Stephens v. Cherokee Nation
174 U.S. 445 (1899)

Annotate this Case

U.S. Supreme Court

Stephens v. Cherokee Nation, 174 U.S. 445 (1899)

Stephens v. Cherokee Nation

Nos. 428, 453, 461, 496

Argued and submitted February 23, 24, 27, 1899

Decided May 16, 1899

174 U.S. 445

Syllabus

Congress may provide for a review of the action of commissioners and

boards created by it and exercising only quasi-judicial powers, by a transfer of their proceedings and decisions to judicial tribunals for examination and determination de novo.

Page 174 U. S. 446

The statute conferring jurisdiction upon this Court to consider and act upon this class of cases was intended to operate retrospectively, and is not thereby rendered void.

The validity of remedial legislation of this kind cannot be questioned unless it is in violation of some provision of the Constitution.

The appeals to this Court granted by the act extend only to the constitutionality or validity of the legislation affecting citizenship or the allotment of lands in the Indian Territory, and the limitation applies to both classes of cases mentioned in the opinion of the Court, viz.: (1) citizenship cases; (2) cases between either of the Five Civilized Tribes and the United States.

The distribution of jurisdiction made by the Act of March 3, 1891, c. 517, is to be observed in these cases; but the whole case is not open to adjudication, but the appeal is restricted to the constitutionality and validity of the legislation.

This legislation is not in contravention of the Constitution; on the contrary, the Court holds it all to be constitutional.

By the sixteenth section of the Indian Appropriation Act of March 3, 1893, 27 Stat. 612, 645, c. 209, the president was authorized to appoint, by and with the advice and consent of the Senate, three commissioners

"to enter into negotiations with the Cherokee Nation, Choctaw Nation, Chickasaw Nation, the Muscogee (or Creek) Nation, the Seminole Nation, for the purpose of the extinguishment of the national or tribal title to any lands within that territory now held by any and all of such nations or tribes, either by cession of the same or some part thereof to the United States, or by the allotment and division of the same in severalty among the Indians of such nations or tribes, respectively, as may be entitled to the same, or by such other method as may be agreed upon between the several nations and tribes aforesaid, or each of them, with the United States, with a view to such an adjustment, upon the basis of justice and equity, as may, with the consent of such nations or tribes of Indians, so far as may be necessary, be requisite and suitable to enable the ultimate creation of a state or states of the Union which shall embrace the lands within said Indian Territory."

The commission was appointed and entered on the discharge of its duties, and under the Sundry Civil Appropriation Act of March 2, 1895, 28 Stat. 939, c. 189, two additional members

Page 174 U. S. 447

were appointed. It is commonly styled the "Dawes Commission."

The Senate, on March 29, 1894, adopted the following resolution:

"Resolved, that the Committee on the Five Civilized Tribes of Indians, or any subcommittee thereof appointed by its chairman, is hereby instructed to inquire into the present condition of the Five Civilized Tribes of Indians, and of the white citizens dwelling among them, and the legislation required and appropriate to meet the needs and welfare of such Indians, and for that purpose to visit Indian Territory, to take testimony, have power to send for persons and papers, to administer oaths, and examine witnesses under oaths, and shall report the result of such inquiry, with recommendations for legislation, the actual expenses of such inquiry to be paid on approval of the chairman out of the contingent fund of the Senate."

The Committee visited the Indian Territory accordingly, and made a report May 7, 1894. Sen.Rep. No. 377, 53d Cong., 2d Sess. In this report, it was stated:

"The Indian Territory contains an area of 19,785,781 acres, and is occupied by the Five Civilized Tribes of Indians, consisting of the Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles. Each tribe occupies a separate and distinct part, except that the Choctaws and Chickasaws, though occupying separately, have a common ownership of that part known as the 'Choctaw and Chickasaw Territory,' with rights and interests as recognized in their treaties as follows: the Choctaws, three-fourths, and the Chickasaws, one-fourth. The character of their title, the area of each tribe, together with the population and an epitome of the legislation concerning these Indians during the last sixty-five years, is shown by the report of the Committee on Indian affairs submitted to the Senate on the 26th day of July, 1892"

(Sen.Rep. No. 1079, 52d Cong., 1st Sess.), and so much of that report as touched on those points was set forth.

The Committee then gave the population from the census of 1890 as follows: Indians, 50,055; colored Indians, colored

Page 174 U. S. 448

claimants to Indian citizenship, freedmen and colored, wholly or in part, 18,636; Chinese, 13; whites, 109,393; whites and colored on military reservation, 804; population of Quapaw Agency, 1,281 -- or a total of 180,182, and said:

"Since the taking of the census of 1890, there has been a large accession to the population of whites who make no claim to Indian citizenship, and who are residing in the Indian Territory with the approval of the Indian authorities. It is difficult to say what the number of this class is, but it cannot be less than 250,000, and it is estimated by many well informed men as much larger than that number, and as high as 300,000."

After describing the towns and settlements peopled by whites, and the character of the Indian Territory, its climate, soil, and natural wealth, the report continued:

"This section of country was set apart to the Indian with the avowed purpose of maintaining an Indian community beyond and away from the influence of white people. We stipulated that they should have unrestricted self-government, and full jurisdiction over persons and property within their respective limits, and that we would protect them against intrusion of white people, and that we would not incorporate them in a political organization without their consent. Every treaty, from 1828 to and including the treaty of 1866, was based on this idea of exclusion of the Indians from the whites, and nonparticipation by the whites in their political and industrial affairs. We made it possible for the Indians of that section of country to maintain their tribal relations, and their Indian polity, laws, and civilization if they wished so to do. And if now the isolation and exclusiveness sought to be given to them by our solemn treaties is destroyed and they are overrun by a population of strangers five times in number to their own, it is not the fault of the government of the United States, but comes from their own acts in admitting whites to citizenship under their laws, and by inviting white people to come within their jurisdiction, to become traders, farmers, and to follow professional pursuits."

"It must be assumed in considering this question that the Indians themselves have determined to abandon the policy of

Page 174 U. S. 449

exclusiveness and to freely admit white people within the Indian Territory, for it cannot be possible that they can intend to demand the removal of the white people either by the government of the United States or their own. They must have realized that when their policy of maintaining an Indian community isolated from the whites was abandoned for a time, it was abandoned forever."

The Committee next referred to the class of white people denominated by the Indians as intruders, in respect of whom there had been but little complaint in other sections of the Indian Territory than that of the Cherokee Nation, and went on to say:

"The Indians of the Indian Territory maintain an Indian government, have legislative bodies, and executive and judicial officers. All controversies between Indian citizens are disposed of in these local courts. Controversies between white people and Indians cannot be settled in these courts, but must be taken into the court of the territory established by the United States. This Court was established in accordance with the provision of the treaties with the Choctaws, Chickasaws, Creeks, and Seminoles, but no such provision seems to have been made in the treaty with the Cherokees. We think it must be admitted that there is just cause of complaint among the Indians as to the character of their own courts, and a good deal of dissatisfaction has been expressed as to the course of procedure and final determination of matters submitted to these courts. The determinations of these courts are final, and so far the government of the United States has not directly interfered with their determinations. Perhaps we should except the recent case where the Secretary of the Interior thought it his duty to intervene to prevent the execution of a number of Choctaw citizens."

The report then recapitulated the legislation conferring certain jurisdiction over parts of the Indian Territory on the district courts of the United States for the Western District of Arkansas, the Eastern District of Texas, and the District of Kansas; the establishment of the United States Court in the Indian Territory; the inclusion of a portion of

Page 174 U. S. 450

the Indian Territory within the boundaries of the Territory of Oklahoma, and the creation of a new Indian Territory, over parts of which the jurisdiction of the district courts of Arkansas and Texas remained; and, for reasons assigned, recommended the appointment of two additional judges for the United States court in the Indian Territory, and of additional commissioners, and that the jurisdiction of the district courts should be withdrawn.

The matter of schools was considered, and finally the question of title to the lands in the Indian Territory, and the Committee stated:

"As we have said, the title to these lands is held by the tribe in trust for the people. We have shown that this trust is not being properly executed, nor will it be if left to the Indians, and the question arises, what is the duty of the government of the United States with reference to this trust? While we have recognized these tribes as dependent nations, the government has likewise recognized its guardianship over the Indians, and its obligations to protect them in their property and personal rights."

"In the treaty with the Cherokees made in 1846, we stipulated that they should pass laws for equal protection, and for the security of life, liberty, and property. If the tribe fails to administer its trust properly by securing to all the people of the tribe equitable participation in the common property of the tribe, there appears to be no redress for the Indian so deprived of his rights, unless the government does interfere to administer such trust."

"Is it possible, because the government has lodged the title in the tribe in trust, that it is without power to compel the execution of the trust in accordance with the plain provisions of the treaty concerning such trust? Whatever power Congress possessed over the Indians as semi-dependent nations, or as persons within its jurisdiction, it still possesses, notwithstanding the several treaties may have stipulated that the government would not exercise such power, and therefore Congress may deal with this question as if there had been no legislation save that which provided for the execution of the patent to the tribes. "

Page 174 U. S. 451

"If the determination of the question whether the trust is or is not being properly executed is one for the courts, and not for the legislative department of the government, then Congress can provide by law how such questions shall be determined and how such trust shall be administered if it is determined that it is not now being properly administered."

"It is apparent to all who are conversant with the present condition in the Indian Territory that their system of government cannot continue. It is not only non-American, but it is radically wrong, and a change is imperatively demanded in the interest of the Indian and whites alike, and such change cannot be much longer delayed. The situation grows worse, and will continue to grow worse. There can be no modification of the system. It cannot be reformed. It must be abandoned and a better one substituted. That it will be difficult to do your Committee freely admit, but because it is a difficult task is no reason why Congress should not at the earliest possible moment address itself to this question."

On November 20, 1894, and November 18, 1895, the Dawes commission made reports to Congress of the condition of affairs in the Indian Territory in respect of the manner in which lands were held by the members of the tribes and of the manner in which the citizenship of said tribes was dealt with, finding a deplorable state of affairs and the general prevalence of misrule.

In the report of November 18, 1895, the commission, among other things, said:

"It cannot be possible that in any portion of this country, government, no matter what its origin, can remain peaceably for any length of time in the hands of one-fifth of the people subject to its laws. Sooner or later, violence, if nothing else, will put an end to a state of affairs so abhorrent to the spirit of our institutions. But these governments are of our own creation, and rest for their very being on authority granted by the United States, who are therefore responsible for their character. It is bound by constitutional obligations to see to it that government everywhere within its jurisdiction rests on the consent of the governed. There is already painful evidence that in some parts of the territory,

Page 174 U. S. 452

this attempt of a fraction to dictate terms to the whole has already reached its limit, and, if left without interference, will break up in revolution."

And the commission, after referring to tribal legislation in the Choctaw and Cherokee tribes bearing on citizenship, the manipulation of the rolls, and proceedings in Indian tribunals, stated:

"The Commission is of the opinion that if citizenship is left, without control or supervision, to the absolute determination of the tribal authorities, with power to de-citizenize at will, the greatest injustice will be perpetrated, and many good and law-abiding citizens reduced to beggary."

And further:

"The Commission is compelled to report that so long as power in these nations remains in the hands of those now exercising it, further effort to induce them by negotiation to voluntarily agree upon a change that will restore to the people the benefit of the tribal property and that security and order in government enjoyed by the people of the United States will be in vain."

"The Commission is therefore brought to the consideration of the question what is the duty of the United States government toward the people, Indian citizens and United States citizens, residing in this territory under governments which it has itself erected within its own borders?"

"No one conversant with the situation can doubt that it is impossible of continuance. It is of a nature that inevitably grows worse, and has in itself no power of regeneration. Its own history bears testimony to this truth. The condition is every day becoming more acute and serious. It has as little power as disposition for self-reform."

"Nothing has been made more clear to the Commission than that change, if it comes at all, must be wrought out by the authority of the United States. This people have been wisely given every opportunity and tendered every possible assistance to make this change for themselves, but they have persistently refused, and insist upon being left to continue present conditions."

"There is no alternative left to the United States but to

Page 174 U. S. 453

assume the responsibility for future conditions in this territory. It has created the forms of government which have brought about these results, and the continuance rests on its authority. Knowledge of how the power granted to govern themselves has been perverted takes away from the United States all justification for further delay. Insecurity of life and person and property increasing every day makes immediate action imperative."

"The pretense that the government is debarred by treaty obligations from interference in the present condition of affairs in this territory is without foundation. The present conditions are not 'treaty conditions.' There is not only no treaty obligation on the part of the United States to maintain, or even to permit, the present condition of affairs in the Indian Territory, but, on the contrary, the whole structure and tenor of the treaties forbid it. If our government is obligated to maintain the treaties according to their original intent and purpose, it is obligated to blot out at once present conditions. It has been most clearly shown that a restoration of the treaty status is not only an impossibility, but, if a possibility, would be disastrous to this people, and against the wishes of all, people and governments alike. The cry therefore of those who have brought about this condition of affairs to be let alone not only finds no shelter in treaty obligations, but is a plea for permission to further violate those provisions."

"The Commission is compelled by the evidence forced upon them during their examination into the administration of the so-called 'governments' in this territory to report that these governments in all their branches are wholly corrupt, irresponsible, and unworthy to be longer trusted with the care and control of the money and other property of Indian citizens, much less their lives, which they scarcely pretend to protect."

By the Indian Appropriation Act of June 10, 1896, 29 Stat. 321, 339, c. 398, the Commission was

"directed to continue the exercise of the authority already conferred upon them by law, and endeavor to accomplish the objects heretofore prescribed to them, and report from time to time to Congress,"

and it was further provided as follows:

Page 174 U. S. 454

"That said Commission is further authorized and directed to proceed at once to hear and determine the application of all persons who may apply to them for citizenship in any of said nations, and after such hearing they shall determine the right of such applicant to be so admitted and enrolled: provided, however, that such application shall be made to such Commissioners within three months after the passage of this act."

"The said Commission shall decide all such applications within ninety days after the same shall be made."

"That in determining all such applications, said Commission shall respect all laws of the several nations or tribes not inconsistent with the laws of the United States and all treaties with either of said nations or tribes, and shall give due force and effect to the rolls, usages, and customs of each of said nations or tribes, and provided further that the rolls of citizenship of the several tribes as now existing are hereby confirmed, and any person who shall claim to be entitled to be added to said rolls as a citizen of either of said tribes and whose right thereto has either been denied or not acted upon, or any citizen who may within three months from and after the passage of this act desire such citizenship, may apply to the legally constituted court or committee designated by the several tribes for such citizenship, and such court or committee shall determine such application within thirty days from the date thereof."

"In the performance of such duties, said Commission shall have power and authority to administer oaths, to issue process for and compel the attendance of witnesses and to send for persons and papers, and all depositions and affidavits and other evidence in any form whatsoever heretofore taken where the witnesses giving said testimony are dead or now residing beyond the limits of said territory, and to use every fair and reasonable means within their reach for the purpose of determining the rights of persons claiming such citizenship, or to protect any of said nations from fraud or wrong, and the rolls so prepared by them shall be hereafter held and considered to be the true and correct rolls of persons entitled to the rights of citizenship in said several tribes, provided that if the

Page 174 U. S. 455

tribe or any person be aggrieved with the decision of the tribal authorities or the commission provided for in this act, it or he may appeal from such decision to the United States district court, provided, however, that the appeal shall be taken within sixty days, and the judgment of the court shall be final."

"That the said Commission, after the expiration of six months, shall cause a complete roll of citizenship of each of said nations to be made up from their records, and add thereto the names of citizens whose right may be conferred under this act, and said rolls shall be, and are hereby, made rolls of citizenship of said nations or tribes, subject, however, to the determination of the United States courts, as provided herein."

"The Commission is hereby required to file the lists of members as they finally approve them with the Commissioner of Indian affairs to remain there for use as the final judgment of the duly constituted authorities. And said Commission shall also make a roll of freedmen entitled to citizenship in said tribes and shall include their names in the lists of members to be filed with the Commissioner of Indian affairs."

By the Act of March 1, 1889, entitled "An act to establish a United States court in the Indian Territory, and for other purposes." 25 Stat. 783, a United States court was established, with a single judge, whose jurisdiction extended over the Indian Territory, and it was provided that two terms of said court should be held each year at Muscogee, in said territory, on the first Mondays of April and September, and such special sessions as might be necessary for the dispatch of business in said court at such times as the judge might deem expedient.

On May 2, 1890, an act was passed

"to provide a temporary government for the Territory of Oklahoma, to enlarge the jurisdiction of the United States court in the Indian Territory, and for other purposes,"

26 Stat. 81, 93, which enacted

"that, for the purpose of holding terms of said court, said Indian Territory is hereby divided into three divisions to be known as the First, Second and Third divisions;"

the divisions were defined; the places in each division where court should be held were enumerated, and it was provided that

Page 174 U. S. 456

the

"judge of said court shall hold at least two terms of said court in each year in each of the divisions aforesaid at such regular times as such judge shall fix and determine."

March 18, 1895, an act was approved entitled "An act to provide for the appointment of additional judges of the United States court in the Indian Territory." 28 Stat. 693. The first section of this act declared:

"That the territory known as the Indian Territory, now within the jurisdiction of the United States court in said territory, is hereby divided into three judicial districts, to be known as the Northern, Central, and Southern District, and at least two terms of the United States court in the Indian Territory shall be held each year at each place of holding court in each district at such regular times as the judge for each district shall fix and determine. The Northern District shall consist of all the Creek Country, all of the Seminole Country, all of the Cherokee Country, all of the country occupied by the Indian tribes in the Quapaw Indian Agency, and the townsite of the Miami Townsite Company. . . . The Central District shall consist of all the Choctaw Country. . . . The Southern District shall consist of all the Chickasaw Country."

The act provided for two additional judges for the court, one of whom should be judge of the Northern District, and the other, judge of the Southern District, and that the judge then in office should be judge of the Central District. The judges were clothed with all the authority, both in term time and in vacation, as to all causes, both criminal and civil, that might be brought in said district, and the same superintending control over commissioners' courts therein, the same authority in the judicial districts to issue writs of habeas corpus, etc., as by law vested in the judge of the United States Court in the Indian Territory or in the circuit or district courts of the United States. The judge of each district was authorized and empowered to hold court in any other district for the trial of any cause which the judge of such other district was disqualified from trying, and whenever, on account of sickness, or for any other reason, the judge of any district was unable to perform the duties of his office, it was provided that either of the

Page 174 U. S. 457

other judges might act in his stead in term time or vacation. All laws theretofore enacted conferring jurisdiction upon the United States courts held in Arkansas, Kansas, and Texas, outside of the limits of the Indian Territory as defined by law as to offenses committed within the territory, were repealed, and their jurisdiction conferred after September 1, 1896, on the "United States courts in the Indian Territory."

By section 11 of this act, it was provided:

"SEC. 11. That the judges of said court shall constitute a court of appeals, to be presided over by the judge oldest in commission as chief justice of said court, and said court shall have such jurisdiction and powers in said Indian Territory and such general superintending control over the courts thereof as is conferred upon the Supreme Court of Arkansas over the courts thereof by the laws of said state, as provided by chapter forty of Mansfield's Digest of the Laws of Arkansas, and the provisions of said chapter, so far as they relate to the jurisdiction and powers of said Supreme Court of Arkansas as to appeals and writs of error, and as to the trial and decision of causes, so far as they are applicable, shall be, and they are hereby, extended over and put in force in the Indian Territory, and appeals and writs of error from said court in said districts to said appellate court, in criminal cases, shall be prosecuted under the provisions of chapter forty-six of said Mansfield's Digest, by this act put in force in the Indian Territory. But no one of said judges shall sit in said appellate court in the determination of any cause in which an appeal is prosecuted from the decision of any court over which he presided. In case of said presiding judge's being absent, the judge next oldest in commission shall preside over said appellate court, and in such case two of said judges shall constitute a quorum. In all cases where the court is equally divided in opinion, the judgment of the court below shall stand affirmed."

"Writs of error and appeals from the final decisions of said appellate court shall be allowed, and may be taken to the Circuit Court of Appeals for the Eighth Judicial Circuit in the same manner and under the same regulations as appeals are taken from the circuit courts of the United States. Said

Page 174 U. S. 458

appellate court shall appoint its own clerk, who shall hold his office at the pleasure of said court and who shall receive a salary of one thousand two hundred dollars per annum. The marshal of the district wherein such appellate court shall be held shall be marshal of such court. Said appellate court shall be held at South McAlester, in the Choctaw Nation, and it shall hold two terms in each year at such times and for such periods as may be fixed by the court."

By the Indian Appropriation Act of June 7, 1897, 30 Stat. 8 , c. 3, provision was made for the appointment of an additional judge for the United States Court in the Indian Territory, who was to hold court at such places in the several judicial districts therein and at such times as the appellate court of the territory might designate. This judge was to be a member of the appellate court, and have all the authority, exercise all the powers, and perform the like duties as the other judges of the court, and it was "provided that no one of said judges shall sit in the hearing of any case in said appellate court which was decided by him."

By this Act of June 7, 1897, it was also provided:

"That the Commission appointed to negotiate with the Five Civilized Tribes in the Indian Territory shall examine and report to Congress whether the Mississippi Choctaws under their treaties are not entitled to all the rights of Choctaw citizenship except an interest in the Choctaw annuities: provided further that, on and after January first, eighteen hundred and ninety-eight, the United States courts in said territory shall have original and exclusive jurisdiction and authority to try and determine all civil causes in law and equity thereafter instituted, and all criminal causes for the punishment of any offense committed after January first, eighteen hundred and ninety-eight, by any person in said territory, and the United States Commissioners in said territory shall have and exercise the powers and jurisdiction already conferred upon them by existing laws of the United States as respects all persons and property in said territory, and the laws of the United States and the State of Arkansas in force in the territory shall apply to all persons therein, irrespective

Page 174 U. S. 459

of race, said courts exercising jurisdiction thereof as now conferred upon them in the trial of like causes, and any citizen of any one of said tribes otherwise qualified who can speak and understand the English language may serve as a juror in any of said courts."

"That said Commission shall continue to exercise all authority heretofore conferred on it by law to negotiate with the Five tribes, and any agreement made by it with any one of said tribes, when ratified, shall operate to suspend any provisions of this act if in conflict therewith as to said nation: provided, that the words 'rolls of citizenship,' as used in the Act of June tenth, eighteen hundred and ninety-six, making appropriations for current and contingent expenses of the Indian Department and fulfilling treaty stipulations with various Indian tribes for the fiscal year ending June thirtieth, eighteen hundred and ninety-seven, shall be construed to mean the last authenticated rolls of each tribe which have been approved by the council of the nation and the descendants of those appearing on such rolls, and such additional names and their descendants as have been subsequently added either by the council of such nation, the duly authorized courts thereof, or the Commission under the Act of June tenth, eighteen hundred and ninety-six. And all other names appearing upon such rolls shall be open to investigation by such Commission for a period of six months after the passage of this act. And any name appearing on such rolls and not confirmed by the Act of June tenth, eighteen hundred and ninety-six, as herein construed, may be stricken therefrom by such Commission where the party affected shall have ten days' previous notice that said Commission will investigate and determine the right of such party to remain upon such roll as a citizen of such nation: provided also that any one whose name shall be stricken from the roll by such Commission shall have the right of appeal, as provided in the Act of June tenth, eighteen hundred and ninety-six."

"That on and after January first, eighteen hundred and ninety-eight, all acts, ordinances, and resolutions of the council of either of the aforesaid Five Tribes passed shall be certified

Page 174 U. S. 460

immediately upon their passage to the President of the United States and shall not take effect, if disapproved by him, or until thirty days after their passage: provided, that this act shall not apply to resolutions for adjournment, or any acts, resolutions, or ordinances in relation to negotiations with Commissioners heretofore appointed to treat with said tribes."

From the annual report of the Commission of October 3, 1897, it appears that there had been presented, in accordance with the provisions of the act of 1896,

"some seven thousand five hundred claims, representing nearly, if not quite, seventy-five thousand individuals, each claim requiring a separate adjudication upon the evidence upon which it rested,"

and that "about one thousand appeals have been taken from the decisions of the Commission." And the Commission said:

"The condition to which these Five Tribes have been brought by their wide departure in the administration of the governments which the United States committed to their own hands, and in the uses to which they have put the vast tribal wealth with which they were entrusted for the common enjoyment of all their people, has been fully set forth in former reports of the Commission, as well as in the reports of Congressional Committees Commissioned to make inquiry on the ground. It would be but repetition to attempt again a recital. Longer service among them, and greater familiarity with their condition, have left nothing to modify either of fact or conclusion in former reports, but, on the contrary, have strengthened convictions that there can be no cure of the evils engendered by the perversion of these great trusts but their resumption by the government which created them."

June 28, 1898, an act was approved entitled "An act for the protection of the people of the Indian Territory, and for other purposes," 30 Stat. 495. The second section read:

"SEC. 2. That when in the progress of any civil suit, either in law or equity, pending in the United States court in any district in said territory, it shall appear to the court that the property of any tribe is in any way affected by the issues being heard, said court is hereby authorized and required to make said tribe a party to said suit by service upon the chief

Page 174 U. S. 461

or governor of the tribe, and the suit shall thereafter be conducted and determined as if said tribe had been an original party to said action."

And the third and eleventh sections in part:

"SEC 3. That said courts are hereby given jurisdiction in their respective districts to try cases against those who may claim to hold as members of a tribe and whose membership is denied by the tribe, but who continue to hold said lands and tenements notwithstanding the objection of the tribe and if it be found upon trial that the same are held unlawfully against the tribe by those claiming to be members thereof, and the membership and right are disallowed by the Commission to the Five Tribes, or the United States court, and the judgment has become final, then said court shall cause the parties charged with unlawfully holding said possessions to be removed from the same and cause the lands and tenements to be restored to the person or persons or nation or tribe of Indians entitled to the possession of the same."

"* * * *"

"SEC. 11. That when the roll of citizenship of any one of said nations or tribes is fully completed as provided by law, and the survey of the lands of said nation or tribe is also completed, the Commission heretofore appointed under acts of Congress, and known as the 'Dawes Commission,' shall proceed to allot the exclusive use and occupancy of the surface of all the lands of said nation or tribe susceptible of allotment among the citizens thereof, as shown by said roll, giving to each, so far as possible, his fair and equal share thereof, considering the nature and fertility of the soil, location, and value of same. . . . When such allotment of the lands of any tribe has been by them completed, said Commission shall make full report thereof to the Secretary of the Interior for his approval: provided, that nothing herein contained shall in any way affect any vested legal rights which may have been heretofore granted by act of Congress, nor be so construed as to confer any additional rights upon any parties claiming under any such act of

Page 174 U. S. 462

Congress; provided further that whenever it shall appear that any member of a tribe is in possession of lands, his allotment may be made out of the lands in his possession, including his home if the holder so desires; provided further that if the person to whom an allotment shall have been made shall be declared, upon appeal as herein provided for, by any of the courts of the United States in or for the aforesaid territory, to have been illegally accorded rights of citizenship, and for that or any other reason declared to be not entitled to any allotment, he shall be ousted and ejected from said lands."

Section 21 was as follows:

"That in making rolls of citizenship of the several tribes as required by law, the Commission to the Five Civilized Tribes is authorized and directed to take the roll of Cherokee citizens of eighteen hundred and eighty (not including freedmen) as the only roll intended to be confirmed by this and preceding acts of Congress, and to enroll all persons now living whose names are found on said roll, and all descendants born since the date of said roll to persons whose names are found thereon, and all persons who have been enrolled by the tribal authorities who have heretofore made permanent settlement in the Cherokee Nation whose parents, by reason of their Cherokee blood, have been lawfully admitted to citizenship by their tribal authorities, and who were minors when their parents were so admitted, and they shall investigate the right of all other persons whose names are found on any other rolls and omit all such as may have been placed thereon by fraud or without authority of law, enrolling only such as may have lawful right thereto, and their descendants born since such rolls were made, with such intermarried white persons as may be entitled to citizenship under Cherokee laws."

"It shall make a roll of Cherokee freedmen in strict compliance with the decree of the Court of Claims rendered the third day of February, eighteen hundred and ninety-six. [Footnote 1] "

Page 174 U. S. 463

"Said Commission is authorized and directed to make correct rolls of the citizens by blood of all the other tribes, eliminating from the tribal rolls such names as may have been placed thereon by fraud or without authority of law, enrolling such only as may have lawful right thereto, and their descendants born since such rolls were made, with such intermarried white persons as may be entitled to Choctaw and Chickasaw citizenship under the treaties and the laws of said tribes."

"Said Commission shall have authority to determine the identity of Choctaw Indians claiming rights in the Choctaw lands under article fourteen of the treaty between the United States and the Choctaw Nation concluded September twenty-seventh, eighteen hundred and thirty, and to that end they may administer oaths, examine witnesses, and perform all other acts necessary thereto, and make report to the Secretary of the Interior."

"The roll of Creek freedmen made by J. W. Dunn, under authority of the United States, prior to March fourteenth,

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eighteen hundred and sixty-seven, is hereby confirmed, and said Commission is directed to enroll all persons now living whose names are found on said rolls, and all descendants born since the date of said roll to persons whose names are found thereon, with such other persons of African descent as may have been rightfully admitted by the lawful authorities of the Creek Nation."

"It shall make a correct roll of all Choctaw freedmen entitled to citizenship under the treaties and laws of the Choctaw Nation, and all their descendants born to them since the date of the treaty."

"It shall make a correct roll of Chickasaw freedmen entitled to any rights or benefits under the treaty made in eighteen hundred and sixty-six between the United States and the Choctaw and Chickasaw tribes and their descendants born to them since the date of said treaty and forty acres of land, including their present residences and improvements, shall be allotted to each, to be selected, held, and used by them until their rights under said treaty shall be determined in such manner as shall be hereafter provided by Congress."

"The several tribes may by agreement determine the right of persons who for any reason may claim citizenship in two or more tribes, and to allotment of lands and distribution of moneys belonging to each tribe, but if no such agreement be made, then such claimant shall be entitled to such rights in one tribe only, and may elect in which tribe he will take such right; but if he fail or refuse to make such selection in due time, he shall be enrolled in the tribe with whom he has resided, and there be given such allotment and distributions, and not elsewhere."

"No person shall be enrolled who has not heretofore removed to and in good faith settled in the nation in which he claims citizenship: provided, however, that nothing contained in this act shall be so construed as to militate against any rights or privileges which the Mississippi Choctaws may have under the laws of or the treaties with the United States."

"Said Commission shall make such rolls descriptive of the persons thereon, so that they may be thereby identified, and

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it is authorized to take a census of each of said tribes, or to adopt any other means by them deemed necessary to enable them to make such rolls. They shall have access to all rolls and records of the several tribes, and the United States court in Indian Territory shall have jurisdiction to compel the officers of the tribal governments and custodians of such rolls and records to deliver same to said Commission, and on their refusal or failure to do so to punish them as for contempt; as also to require all citizens of said tribes, and persons who should be so enrolled, to appear before said Commission for enrollment at such times and places as may be fixed by said Commission, and to enforce obedience of all others concerned so far as the same may be necessary to enable said Commission to make rolls as herein required, and to punish anyone who may in any manner or by any means obstruct said work."

"The rolls so made, when approved by the Secretary of the Interior, shall be final, and the persons whose names are found thereon, with their descendants thereafter born to them, with such persons as may intermarry according to tribal laws, shall alone constitute the several tribes which they represent."

"The members of said Commission shall, in performing all duties required of them by law, have authority to administer oaths, examine witnesses, and send for persons and papers, and any person who shall willfully and knowingly make any false affidavit or oath to any material fact of matter before any member of said Commission, or before any other officer authorized to administer oaths, to any affidavit or other paper to be filed or oath taken before said Commission, shall be deemed guilty of perjury, and on conviction thereof shall be punished as for such offense."

"SEC. 26. That on and after the passage of this act, the laws of the various tribes or nations of Indians shall not be enforced at law or in equity by the courts of the United States in the Indian Territory."

"SEC. 28. That on the first day of July, eighteen hundred and ninety eight, all tribal courts in Indian Territory shall be abolished and no officer of said courts shall thereafter have any authority whatever to do or perform any act theretofore

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authorized by any law in connection with said courts, or to receive any pay for same, and all civil and criminal causes then pending in any such court shall be transferred to the United States court in said territory by filing with the clerk of the court the original papers in the suit: provided, that this section shall not be in force as to the Chickasaw, Choctaw, and Creek tribes or nations until the first day of October, eighteen hundred and ninety-eight."

Section 29 ratified the agreement made by the Commission with Commissions representing the Choctaw and Chickasaw tribes, April 23, 1897, as amended by the act, and for its going into effect if ratified before December 1, 1898, by a majority of the whole number of votes cast by the members of said tribes at an election held for that purpose:

"Provided, that no person whose right to citizenship in either of said tribes or nations is now contested in original or appellate proceedings before any United States court shall be permitted to vote at said election, . . . and if said agreement as amended be so ratified, the provisions of this act shall then only apply to said tribes where the same do not conflict with the provisions of said agreement."

Then followed the agreement referred to, containing provisions as to allotments, railroads, town sites, mines, jurisdiction of courts, and tribal legislation, and stating:

"It is further agreed, in view of the modification of legislative authority and judicial jurisdiction herein provided, and the necessity of the continuance of the tribal governments so modified, in order to carry out the requirements of this agreement, that the same shall continue for the period of eight years from the fourth day of March, eighteen hundred and ninety-eight. This stipulation is made in the belief that the tribal governments so modified will prove so satisfactory that there will be no need or desire for further change till the lands now occupied by the Five Civilized Tribes shall, in the opinion of Congress, be prepared for admission as a state in the Union. But this provision shall not be construed to be in any respect an abdication by Congress of power at any time to make needful rules and regulations respecting said tribes."

The agreement was

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ratified by the two nations in August, 1898. Rep.Com.Ind.Affairs, 1898, p. 77.

Section 30 made similar provision in respect of an agreement with the Creek Nation, which is set forth.

The Indian Appropriation Act of July 1, 1898, 30 Stat. 571, 591, c. 545, continued the authority theretofore conferred on the Commission by law, and contained this provision:

"Appeals shall be allowed from the United States courts in the Indian Territory direct to the Supreme Court of the United States to either party, in all citizenship cases, and in all cases between either of the Five Civilized Tribes and the United States involving the constitutionality or validity of any legislation affecting citizenship, or the allotment of lands, in the Indian Territory, under the rules and regulations governing appeals to said court in other cases, provided that appeals in cases decided prior to this act must be perfected in one hundred and twenty days from its passage, and in cases decided subsequent thereto, within sixty days from final judgment; but in no such case shall the work of the Commission to the Five Civilized Tribes be enjoined or suspended by any proceeding in or order of any court or of any judge until after final judgment in the Supreme Court of the United States. In cases of appeals as aforesaid, it shall be the duty of the Supreme Court to advance such cases on the docket and dispose of the same as early as possible."

Thereupon numerous appeals were prosecuted to this Court, of which 166 were submitted on printed briefs, with oral argument in many of them. Four of these appeals are set out in the title, numbered 423, 453, 461, 496, and the remaining 162 are enumerated in the margin. [Footnote 2]

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The proceedings in these four appeals are sufficiently stated as follows:

No. 423. Stephens et al. v. The Cherokee Nation

William Stephens, Mattie J. Ayres, his daughter, Stephen G. Ayres, Jacob S. Ayres, and Mattie Ayres, his grandchildren,

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applied to the Dawes Commission for admission to citizenship in the Cherokee Nation, August 9, 1896. The nation answered, denying the jurisdiction of the Commission, and on the merits, and the application was rejected, whereupon applicants appealed to the United States Court in the Indian Territory, Northern District, where the cause was referred to a special master, who reported, on the evidence, that the applicants were Cherokee Indians by blood. The court (Springer, J.) accepted the findings of the master that William Stephens was one-fourth Indian and three-fourths white; that he was born in the State of Ohio; that his father was a white man, and a citizen of the United States; that his mother's name was Sarah, and that she was a daughter of William Ellington Shoe-Boots, and that her father was known as Capt. Shoe-Boots in the old Cherokee Nation; that his mother was born in the State of Kentucky, and that she moved afterwards to the State of Ohio, where she was married to Robert Stephens,

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the father of William; that William Stephens came to the Cherokee Nation, Indian Territory, in 1873, and has resided in the Cherokee Nation ever since; that soon after he came to the Cherokee Nation, he made application for his mother and himself to be readmitted as citizens of that nation; that the Commission who heard the case was convinced of the genuineness of his claim to Cherokee blood, and so reported to the chief, but rejected his application on a technical ground; that the chief, in a message to the council, stated that he was convinced of the honesty and genuineness of the claim, and wished the council to pass an act recognizing Stephens as a full citizen, but this was never done. The court, referring to the master's report, said:

"It is further stated that he has improved considerable property in the nation, and has continuously lived there as a Cherokee citizen, and at one time was permitted to vote in a Cherokee election. It appears from the evidence in the that this applicant comes within the following provision of the Cherokee constitution:"

"Whenever any citizen shall remove with his effects out of the limits of this nation and becomes a citizen of any other government, all his rights and privileges as a citizen of this nation shall cease: provided, nevertheless, that the national council shall have power to readmit by law to all the rights of citizenship any such person or persons who may at any time desire to return to the nation on memorializing the national council for such readmission."

"There was a provision precisely similar to this in the constitution of the old Cherokee Nation as it existed prior to the removal of the tribe west of the Mississippi River. The provision just quoted is from the constitution of the Cherokee Nation as now constituted."

"The mother of the principal claimant, as heretofore stated, was born in the State of Kentucky, and from that state she moved to the State of Ohio, where she married the father of the principal claimant in this case. Her status was then fixed as that of one who had taken up a residence in the states. She had ceased to be a citizen of the Cherokee Nation, and she cannot be readmitted to citizenship in the nation except by

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complying with the constitution and laws of the nation as declared by the supreme court in the case of the Eastern Band of Cherokee Indians against the Cherokee Nation and the United States."

"The master states the claimant was rejected by the Commission of the Cherokee Nation upon a technical ground. The ground upon which the decision was based was that the names of the claimants did not appear upon any of the authenticated rolls of the present Cherokee Nation or of the old Cherokee Nation. The Commission which passed upon his application was created under the act of the council of December 8, 1886."

"Robert Stephens, the father of the principal claimant in this case, was a citizen of the United States and a resident of the State of Ohio, and the mother of the claimant William Stephens had abandoned the Cherokee Nation, and ceased to be a citizen thereof. Therefore the principal claimant at the time of his birth was a citizen of the United States, taking the status of his father. I doubt whether he could become a citizen of the Cherokee Nation without the affirmative action of the Cherokee council. The evidence fails to disclose that he has ever applied to any of the Commissions that had jurisdiction to admit him as a citizen of the Cherokee Nation. The Commission to which he did apply for enrollment as a citizen of the Cherokee Nation having held that his name did not appear upon any of the Cherokee rolls of citizenship, his application was rejected. He never having been admitted to citizenship as required by the constitution and laws of the Cherokee Nation, the judgment of the United States Commission rejecting this case is affirmed, and the application of the claimants to be enrolled as citizens of the Cherokee Nation as denied."

Judgment affirming the decision of the Dawes Commission refusing applicants' enrollment and admission as citizens of the Cherokee Nation was entered December 16, 1897, whereupon a motion for rehearing was filed, which was finally overruled June 23, 1898, and judgment again entered that applicants "be not admitted and enrolled as citizens of the Cherokee Nation, Indian Territory." From these decrees applicants prayed

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an appeal to this Court August 29, 1898, which was allowed, and perfected September 2, 1898, and the record filed here October 3, 1898.

No. 453. The Choctaw Nation v. F. R. Robinson

September 7, 1896, F. R. Robinson applied to the Dawes Commission to be enrolled as an intermarried citizen. His petition set forth that he was a white man; that he married a woman of Choctaw and Chickasaw blood, September 21, 1873, by which marriage he had five children; that she died, and he married a white woman August 10, 1884, with whom he was still living. The Choctaw Nation answered, objecting that the Dawes Commission had no jurisdiction because the act of Congress creating it was unconstitutional and void; that Robinson had not applied for citizenship to the tribunal of the Choctaw Nation constituted to try questions of citizenship, and that he ought not to be enrolled, "because he has not shown by his evidence that he has not forfeited his rights as such citizens by abandonment or remarriage." The Dawes Commission granted the application, and thereupon the Choctaw Nation appealed to the United States Court in the Indian Territory, Central District. The cause was referred to a master, who made a report, and thereafter, June 29, 1897, the court (Clayton, J.) found that Robinson was

"a member and citizen of the Choctaw Nation by intermarriage, having heretofore been legally, and in compliance with the laws of the Choctaw Nation, married to a Choctaw woman by blood, and that said F. R. Robinson was, by the duly constituted authorities of the Choctaw Nation, placed upon the last roll of the members and citizens of the Choctaw Nation prepared by the said Choctaw authorities, and that his name is now upon the last completed rolls of the members and citizens of the said Choctaw Nation,"

and thereupon decreed that Robinson was

"a member and citizen by intermarriage with the Choctaw Nation, and entitled to all the rights, privileges, immunities, and benefits in said nation as such intermarried citizen and said member,"

and directed a certified copy of the judgment to be transmitted to the Commission. From this decree, the

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Choctaw Nation prayed an appeal September 21, 1898, which was on that day allowed and perfected.

No. 461. Jennie Johnson et al. v. The Creek Nation

This was a petition of Jennie Johnson and others to the Dawes Commission for admission to citizenship and membership in the Creek Nation. It seems to have been presented August 10, 1896, on behalf of 112 applicants, to have been granted as to 62, and to have been denied as to 57, by whom an appeal was taken to the United States Court in the Indian Territory, Northern District. The cause was referred to a special master, and on June 16, 1898, the court (Springer, J.) rendered an opinion in which, after considering various laws of the Muscogee or Creek Nation bearing on the subject, certain decisions of tribal courts, the action of a certain "committee of eighteen on census rolls of 1895," and of the council thereon adopting the report of that Committee, in respect of applicants, the court concluded that appellants were not entitled to be enrolled as citizens of the Creek Nation, and entered judgment accordingly, whereupon an appeal was prayed from said decree, and allowed and perfected September 27, 1898.

No. 496. The Chickasaw Nation v. Richard C. Wiggs et al.

Richard C. Wiggs filed an application before the Dawes Commission to be admitted to citizenship in the Chickasaw Nation, asserting, among other things, that he was a white man, and, prior to October 13, 1875, a citizen of the United States, on which day he lawfully married Georgia M. Allen, a native Chickasaw Indian, and member of the Chickasaw tribe, and also an application on behalf of his wife, Josie Wiggs at the time of their marriage, which was in accordance with the Chickasaw laws under such circumstances, a white woman, and citizen of the United States, and their daughter, Edna Wiggs, August 15, 1896. The Chickasaw Nation, September 1, 1896, filed with the Commission its answer to these applications, which, after denying the jurisdiction of the Commission, traversed the allegations of the applications.

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November 15, 1896, the Dawes Commission admitted Richard C. Wiggs to citizenship in the Chickasaw Nation, but denied the application as to Mrs. Wiggs and their daughter. Thereafter an appeal was taken on behalf of the wife and daughter to the United States Court in the Indian Territory, Southern District, and a cross-appeal by the Chickasaw Nation from the decision of the Commission admitting Wiggs to citizenship. The court referred the cause to a master in chancery, who made a report in favor of Wiggs, but against his wife and daughter. The court (Townsend, J.) found:

"That all of the applicants are entitled to be enrolled as Chickasaw Indians, it appearing to the court that the said Richard C. Wiggs, being a white man, and citizen of the United States, was married in the year 1875 to Georgia M. Allen, who was a native Chickasaw Indian by blood; said marriage was solemnized according to the laws of the Chickasaw Nation; that in the year 1876, the said wife of the said Richard C. Wiggs died; that from and after said marriage, the said Richard C. Wiggs continued to reside in the Chickasaw Nation, and to claim the rights of citizenship in said nation, and as such he served in the Chickasaw Legislature, and was also Sheriff of Pickens County, in said nation; that in the year 1886, the said Richard C. Wiggs was lawfully married, according to the laws of the Chickasaw Nation, to Miss Josie Lawson, and that ever since said marriage the said Wiggs and his present wife have resided in the Chickasaw Nation and claimed the rights of citizenship therein, and that there has been born unto them a daughter, Mary Edna Wiggs,"

and thereupon entered a decree, December 22, 1897, admitting Richard C. Wiggs, his wife, and their daughter,

"to citizenship in the Chickasaw Nation, and to enrollment as members of the tribe of Chickasaw Indians, with all the rights and privileges appertaining to such relation, and it is further ordered that this decree be certified to the Dawes Commission for their observance."

From this decree an appeal was allowed and perfected July 11, 1898.

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