$300,000 to said nation, by the act of congress, of the third of March, 1883, was made as an additional payment to it for lands which it had already sold to the Pawnees, Poncas, Nez Perces, Otoes, and Missouries, and Osages,-is not true; as a matter of fact, such appropriation was made as an additional payment upon lands so sold, and if such representations were made by Ross, Wolf, and Phillips, instead of their being false, they were true. Whether these representations, if made, were true or false, is hardly material, as there are several other means set out in the indictment by which the conspiracy was to be accomplished, anyone of which would be sufficient to indicate the method of consummating the purpose of the conspiracy, all of which means are alleged to be false and fraudulent. I am of the opinion that the position of petitioners' counsel on this question is correct. The Cherokee Nation agreed with the United States, by the sixteenth article of the treaty of 11:;66, that the United States might settle friendly Indians on its lands west of ninety-sixth degree. It further agreed that it would sell to such friendly Indians as the United States might settle on their lands such amount of land as was necessary to give each member of said tribe so settled 160 acres; said lands thus disposed of to be paid for to the Cherokee Nation at such price as may be agreed on between the said parties in interest, subject to the approval of the president; and if they should not agree, then the price to be fixed by the president; the Cherokee Nation to retain the right of possession of, and jurisdiction over, all of said country west of ninety-sixth degree of longitude until thus sold and occupied, after which their jurisdiction and right of possession to terminate forever. This provision of the treaty is clearly an agreement to sell to friendly Indians, who the Cherokees agree with the United States may be settled on the land. The Cherokees have sold portions of their land to the Pawnees, Poncas, Nez Perces, Otoes, and Missouries, and Osages. An agreement was entered into to sell to the Cheyennes and Arrapahoes which was never consummated, as they never went on the land and occupied the same. They have no just claim to it, and it still belongs to the Cherokees. The Cherokees have never parted with any other of their lands west of the ninetysixth degree. It could hardly be presumed that the government was paying for lands in advance of a sale, or even an agreement to sell. The Cherokees agreed to sell to friendly Indians, the same to be their property only when sold to them and occupied by them. But it is said that all the lands of the Cherokees wel!t of ninety-sixth degree, not sold to friendly Indians, were appraised by the president under the act of congress of May 29, 1872. It is true that section 5 of that act provided:
The "president and secretary of the interior are hereby authorized to make an appraisement of the Cherokee lands lying west of the ninety-sixth degree of west longitude, and west of the lands of the Osage Indians. in the Indian
IN BE WOLF.
territory, and south of the southern line of the state of Kansas. ceded to the United States by the Cherokee Indians under their treaty of JUly 19, 1866, for the settlement of friendly Indians, and report the to congress."
Now, they by the treaty of 1866, ceded no lands to the United States west of the ninety-sixth degree. They only consented the United States might settle friendly Indians on the land west of the ninetysixth degree, and agreed to cede, not to the United States, but to the friendly Indians when they went on the land. Under this law the president had no right to appraise any land except what had been sold to the friendly Indians by the Cherokees. The appraisement by him of any other lands took away no rights from the Cherokees, and gave none to the United States. From the proof befQrEi me, the Cherokees never understood this payment to them of $300,000 to be a payment on their unsold and unoccupied lands; but they always claimed the price proposed to be paid to them for the occupied lands was inadequate,-less than in justice and equity they were worth; and through their agents, from the time of the sale of the same, they were pressing their claim for the payment of their true value. The executive department of the government did not understand this $300,000 payment to be a payment on other than the lands already sold and occupied, as evidenced by the letter of the Hon. H. M. Teller, secretary of the interior, of January 31, 1883, in which he says:
"In my opinion the appropriation of $300,000 proposed by the amendment is not an unreasonable one, as the sums already paid to the Cherokee Nation, with this proposed appropriation added, are not believed to be in excess of the value of the land upon which friendly Indians have already been located."
This court held in U. S. v. Rogers, 23 Fed. Rep. 659, that the Cherokee Indians hold what is called the "Cherokee Outlet" by substantially the same kind of title it holds its other lands. The title to all its lands was obtained by grant from the United States. This title is a base, qualified, or determinable fee, without the right of reversion', but only the possibility of reversion in the United States. 'rhis, in effect, puts all the estate in the Cherokee Nation. U. S. v. Reese, 5 Dill. 405. This principle puts the title fully and completely in the Cherokee Nation, and, until it agrees to part with the same, it cannot be taken from it. It has not yet agreed to part with these lands except for a specific purpose. It does seem to me there need be but little trouble on the question of the title of the Cherokees to their lands, if we but look at thi3 title, and understand its true nature, and are prompted by a sense of duty to do equal and exact justice to the Indians, and to give them that full measure of justice which by law and good conscience belongs to them. These petitioners will be required to give bond in the sum of $2,000 for their appearance before the supreme court of the District of Columbia for trial, or, in case of failure to give such bond, the warrant of removal will be issued to be executed by the marshal.
KELLY V. UNITED STATES.!
July 7. 1885.)
CRJMINAL LAW-AMENDMENT OF RECORD.
The circuit court may amend its record, in a criminal cause, after remfsstOlt to the district court. under Rev. St. § 1037.
The discharge of ajury who have disagreed, constitutes no bar to a further prosecution.
It is not necessary to show experience in special cases in order to qualify a surgeon to testify as an expert.
SAME-DYING DECLARATION. WHEN ADMISSIBJ,E.
It is essential to the admissibility of a dying declaration that it was made under a sense of impending death. and this preliminary fact must be proved by the party offering the declaration in evidence. 2
Offenses committed upon lands purchased by the United States for the ereotion of forts. with the oonseni of the legislature of .. state. and of whioh jurisdiotion has been ceded to the United States. are within the jurisdiction of the federal courts.
Indictment for Manslaughter. Dennis Kelly. orderly sergeant, in charge of Fort Popham, was indicted for manslaughter within said fort. He was put upon. trial before the circuit court, September term, 18R4; the circuit and district judges presiding. The jury reported, through their foreman, that they were and would be unable to agree, and therenpon, by order of the court, were discharged from further consideration of the case. The indictment was certified to the district court for the De· cember term following. The record in the circuit court had not been extended, and the order of court discharging the jury, by inadvertence, had not been minuted upon the docket. In the district court the grand jury presented a new indictment, and a nolle prosequi was entered on the indictment which had been certified from the circuit court. To the new indiotment Kelly's counsel began to read a plea of former jeopardy; and, while reciting the record of the circuit court as it rested in docket entries, the judge suspended the reading, passed into the circuit court, which was then standing open, directed the cor· rection of the record to show the fact as to the discha.rge of the jury, and ordered a corresponding correction of the certificate to the district court. Proceedings were then resumed in the district court. A new plea of former jeopardy was presented, reciting the amended record of the circuit court, which was overruled; and, the defendant stand. ing mute, a plea of not guilty was ordered to be entered. Upon the trial other points arose which sufficiently appear in the opinion. After a verdict of guilty and sentence, a writ of error and super,efleas of sentence were allowed by the circuit judge.
1 Reported by A. H. Davis, Clerk U. S. Circuit Court, D. Maine. , See note at end of case.