# Opinion — Stephens v. Cherokee Nation

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1899
- **Citation:** 174 U.S. 445

## Text

446 OCTOBER TERM, 1898.
Statement of the Case.

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 constitu-
tionality or validity of the legislation affecting citizenship or the allot-
ment of lands in the Indian Territory, and the limitation applies to both
classes of cases mentioned in the opinion of the court, viz.: (1) citizen-
ship 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 ad-
judication, but the appeal is restricted to the constitutionality and
validity of the legislation.

This legislation is not in contravention of the Constitution; on the con-
trary, the court holds it all to be constitutional.

By the sixteenth section of the Indian Appropriation Act of
March 3, 1893, c. 209, 27 Stat. 612, 645, 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 Na-
tion, 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 be-
tween the several nations and tribes aforesaid, or each of
them, with the United States, with a view to such an adjust-
ment, 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, c. 189, 28 Stat. 939, two additional members

STEPHENS v. CHEROKEE NATION. 447

Statement of the Case.

were appointed. It is commonly styled the “Dawes Com-
mission.”

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

“ Resolved, That the Committee on the Five Civilized Tribes
of Indians, or any sub-committee thereof appointed by its
chairman, is hereby instructed to inquire into the present con-
dition 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 testi-
mony, have power to send for persons and papers, to admin-
ister 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 Chero-
kees, 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 recog-
nized 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 Com-
mittee on Indian Affairs, submitted to the Senate on the 26th
day of July, 1892,” (Sen. Rep. No. 1079, 52d Cong. Ist 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

STEPHENS v. CHEROKEE NATION.
CHOCTAW NATION vw. ROBINSON.
JOHNSON v. CREEK NATION.
pirsacat isis) NATION v. ROBINSON.

APPEALS FROM THE UNITED STATES COURT IN THE INDIAN TER-
RITORY.

Nos. 423, 458, 461, 496. Argued and submitted February 23, 24, 27, 1899. — Decided May 15, 1899.

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.

eS a are Rae Na eee

OCTOBER TERM, 1898.
Statement of the Case.

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, 1281; 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 citi-
zenship, 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 charac-
ter 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 in-
trusion 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 non-participation by the whites in their political and in-
dustrial 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.

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

STEPHENS v. CHEROKEE NATION.
Statement of the Case.

exclusiveness, and to freely admit white people within the
Indian Territory, for it cannot be possible that they can in-
tend 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 dis-
posed 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

VOL. CLXXIV—29

450 OCTOBER TERM, 1898.
Statement of the Case.

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 Dis-
trict 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 Gov-
ernment 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 prop-
erty and personal rights.

“In the treaty with the Cherokees, made in 1846, we stip-
ulated 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.

“Ts 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 provi-
sions 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 ; notwith-
standing 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,

STEPHENS v. CHEROKEE NATION. 451
Statement of the Case.

“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 Con-
gress can provide by law how such questions shall be deter-
mined 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 govern-
ment 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 modifica-
tion of the system. It cannot be reformed. It must be aban-
doned 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 pos-
sible 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 the 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 re-
main 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 gov-
ernments 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

452 OCTOBER TERM, 1898.
Statement of the Case.

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 determi-
nation of the tribal authorities, with power to decitizenize 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 peo-
ple 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 Gov-
ernment 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 bas 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

STEPHENS v. CHEROKEE NATION. 453
Statement of the Case.

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 im-
mediate action imperative.

“The pretence 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, peo-
ple 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 furthei 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, irrespon-
sible, 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, c. 398, 29
Stat. 321, 339, 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:

454 OCTOBER ‘TERM, 1898.
Statement of the Case.

“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 commis-
sioners 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 in-
consistent 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.

“Tn 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 deter-
mining the rights of persons claiming such citizenship, or to
p-otect 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

STEPHENS v. CHEROKEE NATION. 455
Statement of the Case.

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 Dis-
trict 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 Commis-
sioner of Indian Affairs to remain there for use as the final
judgment of the duly constituted authorities. And said Com-
mission shall also make a roll of freedmen entitled to citizen-
ship 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, c. 333, 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 despatch of
business in said court at such times as the judge might deem
expedient.

On May 2, 1890, an act was passed, c. 182, “to provide a
temporary government for the Territory of Oklahoma, to en-
large 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 divi-
sions were defined; the places in each division where court
should be held were enumerated; and it was provided that

456 OCTOBER TERM, 1898.
Statement of the Case.

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 1, 1895, an act was approved, c. 145, 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 Districts, 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 deter-
mine. The Northern District shall consist of all the Creek
country, all of the Seminole country, all of the Cherokee coun-
try, all of the country occupied by the Indian tribes in the
Quapaw Indian Agency and the townsite of the Miami Town-
site 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 disquali-
fied from trying, and whenever on account of sickness or for
any other reason the judge of any district was unable to per-
form the duties of his office, it was provided that either of the

STEPHENS v. CHEROKEE NATION. 457
Statement of the Case.

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, out-
side of the limits of the Indian Territory as defined by law as
to offences 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 eleven of this act it was provided :

“Sxo. 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 chap-
ter 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 de-
cision 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 Terri-
tory. 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 pre-
sided. In case of said presiding judge 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

458 OCTOBER TERM, 1898.
Statement of the Case.

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, c. 3, 30
Stat. 84, provision was made for the appointment of an addi-
tional judge for the United States court in the Indian Ter-
ritory, 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 Choc-
taw 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 offence committed after January first,
eighteen hundred and ninety-eight, by any person in said Ter-
ritory, 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

KK

STEPHENS v. CHEROKEE NATION.

Statement of the Case.

} of race, said courts exercising jurisdiction thereof as now con-
ferred upon them in the trial of like causes; and any citizen
of any one of said tribes otherwise qualitied who can speak
and understand the English language may serve as a juror in
4 any of said courts.

“That said Commission shall continue to exercise all au-
thority 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 pro-
visions of this act if in conflict therewith as to said nation:
Provided, That the words ‘rolis 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 vari-
ous Indian tribes for the fiscal year ending June thirtieth,
eighteen hundred and ninety-seven, shall be consirued to
mean the last authenticated rolls of each tribe which have
been approved by the council of the nation, and the descend-
ants 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, eigh-
teen hundred and ninety-six. And all other names appearing
upon such rolls shall be open to investigation by such Com-
mission for a period of six months after the passage of this
act. And any name appearing on such rolls and not con-
firmed 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 shali 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 Commis-
sion 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 coun-
cil of either of the aforesaid Five Tribes passed shall be certi-

e

460 OCTOBER TERM, 1898.
Statement of the Case.

fied immediately upon their passage to the President of the
United States and shall not take effect, if disapproved by him,
until thirty days after their passage: Provided, That this act
shall not apply to resolutions for adjournment, or any acts, or
resolutions, or ordinances in relation to negotiations with com-
missioners 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 intrusted for the com-
mon 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, c. 517, entitled “ An act
for the protection of the people of the Indian Territory, and
for other purposes.” 30 Stat. 495.. The second section read :

“Sxo. 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 snit by service upon the chief

STEPHENS v. CHEROKEE N ATION. 461
Statement of the Case.

or governor of the tribe, and the suit shall thereafter be con-
ducted and determined as if said tribe had been an original
party to said action.”

And the third and eleventh sections in part:

“Ske. 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 unlaw-
fully 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.”

* * * * *

“Sro. 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, loca-
tion 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

462 OCTOBER TERM, 1898.

Statement of the Case.

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 Terri-
tory, 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 authori-
ties 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 the
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.

“Tt shall make a roll of Cherokee freedmen in strict com-
pliance with the decree of the Court of Claims rendered the
third day of February, eighteen hundred and ninety-six.!

1 Article IX of the treaty of July 19, 1866, with the Cherokee Nation,
(14 Stat. 799, 801,) is as follows: ‘The Cherokee Nation having, volunta-
rily, in February, eighteen hundred and sixty-three, by an act of their
national council, forever abolished slavery, hereby covenant and agree that

STEPHEN S »v. CHEROKEE NATION. 463
Statement of the Case.

“Said commission is authorized and directed to make correct
rolls of the citizens by blood of all the other tribes, eliminat-
ing 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 citizen-
ship 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,

never hereafter shall either slavery or involuntary servitude exist in their
nation otherwise than in the punishment of crime, whereof the party shall
have been duly convicted, in accordance with laws applicable to all the
members of said tribe alike. They 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 commence-
ment 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 : Provided, That owners of Slaves so emancipated in the Chero-
kee Nation shall never receive any compensation or pay for the slaves so
emancipated.”

Referring to that article, the Court of Claims, February 18, 1896, trans-
mitted a communication to the Commissioner of Indian Affairs, Stating:

That is to say, freedmen, and the descendants of freedmen, who did not re-
turn within six months, are excluded from the benefits of the treaty and of
the decree. The court is also of the opinion that this period of six months
extends from the date of the promulgation of the treaty, August 11, 1866,
and consequently did not expire until February 11, 1867,” 31 Ct. Cl. 148,

464 OCTOBER TERM, 1898.
Statement of the Case.

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.

“Jt shall make a correct roll of all Choctaw freedmen en-
titled to citizenship under the treaties and laws of the Choc-
taw Nation, and all their descendants born to them since the
date of the treaty.

“Jt shall make a correct roll of Chickasaw freedmen en-
titled 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 distribu-
tions, and not elsewhere.

“No person shall be enrolled who has not heretofore re-
moved 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

STEPHENS ». CHEROKEE NATION. 465
Statement of the Case.

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
enrolment, 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 Commis-
sion to make rolls as herein required, and to punish any one
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 wilfully and knowingly make any
false affidavit or oath to any material fact or 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 offence.”

“Src. 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.”

“Sxo. 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

VOL. CLXx1v—30

466 OCTOBER TERM, 1898.
Statement of the Case.

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 provided
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 pro-
ceedings 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 provi-
sions of said agreement.”

Then followed the agreement referred to, containing provi-
sions 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 abdi-
cation by Congress of power at any time to make needful rules
and regulations respecting said tribes.” The agreement was

STEPHENS v. CHEROKEE NATION.
Statement of the Case.

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

Section thirty made similar provision in respect of an agree-
ment with the Creek Nation, which is set forth.

The Indian Appropriation Act of July 1, 1898, c. 545, 30 Stat.
571, 591, 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 legis-
lation 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 hun-
dred 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 proceed-
ing 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 one hundred and sixty-six 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 one hundred and sixty-two are enumerated
in the margin.!

1No. 436, Cobb et al. v. Cherokee Nation; No. 438, Coldwell et al. v.
Choctaw Nation; No. 445, Castoe et al. v. Cherokee Nation; No. 446, Ander-
son et al. v. Cherokee Nation; No. 447, Clark et al. v. Choctaw Nation; No.
449, Choctaw Nation v. Mickle et al.; No. 450, Same v. Skaggs; No. 451,
Same v. Godard et al.; No. 452, Same v. Grady; No. 454, Morgan et al. v.
Creek Nation; No. 456, Bridges et al. v. Creek Nation; No. 457, Cherokee
Nation v. Parker et al.; No. 458, Same v. Gilliam et al.; No. 459, Bell et al.
v. Cherokee Nation; No. 460, Truitt et al. v. Cherokee Nation; No. 464, Jor-

OCTOBER TERM, 1898.
Statement of the Case.

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

No. 423.— SrerHens et au. v. Toe Cueroxkee Nation.

William Stephens; Mattie J. Ayres, his daughter; Stephen
G. Ayres, Jacob S. Ayres and Mattie Ayres, his grandchil-

dan et al. v. Cherokee Nation; No. 465, Ward et al. v. Cherokee Nation; No.
466, Wassom et al. v. Muskogee or Creek Nation; No. 469, Chickasaw Nation
v. Roff et al.; No. 470, Same v. Troop; No. 471, Same v. Love; No. 472,
Same v. Hill et al.; No. 473, Same v. Thompson et al.; No. 474, Same v.
Love; No. 475, Same v. Poe et al.; No. 476, Same v. McDuffie et al.; No.
477, Same v. McKinney et al.; No. 478, Same v. Bounds et al.; No. 479,
Same v. King et al.; No. 480, Same v. Washington et al. ; No. 481, Same v.
Fitzhugh et al.; No. 482, Same v. Jones et al.; No. 483, Same v. Sparks et
al.; No. 484, Same v. Hill et al.; No. 485, Same v. Arnold et al.; No. 486,
Same v. Brown et al.; No. 487, Same v. Joines et al.; No. 488, Same v. Hal-
ford et al.; No. 489, Same v. Poyner etal.; No. 490, Same v. Albright et al. ;
No. 491, Same v. Doak et al.; No. 492, Same v. Passmore; No. 493, Same v.
Laflin et al. ; No. 494, Samev. Law et al.; No. 495, Same v. Saey ; No. 497,
Same v. Woody et al.; No. 498, Same v. Cornish et al.; No. 499, Same v.
McSwain; No. 500, Same v. Standifer; No. 501, Same v. Bradley et al.; No.
502, Same v. Alexander et al.; No. 503, Same v. Sparks et al.; No. 504, Same
v. Story et al.; No. 505, Same v. Archard et al.; No. 506, Same v. Keys; No.
507, Same v. McCoy; No. 508, Same v. Vaughan et al. ; No. 509, Same v.
Dorchester et al.; No. 510,Samev. Duncan; No. 511, Same v. Phillips et al. ;
No. 512, Same v. Lancaster; No. 513, Same v. Goldsby et al.; No. 514, Same
v. East et al.; No. 515, Same v. Bradshaw et al.; No. 516, Same v. Graham
et al.; No. 517, Same v. Burch et al.; No. 518, Same v. Palmer et al.; No.
519, Same v. Watkins et al.; No. 520, Same v. Holder et al. ; No. 521, Same
v. Jones et al.; No. 522, Same v. Worthy et al.; No. 523, Same v. Sartin et
al. ; No. 524, Same v. Woolsey et al.; No. 525, Same v. Arnold et al.; No.
526, Same v. Paul et al.; No. 527, Samo v. Peery et al.; No. 528, Same v.
Stinnet; No. 529, Same v. Stinnett et al. ; Nu. 530, Same v. Duncan; No.
531, Same v. Lea et al.; No. 532, Same v. Hamilton; No. 533, Same v. Pitman;
No. 534, Same v. Carson et al.; No. 535, Same v. Shanks et al.; No. 536,
Same v. Paul; No. 537, Clark et al. v. Creek or Muskogee Nation; No. 538,
Tulk et al. v. Same; No. 539, Hubbard et al. v. Cherokee Nation; No. 540,
McAnnally et al. v. Same; No. 541, Brashear et al. v. Same; No. 542, Condry
et al. v. Same; No. 543, Dial et al. v. Same; No. 544, Munson et al. v. Same;
No. 545, Hubbard et al. v. Same; No. 546, Trotter et al. v. Same; No. 547,
Hill et al. v. Same; No. 548, Russell et al. v. Same; No. 549, Baird et al. v.
Same; No. 550, Binns et al. v. Same; No. 551, Smith etal. v. Same; No. 552,
Henley etal. v.Same; No. 553, Same v. Same; No. 554, MeKee et al. v. Same;
No. 555, Singleton et al. rv. Same; No. 556, Brown et al. v. Same; No. 557,

STEPHENS v. CHEROKEE NATION.
Statement of the Case.

dren, applied to the Dawes Commission for admission to
citizenship in the Cherokee Nation, August 9, 1896; the na-
tion 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 ap-
plicants 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 Captain 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,

Flippin et al. v. Same; No. 558, Gambill et al. v. Same; No. 559, Brewer et
al. v. Same; No. 560, Abercrombie et al. v. Same; No. 561, Watts et al. v
Same; No. 562, Hackett et al. v. Same; No. 563, Pace et al. v. Same; No.
564, Teague et al. v. Same; No. 565, Earp et al. v. Same; No. 566, Mayberry
et al. v. Same; No. 567, Bailes v. Same; No. 568, Lloyd v. Same; No. 569,
Rutherford et al. v. Same; No. 570, Braught et al. ». Same; No. 571, Black
et al. v. Same; No. 572, Archer et al. v. Same; No. 5738, Hopper et al. v.
Same; No. 574, Bayes et al. v. Same; No. 575, Rowell et al. v. Same; No.
576, Armstrong et al. v. Same; No. 577, Goin et al. v. Same; No. 578, Ben-
night et al. v. Choctaw Nation; No. 579, Wade et al. v. Cherokee Nation;
; No. 582, Choctaw Nation v. Jones et al.; No. 583, Same rv. Goodall et al. ;
No. 584, Same v. Bottoms et al.; No. 585, Same v. Brooks et al.; No. 586,
Same v. Blake et al. ; No. 587, Same v. Randolph et al.; No. 588, Same v.
Goins et al.; No. 589, Same v. Dutton et al.; No. 590, Same v. Thomas; No.
591, Same v. Jones et al.; No. 592, Meredith et al. v. Cherokee Nation; No.
593, Poindexter et al. v. Same; No. 598, Steen et al. v. Same; No. 599,
Couch et al. v. Same; No. 600, Pressley et al. v. Same; No. 601, Elliott et al.
v. Same; No. 608, Walker et al. v. Same; No. 609, Harrison et al. v. Same;
No. 612, Watts et al. v. Same; No. 613, Hazlewood et al. v. Same; No. 614,
Frakes et al. v. Same; No. 615, Harper et al. v. Same; No. 616, Armstrong
et al. v. Same; No. 617, Rogers et al. v. Same; No. 618, Isbell et al. v. Same;
No. 619, Wiltenberger et al. v. Same; No. 637, Baker v. Creek Nation; No.
643, Caie v. Choctaw Nation; No. 644, Cundiff et al. v. Same; No. 645, Slay-
ton et al. v. Same; No. 646, Willis et al. v. Same; No. 647, Coppedge v. Same;
No. 648, Nabors et al. v. Same; No. 651, Phillips et al. v. Same.

470 OCTOBER TERM, 1898.
Statement of the Case.

the father of William ; that William Stephens came to the
Cherokee Nation, Indian Territory, in 1873, and has re-
sided 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 na-
tion; that the Commission who heard the case was convinced
of the genuineness of his claim to Cherokee blood, and so re-
ported 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 case
that this applicant comes within the following provision of
the Cherokee constitution: ‘Whenever any citizen shall re-
move 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 consti-
tution of the old Cherokee Nation as it existed prior to the
removal of the tribe west of the Mississippi River. The pro-
vision 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

STEPHENS v. CHEROKEE NATION. 471
Statement of the Case.

complying with the constitution and laws of the nation as de-
clared 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 commis-
sion 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 au-
thenticated 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 Decem-
ber 8, 1886.

“Robert Stephens, the father of the principal claimant in
this case, vas 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 citi-
zen 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 jurisdic-
tion to admit him as a citizen of the Cherokee Nation. The
commission to which he did apply for enrolment as a citizen
of the Cherokee Nation having held that his name did not
appear upon any of the Cherokee rolls of citizenship, his appli-
cation was rejected. He never having been admitted to citizen-
ship as required by the constitution and laws of the Cherokee
Nation, the judgment of the United States commission reject-
ing this case is affirmed, and the application of the claimants to
be enrolled as citizens of the Cherokee Nation is denied.”

Judgment affirming the decision of the Dawes Commission
refusing applicants’ enrolment and admission as citizens of
the Cherokee Nation was entered December 16, 1897, where-
upon a motion for rehearing was filed, which was finally over-
ruled June 23, 1898, and judgment again entered that applicants
“be not admitted and enrolled as citizens of the Cherokee Na-
tion, Indian Territory.” From these decrees applicants prayed

472 OCTOBER TERM, 1898.
Statement of the Case.

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.— Tue Cuocraw Nation v. F. R. Rosrnson.

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 citizen by abandonment or remarriage.” The Dawes
Commission granted the application, and thereupon the Choc-
taw 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 here-
tofore 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 authori-
ties 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

STEPHENS v. CHEROKEE NATION.

Statement of the Case.

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

No. 461. — Jennie Jounson et AL. v. THE Creek Nation.

This was a petition of Jennie Johnson and others to the
Dawes Commission for admission to citizenship and member-
ship in the Creek Nation. It seems to have been presented
August 10, 1896, on behalf of one hundred and nineteen appli-
cants, to have been granted as to sixty-two, and to have been
denied as to fifty-seven, by whom an appeal was taken to the
United States court in the Indian Territory, Northern Dis-
trict. 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 Muskogee 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 accord-
ingly, whereupon an appeal was prayed from said decree and
allowed and perfected September 27, 1898.

No. 496. — Tue Cnuickasaw Nation v. Ricnarp C. Wiaas 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 accord-
ance 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 Na-
tion, 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.

474 OCTOBER TERM, 1898.

Statement of the Case.

November 15, 1896, the Dawes Commission admitted Richard
CO. Wiggs to citizenship in the Chickasaw Nation, but denied
the application as to Mrs. Wiggs and their daughter. There-
after 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 citizen-
ship. 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 Ind-
ians, 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 Rich-
ard 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 enrolment as members of the tribe
of Chickasaw Indians, with all the rights and privileges apper-
taining to such relation; and it is further ordered that this
decree be certified to the Dawes Commission for their ob-
servance.”

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

STEPHENS v. CHEROKEE NATION. 475
Counsel for Parties.

Cherokee Nation cases. (Some argued, some submitted.)

Mr. 8. M. Porter for appellants argued Nos. 445, 446 Feb-
ruary 24. Mr. Heber J. May for appellants argued other
Cherokee cases February 27. Mr. A. H. Garland, Mr. R. C.
Garland and Mr. M. M. Edmiston were on Mr. May’s brief.

Mr. William T. Hutchins and Mr. Wilkinson Call argued
for the Cherokee Nation February 27.

Mr. Joseph M. Hill and Mr. James Brizzolara filed a brief
for appellants in No. 436.

Mr. William M. Cravens filed a brief for appellants in No.
459.

Chickasaw Nation cases. (All submitted.)

Mr. Halbert EF. Paine and Mr. Holmes Conrad for appel-
lants, submitted February 23. Mr. Joseph G. Rallis also for
appellants.

Mr. C. C. Potter submitted for appellees February 23. The
following submissions were made subsequently. Mr. Silas
Hare and Mr. Charles A. Keigwin for appellants in No. 527.
Mr. Thomas Norman and Mr. William I. Cruce for appellees
in No. 472. Mr. C. C. Potter for appellee in Nos. 473 and
477. Mr. Robert H. West and Mr. James L. Norris for
appellee in No. 474. Mr. Henry M. Furman, Mr. Calvin L.
Herbert, Mr. William I. Cruce, Mr. Andrew C. Cruce and
Mr. James C. Thompson for appellees in Nos. 469 and others.
Mr. J. W. Johnson and Mr. Dorset Carter for appellees in
No. 513. Mr. W. A. Ledbetter and Mr. 8. T. Bledroe for
appellees in No. 520.

Choctaw Nation cases. (Some argued, some submitted.)

Mr. J. M. Wilson for the Nation argued March 6,7. Mr.
C. L. Herbert for appellees in Nos. 586, 588 and 589, argued
March 7. Mr. Yancey Lewis, Mr. W. W. Dudley and Mr.
L. T. Michener for claimants in No. 438; Mr. Yancey Lewis
for claimants in Nos. 447, 452, and 454; Mr. William Ritchie

476 OCTOBER TERM, 1898.
Opinion of the Court.

for claimants in No. 453; Mr. M. M. Lindly, Mr. Jacob C.
Hodges, Mr. P. D. Brewer and Mr. J. A. Hale for claimants
in No. 578; Mr. Yancey Lewis and Mr. J. G. Ralls for
claimants in No. 644; Mr. Walter A. Logan and Mr. William
T. Hutchins for claimants in No. 648; and Mfr, W. W.
Dudley, Mr. I. T. Michener and Mr. Eugene Easton for
claimants in No. 450; and Mr. Joseph G. Rails for appellants
in Nos. 648, 647, 646, 645, 643 and 651 submitted on their
respective briefs.

Creek or Muskogee Nation cases. (All submitted March 7.)
Mr. Wiiliam M. Cravens for appellants in Nos. 454, 461.

Mr. Benjamin T. Du Vai for the Muskogee Nation in Nos.
461 and 454.

Mr. Curer Justice Fuxer, after stating the case, delivered
the opinion of the court.

These appeals are from decrees of the United States court
in the Indian Territory, sitting in first instance, rendered in
cases pending therein involving the right of various individuals
to citizenship in some one of the four tribes named; most of
them came to that court by appeal from the action of the so-
called Dawes Commission, though some were from decisions
of tribal authorities ; many questions are common to them all ;
and it will be assumed that in all of them the decrees were ren-
dered and the court had finally adjourned before the passage
of the act of July 1, 1898, providing for appeals to this court.

The act of June 10, 1896, provided “that if the 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.”

It must be admitted that the words “ United States District
Court” were not accurately used, as the United States Court
in the Indian Territory was not a District or Circuit Court of

STEPHENS v. CHEROKEE NATION. 477
Opinion of the Court.

the United States, Zn re Mills, 135 U. S. 263, 268, and no such
court had, at the date of the act, jurisdiction therein. But
as, manifestly, the appeal was to be taken to a United States
court having jurisdiction in the Indian Territory, and in view
of the other terms of the act bearing on the immediate subject-
matter, to say nothing of subsequent legislation, it is clear
that the United States court in the Indian Territory was the
court referred to. This conclusion, however, may fairly be
said to involve the rejection of the word “ District” as a
descriptive term, and reading the provision as granting an
appeal to the United States court in the Indian Territory, the
question arises whether the judgments made final by the
statute are the judgments of that court in the several districts
delineated by the act of March 1, 1895, or of the appcllate
court therein provided for, which may be referred to later
on, since it is objected in the outset that no appeal from the
decisions of the Dawes Commission or of the tribal authorities
could be granted to any United States court; and, further-
more, that, at all events, it was not competent for Congress
to provide for an appeal from the decrees of the United States
court in the Indian Territory after such decrees had been ren-
dered and the term of court had expired, and especially as they
were made final by the statute.

As to the first of these objections, conceding the constitu-
tionality of the legislation otherwise, we need spend no time
upon it, as it is firmly established that Congress may provide
for the review of the action of commissions and boards created
by it, exercising only guasi judicial powers, by the transfer of
their proceedings and decisions, denominated appeals for want
of a better term, to judicial tribunals for examination and
determination de novo ; and, as will be presently seen, could
certainly do so in respect of the action of tribal authorities.

The other objection, though appearing at first blush to be
more serious, is also untenable.

The contention is that the act of July 1, 1898, in extend-
ing the remedy by appeal to this court was invalid because
retrospective, an invasion of the judicial domain, and destruc-
tive of vested rights. By its terms the act was to operate

OCTOBER TERM, 1898.
Opinion of the Court.

retrospectively, and as to that it may be observed that while
the general rule is that statutes should be so construed as to
give them only prospective operation, yet where the language
employed expresses a contrary intention in unequivocal terms,
the mere fact that the legislation is retroactive does not neces-
sarily render it void.

And while it is undoubtedly true that legislatures cannot
set aside the judgments of courts, compel them to grant new
trials, order the discharge of offenders, or direct what steps
shall be taken in the progress of a judicial inquiry, the grant
of a new remedy by way of review has ‘been often sustained
under particular circumstances. Calder v. Bull, 3 Dallas,
386; Sampeyreac v. United States, 7 Pet. 222; Freeborn v.
Smith, 2 Wall. 160; Garrison v. New York, 21 Wall. 196;
Freeland vy. Williams, 131 U. 8S. 405; Essex Public Road
Board vy. Skinkle, 140 U. 8. 334.

The United States court in the Indian Territory is a legis-
lative court and was authorized to exercise jurisdiction in
these citizenship cases as a part of the machinery devised
by Congress in the discharge of its duties in respect of these
Indian tribes, and assuming that Congress possesses plenary
power of legislation in regard to them, subject only to the
Constitution of the United States, it follows that the validity
of remedial legislation of this sort cannot be questioned unless
in violation of some prohibition of that instrument.

In its enactment Congress has not attempted to interfere in
any way with the judicial department of the Government, nor
can the act be properly regarded as destroying any vested
right, since the right asserted to be vested is only the exemp-
tion of these judgments from review, and the mere expecta-
tion of a share in the public lands and moneys of these tribes,
if hereafter distributed, if the applicants are admitted to citi-
zenship, cannot be held to amount to such an absolute right
of property that the original cause of action,.which is citizen-
ship or not, is placed by the judgment of a lower court beyond
the power of reéxamination by a higher court though subse-
quently authorized by general law to exercise jurisdiction.

This brings us to consider the nature and extent of the

STEPHENS v. CHEROKEE NATION.
Opinion of the Court.

appeal provided for. We repeat the language of the act
of July 1, 1898, as follows:

“ 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 gov-
erning 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 judg-
ment ; 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.”

This provision is not altogether clear, and we therefore
inquire what is its true construction? Was it the intention of
Congress to impose on this court the duty of reéxamining the
facts in the instance of all applicants for citizenship, who
might appeal; of construing and applying the treaties with,
and the constitutions and laws, the usages and customs, of the
respective tribes; of reviewing their action through their
legislative bodies, and the decisions of their tribal courts, and
commissions; and of finally adjudicating the right of each
applicant under the pressure of the advancement of each case
on the docket to be disposed of as soon as possible? Or, on
the other hand, was it the intention of Congress to submit to
this court only the question of the constitutionality or validity
of the legislation in respect of the subject-matter? We have
no hesitation in saying that in our opinion the appeal thus
granted was intended to extend only to the constitutionality
or validity of the legislation affecting citizenship or the allot-
ment of lands in the Indian Territory.

480 OCTOBER TERM, 1898.
Opinion of the Court.

Two classes of cases are mentioned: (1) Citizenship cases.
The parties to these cases are the particular Indian tribe and
he applicant for citizenship. (2) Cases between either of
2 — Tribes and the United States. Does the
she inquiry to the constitutionality and va-
lidity of the legislation apply to both classes? We think it
does.

It should be remembered that the-apneal to the United
States court for the Indian Territory under the~act_of 1896
was in respect of decisions as to citizenship only, and that~
those cases the jurisdiction of the Dawes Commission and of
the court was attacked on the ground of the unconstitu-
tionality of the legislation. The determination of that ques-
tion was necessarily in the mind of Congress in providing for
the appeal to this court, and it cannot reasonably be supposed
that it was intended that the question should be reopened in
cases between the United States and the tribes. And yet this
would be the result of the use of the words “affecting citizen-
ship” in the qualification, if that qualification were confined
to the last-named cases. The words cannot be construed as
redundant and rejected as surplusage, for they can be given
full effect, and it cannot be assumed that they tend to defeat,
but rather that they are in effectuation of, the real object of
the enactment. It is true that the provision is somewhat
obscure, although if the comma after the words “all citizen-
ship cases” were omitted, or if a comma were inserted after
the words “the United States,” that obscurity would practi-
cally disappear, and the rule is well settled that, for the pur-
pose of arriving at the true meaning of a statute, courts read
with such stops as are manifestly required. Hammock v.
Loan and Trust Company, 105 U. 8. 77, 84; United States v.
Lacher, 134 U. 8. 624, 628; United States v. Oregon & Cali-
JSornia Railroad, 164 U. 8. 526, 541.

On any possible construction, in cases between the United
States and an Indian tribe, no appeal is allowed, unless the
constitutionality or validity of the legislation is involved ; and
it would be most unreasonable to attribute to Congress an
intention that the right of appeal should be more extensive in

STEPHENS v. CHEROKEE NATION.
Opinion of the Court.

cases between an Indian tribe and an individual applicant for
citizenship therein.

Reference to prior legislation as to appeal to this court
from the United States court in the Indian Territory confirms
the view we entertain.

By section five of the judiciary act of March 3, 1891, c. 517,
26 Stat. 826, as amended, appeals or writs of error might be
taken from the District and Circuit Courts directly to this
court in cases in which the jurisdiction of the court was in
issue; of conviction of a capital crime; involving the con-
struction or application of the Constitution of the United
States; and in which the constitutionality of any law of the

=r +
mt

the act were invested with ap
cases.

The thirteenth section read: ‘ Appeals and writs
may be taken and prosecuted from the decisions of the United
States court in the Indian Territory to the Supreme Court of
the United States, or to the Circuit Court of Appeals in the
Eighth Circuit, in the same manner and under the same regu-
lations as from the Circuit or District Courts of the United
States, under this act.”

The act of March 1, 1895, provided for the appointment of
additional judges of the United States court in the Indian
Territory and created a Court of Appeals with such superin-
tending control over the courts in the Indian Territory as the
Supreme Court of Arkansas possessed over the courts of that
State by the laws thereof; and the act also provided that “ 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,” which thus in terms de-
prived that court of jurisdiction of appeals from the Indian
Territory trial court under section 13 of the act of 1891.
Prior to the act of 1895, the United States court in the Indian

VOL. CLXXIV—3l

482 OCTOBER TERM, 1898.
Opinion of the Court.

Territory had no jurisdiction over capital cases, but by that act
its jurisdiction was extended to embrace them. And we held
in Brown v. United States, 171 U. 8. 631, that this court had
no jurisdiction over capital cases in that court, the appellate
jurisdiction in such cases being vested in the appellate court
in the Indian Territory. Whether the effect of the act of 1895
was to render the thirteenth section of the act of 1891 wholly
inapplicable need not be considered, as the judgments of the
United States court in the Indian Territory in these citizenship
cases were made final in that court by the act of 1896, and
this would cut off an appeal to this court, if any then existed,
whether the finality spoken of applied to the judgments of the
trial court or of the appellate court. And when by the act of
July 1, 1898, it was provided that “appeals shall be allowed
from the United States courts in the Indian Territory direct to
the Supreme Court of the United States, . . . under the
rules and regulations governing appeals to said court in other
cases,” the legislation taken together, justifies the conclusion
that the distribution of jurisdiction made by the act of March
3, 1891, was intended to be observed, namely, that cases falling
within the classes prescribed in section five should be brought
directly to this court, and all other cases to the appellate court,
whose decision, as the legislation stands, would in cases of the
kind under consideration be final. We do not think, however,
that the analogy goes so far, in view of the terms of the act
of 1898, that in cases brought here the whole case would be
open to adjudication. The matter tobe considered on the appeal,
like the appeal itself, was evidently intended to be restricted
to the constitutionality and validity of the legislation. The
only ground on which this court held itself to be authorized
to consider the whole merits of the case upon an appeal from
the Circuit Court of the United States in a case in which the
constitutionality of a law of the United States was involved,
ander seotion 5 of the act of March 3, 1891, c. 517, was
because of tire-express limitation in another part of that sec-
tion of appeals upon the-question of jurisdiction ; and there is
no kindred limitation in the act-now_before us. Horner v.
United States, 143 U. S. 570, 577. The “Judgments of the

tia eee

STEPHENS v. CHEROKEE NATION.
Opinion of the Court.

court in the Indian Territory were made final, and appeals to
this court were confined, in our opinion, to the question of
constitutionality or validity only.

Was the legislation of 1896 and 1897, so far as it authorized
the Dawes Commission to determine citizenship in these tribes,
constitutional? If so, the courts below had jurisdiction on
appeal.

It is true that the Indian tribes were for many years allowed
by the United States to make all laws and regulations for the
government and protection of their persons and property, not
inconsistent with the Constitution and laws of the United
States; and numerous treaties were made by the United
States with those tribes as distinct political societies. The
policy of the Government, however, in dealing with the Indian
Nations was definitively expressed in a proviso inserted in the
Indian Appropriation Act of March 3, 1871, c. 120, 16 Stat.
544, 566, to the effect:

“That hereafter no Indian nation or tribe within the terri-
tory of the United States shall be acknowledged or recognized
as an independent nation, tribe or power with whom the
United States may contract by treaty: Provided, further,
That nothing herein contained shall be construed to invalidate
or impair the obligation of any treaty heretofore lawfully
made and ratified with any such Indian nation or tribe,” which
was carried forward into section 2079 of the Revised Statutes,
which reads:

“Src. 2079. No Indian nation or tribe within the territory
of the United States shall be acknowledged or recognized as
an independent nation, tribe or power with whom the United
States may contract by treaty; but no obligation of any treaty
lawfully made and ratified with any such Indian nation or
tribe prior to March third, eighteen hundred and seventy-one,
shall be hereby invalidated or impaired.”

The treaties referred to in argument were all made and rati-
tied prior to March 3, 1871, but it is “well settled that an act
of Congress may supersede a prior treaty and that any ques-
tions that may arise are beyond the sphere of judicial cogni-
zance, and must be met by the political department of the

eee’

484 OCTOBER TERM, 1898.
Opinion of the Court.

Government.” Thomas v. Gay, 169 U.S. 264, 271, and cases
cited.

As to the general power of Congress we need not review
the decisions on the subject, as they are sufficiently referred
to by Mr. Justice Harlan in Cherokee Nation v. Southern
Kansas Railway Company, 135 U.S. 641, 653, from whose
opinion we quote as follows:

“The proposition that the Cherokee Nation is sovereign in
the sense that the United States is sovereign, or in the sense
that the several States are sovereign, and that that nation
alone can exercise the power of eminent domain within its
limits, finds no support in the numerous treaties with the
Cherokee Indians, or in the decisions of this court, or in the
acts of Congress defining the relations of that people with
the United States. From the beginning of the Government
to the present time, they have been treated as ‘ wards of the
nation,’ ‘in a state of pupilage,’ ‘dependent political commu-
nities,’ holding such relations to the General Government that
they and their country, as declared by Chief Justice Marshall
in Cherokee Nation v. Georgia, 5 Pet. 1, 17, ‘are considered
by foreign nations, as well as by ourselves, as being so com-
pletely under the sovereignty and dominion of the United
States, that any attempt to acquire their lands, or to form a
political connection with them, would be considered by all as
an invasion of our territory and an act of hostility.’ It is true,
as declared in Worcester v. Georgia, 6 Pet. 515, 557, 569, that
the treaties and laws of the United States contemplate the
Indian Territory as completely separated from the States and
the Cherokee Nation as a distinct community, and (in the lan-
guage of Mr. Justice McLean in the same case, p. 583,) that
‘in the executive, legislative and judicial branches of our Gov-’
ernment we have admitted, by the most solemn sanction, the
existence of the Indians as a separate and distinct people, and
as being vested with rights which constitute them a State, or
separate community.’ But that falls far short of saying that
they are a sovereign State, with no superior within the limits
of its territory. By the treaty of New Echota, 1835, the
United States covenanted and agreed that the lands ceded to

STEPHENS v. CHEROKEE NATION.
Opinion of the Court.

the Cherokee Nation should at no future time, without their
consent, be included within the territorial limits or jurisdic-
tion of any State or-Territory, and that the Government would
secure to that nation ‘the right by their national councils to
make and carry into effect all such laws as they may deem
necessary for the government of the persons and property
within their own country, belonging to their people or such
persons as have connected themselves with them;’ and, by the
treaties of Washington, 1846 and 1866, the United States
guaranteed to the Cherokees the title and possession of their
lands, and jurisdiction over their country. Revision of Indian
Treaties, pp. 65, 79, 85. But neither these nor any previous
treaties evinced any intention, upon the part of the Govern-
ment, to discharge them from their condition of pupilage or
dependency, and constitute them a separate, independent, sov-
ereign people, with no superior within its limits. This is made
clear by the decisions of this court, rendered since the cases
already cited. In United States v. Rogers, 4 How. 567, 572,
the court, referring to the locality in which a particular crime
had been committed, said: ‘It is true that it is occupied by
the tribe of Cherokee Indians. But it has been assigned to
them by the United States as a place of domicil for the tribe,
and they hold and occupy it with the consent of the United
States, and under their authority. . . . We think it too
firmly and clearly established to admit of dispute that the
Indian tribes, residing within the territorial limits of the
United States, are subject to their authority” In United
States v. Kagama, 118 U. S. 375, 379, the court, after observ-
ing that the Indians were within the geographical limits of
the United States, said: ‘The soil and the people within these
limits are under the political control of the Government of
the United States, or of the States of the Union. There exist
within the broad domain of sovereignty but these two.

They were, and always have been, regarded as having a semi-
independent position when they preserved their tribal rela-
tions; not as States, not.as nations, not as possessed of the
full attributes of sovereignty, but as a separate people, with
the power of regulating their internal and social relations, and

OCTOBER TERM, 1898.
Opinion of the Court.

thus far not brought under the laws of the Union or of the
State within whose limits they resided. . . . The power
of the General Government over these remnants of a race once
powerful, now weak and diminished in numbers, is necessary
to their protection, as well as to the safety of those among
whom they dwell. It must exist in that Government, be-
cause it has never existed anywhere else, because the theatre
of its exercise is within the geographical limits of the United
States, because it has never been denied, and because it alone
can enforce its laws on all the tribes.’ The latest utterance
upon this general subject is in Choctaw Nation v. United
States, 119 U.S. 1, 27, where the court, after stating that the
United States is a sovereign nation limited only by its own
Constitution, said: ‘On the other hand, the Choctaw Nation
falls within the description in the terms of our Constitution,
not of an independent State or sovereign nation, but of an
Indian tribe. As such, it stands in a peculiar relation to the
United States. It was capable under the terms of the Con-
stitution of entering into treaty relations with the Government
of the United States, although, from the nature of the case,
subject to the power and authority of the laws of the United
States when Congress should choose, as it did determine in
the act of March 3, 1871, embodied in section 2079 of the
Revised Statutes, to exert its legislative power.’ ”

Such being the position occupied by these tribes, (and it has
often been availed of to their advantage,) and the power of
Congress in the premises having the plenitude thus indicated,
we are unable to perceive that the legislation in question is in
contravention of the Constitution.

By the act of June 10, 1896, the Dawes Commission was
authorized “to hear and determine the application of all per-
sons who may apply to them for citizenship in said nations,
and after such hearing they shall determine the right of
such applicant to be so admitted and enrolled,” but it was also
provided :

“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

STEPHENS v. CHEROKEE NATION.
Opinion of the Court.

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.”

The act of June 7, 1897, declared that the Commission
should “continue to exercise all authority heretofore con-
ferred on it by law to negotiate with the Five Tribes, and any
agreement made by it with any one of said tribes, when rati-
fied, 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 stipulation with various Indian tribes for
the fiscal year ending June thirtieth, eighteen hundred and
ninety-seven, shall be construed to mean the last authenti-
cated 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 Commis-
sion 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 appear-
ing 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 af-
fected shall have ten days’ previous notice that said Commis-

488 OCTOBER TERM, 1898.
Opinion of the Court.

sion 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 pro-
vided 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 coun-
cil of either of the aforesaid Five Tribes passed shall be certi-
fied immediately upon their passage to the President of the
United States and shall not take effect, if disapproved by him,
until thirty days after their passage: Provided, That this
act shall not apply to resolutions for adjournment, or any acts,
or resolutions, or ordinances in relation to negotiations with
commissioners heretofore appointed to treat with said tribes.”

We repeat that in view of the paramount authority of Con-
gress over the Indian tribes, and of the duties imposed on the
Government by their condition of dependency, we cannot say
that Congress could not empower the Dawes Commission to
determine, in the manner provided, who were entitled to citi-
zenship in each of the tribes and make out correct rolls of such
citizens, an essential preliminary to effective action in promo-
tion of the best interests of the tribes. It may be remarked
that the legislation seems to recognize, especially the act of
June 28, 1898, a distinction between admission to citizenship
merely and the distribution of property to be subsequently
made, as if there might be circumstances under which the
right to a share in the latter would not necessarily follow from
the concession of the former. But in any aspect, we are of
opinion that the constitutionality of these acts in respect of
the determination of citizenship cannot be successfully as-
sailed on the ground of the impairment or destruction of
vested rights. The lands and moneys of these tribes are pub-
lic lands and public moneys, and are not held in individual
ownership, and the assertion by any particular applicant that
his right therein is so vested as to preclude inquiry into his
status involves a contradiction in terms.

The judgments in these cases were rendered before the pas-

STEPHENS v. CHEROKEE NATION.
Opinion of the Court.

sage of the act of June 28, 1898, commonly known as the
Curtis Act, and necessarily the effect of that act was not con-
sidered. As, however, the provision for an appeal to this court
was made after the passage of the act, some observations upon
it are required, and, indeed, the inference is not unreasonable
that a principal object intended to be secured by an appeal
was the testing of the constitutionality of this act, and that
may have had controlling weight in inducing the granting of
the right to such appeal.

The act is comprehensive and sweeping in its character,
and notwithstanding the abstract of it in the statement pre-
fixed to this opinion, we again call attention to its provisions.
The act gave jurisdiction to the United States courts in the
Indian Territory in their respective districts to try cases
against those who claimed to hold lands and tenements as
members of a tribe and whose membership was denied by
the tribe, and authorized their removal from the same if the
claim was disallowed; and provided for the allotment of
lands by the Dawes Commission among the citizens of any
one of the tribes as shown by the roll of citizenship when
fully completed as provided by law, and according to a sur-
vey also fully completed; and “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 righis 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.”

The act further directed, as to the Cherokees, 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, 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 Cher-
okee Nation whose parents, by reason of their Cherokee blood,

490 OCTOBER TERM, 1898.
Opinion of the Court.

have been lawfully admitted to citizenship by the tribal au-
thorities, 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 legal right
thereto, and their descendants born since such rolls were
made, with such intermarried white persons as may be en-
titled to citizenship under Cherokee laws.” And that the
Commission should make a roll of Cherokee freedmen, in
compliance with a certain decree of the Court of Claims;
and a 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 ;
and a roll of Chickasaw freedmen entitled to any rights or
benefits under the treaty of 1866, and their descendants; and
a roll of all Creek freedmen, the roll made by J. W. Dunn,
under the authority of the United States, prior to March 14,
1867, being confirmed, and the Commission being directed to
enroll all persons now living whose names are found on said
roll, and their descendants, with “such other persons of Afri-
can descent as may have been rightfully admitted by the law-
ful authorities of the Creek Nation.”

The Commission was authorized and directed to make cor-
rect rolls of the citizens by blood of all the tribes other than
the Cherokees, “eliminating from the tribal rolls such names
as may have been placed thereon by fraud or without author-
ity 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 laws of said
tribes.”

It was also provided that “no person shall be enrolled who
has not heretofore removed to and in good faith settled in the
nation in which he claims citizenship.”

The Commission was authorized to make the rolls descrip-
tive of the persons thereon, so that they might be thereby
identified, and to take a census of each of said tribes, “or

STEPHENS v. CHEROKEE NATION.
Opinion of the Court.

to adopt any other means by them deemed necessary to enable
them to make such rolls;” and it was declared that “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 consti-
tute the several tribes which they represent.”

The act provided further for the resubmission of the two
agreements, with certain specified modifications, that with the
Choctaws and Chickasaws, and that with the Creeks, for ratifi-
cation to a popular vote in the respective nations, and that if
ratified, the provisions of these agreements so far as differing
from the act should supersede it. The Choctaw and Chicka-
saw agreement was accordingly so submitted for ratification
August 24, 1898, and was ratified by a large majority, but
whether or not the agreement with the Creeks was ratified
does not appear.

The twenty-sixth section provided that, after the passage
of the act, “ The laws of the various tribes or nations of Ind-
ians shall not be enforced at law or in equity by the courts of
the United States in the Indian Territory ;” and the twenty-
eighth section, that after July 1, 1898, all tribal courts in the
Indian Territory should be abolished.

The agreement with the Choctaw and Chickasaw tribes con-
tained a provision continuing the tribal government, as modi-
fied, for the period of eight years from March 4, 1898; but
provided that it should “ not be construed to be in any respect
an abdication by Congress of power at any time to make need-
ful rules and regulations respecting said tribes.”

For reasons already given we regard this act in general as
not obnoxious to constitutional objection, but in so holding
we do not intend to intimate any opinion as to the effect that
changes made thereby, or by the agreements referred to, may
have, if any, on the status of the several applicants, who are
parties to these appeals.

The elaborate opinions of the United States court in the
Indian Territory by Springer, J., Clayton, J., and Townsend,
J., contained in these records, some of which are to be found

OCTOBER TERM, 1898.
Statement of the Case.

in the report of the Commissioner of Indian Affairs for 1898,
page 479, consider the subject in all its aspects, and set forth
the various treaties, tribal constitutions and laws, and the
action of the many tribal courts, commissions and councils
which assumed to deal with it, but we have not been called
on to go into these matters, as our conclusion is that we are
confined to the question of constitutionality merely.

As we hold the entire legislation constitutional, the result is
that all the

Judgments must be affirmed.

Mr. Justice Warts and Mr. Justice McKenna dissented as
to the extent of the jurisdiction of this court only.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0319%3A14. Public record. Not legal advice.