate the supplemental article; they had come here some time in the year 1867, having concluded their labors in April, 1868, and then a provision is made by an act of the 27th of July, 1868, to pay their expenses. This last act contains the proviso: "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 in Kansas, applicable to Cherokee national purposes." The additional article of the treaty was concluded on the 27th of April, 1868. It was proclaimed the 10th of June, 1868. So that, on the 27th of July, 1868, when Congress made this provision for deducting the amount of that appropriation out of the proceeds of the sales of the Cherokee Neutral Lands, it could refer to nothing except this very sale to Joy, which is now under consideration; because, that supplemental article had a provision that a contract should be made by Joy to perform all that the land company had agreed to perform, with some modifications, and that the lands should be patented to him under that contract, as fast as they should be paid for. Argument for the appellee. So far as to the legislative history of this title. We pass now to the pretensions which are set up here on the part of the counsel of the appellant. The learned counsel rely on several "legal propositions," which they seek to maintain. It is said in the first and second places, that an act of Congress is necessary before the performance of the treaty trust can be performed; that this treaty does not ex proprio vigore convey any title to Joy; that it does not contain any patent to Joy, nor provide for the issue of any to him. But it is not consistent with the nature of the transaction that it should so convey, or contain such a patent. It contains a cession of the land to the United States, and that cession is made to the United States in trust to sell. A sale had been agreed upon between Joy and the Secretary of the Interior, at the time when the supplemental article was negotiated. That sale by the Secretary of the Interior, under the trust, to Joy, is described and ratified and approved of in this supplemental article. Now, to say that this supplemental article does not convey the lands to Joy, is to state what is true but entirely consistent with what the treaty provides for, namely, that the secretary was to convey them to him, by patent, in the name of the United States, in whom the legal title had been vested by the treaty. It is further insisted, in the third place, that the validity of these proceedings cannot be maintained because the Secretary of the Interior, and the Commissioner of the Land Office, are required to do something; that the treaty is invalid because these public officers are to do something under the treaty. It would be an unusual sort of treaty, under which some public officer was not to do something. If the President and the Senate have the power to make such a treaty as this, and the stipulations in the treaty are what this court must consider them to be-appropriate stipulationsthen is it to avoid this treaty that the Secretary of the Interior is to perform certain acts, and the Commissioner of the Land Office certain other acts? Congress, in 1837, legislated generally on this class of subjects, namely, cessions by Indians Argument for the appellee. in trust. They speak of them as having been theretofore made; and they show the expectation that they will be thereafter made; they speak of surveys, and the expenses of surveys, of the sales and the expenses of the sales, and provide how they shall be taken out of the proceeds. Certainly, if there were to be surveys and sales, and other expenses, there must be somebody to make surveys, and somebody to make the sales, and somebody to incur the expenses, all of which is plainly contemplated, in this act of Congress, regulating these cessions in trust. And why not the Secretary of the Interior? All these Indian affairs belong to his department. He is the appropriate officer to have the supervision over this subject, and see that the stipulations of this treaty are carried out fairly and effectually on behalf of the contracting parties. Why should he not be selected under the treaty-making power? It is argued that the treaty cannot appoint an officer. That may be true; but if the treaty finds him already appointed and charged with a class of duties, one of which, under the treaty, falls naturally and properly under his office, why, in the name of all that is practicable, should he be not charged with the duty of performing it? The Commissioner of the General Land Office was also to do something. The law of Congress foresaw that the commissioner would be called upon to do something under treaties of this kind, and accordingly an act was passed on the 8th of April, 1864, which requires him to have the necessary surveys made. On the 28th day of July, 1866, another act was passed, making an appropriation for the expenses of these and other similar surveys. This treaty was dated in April, and was promulgated in June. The act contains this provision: "For surveying Indian and other reservations under treaty stipulations at not exceeding $15 per mile from boundaries, $10 for townships, and $8 per mile for sections; $50,000." We got the money, then, to make these surveys by the will of Congress, and by the act of the 8th of April, 1864,† 13 Stat. at Large, 41. * See supra, p. 221. |
