#### DAVID MUSKRAT AND J. HENRY DICK, ON THEIR OWN BEHALF, ETC., v. THE UNITED STATES. WILLIAM BROWN AND LEVI B. GRITTS, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHER CHEROKEE CITIZENS HAVING LIKE INTEREST IN THE PROPERTY ALLOTTED UNDER THE ACT OF JULY 1, 1902, v. THE UNITED STATES.

[44 C. Cls. R., *137; 219 U.*S. R., 346.]

By the act 3d March, 1901, the Cherokees are made citizens of the United States. By the act 1st July, 1902, it is provided that the lands and the funds of the Cherokee Nation be allotted and distributed to all individual Chérokees living on the 1st September, 1902. This act contemplates the allotment of all *657the lands and makes no disposition of a surplus, if any. On the 26th April, 1906, the situation of the Cherokees is this: Land sufficient for 3,800 allotments has not been allotted; funds of the Cherokee Nation exceeding $2,000,000 remain in the Treasury of the United States; children have been born to the Cherokees since September 1, 1902, who, but for the limitation contained in the act 1st July, 1902, would be entitled to share equally with children born before that date. The questions in the case are these: Whether the Cherokees enrolled under the act 1st July, 1902, acquired an undivided individual proportionate interest in the surplus lands and funds of the nation which could not be taken away from them by the acts 26th April, 1906, and 21st June, 1906; whether Congress could enable the subsequently born Cherokee children to participate in the lands of the Cherokee Nation which had not been actually allotted; whether the act of 1902 did or did not make a grant *in prwsmti*to all Cherokees then living which (when ratified and the conditions described complied with) conferred vested rights that could not be taken away or impaired by legislation.

The court below decides :

I.All members of the Cherokee Nation on the 1st July, 1902, were citizens of the United States, and so are their children thereafter born.

II.The Cherokee Nation has always been recognized as a distinct political community, subject only to the paramount authority of the United States.

III. A tribal existence and government of the Cherokee Nation were still existing at the date of the *acts B6th April cmd %lst June, 1906*(34 Stat. L., pp. 137, 341).

IV. No citizen of the Cherokee Nation had acquired a vested interest in the unallotted lands of the nation or in the undistributed funds in the Treasury of the United States at the time of the enactment of the acts 26th April and 21st June, 1906.

Y. The provisions in the act 26th April, 1906, as amended by the act 21st June, 1906, allowing subsequently born children of the Cherokees to participate in the unallotted land of the nation were enacted upon the request and with the consent of the Cherokee Nation.

VI. Congress have plenary power to protect and administer the tribal property of the Cherokee Nation. The power is political, and it is for the legislative branch and not for the courts to determine how it shall be exercised.

*658VII. The provisions of the act *26th*April, as *amended by the*act 21st June, 1906, authorizing the enrollment of Cherokee children born after September 1, 1902, and allowing them to participate in the enrollment and distribution of Cherokee lands and funds are constitutional; and the children so enrolled are entitled to participate in the allotment of Cherokee lands and in the distribution of Cherokee tribal funds in the same manner and to the same extent as Cherokee citizens enrolled under previous acts.

The decision of the court below is reversed on tlie ground of lack of jurisdiction, the Supreme Court holding that the attempt to obtain a judicial declaration of the validity of the act of Congress is not a “ case ” or- “ controversy,” to which under the Constitution of the United States the judicial power alone extends.

■ Mr. Justice Day

delivered the opinion of the Supreme Court January *23,*1911.