Where the Court of Claim has kept control of a case referred to
it by act of Congress giving it jurisdiction as to all questions,
its reply made to the request of the officer of the government
charged with execution of its judgment for further opinion is to be
regarded as part of the decision.
The limitations on the right to return to the tribe in Art. IX
of the Cherokee Treaty of August 11, 1866, refer to both freedmen
and free colored persons, and freedmen and descendants of freedmen
who did not return within six months are excluded from the benefit
of the treaty.
Notwithstanding a decree of the Court of Claims determining the
rights of Indians in a case over which Congress gave the court
jurisdiction, it is competent for Congress to deal further with the
subject.
Stephens v. Cherokee Nation, 174 U.
S. 445;
Wallace v. Adams, 204 U.
S. 415.
Quaere whether a roll of citizenship of an Indian
tribe, made under
Page 223 U. S. 96
direction of the Court of Claims, has the conclusive effect of a
judicial decree.
Under the Acts of Congress of 1902 and 1906 in regard thereto,
the enrollment of freedmen of the Cherokee Tribe was to be made in
strict conformity with the decree of the Court of Claims, and
should include only such persons of African descent, either free
colored or the slaves of Cherokee citizens and their descendants,
who were actual personal
bona fide residents of the
Cherokee Nation August 11, 1866, or who actually returned and
established such residence within six months thereafter.
While the Secretary of the Interior did not have power to strike
names from the roll of Cherokee citizens without notice and
opportunity to be heard, he did have power, after such notice and
opportunity had been given, to strike from the roll names which had
been placed thereon through fraud or mistake.
Garffeld v.
Goldsby, 211 U. S. 249.
35 App.D.C. 524 affirmed.
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 this
opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
The case involves the question whether the Secretary of the
Interior, after due hearing, and after having made up a roll of
citizens of the Five Civilized Tribes of Indians, and after having
issued certificates of allotment to the enrolled Indians, may
strike their names from the roll after
Page 223 U. S. 97
giving due notice of his intended action and an opportunity to
be heard.
The case arose upon the exercise of such power by the Secretary
and an action of mandamus to require him to cancel his action. To
the answer of the Secretary, the Supreme Court of the District of
Columbia sustained a demurrer and entered a judgment in accordance
with the prayer of the petition. The Court of Appeals reversed the
judgment. On return of the case to the Supreme Court, the relators
elected to stand on their demurrer and the court dismissed their
petition. This action was affirmed by the Court of Appeals, and the
case was then brought here.
It was decided in
Garfield v. Goldsby, 211 U.
S. 249, that the Secretary had no such power without
notice to the parties concerned and an opportunity to be heard.
These conditions were performed in the present case, and so far the
case is distinguished from the
Goldsby case. The power of
the Secretary upon the rehearing under the applicable statutes is
now to be considered.
The relators base their right of enrollment on Article IX of the
Cherokee Treaty of August 11, 1866, 14 Stat. 801, the material part
of which is 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."
It was found by the Secretary of the Interior that relators were
descendants of liberated slaves, but he also found that their
ancestors had not returned to the Cherokee Nation within six months
of the date of the treaty, August 11, 1866. This must be assumed to
be the fact, for it is alleged in the answer and admitted by the
demurrer. Two propositions of law are however, urged
Page 223 U. S. 98
by relators: (1) that the requirement of a return within the
time designated applies only to free colored persons, and (2) that
the Secretary, having, on November 16, 1904, approved a list of
Cherokee freedmen containing the names of relators on the ground
that their ancestors had complied with the provisions for return to
the Nation, had no power to cancel their names.
(1) Article IX of the treaty is undoubtedly ambiguous, and to
support their construction of it, relators trace its genesis to the
compulsion exercised on the Cherokee Nation by the United States
for its espousal of the cause of the Confederacy during the Civil
War. The Indians, it is said, were regarded as having forfeited
their treaty rights, but the United States were willing to renew
relations with them, stipulating, among other things, that
"the institution of slavery, which has existed among several of
the tribes, must be forthwith abolished, and measures taken for the
unconditional emancipation of all persons held in bondage, and for
their incorporation into the tribes on an equal footing with the
original members, or suitably provided for."
The Indians resisted the conditions, and replied that it would
not be for the benefit of the emancipated negro, nor for the
Indians, to incorporate the former into the several tribes on an
equal footing with the original members. They conceded, however,
that the emancipated negro must be suitably provided for, and
subsequently the Choctaws suggested that white persons should be
excluded from their territory, and that
"no person of African descent, except our former slaves, or free
persons of color who are now, or have been, residents of the
territory will be permitted to reside in the territory unless
formerly incorporated with some tribe according to the usage of the
band."
The Seminoles answered to the same effect, and asked that
Article III be changed to admit only colored persons
Page 223 U. S. 99
lately held in bondage by them and free persons of color
residing in the Nation previous to the Rebellion, to a residence
among them, and adoption in the Seminole tribe upon some plan to be
agreed upon by them and approved by the government. "We are
willing," they said,
"to provide for the colored people of our own Nation, but do not
desire our lands to become colonization grounds for the negroes of
other states and territories."
The Creeks expressed this in the same way, and the relators
further adduce, as supporting their construction of Article IX,
that the commission which negotiated the treaty, reporting on it
officially, said: "Slavery is abolished and the full rights of the
freedmen are acknowledged."
The history of Article IX therefore, it is insisted, shows that
the article consummated the purpose. In other words, when the
Indians realized that they must provide for negroes, they limited
their concession
"to former slaves and then to any other negroes who had been in
the Indian country at the outbreak of the War, and might return
within a short time after peace to make their home in the Indian
territory, thereby preventing a general influx of negroes who might
seek free land."
And the right to land, it is pointed out, was the consequence to
be apprehended, as "lawful residence in the Indian Territory meant
the right to occupy land."
It is further contended that the Cherokees acted upon the treaty
practically in accordance with this construction of it, and that it
was not until many years after that they "sought to refine it away
and abrogate it in effect." They accepted it reluctantly, it is
said, and subsequently contended that it conferred civil, not
property, rights, and passed what was known as the "blood bill," by
which they sought to exclude all but native Cherokees by blood from
participation in a large payment of funds which was about to be
made. This gave rise to controversy, and Congress passed an act
conferring jurisdiction on the
Page 223 U. S. 100
Court of Claims to settle the matter. The act is entitled, "An
Act to 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." It was approved October 1, 1890, 26 Stat. 636,
c. 1249. The Cherokee freedmen whose rights were to be determined
under the act were those who "settled and located in the Cherokee
Nation under the provisions and stipulations of article nine" of
the treaty.
The court decided that, under the Cherokee Constitution of 1866,
the freedmen became citizens equally with the Cherokees, and
equally interested in the common property, and equally entitled to
share in its proceeds
per capita. But the court did not
attempt an analysis of § 5 of the constitution nor of Article IX of
the treaty (they are alike), but defined the rights of the freedmen
and the free negroes in the language of the constitution and the
article. 31 Ct.Cl. 148. The opinion in the case therefore, as
delivered, had the same ambiguity as the constitution and treaty,
and was not understood by the Commissioner of Indian Affairs, who
was charged by the Secretary of the Interior with the duty of
determining who were the resident freedmen entitled to share in the
disposition of the fund as decreed, and who desired the further
opinion of the court. In reply, the court said:
"The court is of the opinion that the clauses in that article in
these words, '
And are now residents therein, or who may return
within six months, and their descendants,' were intended, for
the protection of the Cherokee Nation, as a limitation upon the
number of persons who might avail themselves of the provisions of
the treaty, and consequently that they refer to both the freedmen
and the free colored persons previously named in the article. That
is to say, freedmen and the descendants of freedmen who did not
return within six months are excluded from the benefits of the
treaty and of the decree. "
Page 223 U. S. 101
Subsequently the court was called upon to add to its opinion,
which it did, as follows:
"The court is also of the opinion that the
Act 2d March,
1895 (28 Stat. p. 910, § 11), prescribes the manner in which
payments
per capita shall be made, and that the matter of
payment is exclusively within the jurisdiction of the Secretary of
the Interior. The court, after further consideration, adheres to
the opinion communicated to the Commissioner of Indian Affairs
February 18, 1896."
"The within motion for instructions is overruled."
31 Ct.Cl. 140, 148.
The relators contend that the reply of the court to the
Commissioner was not part of its decision. This, however, is a
mistake. The court had kept control of the case, and at the time of
its reply to the Commissioner, the case was pending upon certain
motions made by the parties. And, as we have seen, the court had
been given special jurisdiction of the question and all others
which were involved in the controversy. But it is contended that
the only issue submitted to the court was whether "the Cherokee
freedmen, as a class, were entitled to share in the proceeds of the
Cherokee outlet or strip lands west of the 90th meridian." It is
hence further contended that the jurisdictional act did not extend
to the determination of what particular persons composed such
class, or who were freedmen, and that therefore "the point now
involved has not had judicial determination."
The object of the contention, no doubt, is to clear the way for
the ultimate contention upon which their case must rest -- the want
of power of the Secretary of the Interior over rolls which he had
once approved, and after having issued certificates of allotment to
the enrolled Indians. In other words, relators would push aside the
adjudication of their disqualification to be enrolled, they not
having returned to the Cherokee Nation within the time designated
by the treaty. They, however, make
Page 223 U. S. 102
an alternative contention, and urge that they were adjudged to
be within the provisions of the treaty by their enrollment upon the
Kern-Clifton roll, which they insist was adjudged to be legal
evidence of the rights of the freedmen -- in other words, that the
enrollment identified the individual freedmen who were entitled to
participate in the tribal property.
It is admitted in the answer that relators are on the
Kern-Clifton roll, and it does not seem to be contested that the
roll was made under instructions from the Court of Claims. A
plausible argument, therefore, is presented that it partakes of the
conclusive effect to be attributed to a judicial decree. And it is
further urged by relators that the Kern-Clifton roll was confirmed
by the Act of June 10, 1896 (29 Stat. 321, 329, c. 398), which
declared "that the rolls of citizenship of the several tribes, as
now existing, are hereby confirmed."
What effect we should have to give to the decree, assuming it to
go as far as contended, we are not called upon to say. It was
certainly competent for Congress further to deal with the subject.
Stephens v. Cherokee Nation, 174 U.
S. 445;
Wallace v. Adams, 204 U.
S. 415.
We pass, therefore, to a consideration of the Act of June 10,
1896, upon which relators rely. It was one of a number of acts
which exhibit a connected scheme for the enrollment of the members
of the Five Civilized Tribes and the division of their tribal
property, although their provisions are somewhat varying.
By the Act of March 3, 1893 (27 Stat. 645, c. 209), the Dawes
Commission was created, with powers to negotiate with the tribes.
In 1896, by the Act of June 10th of that year (29 Stat. 321, c.
398), the Commission was directed to make up a roll of the citizens
of the tribes, which included the Cherokees, who should apply
within three months from the passage of the act, and to decide all
such applications within ninety days after the same should be
Page 223 U. S. 103
made. Due force and effect was directed to be given to tribal
rolls, usages, customs, and laws if not inconsistent with federal
laws. The act contained the provision which we have already quoted,
that is, "that the rolls of citizenship of the several tribes as
now existing are hereby confirmed." There were powers of review
given to those aggrieved by the decision either of the Commission
or the tribal authorities. The relators, however, say that
"the Dawes Commission, as is matter of official history, did not
adopt the tribal rolls as confirmed, but proceeded to try the
rights of persons to be on the tribal rolls, and the controversy
which ensued continued, and the rolls were not closed until March
4, 1907, Congress refusing to heed administrative appeals for more
time."
But before that final date arrived, Congress passed several
acts, the provisions of which are relied on by relators as
establishing their right. The acts would seem to demonstrate the
contrary, and that the conditions which arose demanded changes in
legislation. It is true that it is provided that the rolls of the
tribes which were directed to be made, when approved by the
Secretary of the Interior, should be final, and should constitute
the several tribes which they represented, and it is therefore
contended that those provisions became legislative confirmations
which the Secretary was without power to disregard, and that every
partial list forwarded to him which he approved he could not
afterwards change, whatever the proof of mistake, imposition, or
fraud. A few citations will prove the unsoundness of the
contention.
The Act of June 10, 1896,
supra, which is so much
relied on, was largely superseded by § 1 of the Act of June 28,
1898, commonly known as the Curtis Act. 30 Stat. 495, 502, c. 517.
The section gave the Commission the power to investigate the right
of persons whose names were on the rolls, and to "omit all such as
may have been placed there by fraud or without authority of law,
enrolling only such
Page 223 U. S. 104
as may have lawful rights thereto," etc. And it was provided
that the Commission
"should 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."
It was further provided that the Commission should
"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. . . ."
It is manifest from this act that the contention of relators
that the tribal rolls were to be treated or accepted as absolutely
confirmed is unsound. One roll only was confirmed. The other rolls
were to be corrected, not confirmed, and a roll of the Cherokee
freedmen was to be made in conformity with the decree of the Court
of Claims -- a roll not confirmed, but to be made so as to exclude
the relators because they were excluded by the decree -- that is,
because they were not residents of the Cherokee Nation at the time
of the promulgation of the treaty.
It does not appear that relators were on any roll prior to the
passage of the Act of June 10, 1896, upon which they so much rely,
and therefore within its confirmatory provision, giving it all the
force contended for. They were on the Kern-Clifton roll, it is
said, but when that roll was made does not appear. The allegation
of the petition is that, prior to November 16, 1904, the Secretary
of the Interior affirmed a decision by the Commissioner of the Five
Civilized Tribes which held that relators were entitled to
enrollment as citizens, and that, prior to that date, they were
regularly ordered to be placed upon the final roll of freedmen
citizens, and that such roll was duly and regularly approved by the
Secretary of the Interior on the 16th of November, 1906.
But the Act of July 1, 1902 (32 Stat. 716, § 27, c. 1375),
emphasized the requirement that the enrollment of freedmen
Page 223 U. S. 105
must be made in strict conformity with the decree of the Court
of Claims. Congress was even more particular in the Act of April
26, 1906 (34 Stat. 137, c. 1876). Section 3 of the act explicitly
provided that
"the roll of Cherokee freedmen shall include only such persons
of African descent, either free colored or the slaves of Cherokee
citizens and their descendants, who were actual, personal,
bona
fide residents of the Cherokee Nation August 11, 1866, or who
actually returned and established such residence in the Cherokee
Nation on or before February 11, 1867."
Relators nevertheless insist that, notwithstanding they were not
entitled to be placed upon the rolls, yet, having been placed
there, they cannot be taken off by the Secretary of the Interior,
citing in support of the contention certain provisions of the Acts
of Congress and the congressional policy expressed in them. The
policy of the government, it is said, was to expedite enrollment,
with the view to the distribution of the tribal property and the
preparation of the Indian Territory for statehood. To these ends,
the Acts of May 31, 1900 (31 Stat. 221, c. 598), and March 3, 1901
(31 Stat. 1073, c. 832), endeavored to speed enrollment matters by
directing the Secretary of the Interior to fix a time for closing
the rolls, after which no name should be added thereto. Then came
the Act of 1902 (32 Stat. 716, c. 1375), which, it is insisted,
practically repealed prior acts so far as they concerned
enrollments. Such prior acts, it is said,
"made approval of enrollments depend upon the completion of the
rolls of an entire tribe, and the Secretary's approval under it
would await the finishing of enrollments of an entire tribe."
And until such time, "there would be no allotment to any tribal
member." The Secretary's control, hence, continued "until the
last," and the congressional policy was likewise postponed. But it
is argued, contrasting the
Page 223 U. S. 106
new measures with the old, under the Act of 1902 "enrollment and
allotment went hand in hand." This contention is rested on § 29 of
the act, which directs lists to be prepared of those found by the
Commission to be entitled to enrollment, and it is provided
that
"the lists thus prepared, when approved by the Secretary of the
Interior, shall constitute a part and parcel of the final roll of
citizens of the Cherokee Tribe upon which allotment of land and
distribution of other tribal property shall be made;"
and, further, that
"when there shall have been submitted to and approved by the
Secretary of the Interior lists embracing the names of all those
lawfully entitled to enrollment, the roll shall be deemed
complete."
A roll made complete, it is argued, by legislation excludes the
idea of correction by an executive officer, and, besides, it is
urged that the certificates of allotment carry with them the
sanction of the law's declaration that they shall be "conclusive
evidence" of the rights of the allottee. Physical possession of the
lands described in them is to be given, it is pointed out, and,
describing the conditions which were created and which would be
disturbed by an exercise of power to recall them it is said that
"from the date of selection of their allotments under the law,
allottees did lease their allotments for grazing, oil and gas,
mineral, and other purposes." And, further, that
"allottees also, from the same date, created townsites where
practicable, and sold town lots, with their title resting in their
allotment selections or certificates,"
and that such transactions have been declared valid by the
Supreme Court of Oklahoma, citing
McWilliams Investment Co. v.
Livingston, 22 Okl. 884;
Godfrey v. Iowa L. & T.
Co., 21 Okl. 293, 95 P. 792.
We recognize the strength of the considerations urged, but it
certainly did not militate against the congressional policy of the
allotment of lands to retain in the Secretary of the Interior the
power of revision and correction until
Page 223 U. S. 107
the final moment when jurisdiction was expressly taken from him
as provided in § 2 of the Act of April 26, 1906, (34 Stat. 137, c.
1876), that is, the fourth day of March, 1907. That Congress could
give such power to the Secretary of the Interior is settled.
Stephens v. Cherokee Nation, 174 U.
S. 445, and
Wallace v. Adams, 204 U.
S. 415. In all the legislation providing for the making
of the rolls, care is observed to prevent or correct mistakes and
to defeat attempts at fraud. We have seen what power the Dawes
Commission was given to investigate the rights of persons whose
names were on the rolls, and, as to freedmen, strict compliance
with the decree of the Court of Claims was enjoined. By the Act of
March 3, 1905 (33 Stat. 1060, c. 1479), the work of completing the
unfinished business of the Commission was devolved upon the
Secretary of the Interior, and all of the powers theretofore
granted to the Commission were conferred upon the Secretary. It was
subsequent to this act that action was taken as to relators, and
their names stricken from the rolls. This revisory and corrective
power of the Secretary over the allotment of land is similar to
that exercised by the Land Department respecting the entries upon
public lands, which this Court has stated to be to correct and
annul entries of land which were made upon false testimony and
without authority of law.
Cornelius v. Kessel,
128 U. S. 456,
128 U. S. 461;
Hawley v. Diller, 178 U. S. 476,
178 U. S.
490.
Judgment affirmed.