The constitutionality of the Curtis Act, 30 Stat. 495, for the
protection of the Indian Territory, has been settled by this Court,
and is not now open to question.
Stephens v. Cherokee
Nation, 174 U. S. 445;
Cherokee Nation v. Hitchcock, 187 U.
S. 294.
The Act of the Chickasaw Nation, approved by the Governor May 5,
1902, and by the President of the United States May 15, 1902,
prescribing privilege or permit taxes, and the regulations of the
Secretary of the Interior of June 3, 1902, governing the
introduction by noncitizens of livestock in the Chickasaw Nation
are valid, and not an exercise of arbitrary power, and they do not
in any respect violate the Constitution of the United States.
This is an equity suit, begun in the Supreme Court of the
District of Columbia by Edwin T. Morris and nine other persons, all
averred to be citizens of the United States, and not Indians,
against Ethan A. Hitchcock, as Secretary of the Department of the
Interior, William A. Jones, as Commissioner of Indian Affairs, J.
George Wright, as Indian inspector, and J. Blair Shoenfelt, as
United States Indian agent, resident at the City of Muscogee, in
the Indian Territory. Certain of the complainants were averred to
be residents either of the State of Texas or of the State of
Missouri, and others were averred to be residents of the Indian
Territory.
It was alleged that each complainant was the owner in his own
right of not less than five hundred head of cattle and horses, of
the value of not less than fifteen dollars per head, which were
grazing upon land in the Chickasaw Nation, Indian Territory, under
contracts with individual members of said tribe, holding such lands
as their approximate shares
Page 194 U. S. 385
upon allotments to be made. The purpose of the suit was to
obtain a decree perpetually enjoining said defendants from seizing,
molesting, or removing the cattle and horses of plaintiffs from the
Indian Territory, as it was averred they threatened to do under the
pretended authority of an act of the Legislature of the Chickasaw
Nation and regulations promulgated by the Secretary of the
Interior, which were averred to be repugnant to the Fourth and
Fifth Amendments to the Constitution of the United States. The
statute and regulations referred to are copied in the margin.
*
Page 194 U. S. 386
The bill of complaint was demurred to upon the grounds
following: (a) want of jurisdiction in equity because of
adequate
Page 194 U. S. 387
right to relief at law; (b) defect of necessary parties, in that
neither the Chickasaw Nation or tribe, or any member
Page 194 U. S. 388
or representative thereof, was joined as a defendant, and (c)
want of equity.
After argument, the court overruled the first and second grounds
of demurrer, and sustained the third ground. The complainants
elected to stand upon their bill of complaint, and a decree was
consequently entered dismissing the bill. On appeal, the decree was
affirmed by the Court of Appeals of the District of Columbia. 21
App.D.C. 565. The cause was then brought to this Court.
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
We think the court below was right in holding that the first and
second grounds of demurrer were not well taken, but do not think it
necessary to review the subject, as the opinion which we have
reached on the merits of the case will dispose of the entire
controversy.
The Act of Congress approved June 28, 1898, commonly known as
the Curtis Act, 30 Stat. 495, c. 517, under which the act of the
Chickasaw Nation and regulations of the Secretary of the Interior
which are assailed were adopted, is entitled "An Act for the
Protection of the the Indian Territory and for Other Purposes." The
question of the validity and construction of that act was under
consideration in
Stephens v. Cherokee Nation, 174 U.
S. 445, and
Cherokee Nation v. Hitchcock,
187 U. S. 294, and
in view of the rulings in those cases, the constitutionality of the
statute is not now open to question.
While it is unquestioned that, by the Constitution of the United
States, Congress is vested with paramount power to
Page 194 U. S. 389
regulate commerce with the Indian tribes, yet it is also
undoubted that, in treaties entered into with the Chickasaw Nation,
the right of that tribe to control the presence within the
territory assigned to it of persons who might otherwise be regarded
as intruders has been sanctioned, and the duty of the United States
to protect the Indians "from aggression by other Indians and white
persons not subject to their jurisdiction and laws," has also been
recognized. Arts. 7 and 14, Treaty, June 22, 1855, 11 Stat. 611;
Art. 8, Treaty April 28, 1866, 14 Stat. 769. And it is not disputed
that, under the authority of these treaties, the Chickasaw Nation
has exercised the power to attach conditions to the presence within
its borders of persons who might otherwise not be entitled to
remain within the tribal territory.
Legislation of the same general character as that embodied in
the act of the Legislature of the Chickasaw Nation here assailed as
invalid had been enacted by the Chickasaw Nation before the passage
of the Curtis Act. The essential provisions of one such law, passed
on October 17, 1876, were recited in a report made to the Senate by
the Committee on the Judiciary on February 3, 1879, from which we
copy the following:
"The law in question seems to have a two-fold object -- to
prevent the intrusion of unauthorized persons into the Territory of
the Chickasaw Nation and to raise revenue. By its terms, no citizen
of any state or territory of the United States can either rent land
or procure employment in the Chickasaw country without entering
into a contract with a Chickasaw, which contract the latter is to
report to the clerk of the county where he resides, and a permit
must be obtained for a time not longer than twelve months, for
which the citizen is to pay the sum of $25."
"Every licensed merchant, trader, and every physician not a
Chickasaw is required to obtain a permit, for which the sum of $25
is exacted."
Declaring in substance that, under the existing treaties with
the tribe, the Chickasaws were not prohibited from excluding
Page 194 U. S. 390
from the territory of the nation the persons affected by the
act, the committee expressed the opinion that the act which was the
subject of the report was not invalid.
Again, on December 14, 1898, the Legislature of the Chickasaw
Nation passed an act which, in section 2, with some exemptions
mentioned in a proviso, imposed the following permit taxes:
"SEC. 2. That any noncitizen who owns horses, jacks, jennets,
mules, or other cattle, and who holds them upon the public domain
or within the Chickasaw Nation, shall be required to pay an annual
permit tax of twenty-five cents per head for each horse, jack, or
jennet, mule, or bovine, and five cents per head for each sheep and
goat so held within this nation."
By the ninth section of the same act, it was provided as
follows:
"SEC. 9. That any noncitizen, subject to a permit tax under the
provisions of section one of this act, and who shall refuse to pay
his permit tax, after due notice for thirty days, shall be deemed
an intruder by virtue of the intercourse law of the United States
of America, and subject to removal, and such intruder shall be
reported to the United States Indian agent (or inspector) to the
Five Civilized Tribes, and shall forthwith be removed from the
Chickasaw Nation, under the direction of the said United States
Indian agent or inspector."
The agreement made by the commission to the Five Civilized
Tribes with the commissions representing the Choctaw and Chickasaw
tribes of Indians on April 23, 1897, as amended by the Curtis Act,
was, in section 29 of that act, ratified and confirmed, and made
operative on December 1, 1898.
By that agreement, certain modifications, not material to be
stated, were made in the legislative authority and judicial
jurisdiction of the tribal governments, and, so modified, the
tribal governments were continued in force, and are to so continue
until March 4, 1906. One of the clauses of the agreement reads as
follows:
Page 194 U. S. 391
"It is further agreed that no act, ordinance, or resolution of
the council of either the Choctaw or Chickasaw tribes, in any
manner affecting the land of the tribe, or of the individuals,
after allotment, or the moneys or other property of the tribe or
citizens thereof (except appropriations for the regular and
necessary expenses of the government of the respective tribes), or
the rights of any persons to employ any kind of labor, or the
rights of any persons who have taken or may take the oath of
allegiance to the United States, shall be of any validity until
approved by the President of the United States. When such acts,
ordinances, or resolutions passed by the council of either of said
tribes shall be approved by the governor thereof, then it shall be
the duty of the national secretary of said tribe to forward them to
the President of the United States, duly certified and sealed, who
shall, within thirty days after their reception, approve or
disapprove the same. Said acts, ordinances, or resolutions, when so
approved, shall be published in at least two newspapers having a
bona fide circulation in the tribe to be affected thereby,
and when disapproved shall be returned to the tribe enacting the
same."
On September 17, 1900, and September 21, 1901, the proper
construction of the Curtis Act was considered at the request of the
Secretary of the Interior in opinions of Attorney General Griggs
and Attorney General Knox, respectively. In the first of those
opinions, it was in substance held as follows:
"Under the treaties with the Five Civilized Tribes of Indians,
no person not a citizen or member of a tribe, or belonging to the
exempted classes, can be lawfully within the limits of the country
occupied by these tribes without their permission, and they have
the right to impose the terms upon which such permission will be
granted."
"The provisions of the Act of June 28, 1898, 30 Stat. 495, for
the organization of cities and towns in said Indian country, and
the extinguishment of Indian title therein, have not yet been
consummated, and it is still Indian country. This
Page 194 U. S. 392
act does not deprive these Indians of the power to enact laws
with regard to licenses or taxes, nor exempt purchasers of town or
city lots from the operation of such legislation."
"Purchasers of lots do so with notice of existing Indian
treaties, and with full knowledge that they can only occupy them by
permission from the Indians. Such lands are sold under the
assumption that the purchasers will comply with the local
laws."
"Sections 2147 to 2150, inclusive, of the Revised Statutes
expressly confer the right to use the military forces of the United
States in ejecting trespassers upon Indian lands, and the grant of
this power carries with it the duty of its exercise."
"It is the duty of the Department of the Interior to remove all
classes forbidden by treaty or law, who are within the domain of
the Five Civilized Tribes without Indian permission; to close all
businesses which require permit or license and are being conducted
without the same, and to remove all cattle which are being pastured
on said land without Indian permit or license."
And in the last-mentioned opinion, it was, in substance,
declared that, under section 16 of the Curtis Act, the Secretary of
the Interior had authority to collect a tribal tax imposed by the
laws of the Cherokee Nation of Indians upon the exportation of
prairie hay from that nation, and that the tax was just as
applicable to hay raised upon lands occupied by individual members
of the nation, as their share of the public domain, pending
allotments, as in any other case, and would be so even if the
shipper was the absolute owner of the land on which the hay was
raised.
Since the rendition of these opinions of the legal advisers of
the government, Congress has created an express exception in favor
of owners of town lots, prohibiting their being proceeded against
as intruders, but has not legislated against the enforcement of the
legislation now under review, which was then operative. Thus, on
May 27, 1902, in the Indian Appropriation Act, 32 Stat. 259, c.
888, it was provided
"That it shall
Page 194 U. S. 393
hereafter be unlawful to remove or deport any person from the
Indian Territory who is in lawful possession of any lots or parcels
of land in any town or city in the Indian Territory which has been
designated as a townsite under existing laws and treaties, and no
part of this appropriation shall be used for the deportation or
removal of any such person from Indian Territory."
Viewing the Curtis Act in the light of the previous decisions of
this Court and the dealings between the Chickasaws and the United
States, we are of opinion that one of the objects occasioning the
adoption of that act by Congress, having in view the peace and
welfare of the Chickasaws, was to permit the continued exercise by
the legislative body of the tribe of such a power as is here
complained of, subject to a veto power in the President over such
legislation as a preventive of arbitrary and injudicious
action.
The refusal to pay the permit tax in question caused the cattle
and horses of the complainants to be wrongfully within the
territory, and we cannot decline to recognize such fact because of
the hardships which it is alleged must arise if the act and
regulations are enforced. Being of opinion that the regulations of
the Secretary of the Interior are valid, and that the Act of the
Legislature of the Chickasaw Nation, approved by the governor on
May 5, 1902, and sanctioned by the President of the United States
on May 15, 1902, was not the exercise of arbitrary power, as
claimed, and that neither the act nor the regulations in any
respect violate the Constitution of the United States, it follows
that the judgment below is correct, and it must therefore be
Affirmed.
*
"
Regulations (June 3, 1902) Governing the Introduction
by Noncitizens"
"
of Live Stock in the Chickasaw Nation, Indian
Territory"
"Section 29 of the Act of Congress approved June 28, 1898, 30
Stat. 495, ratifying the agreement with the Choctaw and Chickasaw
Nations, Indian Territory, provides in part as follows:"
" It is further agreed that no act, ordinance, or resolution of
the council of either the Choctaw or Chickasaw tribes, in any
manner affecting the land of the tribe, or of the individuals,
after allotment, or the moneys or other property of the tribe or
citizens thereof (except appropriations for the regular and
necessary expenses of the government of the respective tribes), or
the rights of any persons to employ any kind of labor, or the
rights of any persons who have taken or may take the oath of
allegiance to the United States, shall be of any validity until
approved by the President of the United States. When such acts,
ordinances, or resolutions, passed by the council of either of said
tribes, shall be approved by the governor thereof, then it shall be
the duty of the national secretary of said tribe to forward them to
the President of the United States, duly certified and sealed, who
shall, within thirty days after their reception, approve or
disapprove the same. Said acts, ordinances, or resolutions, when so
approved, shall be published in at least two newspapers having a
bona fide circulation in the tribe to be affected thereby,
and when disapproved, shall be returned to the tribe enacting the
same."
" 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."
"Under these provisions, the following act of the Chickasaw
national council, approved by the governor on May 3, 1902, was
approved by the President of the United States on May 15, 1902, and
entitled:"
"
An Act to Prescribe Privilege or Permit Taxes, and
Defining"
"
the Manner of their Collection"
" Be it Enacted by the legislature of the Chickasaw Nation:"
" SEC. 1. That there shall be paid upon livestock owned or held
by noncitizens within the limits of the Chickasaw Nation, an annual
privilege or permit tax, as follows: On cattle, horses, and mules,
25 cents per head, and on sheep and goats, 5 cents per head:
Provided, That there shall be exempted from the provisions of this
act, when owned and used by the head of a family, two cows and
calves, and one team, consisting of two horses or two mules, or one
horse and one mule, and the provisions of this act shall also apply
to all livestock introduced into the Chickasaw Nation since January
1, 1902, upon which the tribal taxes imposed by the laws of the
Chickasaw Nation have not been paid, with like force and effect as
if such cattle had been owned and held within the limits of
Chickasaw Nation for one year prior to the passage and approval of
this act."
" SEC. 2. That such privilege or permit taxes shall hereafter be
payable to such person or persons, and collected under such rules
and regulations, as may be prescribed by the Secretary of the
Interior."
" SEC. 3. That the expenses of collecting such privilege or
permit taxes shall be deducted from the gross collections, and the
balance paid quarterly into the treasury of the Chickasaw
Nation."
" SEC. 4. That such privilege or permit taxes shall be due and
payable annually, upon demand, and if such taxes are not paid when
demanded, the livestock upon which such taxes are due shall be held
to be in the Chickasaw Nation without its consent, and unlawfully
upon the lands of the Chickasaws, and the presence of such
livestock, and owners or holders thereof, within the limits of said
nation shall be deemed detrimental to the peace and welfare of the
Chickasaw Indians."
" SEC. 5. That all acts or parts of acts in conflict herewith,
be and the same are, hereby repealed, and this act shall take
effect from and after its approval by the President of the United
States."
"In pursuance of the above and foregoing, the following
regulations are promulgated:"
"
Regulations Prescribed by the Secretary of the Interior
Governing the"
"
Introduction or Holding of Live Stock in
the"
"
Chickasaw Nation by Noncitizens"
" SEC. 1. Any person, other than a recognized citizen of the
Choctaw or Chickasaw Nations desiring to introduce or hold stock of
any description within the limits of the Chickasaw Nation, Indian
Territory, shall first make application to the United States Indian
inspector for the Indian Territory, Muscogee, Indian Territory, and
shall pay to the United States Indian agent, Union agency, an
annual tax of twenty-five (25) cents per head on all cattle,
horses, and mules, and on all sheep and goats five (5) cents per
head, provided that there shall be exempted from the provisions of
these regulations, when owned and used by the head of a family, two
cows and calves, and one team of horses, or two mules, or one horse
and one mule."
" SEC. 2. Such tax shall be paid January 1st of each year, or
prior to the time of the introduction of such stock, and
accompanying such remittance there shall be furnished, under oath,
a full description of such stock, including the number and brands,
together with any other desired information."
" SEC. 3. Such taxes shall apply to all stock introduced within
the limits of the Chickasaw Nation since January 1, 1902, upon
which taxes have not already been paid to the Chickasaw Nation, and
for which the owners or holders cannot produce receipts."
" SEC. 4. The tax prescribed shall be paid annually, in advance,
whether such stock is held the entire succeeding twelve months or
for a portion of such time."
" SEC. 5. When cattle are held by a citizen, and mortgaged to a
noncitizen not in good faith, but for the purpose of evading the
payment of taxes, said cattle shall be considered as owned or held
by such noncitizen, and subject to these regulations and
taxes."
" SEC. 6. Parties who now hold stock within the limits of the
Chickasaw Nation should remit the taxes prescribed promptly to the
United States Indian agent at Muscogee, Indian Territory, and such
payments must be made within ten (10) days from the date of
receiving notice of these regulations. If such taxes are not paid
within this time, remittances made thereafter will not be accepted,
but such stock and any other stock found within the limits of the
Chickasaw Nation after July 1, 1902, upon which taxes have not been
paid, will be considered as being within the limits of the
Chickasaw Nation unlawfully, and measures will be adopted looking
to the removal by the United States Indian agent of such stock,
together with the owners or holders thereof, without further
notice."
" SEC. 7. Authorized agents of the Interior Department will make
necessary investigations and reports, and see that proper
remittances are forwarded, acting under the direction of the United
States Indian inspector for Indian Territory, but will not be
authorized to receive or collect any taxes whatsoever, as all
payments must be made direct to the United States Indian agent, who
will furnish receipts for all payments made."
" SEC. 8. These regulations and taxes will apply to all stock as
indicated, held within the limits of the Chickasaw Nation by other
than recognized citizens of the Choctaw or Chickasaw Nations,
whether held upon the public domain or upon lands leased from
individual Indians."
" Thos. Ryan,
Acting Secretary"
"Department of the Interior, Washington, D.C."
"Approved June 3, 1902."