HUGHES, District Judge. This libel is brought for damages from a collision in Norfolk harbor on the morning of the 20th of January, 1894, between the steamtug Pinner's Point, belonging to the libelant, and a barge in tow of the steamboat City of Chester, the Pinner's Point and the barge striking each other port to port. The Pinner's Point had left Trugien's wharf, at the Portsmouth side of the harbor, and was making for the Norfolk & Carolina Company's wharf, on the Norfolk side. The Bay Line steamers' wharf and the Boston steamers' wharf are north of the Norfolk & Carolina wharf, for which the Pinner's Point was heading at the time of the collision. South of that wharf are the wharves of the compress company, the Norfolk & Southern Company, Jones & Lee, and Campbell, and next to Campbell's wharf is the ferry slip. The diagram filed in the evidence shows that the distance between the wharf of the Bay Line boats and the ferry slip is about 2,250 feet, or 750 yards. When the Pinner's Point had got out into the harbor, and had straightened her course for the Norfolk & Carolina wharf, and was abreast of the ferry slip, she saw the City of Chester moving up the harbor with her barge in tow, abreast of the Bay Line wharf, about 750 yards off. She at once signaled the City of Chester with one whistle. At that time the steamtug Martha Helen, with three schooners in tow, was abreast of the ferry slip, moving north down the harbor. She and the Pinner's Point were then abreast of each other, and about equidistant from the City of Chester. Signals had passed between the City of Chester and the Martha Helen, when the Pinner's Point blew her one whistle to the City of Chester. The attitude of the three steamers towards each other at that time was that the Pinner's Point was about four points off the starboard bow of the City of Chester, on crossing courses, and that the City of Chester was five or six points off the starboard bow of the Martha Helen, on crossing courses. In these relative positions, the old rule 19 (now 16) of navigation applied, under which it was the duty of the City of Chester to keep out of the way of the Pinner's Point, and of the Martha Helen to keep out of the way of the City of Chester, the duty of the Pinner's Point being to keep her course. The Georgia v. The Luckenbach, 67 Fed. 619; The Luckenbach v. The Georgia, 1 C. C. A. 489, 50 Fed. 129; The Breakwater, 15 Sup. Ct. 99, 155 U. S. 252.

The evidence does not show that the Martha Helen failed to comply with rule 19. She kept out of the way of the City of Chester, and went clear. The presence of the Martha Helen, in the relations she bore to the other two steamers on the occasion, could not have caused any change of duty on the part of the two other steamers. The distance was great enough to prevent an emergency, and I do not see from the evidence that any emergency arose to alter the duty of either of the three steamers. The collision occurred in consequence of the City of Chester's failing to keep out of the way of the Pinner's Point,-failing, in fact, to do anything tending to keep her out of the way of that steamer. The approach of the Martha Helen could not excuse the City of Chester from performing her

duty. The distance between the Helen and the Chester was ample to allow both the Helen to keep out of the way of the Chester, and the Chester to keep out of the way of the Pinner's Point. The Pinner's Point kept her course as directly as was practicable. The Chester failed to port her helm, when signaled by the Pinner's Point, and, by so failing, produced the collision. She could have kept out

of the way of the Pinner's Point, and did not. There is no more important rule of navigation for harbors than rule 19 (now 16). The enforcement of this rule by the courts is an imperative duty. Nothing but the closest and direst emergency can excuse a steamer running in a harbor from scrupulously obeying rule 19 (16). I must enforce it in this case, and hold that the collision complained of was from the fault of the City of Chester.

I will merely allude to one or two matters presented in the evidence. Some of the witnesses express the opinion that the Pinner's Point and the Chester were in the seventh situation when the Pinner's Point blew its one whistle. This is equivalent to contending that the Pinner's Point was abeam of the Chester at that moment. On the contrary, one vessel was abreast of the ferry slip, and the other abreast of the Bay Line wharf, having the first-named steamer five points on her starboard bow, and about 750 yards distant. Obviously, the seventh situation was out of the question.

It is also intimated on behalf of the respondent that the Pinner's Point, in order to avoid the Martha Helen, deviated from her direct course after sounding her signal to the Chester. This fact is not proved, and is not probable. There was no necessity for swerving to port.

The Pinner's Point was full abreast of the Helen when she signaled the Chester, had no tow, was moving at a greater speed than the Helen, and was under no necessity of swerving at all to keep out of the way of the Helen. I think the letter S, which figures in the evidence, is more a thing of fancy than practicable fact. The only influence which the Helen had on the Pinner's Point was to prevent the latter from swerving more to starboard than she was bound to do, and which the failure of the Chester to port her helm might have induced her to do. If the Helen had not been to starboard of the Pinner's Point after the Pinner's Point and the Chester came into relations with each other, the persistent neglect by the Chester of her own duty under rule 19 might have suggested a starboard movement to the Pinner's Point as a means of relieving the situation forced by the City of Chester, but the position of the Helen prevented this. The Pinner's Point held her course under rule 19 and the Chester committed the fault of failing to keep out of her way. I will sign a decree for the libelant.

UNITED STATES et al. v. BOYD et al.

(Circuit Court, W. D. North Carolina. June 17, 1895.)

CHEROKEE INDIANS-CITIZENSHIP.

The Indians belonging to the Eastern Band of Cherokees in the state of North Carolina have never become citizens of the United States, and the federal courts have jurisdiction to entertain a suit brought by the United States, as guardian of such Indians, for the protection of their interests.

This was a suit brought in the name of the United States, and of Sampson Owl and others, Cherokee Indians, against D. T. Boyd and others, to set aside a contract made by the Indian council. Defendants moved to dismiss the bill for want of jurisdiction.

R. B. Glenn, U. S. Atty., and D. A. Covington, Asst. U. S. Atty. H. G. Ewart, Geo. H. Smathers, W. T. Crawford, J. M. Moody, and Louis M. Bourne, for defendants.

SIMONTON, Circuit Judge. This is a bill filed in the name of the United States of America, and of Sampson Owl and others, Cherokee Indians, suing in their own behalf, etc., against these defendants. The bill, asserting the paramount authority and guardianship of the United States over the Eastern Band of Cherokee Indians, seeks to set aside a contract made by their council, a majority thereof making it, with certain of the defendants, for the sale of timber on the lands owned and occupied by the Cherokees in North Carolina. At the threshold of the case the question is raised as to the jurisdiction of this court, and that question depends upon the relation which the United States bears to these Cherokee Indians. Are they under the guardianship of the United States as tribal Indians are, or are they citizens of the United States, with all the rights, powers, duties, and obligations of citizens? The decision of this question is necessary before discussing any other questions in the cause.

The Cherokee Indians, a powerful and warlike Nation, inhabited the country bounded by the Atlantic Ocean. Pressed back by settlements of white men on the coast, they had established themselves in the mountain regions of Georgia, North Carolina, Alabama, and Tennessee, and were a fruitful source of danger, anxiety, and discontent to the citizens of the United States living in their neighborhood. For many years, the government made strenuous efforts to induce them to leave these settlements, and to immigrate to lands allotted to them to the west of the Mississippi, with partial success only. Finally, by treaty concluded 29th December, 1835, at New Echota, in the state of Georgia, between the United States and the Cherokee Nation, they, as a Nation, consented to go west; and the large majority of them did so. Some of them, however, preferred to remain. Of these, some families settled in the state of North Carolina, and claimed for themselves their due portion of all the personal benefits accruing under the treaty for their claims, improvements, and per capita. Utilizing these claims, they sent an agent to Washington, who obtained the money provided for them, and inv.68F.no.6-37

vested it in lands in the state of North Carolina, some acres in extent, upon which these families of Cherokees settled. They are known as the "Eastern Band of Cherokee Indians." Their agent and attorney, W. H. Thomas, purchasing these lands, took title to them in his own name. As serious complications grew out of this fact

between the Indians and the creditors of Thomas and some other parties occupying said lands or asserting outstanding claims upon them, the congress of the United States, by a provision in the act of July 15, 1870, made it the duty of the district attorney and the attorney general of the United States to institute and prosecute a suit or suits in law or equity in the district or circuit courts of the United States for the purpose of ascertaining the rights of the parties, and fully adjusting all matters of controversy. Such a suit was instituted 20 years ago, and the matters involved were, by consent of parties, referred to three arbitrators, "whose award was to be final and a rule of court." After careful and patient investigation and consideration, an award was made, which was fully approved and confirmed by a decree of this court. Many years afterwards a suit in equity was instituted in this court by the attorney general of the United States, in the name of the United States. for the purpose of having fully enforced the terms of the aforesaid award and decree. The progress of this suit was obstructed and greatly delayed by many serious and perplexing difficulties, until the congress of the United States appropriated a large sum of money, sufficient to carry out the terms of compromise agreed upon by the litigant parties, to pay off all liens in the hands of judgment creditors of W. H. Thomas, to settle questions of boundary, and to extinguish all other claims to said lands, so as to give the Indians a good, clear, and definitely located title. By a decretal order of this court, the standing master in chancery was directed to prepare and have duly executed a new deed conveying said lands in fee simple, omitting a clause in the former deed imposing restrictions upon the power of alienation, which had been inserted by the draftsman, without authority of any order or decree of this court. The contract complained of relates to standing timber on these lands.

Are these Cherokee Indians citizens of the United States? They or their fathers were members of the tribe of Cherokee Indians recognized by the government as a Nation. Eastern Band of Cherokee Indians v. U. S., 117 U. S. 288, 6 Sup. Ct. 718. By the treaty of New Echota, individuals and families who were averse to removal with the Nation were suffered to remain in the states in which they were living, if they were qualified to take care of themselves and their property, and were desirous of becoming citizens of the United States. Those who exercised this privilege terminated their connection with the Cherokee Nation. Id. Did this make them citizens of the United States? "The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States. They were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe, or such members of it as chose to remain behind on the re

moval of the tribe westward, to be citizens, or authorizing individuals of particular tribes to become citizens on application to an United States court for naturalization, and satisfactory proof of fitness for civilized life." Elk v. Wilkins, 112 U. S. 100, 5 Sup. Ct. 41. There is nothing in the record going to show that these Indians were ever naturalized. Have they been made citizens by treaty? The clause in the treaty relating to those Cherokees who preferred to remain behind the Nation is in these words:

"Art. 12. *** Such heads of Cherokee families as are desirous to reside within the states of North Carolina, Tennessee, and Alabama, subject to the laws of the same, and who are qualified or calculated to become useful citizens, shall be entitled to a prescriptive right to certain lands."

This does not confer on them citizenship. It only authorizes them to become citizens when it is recognized that they are qualified or calculated to become useful citizens. This presupposes some sort of examination into the question of their qualification, and a favorable decision therein. If the words of the treaty do not make them citizens of the United States, and only gives them the right to become citizens upon showing the desire to that end, then there was but one way for them to attain citizenship, and that is pointed out in the statutes relating to naturalization.

But it is urged with great force that the state of North Carolina recognizes these Cherokees as citizens; that they vote, pay taxes, work roads, and perform all the duties of citizens. But a citizen of the United States takes this privilege as the gift of the general government. It can be acquired only under its laws, and in the mode prescribed by it. City of Minneapolis v. Reum, 56 Fed. 576, 6 C. C. A. 31. "Neither the constitution of a state nor any act of its legislature, however formal or solemn, whatever rights it may confer on these Indians or withhold from them, can withdraw them from the influence of an act of congress which that body has the constitutional right to pass concerning them. Any other doctrine would make the legislature of the state the supreme law of the land, instead of the constitution of the United States and the laws and treaties made in pursuance thereof." U. S. v. Holliday, 3 Wall., at page 419. But it must not be understood that these Cherokee Indians, although not citizens of the United States, and still under pupilage, are independent of the state of North Carolina. They live within her territory. They hold lands under her sovereignty, under her tenure. They are in daily contact with her people. They are not a nation nor a tribe. They can enjoy privileges she may grant. They are subject to her criminal laws. None of the laws applicable to Indian reservations apply to them. All that is decided is that the government of the United States has not yet ceased its guardian care over them, nor released them from pupilage. The federal courts can, still, in the name of the United States, adjudicate their rights. Nor is this without precedent. The American seaman, born a citizen of the United States, or naturalized as such, has extended over him the guardian care of the government, and is a ward of the nation. The statute books abound with acts requiring his contracts to be looked into by officers appointed for that