Full quotations have necessarily been made from the statutes and agreements relied on and from the treaty of 1866, but the questions presented are, nevertheless, not complex.
The main, if not crucial, question is, Were the freedmen adopted by the Chickasaw Nation as provided in the treaty? They were declared adopted by the act of 1873 upon certain conditions, but the act was only to have force and effect 'from and after the approval by the proper authority of the United States.' The United States did not approve until 1894. In the meantime, as early as 1876, the Chickasaws passed an act by which it was 'declared to be the unanimous consent of the Chickasaw legislature' that the United States exercise the right given to it for the benefit of the freedmen by the treaty of 1866. Against the effect of this act several contentions are presented.
It is urged that the negroes became free by the emancipation proclamation and the 13th Amendment to the Constitution of the United States, and acquired thereby all the rights of freedmen. That may be granted, but what is its consequence? Certainly not to invest the freedmen with any rights in the property, or to participate in the affairs, of their former owners. For such rights we must look to the treaty and subsequent legislation and, to a certain extent, to the act which gave jurisdiction of this suit to the court of claims. We get no aid from the emancipation proclamation or the 13th Amendment. Prominent, of course, in the inquiry is the act of adoption passed by the Chickasaw legislature in 1873. It responded, in the main, to the treaty of 1866, and if it had force in 1894, when it was approved by Congress, the adoption of the freedmen was made complete. Appellants so contend. They say the act of adoption 'was complete in itself and a full exercise of the power possessed by that (Chickasaw) legislature.' And, further, if the act were subject to repeal, it was not repealed. The act, it is contended, expressed a wish only, and not a purpose, and left to the United States to 'follow either of two courses.' Counsel say: 'It (the United States) could approve the act of adoption of 1873, but it could refuse to approve that act, and remove the freedmen as requested by the act of 1876. The power of determining which course should be adopted rested wholly and exclusively with the United States.' The argument is plausible, but we cannot assent to it. Besides, the act of 1876 does not stand alone. In 1885-nine years before Congress acted-another act was passed. Its terms were unmistakable. Its declaration was 'that the Chickasaw people hereby refuse to accept or adopt the freedmen as citizens of the Cherokee Nation upon any terms or conditions whatever.' The governor was requested to notify the department at Washington of the action of the legislature, and was also directed to appoint two competent men to visit Washington and to memorialize Congress 'to provide the means of the removal of the freedmen from the Chickasaw Nation to the country known as Oklahoma in the Indian Territory.' These two acts must be construed to work a repeal of the act of adoption if it could be repealed by the Chickasaw Nation. The latter is denied, and we are brought to the last contention of appellants in regard to the question of adoption. The contention is that 'Congress by the act approved August 15, 1894, gave life and vitality to the Chickasaw act of January 10, 1873;' that is, as we understand the contention, by mere power, and disregarding whatever of convention there was in the treaty of 1866, and whatever of volition was given to the Indians, the United States peremptorily determined the rights of the freedmen in the lands and affairs of the Indians. Granting, without deciding, that Congress possessed such power, we are forced to believe its exercise, if intended, would have been explicit and direct, not left to be inferred by the approval of the act of 1873. That approval is, of course, an element in the controversy, but to give it the effect which appellants do is to make it practically the sole element, and reduces the case to the inquiry what Congress had willed, not what Congress had agreed to. The act of 1902 certainly contemplated and provided for a different inquiry, one that depended upon the agreements of the United States, not upon its power. And this view is supported by the opinion of the Secretary of the Interior, expressed August 9, 1898, and which was presumably known to Congress when it passed the act of 1902. The opinion reviewed the treaty of 1866 and subsequent legislation and interpreted § 18 of the act of 1894, which approved the act of adoption of 1873, as follows: