As after a decree of the Court of Claims in favor of the
petitioner an act of Congress was passed, and the court made
another decree granting the same relief, the second decree was a
decision upon the effect of the subsequent legislation, and an
appeal lies therefrom if taken within the time prescribed by
law.
Held that, under the circumstances of this case and the
proceedings taken thereon, appellants' appeal was taken in
time.
Lowe v. Fisher, ante, p.
223 U. S. 95,
followed as to the construction of the Cherokee Treaty of August
11, 1866, and as to the freedmen of the Cherokees and their
descendants entitled to be enrolled as citizens and the power of
Congress thereover, and that the Secretary of the Interior had the
power, after notice and opportunity to be heard, to strike from the
rolls names which had been improperly placed thereon through
mistake or fraud.
44 Ct.Cl. 453 reversed.
The facts, which involve the construction of the various
treaties, acts of Congress and decisions of the Court of Claims in
regard to the rights of Cherokee freedmen and their descendants to
share in the distribution of tribal property, are stated in the
opinion.
Page 223 U. S. 109
MR. JUSTICE McKENNA delivered the opinion of the Court.
This appeal is prosecuted to review a supplemental decree of the
Court of Claims enjoining and directing the Secretary of the
Interior to enroll upon the final roll of the citizens of the
Cherokee Nation for allotment of lands the names of certain persons
and their descendants claiming rights as Cherokee freedmen, whose
names were found upon the roll called the Kern-Clifton roll, which
the decree adjudged was directed to be made by a former decree of
the court. The names of those persons who are appellees in this
case, after investigation by the Secretary of the Interior, were
found by him not entitled to be enrolled, and not entitled to
participate in the distribution of the tribal property.
The decision in
United States ex Rel. Lowe v. Fisher,
ante, p.
223 U. S. 95, has
simplified the decision in this case. Indeed, the ultimate question
in both is the same -- the power of Congress over the allotment of
Indian lands and the manner of ascertaining what persons shall be
entitled to them. There were, however, contentions made in that
case which are not made here. There are propositions of law
conceded in this case which were contested in that. Therefore a
brief summary of the elements necessary to a decision is
appropriate.
Preceding the merits, however, motion to dismiss the appeal must
be disposed of. The motion is made on the following grounds: (1)
the decree of February 3, 1896, was a final decree from which no
appeal was prosecuted to this Court; (2) that the decree of
February 20, 1911, hereafter referred to, was merely in the nature
of an execution
Page 223 U. S. 110
of that of February 3, 1896, and defined no new rights, but
enforced merely rights established and consented to, and (3)
because, although the decree of February 20, 1911, was regularly
entered on that day, the appeal new pending was not allowed or
prosecuted until the 17th of June, 1911, more than ninety days
after the entry of the decree.
The first and second grounds are untenable. The decree under
review has broader application than that of February 3, 1896. It
determined rights to allotments which had not then been provided
for, and, assuming that it declared the principle by which such
rights could be determined, there was, as we shall presently see,
intervening legislation by Congress. This legislation gave rise to
serious controversy. It confirmed, it was contended by petitioners
(appellees here), and is yet contended by them, as we shall
presently see, the decree of the court both as to the principle of
the decree and also as to the means of identification of the
individuals who would be entitled to rights under the principle. By
the defendants (appellants here) it was contended that the
legislation superseded the decree and made new provision for the
identification of persons. The court decided in favor of the
petitioners, and we think the decision is more than the execution
of the decree of February 3, 1896. It is a decision upon the effect
of subsequent legislation by Congress, enacted in the exercise of
its power over Indian affairs -- a power which is not
questioned.
The third ground urged for the dismissal of the appeal is also
without merit. The contention is that the decree of the court
became final the instant it was entered, February 20, 1911, and
that an appeal was not taken from it until June 17, 1911, which was
not within the time allowed by ยง 1086, of the Revised Statutes.
There were, however, intervening proceedings. The record shows
that,
"on March 30, 1911, the defendants [appellants] filed an
application for appeal. On May 15, 1911, the defendants
Page 223 U. S. 111
filed a motion to withdraw the application for appeal filed
March 30, 1911, which was allowed by the court May 15, 1911."
On May 15, 1911, the defendants filed a motion for new trial,
which motion was overruled June 5, 1911, "with privilege to the
defendants to renew their application for appeal heretofore filed."
The record further shows that the defendants,
"from the decree rendered on the 20th day of February, 1911, in
favor of claimants, . . . make application for, and give notice of,
an appeal to the Supreme Court of the United States."
The application was allowed as prayed.
This Court has decided that, if a motion for a new trial or
petition for rehearing is made in season and entertained by the
court, the time for taking an appeal or writ of error does not
begin to run until the motion or petition is disposed of.
Kingman & Co. v. Western Manufacturing Co.,
170 U. S. 675. It
is, however, urged that the court lost jurisdiction of the case by
the application for appeal filed March 30, 1911.
United
States v. Adams, 6 Wall. 101, is cited to support
this contention. In that case, the paper filed was as follows:
"The United States, by E. P. Norton, its solicitor, makes
application to the honorable Court of Claims for an appeal of the
case of
Theodore Adams v. The United States to the Supreme
Court of the United States."
This application was filed within the ninety days allowed by the
statute. The order allowing it, however, was not made until after
the expiration of the ninety days. It was contended that both
application and allowance should have been made within that time,
but this Court held otherwise, saying "that the filing of this
paper was taking the appeal, and that the delay in the subsequent
proceeding to render it effectual does not touch its validity."
It was not, however, decided that the Court of Claims lost
control of the case. It was only decided that the party had secured
a right under the statute. The rules of the
Page 223 U. S. 112
Court of Claims, made under regulations prescribed by this
Court, provided for further action to perfect the right acquired by
the party, which was made necessary by certain statutes under which
only questions of law could be brought here for review. And the
action was more than formal. It consisted in the finding of the
ultimate facts in the nature of a special verdict, and the
questions of law therefrom to be certified to this Court.
The practice in the Court of Claims is adverse to appellees'
contention. The court followed the practice in entering the decree
of February 3, 1896, the decree upon which appellees based all of
their rights. It was substituted for a decree passed May 8, 1895.
On the 20th of July, following entry of the latter decree, the
defendants filed a motion for rehearing and an application for
appeal from the decree. A few days afterward, the claimants also
filed an application for an appeal. Later, the defendants filed a
motion for new trial. On January 30, 1896, the applications for
appeal were withdrawn by leave of the court, and, on February 3,
the decree of May 6, 1895, was vacated and the decree of the former
date was entered.
It will be observed, therefore, that, if the contention of
appellees is correct that the Court of Claims lost jurisdiction of
the decree under review by the application of appellants for an
appeal March 30, 1911, the court lost jurisdiction of the case by
the applications for appeal from the decree of May 8, 1895, and
therefore had no jurisdiction to enter the decree of February 3,
1896, which is the foundation of the rights of appellees. Counsel
would hardly like us to push their contention that far, and that
far it might have to be pushed if it were tenable. The motion to
dismiss is denied.
The Court of Claims obtained its jurisdiction of the questions
involved by an act of Congress approved October 1, 1890,
entitled,
"An Act to
Page 223 U. S. 113
Refer to the Court of Claims Certain Claims of the Shawnee and
Delaware Indians and the Freedmen of the Cherokee Nation, and for
Other Purposes."
The rights referred to the Court of Claims for adjudication were
those "in law or in equity . . . of the Cherokee freedmen" who were
"settled and located in the Cherokee Nation under the provisions
and stipulations of article nine" of the Treaty of 1866 "in respect
to the subject matter" in the act provided for. The subject matter
was described to be "to recover from the Cherokee Nation all moneys
due, either in law or equity, and unpaid to the . . . freedmen,
which the Cherokee Nation" had "before paid out or" might
thereafter "pay per capita in the Cherokee Nation, and which was or
might be" refused or neglected "to be paid to the said . . .
freedmen by the Cherokee Nation out of any funds" which had been,
or might be, "paid into the treasury of," or in any way had come or
might come
"into the possession of, the Cherokee Nation, Indian territory,
derived from the sale, leasing, or rent for grazing purposes on
Cherokee lands west of ninety-six degrees west longitude,"
and which had been or might be "appropriated and directed to be
paid out
per capita by the acts passed by the Cherokee
Council, and for all moneys, lands, and rights which" should
"appear to be due to the said . . . freedmen under the provisions
of the aforesaid articles of the treaty and articles of agreement."
26 Stat. 636.
Article IX of the Treaty of August 11, 1866, the meaning of
which was to be determined, provided as follows:
"They [Cherokee Nation] further agree that all freedmen who have
been liberated by voluntary act of their former owners or by law as
well as all free colored persons who were in the country at the
commencement of the Rebellion and are now residents therein, or who
may return within six months, and their descendants, shall have all
the rights of native Cherokees. "
Page 223 U. S. 114
Under the jurisdictional act, and in accordance with its
provisions, suit was brought by the freedmen by their trustee,
Moses Whitmire, against the Cherokee Nation and the United States,
to determine the rights of the freedmen under the treaty, which
resulted in a decree of the court, passed May 8, 1895. The course
of the litigation will be found in 30 and 38 Ct.Cl. pp. 138, 180,
respectively.
The court decided that, under the Cherokee Constitution of 1866,
the freedmen became citizens of the nation equally with the
Cherokees, and equally interested in the common property, and
equally entitled to share in its proceeds, but also decided that
the freedmen to whom the treaty referred were those who had
returned to the nation within six months after the promulgation of
the treaty, and their descendants, and that the freedmen and the
descendants of freedmen who did not return within six months were
excluded from the benefits of the treaty.
United States ex Rel.
Lowe v. Fisher.
The court decreed that the Cherokee Nation and the United States
be prohibited from making any discrimination between such freedmen
citizens and their descendants and native Cherokees in the
distribution of a fund of $8,595,736 paid by the United States to
the Cherokee Nation for that portion of its territory known as the
"Cherokee Outlet."
The court conceived it necessary to ascertain the individual
Indians who were entitled under its decree to share in the fund,
and adjudged that the roll called the "Wallace Roll," which showed
3,524 persons, should be approved by the court.
Appeals were prayed by claimant and defendant, but were
withdrawn afterward by stipulation, and a decree was entered
February 3, 1896, as of May 8, 1895. The decree adjudged the rights
of freedmen to be as we have hereinabove set out.
The decree also authorized the Secretary of the Interior
Page 223 U. S. 115
to appoint commissioners to make up a roll of the freedmen
entitled to share in the fund to be distributed, which that officer
did. They completed the roll which was thereafter known, and to
which we have referred, as the Kern-Clifton roll. It was approved
by the Secretary on the 18th of January, 1897, and in the
succeeding month the moneys available for distribution were paid to
the persons whose names were on the roll.
The legislation in regard to the allotment of lands and the
making of rolls of persons entitled to allotments is detailed in
United States ex Rel. Lowe v. Fisher, and need not be
repeated except in a very brief way. By virtue of that legislation,
the Dawes Commission, which had been created before the decree of
February 3, 1896, proceeded to make up rolls, which were finally
approved by the Secretary on March 4, 1907, from which were
excluded a large number of freedmen whose names were on the
Kern-Clifton roll, with the consequence that such persons so
excluded will receive no allotments of lands or share in the moneys
which stand to the credit of the Cherokee Nation in the Treasury of
the United States.
On May 6, 1908, Jacob B. Wilson, by permission of the Court of
Claims, and having been substituted trustee of the freedmen, filed
a supplemental petition in the court in behalf of such excluded
persons, which recited the decrees of the court and acts of
Congress subsequent to them, asserted a right under the decrees and
acts of Congress to be upon the rolls, to be allotted lands, and to
share in the distribution of funds, and prayed that the action of
the Dawes Commission and of the Secretary of the Interior be
declared unlawful, and that the Cherokee Nation and the United
States be enjoined from discriminating between such freedmen and
other citizens of the Cherokee Nation in the allotment of lands and
the distribution of property and assets of the nation, and that it
and the United States be further enjoined from further
Page 223 U. S. 116
disturbing such freedmen in the possession and occupation of
their homes and improvements, and to reinstate such of them as have
been ousted from such possession.
The court took jurisdiction of the petition, as we have seen,
and decreed as it prayed. 44 Ct.Cl. 453. The court, in an elaborate
and ably reasoned opinion, decided that its decree had larger scope
than a description of the class of freedmen and the declaration of
a principle, and that it undertook to identify "the individuals who
were entitled to share in everything that was to be allotted or
distributed." To this, the court said, the
"defendants made no objections and acquiesced in the terms of
the decree for the distribution of that part of the property then
ready to be distributed."
The court further said that
"there was nothing in the terms of the decree or in the conduct
of the parties affected by it to raise the inference that its
language did not apply to all future distributions of the property,
which the plaintiffs in that suit were entitled to have and enjoy
whenever such property was ready for distribution."
The court therefore considered that the Kern-Clifton roll was
made in compliance with the decree, and that the provisions of the
Curtis Act, June 28, 1898, 30 Stat. 495, c. 517, requiring a roll
to be made in "strict compliance with the decree of the Court of
Claims rendered the third of February, eighteen hundred and
ninety-six," necessarily confirmed the Kern-Clifton roll, and that
the Dawes Commission, in disregarding it, disobeyed the command of
the statute. "If," said the court,
"the payment by the Secretary of the Interior was a 'compliance'
with the provision of the decree for the payment of money, the
refusal of the Dawes Commission to allow those same persons to
participate in the common property, as further provided in the
decree, is not a 'strict' compliance, nor, for that matter, a
compliance of any kind."
The case is simplified by the concession of appellees that
Page 223 U. S. 117
the Congress had power to alter the decree and to adopt other
means or ways for the disposition of the property than there
provided. Indeed, the decree of the court recognizes this power,
and the case is brought to an interpretation of the Acts of
Congress subsequent to the decree. As we have already said, we have
reviewed those acts in
United States ex Rel. Lowe v.
Fisher, and, after a further consideration of them, invoked in
the case at bar, and supported by the very able opinion of the
Court of Claims, we adhere to the views there expressed. Congress
accepted the decree as a correct interpretation of Art. IX of the
treaty as to the rights of freedmen. It did not accept the
Kern-Clifton roll as an authentic identification of the individual
freedmen. It had been challenged. It had been made up with haste
and under circumstances which caused question of its correctness.
It had not received judicial approval. From the first to the last,
it was the Act of administrative officers. Had it been reported to
the court and its integrity established by the judgment of the
court, Congress might, indeed, have hesitated to ignore it. As an
act of merely administrative officers, it had no such sanction. It
must be borne in mind that important rights were involved, and no
good reason could be urged against, or serious consequences
apprehended from, another investigation. Those who were entitled to
be enrolled could again establish their right. Those who were not
so entitled, and who had got on the rolls either by mistake or
fraud, had no legal ground of complaint. However, we are not
required to consider the reasons which induced Congress to direct
that a roll be made by the Dawes Commission. Congress had the
power, and, as we have decided, exercised it.
Decree reversed and case remanded, with directions to
dismiss the supplemental petition.