Cherokee Intermarriage Cases

Background

A group of white people who had married Cherokee citizens claimed they were citizens of the Cherokee Nation and therefore entitled to share in the Nation’s communal lands and funds. The Cherokee Nation’s 1839 constitution treated lands as common property. The Nation adopted laws about intermarriage in 1855 and a code in 1875 that temporarily allowed a white man to pay $500 to gain full rights; that purchase privilege was withdrawn in 1877 and was used by only two persons. By treaty the Freedmen, and by agreement the Delawares and the Shawnees, received explicit rights to share in Cherokee property. In 1902 Congress required a roll of citizens as of September 1, 1902, and limited who could be enrolled and share in distribution.

Reasoning

The Court addressed whether marriage into the Nation alone gave a white spouse a right to the communal property. It agreed with the Court of Claims that Cherokee law and the treaties showed citizenship and property rights were distinct. The opinion explained that where treaties or laws expressly grant property participation, it exists, but marriage without such a grant or payment did not create a share in land or funds. The 1902 act and prior statutes limited enrollment to those entitled under Cherokee law and those named on the approved roll. The Supreme Court affirmed the Court of Claims’ decrees.

Real world impact

The decision means white persons who married into the Cherokee Nation cannot claim a share of tribal lands or vested funds by marriage alone. Only those expressly granted rights, who paid for rights, or whose names appear on the approved 1902 roll may participate in the distribution.