Cherokee Phoenix and Indians' Advocate
Vol. III No. 17
Saturday, September 4, 1830
Pg. 1 Col. 1- Pg. 4 Col. 3a
(Pages 1 and 4 are in large 3 column format. Pages 2 and 3 in 5 column format)
AN OPINION ON THE CLAIMS FOR IMPROVEMENTS, BY THE STATE OF GEORGIA ON THE CHEROKEE NATION UNDER THE TREATIES OF 1817 AND 1828
BY WILLIAM WIRT, ESQ.
It appears by the preamble to the treaty between the United States and the Cherokee Nation, of the 8th July 1817, that; in the autumn of the year 1808, a deputation from the upper and lower Cherokee towns, duly authorized by their nation, went on to the city of Washington, the first named to declare to the President of the United States their anxious desire to engage in the pursuits of agriculture and civilized life in the country they then occupied, and to make known to the President of the United States the impracticability of inducing the nation at large to do this, and to request the establishment of a division line between the upper and lower towns so as to include all the waters of the Highwassee River to the upper towns, that by thus contracting their society within narrow limits they proposed to begin the establishment of fixed laws and a regular government: the deputies from the lower towns to make known their desire to continue the hunter life, and also the scarcity of game where they then lived, and under these circumstances their wish to remove across the Mississippi River on some vacant lands of the United States; and that the President of the United States, after maturely considering the petitions of both parties, on the ninth day of January, A.D. one thousand eight hundred and nine including other subjects answered those petitions as follows: "The United States; my children, are the friends of both parties and as far as can be reasonably asked, they are willing to satisfy the wishes of both. Those who remain may be assured of our patronage, our aid and good neighborhood. Those who wish to remove are permitted to send an exploring party to reconnoiter the country on the waters of the Arkansas and White Rivers, and the higher up the better, as they will be the longer unapproached by our settlements which will begin at the mouth of the rivers. The regular Districts of the Government of St. Louis are already laid off to the St. Francis."
"When the party shall have found a tract of country suiting the emigrants, and not claimed by other Indians, we will arrange, with them and you the exchange of that for a just portion of the country they leave, and in a part of which proportioned to their members they have a right. Every aid toward their removal, and what will be necessary for them there, will then be freely administered to them and when established in their new settlements, we shall still consider them as our children, give them the benefit of exchanging their petitions for what they will want at our factories and always hold them firmly by the hand."
It appears further by preamble that the Cherokees, relying on the promises of the President of the United States as above recited, did explore the country on the west side of the Mississippi, and make choice of the country on the Arkansas and White Rivers, and settled themselves down upon the United States' lands to which no other tribe of Indians had any just claim, and duly notified the President of the United States thereof and for the anxious desire for the full and complete ratification of his promises and to that end as notified by the President of the United States had sent on their agents with full powers to execute a treaty relinquishing to the United States all right, title, and inters to all lands, of right to them as a part of the Cherokee Nation which they had left and which they were about to leave, proportioned to their numbers, including with those on the Arkansas, those who were about to remove thither, and to a portion of which they have an equal right agreeably to their numbers.
To give effect to those objects, as it concerned both that part of the nation which was about to remain, as well as that part which had removed or were about to remove, the treaty of the 8th of July 1817 was made between the United States and the whole of the Cherokee Nation including as well the emigrant as the remaining portion of that people. By the first two articles the whole Cherokee Nation unite in making a cession of a portion of their territory by certain metes and bounds to the United States "in part of the proportion of lands in the Cherokee Nation east of the Mississippi, to which these now on the Arkansas and those about to remove there are justly entitled." And for the completion of the exchange, it was stipulated, by the third article of that treaty, that a census should be taken of the whole Cherokee Nation during the month of June 1818 in the following manner, viz: "that the census of those on the east side of the Mississippi River, who declare their intention of removing shall be taken by a commissioner appointed by the President of the United States and a commissioner appointed by the Cherokees on the Arkansas River and those removing there, and who at that time, declare their intention of removing there, shall be taken by a commissioner appointed by the President of the United States and one appointed by the Cherokees east of the Mississippi River." By the fourth article it was stipulated that the annuity due from the United States to the whole Cherokee Nation for the year 1818 shall be divided between the two parts of the nation in proportion to their numbers agreeably to the stipulation contained in the third article of the treaty: and to be continued to be divided, thereafter, in proportion to their numbers: and the lands to be apportioned and surrendered to the United States agreeably to the aforesaid enumeration as the proportionate part agreeably to their numbers to which those who have removed and those who declare their intention to remove have a just right including those with the lands ceded in the first and second articles of that treaty."
By the 5th article, the United States in exchange for the lands specifically ceded by the first and second articles of the treaty, and to be thereafter ceded as soon as the proportion should be ascertained by the census, give to that part of the Cherokee Nation on the Arkansas, an equal quantity, acre for acre, on the Arkansas River, beginning on a base line therein described, and running up the river for quantity.
By the same article it was further stipulated that the treaties theretofore existing between the Cherokee nation and the United States should continue in full force with both parts of the nation, and both parts thereof entitled to all the immunities and privileges which the old nation enjoyed under the aforesaid treaties.
By the 6th article the United States bind themselves to give to all the poor warriors who may remove to the western side of the Mississippi one rifle gun and ammunition, one blanket, and one brass kettle, or, in lieu of the brass kettle, a beaver trap, which is to be considered as a full compensation for the improvements they may leave: and to those emigrants whose improvements add real value to the lands, the United States agree to pay a full valuation for the same, which is to be ascertained by a commissioner appointed by the President of the United States for that purpose, and paid for as soon after the ratification of the treaty as practicable.
By the 7th article, it is further stipulated that for all improvements which add real value to the lands lying within the boundaries ceded to the United States by the first and second article of the treaty, the United States do agree to pay at the time and to be valued in the same manner as stipulated in the 6th article, or in lieu thereof to give in exchange improvements of equal value which the emigrants may leave, and for which they are to receive pay. And by the same article it is further stipulated that all those improvements left by the emigrants within the bounds of the Cherokee Nation, east of the Mississippi River, which add real value to the lands, and for which the United States shall give a consideration, and not so exchanged shall be rented to the Indians by the agent, year after year, for the benefit of the poor and decrepit, of that part of the nation east of the Mississippi River until surrendered by the nation or to the nation. And it was further agreed thereby that the said Cherokee Nation should not be called upon for any part of the consideration paid for said improvements at any future period.
It is stated that under this treaty several Indians of the Cherokee Nation did remove and join their brethren on the Arkansas, leaving within the territory of that nation, nor exchanged by that treaty, improvements for which the United States did pay, and which the United States did rent: not to the Indians, in conformity with the provisions of the latter clause of the seventh article for the benefit of the poor and decrepit part of the nation, but to white persons, in direct violation of the treaty. To this palpable violation the Cherokees for the time submitted, looking to the treaty which was to follow for the ratification of the wrong.
It is further stated that the census contemplated by the third article of the treaty, in order to ascertain the number of the emigrants, and consequently what further portion of the Cherokee territory was to be surrendered by that nation to the United States as being the proportion of that territory which might be considered as belonging to these emigrants was never taken.
In this posture of things the treaty of Washington 27th February 1819, was made between the United States and the Cherokee Nation. The preamble of this treaty recites that "Whereas a greater part of the Cherokee Nation have expressed an earnest desire to remain on this side of the Mississippi, and being desirous to commence these measures which they deem necessary to the civilization and preservation of their nation, that the treaty between the United States and them signed the 8th of July 1817, might without any further delay or expense of taking the census as stipulated in the said treaty, be finally adjusted, have offered to cede to the United States a tract of country at least as extensive as that which they are probably entitled to under its provisions, the contracting parties have agreed to and conclude the following articles."
By the first article of this treaty the Cherokee Nation make a cession of their lands to the United States by certain metes and boundaries which as been estimated as containing 738,558 acres: the article concludes with these words---"and it is further understood and agreed by the said parties that the lands hereby ceded by the Cherokee Nation are in full satisfaction of all claims which the United States have on them on account of the cession to a part of the nation who have or may hereafter emigrate to the Arkansas and this treaty is a final adjustment of that of the 8th July 1817."
By the second article the United States agree to pay according to the stipulations contained in the treaty of the 8th July 1817, for all improvements on the lands being within the country ceded by the Cherokees which add real value to the land.
By the 5th article it is stipulated that the boundaries designated by the first article as the lands ceded to the United States should be run be commissioners appointed by the President and the Cherokee Nation and the leases which have been made under the treaty of the 8th July 1817 of land being within the portion of country reserved to the Cherokees to be void."
By the 6th article of the treaty it was stipulated that the annuity due to the Cherokee Nation should be paid two thirds to the Cherokees east of the Mississippi and one third to the Cherokees west of that river: and if the Cherokees west of the river should object to that distribution within a given term the census originally contemplated was still to be taken with reference to that object alone.
This is the last treaty between the United States and the Cherokee Nation to which the Cherokees east of the Mississippi were parties.
On the 6th of May 1828 a treaty was made between the United States and the Cherokee Nation west of the Mississippi which the Cherokees east of the Mississippi were not parties, the object of which was to remove the Arkansas Cherokees farther westward, and to give them lands, beyond the territory or State of Arkansas, in exchange for those they were about to evacuate on the Arkansas. In this treaty the following article occurs: The Cherokee Nation west of the Mississippi, having by this agreement freed themselves from the harassing and ruinous effects consequent upon a location amidst a white population, and secured to themselves and to their posterity, under the solemn sanction of a guaranty of the United States, as contained in this agreement, a large extent of unembarrassed country; and that their brothers yet remaining in the States may be induced to join them and enjoy the repose and blessings of such a state in the future, it is further agreed on the part of the United States that to each head of a Cherokee family, now residing within the chartered limits of Georgia, or other of the States, east of the Mississippi, who may desire to remove west, shall be given, on enrolling himself for emigration, a good rifle, a blanket, and kettle, and five pounds of tobacco: (and to each member of his family one blanket,) also, a just compensation for the property he may abandon, to be assessed by persons to be appointed by the President of the United States. The cost of the emigration of all such shall also be borne by the United States, and good, and suitable ways opened, and provisions procured for their conduct, accommodations, and support, by the way, and provisions for twelve months after their arrival at the Agency and to each person, or head of a family, if he take along with him four persons, shall be paid immediately on his arriving at the Agency and reporting himself and his family, or followers, as emigrants and permanent settlers, in addition to the above provided he and they shall have emigrated from within the chartered limits of the State of Georgia, the sum of fifty dollars, and this sum in proportion to any greater or less number that may accompany him from within the aforesaid chartered limits of the State of Georgia."
This treaty was never submitted to the Cherokees east of the Mississippi for their ratification or approval, and never in any mode received the sanction of that nation. But it is also stated that subsequent to its ratification by the Arkansas Indians several individuals of the nation east of the Mississippi have removed from their territory lying within the chartered limits of Georgia leaving improvements on the lands which they had occupied in their territory, which improvements have been valued by persons appointed by the United States and have been paid for, or are to be paid for by the United States.
It is farther stated that according to the laws and usages of the Cherokee Nation, no individual holds separate property in the lands: but the whole of the lands belongs to the nation, as a nation, and the title can be granted only by the whole nation in their national character.
It is further stated by the same laws and usages, when an individual of that nation wishes to appropriate any portion of their lands to their exclusive use, he may do so by erecting improvements thereon, and that he acquires thereby, the exclusive right of occupancy in the lands within a quarter of a mile of his improvements on every side. By these laws and usages he may sell the right thus acquired to any one of the Cherokee Nation, but to no other. If he abandons them, for twelve months without such a disposition, the improvements belong to the nation, or to the next occupant of that nation.
On this case I am asked the following:
1. Has the State of Georgia any and what rights to the improvements or the lands therewith connected, in right of occupancy which had been evacuated by individuals of the Cherokee Nation under the last clause of the 7th article of the Treaty of the 8th of July 1817, and which had been rented by the Agent of the United States as aforesaid, but the leases on which had been made void by the 5th article of the Treaty of 27th February 1819. These improvements and lands lying within the territory reserved by the Cherokees under the latter treaty?
II. Has the State of Georgia any and what right to the improvements and the lands therewith connected, by occupancy being within the limits of the Cherokee Nation east of the Mississippi, which were evacuated by individuals of the nation, under and in consequence of the invitation held out to them by the 8th article of the Treaty of the 6th May 1828 between the United States and the Cherokees west of the Mississippi?
I. To the first question I answer that the State of Georgia acquired no right whatever either to improvements, or the lands occupied with them under the last clause of the 7th article of the Treaty of 1817, and this opinion I found on the following considerations.
1. The stipulation in question is confined to the improvements, in contradistinction to the lands. The term improvements must mean the same thing in every part of the treaty. It occurs repeatedly in the different articles of the treaty; and it cannot be believed by any candid mind, that the parties to the instrument meant to convey different ideas by the use of precisely the same term in different parts of the same instrument. Now, in several of the articles it is manifest beyond doubt, that the term improvements is used in its strictly natural sense, meaning only the artificial structures erected on the land, and not including, at all, the land itself. Thus, in the first clause of the same 7th article, the United States stipulate to pay for all improvements which the Indians may leave on the lands previously ceded to the United States and which add real value to these lands, or to give them, in exchange improvements of equal value on the lands on the Arkansas which [SEE 4TH PAGE] had been granted to them by a previous article. Here it is palpable that the improvements alone are in the contemplation of the parties; the lands themselves having been ceded, reciprocally, by the preceding articles. Lands on the Arkansas having been give, by the previous articles, in exchange for the lands ceded and to be ceded by the Cherokees on the east of the Mississippi, acre for acre, the account of the lands was thus settled. But, as the emigrant Cherokees were about to leave behind them improvements for which the United States had none to offer in exchange on the Arkansas, the subject of the improvements per se, is taken up, as a separate consideration: and the provisions on this subject clearly look to these improvements, as a separate consideration.
Thus, in the 6th article, the poor warriors, who had or might emigrate are to receive from the United States a rifle gun and ammunition, a blanket, a brass kettle, or, in lieu of it, a beaver trap, which is to be considered "as a full compensation for the improvements they may leave:" this they (the poor warriors) were to receive for their improvements, whether they added value to the lands or not. Can any man doubt that this compensation, from it character and value, was confined to the improvements, merely as such? can it be believed that the land entered into the value of that compensation, when the lands had been already compensated by the lands given in exchange on the Arkansas? Having made this provision for the improvements left by the poor warriors, the sixth article proceeds to the other emigrants thus: "and to other emigrants whose improvements add real value to their lands, the United States agree to pay a full valuation for the same. Now in making this valuation what would be the question? Surely not the inherent value of the lands themselves, which had been already paid for under the 5th article; but the question would be what value the improvements themselves had added to the inherent value of the lands; and this additional value, alone, is to be paid for.
And under the first clause of the 7th article, what is to be paid for these improvements? either the value in money, or, improvements, of equal value on the lands to which they were about to remove. Now, in making these new improvements of equal value on the Arkansas, what subjects would be compared in order to ascertain whether the contract had been complied with? Surely the land would not be compared with the land; but improvements relinquished and the new improvements made in exchange, would, alone be the subjects of comparison. Thus under the 6th article of the treaty and under the first clause of the 7th article, it is manifest that the term improvements is used in its natural sense, and in clear contradistinction to the lands on which they stand. The very expression improvements which add value to the lands must force the distinction on the understanding of every disinterested reader. Now what reason is there for believing that the word improvements is used in a different sense in the last clause of the 7th article on which the question arises? The language is the same. It is this: "and it is further stipulated that all these improvements, left by the emigrants within the bounds of the Cherokee Nation east of the Mississippi River, which add real value to the lands, and for which the United States shall give a consideration, and not so exchanged, shall be rented to the Indians of the agent, year after year, for the benefit of the poor and decrepit of that part of the nation east of the Mississippi River, until surrendered by the Nation or to the Nation. And it is further agreed that the said Cherokee Nation shall not be called upon for any part of the consideration paid for said improvements, at any future period." It is to my mind perfectly clear that the improvements here spoken of are the same sort of improvements spoken of before; that is the mere improvements which add value to the lands, and that all the right which the United States take under this article, is a right to rent the use of these improvements to the Indians for the benefit of the poor and decrepit of that nation, until these improvements shall be surrendered by the nation or to the nation; and that the United States acquire, thereby, no right or interest whatever in the lands themselves; on the contrary, that all the lands, not ceded by that treaty, are reserved to the Indians.
2. But let it be admitted for the sake of the argument, that the treaty intended by the use of the term, improvements, to include also, the lands which the emigrants had occupied with them, and, upon this admission, let us inquire what was the character of the right which the treaty gave to the United States in these improvements and lands.
(1.) It gave to the United States the right to rent these improvements and lands to the Indians: for such is the express stipulation. It gave, therefore, no right to introduce any white person into the nation, as the tenant of the United States.
(2.) The rent was not to enure to the benefit of the United States but to the benefit of the poor and decrepit of the Indian nation.
(3.) It was not a perpetual right to rent: but a right to endure only, until these improvements and appurtenant land "should be surrendered to the nation or by the nation." If surrendered to the nation, the right of the United States was at an end: if surrendered by the nation to the United States-the United States would acquire a new, different, larger, and perfect title by such surrender.
Thus the United States took no beneficial interest in the subject under the stipulation: but merely a temporary authority as trustee, for the benefit of the poor and decrepit of the Indian nation, and this authority strictly confined to the power of renting these improvements to the Indians themselves.
What possible interest could the state of Georgia acquire under this stipulation, in these improvements and appurtenant lands?
It is said that these Indians are the mere occupants of lands, the fee simple and ultimate domain of which belongs to the state of Georgia; that, as soon as the United States extinguish the Indian title to any portion of these lands, the extinguishment enures to the benefit of Georgia, under the compact of 1802, between that state and the United States and that the right to rent these lands by the United States under this stipulation, destroys the Indian occupancy, pro tanto, and is an extinguishment of their title to so much of their lands.
Now, it is admitted. 1. that according to the decisions of the Supreme Court of the United States the state of Georgia does own the fee simple and ultimate domain of all the lands within her chartered limits. 2. That, under the same decisions, the Indian title is a mere title by possession. 3. And it is also, admitted, that as soon as this title is extinguished by the United States the extinguishment will enure to the benefit of the state of Georgia .
But it is denied that this stipulation does extinguish the Indian title to the lands in question. What is meant by an extinguishment of the Indian title is perfectly understood. It is a final and permanent cession of their lands by treaty. But is this such a cession? a mere authority in trust, to rent to the Indians themselves, and to no one else, for the benefit of the poor and decrepit of their own nation, and this, too, only for a limited time: is this a final and permanent extinguishment of the Indian title? Is occupancy gone by it? Can any one but Indians occupy the lands? Can the United States place a white tenant there? If not, the United States have not acquired the right of occupancy. None but Indians are to occupy these lands; and the only right acquired by the United States is, at best, a right to designate the Indian tenant, and to receive the rent for the benefit of the Indians themselves-and this, only, until it shall be ascertained whether the improvements are to be surrendered by the nation or to the nation. Hence it is clear that they are not considered as having been yet surrendered, by the mere force of this stipulation.
The utmost that can, with any shew of reason, be contended for, under this article is that it modifies the Indian right of occupancy, so far as that the United States instead of the Indian nation is to designate the Indian tenant; to adjust with him the amount of rent, to receive that rent and to apply it to the benefit of the poor and decrepit of the Indian nation, and this, only, until a farther arrangement shall be made on the subject of these improvements. Thus, it is in the United States a mere naked authority, not coupled with an interest, and must be strictly pursued. All the beneficial interest is still retained by the Indians. The United States are merely their agents to rent their lands and apply the rents to their use. But the state of Georgia acquires no right until the Indian title is absolutely extinguished. Any authority, short of an actual extinguishment of the title, may be held by the United States without impacting any title, whatever, to the state of Georgia. But the right of the United States to enter upon the possession of these lands for the mere purpose of renting them to Indians for the benefit of the Indian nation, is no more an extinguishment of the Indian title than the right of the United States to enter upon that possession for the purpose of expelling intruders is an extinguishment of that title. In both cases, the act is done for the benefit of the Indians. The United States acquire a mere transitory right of entry for a specific purpose and that a purpose beneficial solely to the Indians. That such a mere right of entry, for such a purpose for a limited time should be converted into an immediate and absolute extinguishment of the Indian title, to all intents and purposes whatever, so as to cast upon the state of Georgia the final and exclusive ownership of the possession for her own benefit is a species of legal legerdemain on which passes my power of comprehension and for which, so far as I am informed, there is no precedent nor principle, nor color of law or equity in any book of authority among jurists.
Some obscure intimation has been thrown out importing that the Indian right of occupancy in these lands is confined to the mere purpose of hunting on them. But his notion is clearly repudiated by the preamble to this very treaty as well as by its particular provisions. In the preamble the treaty is avowedly bottomed on the fact that a part of the Cherokee Nation (those occupying the lower towns) wished to continue the hunter state, and as game became scarce they were willing to remove to other lands to be provided by the United States where it might be found in greater abundance: while the other part of the nation, who were a great majority (occupying the upper towns) wished to remain in consequence of their anxious desire to engage in the pursuits of agriculture and civilized life in the country they then occupied." It is for the express purpose of giving effect to both these objects that the treaty is made. And the correspondence between the Indians and the President of the United States which forms the preamble of this treaty, took place as far back as the years 1808-1809. This fact presented to us, in such bold relief, and forming the very basis of this treaty; how can it be advanced or even insinuated that the Indians who should remain in the country they then occupied were to continue in the hunter state? Again, what is the meaning of all these articles of this treaty which relate to improvements and distinguish between those improvements which do and those which do not add value to the lands? Is this language applicable to a people who were to continue in the hunter state? This language is perfectly familiar not only in our books of chancery reports, but in common conversation; and every lawyer, and every man of ordinary intelligence knows that it relates only to that value which improvements add to lands destined to agricultural purposes. In addition to this evidence furnished by the treaty itself, that there was no intention to confine the Indians who should remain, to a continuance in the hunter state, but on the direct contrary, that they remained for the very purpose, approved and sanctioned by the United States of engaging "in the pursuits of agriculture and civilized life." and, consequently, of necessity, were to use these lands for the purpose of agriculture, it may be observed that the Supreme Court of the United States in the case of McIntosh and Johnson (8. Wheaton 574) in discussing the rights of the Indians in relation to the European discoveries of this country, presented it as an admission on the part of these discoverers that the Indians still continued to be the right occupants of the soil, with a legal as well as a just claim to retain the possession of it, "and to use it according to their own discretion."
For the reasons given I am of the opinion that the state of Georgia acquired no title to lands within the Indian territory by force of the 7th article of the Treaty of 1817.
3. But the stipulation is that the United States shall continue to rent these improvements in the manner aforesaid "until surrendered by the nation or to the nation." What is the meaning of these words? To my mind that meaning is perfectly apparent, and I think, it will become equally so to every man who will consider impartially, the character of this treaty and the objects which it proposed to accomplish.
The Cherokee Nation had divided. A part of them had already gone to the Arkansas, under the permission of the President in 1809 and others were disposed to follow them. How many would follow them was at the date of this treaty, uncertain. The plan was to give to the emigrants lands on the Arkansas in exchange for their proportion of the territory east of the Mississippi, which proportion was to be fixed by their relative numbers. But, as these numbers could not be ascertained without a census which the third article proposes, it was unknown at the date of the treaty what proportion of their lands the Cherokees would finally have to surrender and consequently, what quantity the United States would have to cede on the Arkansas, which was to be in the language of the treaty, acre for acre.
Hence, the Treaty of 1817, does not propose, of itself, to accomplish all the objects which the parties had in view, it was merely a partial engagement, for the present, avowedly looking to ulterior and final arrangements, when the proportion should be ascertained; and the ultimate time fixed for this ascertainment, by the 3d article, was the month of June 1818.
In the mean time, the United States take, by the 1st and 2d articles of this treaty, a present cession by metes and bounds, in part of that proportion: and they give, in exchange by the 5th article, lands on the Arkansas, of which the lower and side lines only were fixed, the western boundary being left open, in order that the lands might run up between the Arkansas and White Rivers, for quantity, whenever that quantity should be ascertained by the census.
The probability, nay, the certainty was that this census, when taken, would call for a farther cession from the Cherokees, hence the language of the 4th article--the lands were "to be apportioned and surrendered to the U. States agreeably to the aforesaid enumeration." This word, surrendered, here applied to the cession of lands, demands attention. It occurs, again, in the 8th article-"and to each and every head of any Indian family residing on the east side of the Mississippi River on the lands that are now or may, hereafter be, surrendered to the United States by the 1st and 2d articles of the Treaty of 1817, they belonged, of course to the United States, and it was unnecessary to say more of them than that the United States should pay for them. But with regard to these improvements which stood within the Indian boundary and which had not yet been surrendered to the United States by the Treaty of 1817, in exchange for lands on the Arkansas, they are left in a state of suspense as to the ultimate title: why? manifestly because it was yet uncertain where the line of ultimate cession by the Cherokee Nation would run, and on which side of that line these improvements would fall; and because it was clear that they would belong to whichsoever of the parties the land on which they stood should be finally surrendered by that ultimate cession. This is the manifest meaning of these words applied to these improvements, "until they should be surrendered by the nation or to the Nation" for they would be surrendered by them or to them by the surrender by or to them of the lands on which they stood. And while this is to my own mind a perfectly satisfactory reason for keeping the ultimate title to the improvements in suspense, I am incapable of conceiving any other to which common candor can give its assent.
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