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174 U.S. 445
STEPHENS et al.
JOHNSON et al.
WIGGS et al.
Nos. 423, 453, 461, 496.
May 15, 1899. [174 U.S. 445, 446] By the sixteenth section of the Indian appropriation act of March 3, 1893 (27 Stat. 612, 645, c. 209), the president was authorized to appoint, by and with the advice and consent of the senate, three commissioners 'to enter into negotiations with the Cherokee Nation, Choctaw Nation, Chickasaw Nation, the Muscogee (or Creek) Nation, the Seminole Nation, for the purpose of the extinguishment of the national or tribal title to any lands within that territory now held by any and all of such nations or tribes, either by cession of the same or some part thereof to the United States, or by the allotment and division of the same in severalty among the Indians of such nations or tribes, respectively, as may be entitled to the same, or by such other method as may be agreed upon between the several nations and tribes aforesaid, or each of them, with the United States, with a view to such an adjustment, upon the basis of justice and equity, as may, with the consent of such nations or tribes of Indians, so far as may be necessary, be requisite and suitable to enable the ultimate creation of a state or states of the Union which shall embrace the lands within said Indian Territory.'
The commission was appointed, and entered on the discharge of its duties, and under the sundry civil appropriation act of March 2, 1895 (28 Stat. 939, c. 189), two additional members [174 U.S. 445, 447] were appointed. It is commonly styled the 'Dawes Commission.'
The senate, on March 29, 1894, adopted the following resolution:
The committee visited the Indian Territory accordingly, and made a report May 7, 1894. Sen. Rep. No. 377, 53d Cong., 2d Sess. In this report it was stated: 'The Indian Territory contains an area of 19,785,781 acres, and is occupied by the Five Civilized Tribes of Indians, consisting of the Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles. Each tribe occupies a separate and distinct part, except that the Choctaws and Chickasaws, though occupying separately, have a common ownership of that part known as the 'Choctaw and Chickasaw Territory,' with rights and interests as recognized in their treaties as follows: the Choctaws, three- fourths, and the Chickasaws, one-fourth. The character of their title, the area of each tribe, together with the population and an epitome of the legislation concerning these Indians during the last sixty-five years, is shown by the report of the committee on Indian affairs submitted to the senate on the 26th day of July, 1892' (Sen. Rep. No. 1079, 52d Cong., 1st Sess.), and so much of that report as touched on those points was set forth.
The committee then gave the population from the census of 1890 as follows: Indians, 50,055; colored Indians, colored [174 U.S. 445, 448] claimants to Indian citizenship, freedmen and colored, wholly or in part, 18,636; Chinese, 13; whites, 109,393; whites and colored on military reservation, 804; population of Quapaw Agency, 1,281,-or a total of 180, 182; and said: 'Since the taking of the census of 1890, there has been a large accession to the population of whites who make no claim to Indian citizenship, and who are residing in the Indian Territory with the approval of the Indian authorities. It is difficult to say what the number of this class is, but it cannot be less than 250,000, and it is estimated by many well-informed men as much larger than that number, and as high as 300,000.' After describing the towns and settlements peopled by whites, and the character of the Indian Territory, its climate, soil, and natural wealth, the report continued:
The committee next referred to the class of white people denominated by the Indians as intruders, n 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 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 [174 U.S. 445, 450] the Indian Territory within the boundaries of the territory of Oklahoma, and the creation of a new Indian Territory, over parts of which the jurisdiction of the district courts of Arkansas and Texas remained; and, for reasons assigned, recommended the appointment of two additional judges for the United States court in the Indian Territory, and of additional commissioners, and that the jurisdiction of the district courts should be withdrawn.
The matter of schools was considered, and finally the question of title to the lands in the Indian Territory; and the committee stated:
On November 20, 1894, and November 18, 1895, the Dawes commission made reports to congress of the condition of affairs in the Indian Territory in respect of the manner in which lands were held by the members of the tribes, and of the manner in which the citizenship of said tribes was dealt with, finding a deplorable state of affairs, and the general prevalence of misrule.
In the report of November 18, 1895, the commission, among other things, said: 'It cannot be possible that in any portion of this country, government, no matter what its origin, can remain peaceably for any length of time in the hands of one-fifth of the people subject to its laws. Sooner or later violence, if nothing else, will put an end to a state of affairs so abhorrent to the spirit of our institutions. But these governments are of our own creation, and rest for their very being on authority granted by the United States, who are therefore responsible for their character. It is bound by constitutional obligations to see to it that government everywhere within its jurisdiction rests on the consent of the governed. There is already painful evidence that in some parts of the territory [174 U.S. 445, 452] this attempt of a fraction to dictate terms to the whole has already reached its limit, and, if left without interference, will break up in revolution.'
And the commission, after referring to tribal legislation in the Choctaw and Cherokee tribes bearing on citizenship, the manipulation of the rolls, and proceedings in Indian tribunals, stated: 'The commission is of the opinion that, if citizenship is left, without control or supervision, to the absolute determination of the tribal authorities, with power to decitizenize at will, the greatest injustice will be perpetrated, and many good and lawabiding citizens reduced to beggary.'
By the Indian appropriation act of June 10, 1896 (29 Stat. 321, 339, c. 398), the commission was 'directed to continue the exercise of the authority already conferred upon them by law, and endeavor to accomplish the objects heretofore prescribed to them, and report from time to time to congress'; and it was further provided as follows: [174 U.S. 445, 454] 'That said commission is further authorized and directed to proceed at once to hear and determine the application of all persons who may apply to them for citizenship in any of said nations, and after such hearing they shall determine the right of such applicant to be so admitted and enrolled: provided, however, that such application shall be made to such commissioners within three months after the passage of this act.
By the act of March 1, 1889, entitled 'An act to establish a United States court in the Indian Territory, and for other purposes' (25 Stat. 783, c. 333), a United States court was established, with a single judge, whose jurisdiction extended over the Indian Territory, and it was provided that two terms of said court should be held each year at Muscogee, in said territory, on the first Mondays of April and September, and such special sessions as might be necessary for the dispatch of business in said court at such times as the judge might deem expedient.
On May 2, 1890, an act was passed 'to provide a temporary government for the territory of Oklahoma, to enlarge the jurisdiction of the United States court in the Indian Territory, and for other purposes' (26 Stat. 81, 93, c. 182), which enacted 'that for the purpose of holding terms of said court, said Indian Territory is hereby divided into three divisions to be known as the First, Second and Third divisions'; the divisions were defined; the places in each division where court should be held were enumerated; and it was provided that [174 U.S. 445, 456] the 'judge of said court shall hold at least two terms of said court in each year in each of the divisions aforesaid, at such regular times as such judge shall fix and determine.'
March 18, 1895, an act was approved, entitled 'An act to provide for the appointment of additional judges of the United States court in the Indian Territory.' 28 Stat. 693, c 145. The first section of this act declared: 'That the territory known as the Indian Territory, now within the jurisdiction of the United States court in said territory, is hereby divided into three judicial districts, to be known as the Northern, Central, and Southern District, and at least two terms of the United States court in the Indian Territory shall be held each year at each place of holding court in each district at such regular times as the judge for each district shall fix and determine. The Northern district shall consist of all the Creek country, all of the Seminole country, all of the Cherokee country, all of the country occupied by the Indian tribes in the Quapaw Indian Agency, and the townsite of the Miami Townsite Company. ... The C ntral district shall consist of all the Choctaw country. ... The Southern district shall consist of all the Chickasaw country.'
The act provided for two additional judges for the court, one of whom should be judge of the Northern district, and the other, judge of the Southern district, and that the judge then in office should be judge of the Central district. The judges were clothed with all the authority, both in term time and in vacation, as to all causes, both criminal and civil, that might be brought in said district, and the same superintending control over commissioners' courts therein, the same authority in the judicial districts to issue writs of habeas corpus, etc., as by law vested in the judge of the United States court in the Indian Territory or in the circuit or district courts of the United States. The judge of each district was authorized and empowered to hold court in any other district for the trial of any cause which the judge of such other district was disqualified from trying, and whenever, on account of sickness, or for any other reason, the judge of any district was unable to perform the duties of his office, it was provided that either of the [174 U.S. 445, 457] other judges might act in his stead in term time or vacation. All laws theretofore enacted conferring jurisdiction upon the United States courts held in Arkansas, Kansas, and Texas, outside of the limits of the Indian Territory as defined by law as to offenses committed within the territory, were repealed and their jurisdiction conferred after September 1, 1896, on the 'United States courts in the Indian Territory.'
By section 11 of this act it was provided:
By the Indian appropriation act of June 7, 1897 (30 Stat. 8 , c. 3), provision was made for the appointment of an additional judge for the United States court in the Indian Territory, who was to hold court at such places in the several judicial districts therein, and at such times, as the appellate court of the territory might designate. This judge was to be a member of the appellate court, and have all the authority, exercise all the powers, and perform the like duties as the other judges of the court, and it was 'provided that no one of said judges shall sit in the hearing of any case in said appellate court which was decided by him.'
By this act of June 7, 1897, it was also provided:
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 common enjoyment of all their people, has been fully set forth in former reports of the commission, as well as in the reports of congressional committees commissioned to make inquiry on the ground. It would be but repetition to attempt again a recital. Longer service among them, and greater familiarity with their condition, have left nothing to modify either of fact or conclusion in former reports, but, on the contrary, have strengthened convictions that there can be no cure of the evils engendered by the perversion of these great trusts but their resumption by the government which created them.'
June 28, 1898, an act was approved, entitled 'An act for the protection of the people of the Indian Territory, and for other purposes' ( 30 Stat. 495, c. 517). The second section read:
And the third and eleventh sections in part:
... ... *
Section 21 was as follows:
___ 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 menmbers of said tribe alike. They further agree that all freedmen who have been liberated by voluntary act of their former owners r by law, as well as all free colored persons who were in the country at the commencement of the Rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees: provided, that owners of slaves so emancipated in the Cherokee Nation shall never receive any compensation or pay for the slaves so emancipated.'
Referring to that article, the court of claims, February 18, 1896, transmitted a communication to the commissioner of Indian affairs, stating: 'The court is of the opinion that the clauses in that article in these words, 'and are now residents therein, or who may return within six months, and their descendants,' were intended, for the protection of the Cherokee Nation, as a limitation upon the number of persons who might avail themselves of the provisions of the treaty; and, consequently, that they refer to both the freedmen and the free colored persons previously named in the article. That is to say, freedmen, and the descendants of freedmen, who did not return within six months, are excluded from the benefits of the treaty and of the decree. 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.' Journeycake v. Cherokee Nation, 31 Ct. Cl. 148. [174 U.S. 445, 464] 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.
Section 29 ratified the agreement made by the commission with commissions representing the Choctaw and Chickasaw tribes, April 23, 1897, as amended by the act, and for its going into effect if ratified before December 1, 1898, by a majority of the whole number of votes cast by the members of said tribes at an election held for that purpose: 'provided, that no person whose right to citizenship in either of said tribes or nations is now contested in original or appellate proceedings before any United States court shall be permitted to vote at said election'; 'and if said agreement as amended be so ratified, the provisions of this act shall then only apply to said tribes where the same do not conflict with the provisions of said agreement.'
Then followed the agreement referred to, containing provisions as to allotments, railroads, town sites, mines, jurisdiction of courts, and tribal legislation, and stating: 'It is further agreed, in view of the modification of legislative authority and judicial jurisdiction herein provided, and the necessity of the continuance of the tribal governments so modified, in order to carry out the requirements of this agreement, that the same shall continue for the period of eight years from the fourth day of March, eighteen hundred and ninety-eight. This stipulation is made in the belief that the tribal governments so modified will prove so satisfactory that there will be no need or desire for further change till the lands now occupied by the Five Civilized Tribes shall, in the opinion of congress, be prepared for admission as a state in the Union. But this provision shall not be construed to be in any respect an abdication by congress of power at any time to make needful rules and regulations respecting said tribes.' The agreement was [174 U.S. 445, 467] ratified by the two nations in August, 1898. Rep. Com. Ind. Affairs, 1898, p. 77.
Section 30 made similar provision in respect of an agreement with the Creek Nation, which is set forth.
The Indian appropriation act of July 1, 1898 (30 Stat. 571, 591, c. 545), continued the authority theretofore conferred on the commission by law, and contained this provision:
Thereupon numerous appeals were prosecuted to this court, of which 166 were submitted on printed briefs, with oral argument in many of them. Four of these appeals are set out in the title, numbered 423, 453, 461, 496, and the remaining 162 are enumerated in the margin.
[174 U.S. 445, 468]
The proceedings in these four appeals are sufficiently stated as follows:
Stephens et al. v. The Cherokee Nation.
William Stephens, Mattie J. Ayres, his daughter, Stephen G. Ayres, Jacob S. Ayres, and Mattie Ayres, his grandchil- [174 U.S. 445, 469] dren, applied to the Dawes commission for admission to citizenship in the Cherokee Nation, August 9, 1896. The nation answered, denying the jurisdiction of the commission, and on the merits, and the application was rejected, whereupon applicants appealed to the United States court in the Indian Territory, Northern district, where the cause was referred to a special master, who reported, on the evidence, that the applicants were Cherokee Indians by blood. The court (Springer, J.) accepted the findings of the master that William Stephens was one-fourth Indian and three- fourths white; that he was born in the state of Ohio; that his father was a white man, and a citizen of the United States; that his mother's name was Sarah, and that she was a daughter of William Ellington Shoe-Boots, and that her father was known as Capt. Shoe-Boots in the old Cherokee Nation; that his mother was born in the state of Kentucky, and that she moved afterwards to the state of Ohio, where she was married to Robert Stephens, [174 U.S. 445, 470] the father of William; that William Stephens came to the Cherokee Nation, Ind. T., in 1873, and has resided in the Cherokee Nation ever since; that soon after he came to the Cherokee Nation he made application for his mother and himself to be readmitted as citizens of that nation; that the commission who heard the case was convinced of the genuineness of his claim to Cherokee blood, and so reported to the chief, but rejected his application on a technical ground; that the chief, in a message to the council, stated that he was convinced of the honesty and genuineness of the claim, and wished the council to pass an act recognizing Stephens as a full citizen; but this was never done. The court, referring to the master's report, said:
Judgment affirming the decision of the Dawes commission refusing applicants' enrollment and admission as citizens of the Cherokee Nation was entered December 16, 1897, whereupon a motion for rehearing was filed, which was finally overruled June 23, 1898, and judgment again entered that applicants 'be not admitted and enrolled as citizens of the Cherokee Nation, Indian Territory.' From these decrees applicants prayed [174 U.S. 445, 472] an appeal to this court August 29, 1898, which was allowed, and perfected September 2, 1898, and the record filed here October 3, 1898.
No. 453. The Choctaw Nation v. F. R. Robinson.
September 7, 1896, F. R. Robinson applied to the Dawes commission to be enrolled as an intermarried citizen. His petition set forth that he was a white man; that he married a woman of Choctaw and Chickasaw blood, September 21, 1873, by which marriage he had five children; that she died, and he married a white woman August 10, 1884, with whom he was still living. The Choctaw Nation answered, objecting that the Dawes commission had no jurisdiction, because the act of congress creating it was unconstitutional and void; that Robinson had not applied for citizenship to the tribunal of the Choctaw Nation constituted to try questions of citizenship; and that he ought not to be enrolled, 'because he has not shown by his evidence that he has not forfeited his rights as such citizens by abandonment or remarriage.' The Dawes commission granted the application, and thereupon the Choctaw Nation appealed to the United States court in the Indian Territory, Central district. The cause was referred to a master, who made a report, and thereafter, June 29, 1897, the court (Clayton, J.) found that Robinson was 'a member and citizen of the Choctaw Nation by intermarriage, having heretofore been legally, and in compliance with the laws of the Choctaw Nation, married to a Choctaw woman by blood, and that said F. R. Robinson was, by the duly-constituted authorities of the Choctaw Nation, placed upon the last roll of the members and citizens of the Choctaw Nation prepared by the said Choctaw authorities, and that his name is now upon the last completed rolls of the members and citizens of the said Choctaw Nation,' and thereupon decreed that Robinson was 'a member and citizen by intermarriage with the Choctaw Nation, and entitled to all the rights, privileges, immunities, and benefits in said nation as such intermarried citizen and said member,' and directed a certified copy of the judgment to be transmitted to the commission. From this decree the [174 U.S. 445, 473] Choctaw Nation prayed an appeal September 21, 1898, which was on that day allowed and perfected.
No. 461. Jennie Johnson et al. v. The Creek Nation.
This was a petition of Jennie Johnson and others to the Dawes commission for admission to citizenship and membership in the Creek Nation. It seems to have been presented August 10, 1896, on behalf of 112 applicants, to have been granted as to 62, and to have been denied as to 57, by whom an appeal was taken to the United States court in the Indian Territory, Northern district. The cause was referred to a special master, and on une 16, 1898, the court (Springer, J.) rendered an opinion, in which, after considering various laws of the Muscogee or Creek Nation bearing on the subject, certain decisions of tribal courts, the action of a certain 'committee of eighteen on census rolls of 1895,' and of the council thereon adopting the report of that committee, in respect of applicants, the court concluded that appellants were not entitled to be enrolled as citizens of the Creek Nation, and entered judgment accordingly, whereupon an appeal was prayed from said decree, and allowed and perfected September 27, 1898.
No. 496. The Chickasaw Nation v. Richard C. Wiggs et al.
Richard C. Wiggs filed an application before the Dawes commission to be admitted to citizenship in the Chickasaw Nation, asserting, among other things, that he was a white man, and, prior to October 13, 1875, a citizen of the United States, on which day he lawfully married Georgia M. Allen, a native Chickasaw Indian, and member of the Chickasaw tribe; and also an application on behalf of his wife, Josie Wiggs, at the time of their marriage, which was in accordance with the Chickasaw laws under such circumstances, a white woman, and citizen of the United States, and their daughter, Edna Wiggs, August 15, 1896. The Chickasaw Nation, September 1, 1896, filed with the commission its answer to these applications, which, after denying the jurisdiction of the commission, traversed the allegations of the applications. [174 U.S. 445, 474] November 15, 1896, the Dawes commission admitted Richard C. Wiggs to citizenship in the Chickasaw Nation, but denied the application as to Mrs. Wiggs and their daughter. Thereafter an appeal was taken on behalf of the wife and daughter to the United States court in the Indian Territory, Southern district, and a cross appeal by the Chickasaw Nation from the decision of the commission admitting Wiggs to citizenship. The court referred the cause to a master in chancery, who made a report in favor of Wiggs, but against his wife and daughter. The court (Townsend, J.) found: 'That all of the applicants are entitled to be enrolled as Chickasaw Indians, it appearing to the court that the said Richard C. Wiggs, being a white man, and citizen of the United States, was married in the year 1875 to Georgia M. Allen, who was a native Chickasaw Indian by blood; said marriage was solemnized according to the laws of the Chickasaw Nation; that in the year 1876 The said wife of the said Richard C. Wiggs died; that from and after said marriage the said Richard C. Wiggs continued to reside in the Chickasaw Nation, and to claim the rights of citizenship in said nation, and as such he served in the Chickasaw legislature, and was also sheriff of Pickens county, in said nation; that in the year 1886 the said Richard C. Wiggs was lawfully married, according to the laws of the Chickasaw Nation, to Miss Josie Lawson, and that ever since said marriage the said Wiggs and his present wife have resided in the Chickasaw Nation, and claimed the rights of citizenship therein, and that there has been born unto them a daughter, Mary Edna Wiggs;' and thereupon entered a decree, December 22, 1897, admitting Richard C. Wiggs, his wife, and their daughter, 'to citizenship in the Chickasaw Nation, and to enrollment as members of the tribe of Chickasaw Indians, with all the rights and privileges appertaining to such relation; and it is further ordered that this decree be certified to the Dawes commission for their observance.'
From this decree an appeal was allowed and perfected July 11, 1898.
... [174 U.S. 445, 475] W. T. Hutchings, Wilkinson Call, D. W. C. Duncan, and A. W. Cockrill, for Cherokee Nation.
J. M. Wilson, for Choctaw Nation.
H. E. Paine and Holmes Conrad, for Chickasaw Nation.
Ben. T. Du Val, for Creek Nation.
A. H. Garland, R. C. Garland, Heber J. May, M. M. Edmiston, Joseph N. Hill, Yancey Lewis, W. W. Dudley, L. T. Michener, S. M. Porter, Wm. Ritchie, H. M. Furman, C. L. Herbert, W. I. Cruce, A. C. Cruce, J. C. Thompson, Wm. M. Cravens, C. C. Potter, W G. Henderson, J. W. Johnson, W. A. Ledbetter, Silas Hare, C. A. Keigwin,
[174 U.S. 445, 476] Jacob C. Hodges, J. G. Ralls, and W. S. Logan, for various claimants for citizenship.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, 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 socalled 'Dawes Commission,' though some were from decisions of tribal authorities. Many questions are common to to them all, and it will be assumed that in all of them the decrees were rendered and the court had finally adjourned before the passage of the act of July 1, 1898, providing for appeals to this court.
The act 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.'
In 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 [174 U.S. 445, 477] the United States (In re Mills, 135 U.S. 263, 268 , 10 S. Sup. Ct. 762), 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 18, 1895, or of the appellate 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 furthermore, 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 rendered, 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 constitutionality 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 quasi 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 nove; 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 extending the remedy by appeal to this court, was invalid, because retrospective, an invasion of the judicial domain, and destructive of vested rights. By its terms the act was to operate [174 U.S. 445, 478] 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 f ct that the legislation is retroactive does not necessarily 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 Dall. 386; Sampeyreac v. U. S., 7 Pet. 222; Freeborn v. Smith, 2 Wall. 160; Garrison v. City of New York, 21 Wall. 196; Freeland v. Williams, 131 U.S. 405 , 9 Sup. Ct. 763; Board v. Skinkle, 140 U.S. 334 , 11 Sup. Ct. 790.
The United States court in the Indian Territory is a legislative 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 exemption of these judgments from review; and the mere expectation of a share in the public lands and moneys of these tribes, if hereafter distributed, if the applicants are admitted to citizenship, cannot be held to amount to such an absolute right of property that the original cause of action, which is citizenship or not, is placed by the judgment of a lower court beyond the pwer of re-examination by a higher court, though subsequently authorized by general law to exercise jurisdiction.
This brings us to consider the nature and extent of the [174 U.S. 445, 479] appeal provided for. We repeat the language of the act of July 1, 1898, as follows:
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 re-examining 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 allotment of lands in the Indian Territory. [174 U.S. 445, 480] Two classes of cases are mentioned: (1) Citizenship cases. The parties to these cases are the particular Indian tribe and the applicant for citizenship. (2) Cases between either of the Five Civilized Tribes and the United States. Does the limitation of the inquiry to the constitutionality and validity of the legislation apply to both classes? We think it does.
It should be remembered that the appeal 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 in those cases the jurisdiction of the Dawes commission and of the court was attacked on the ground of the unconstitutionality of the legislation. The determination of that question 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 citizenship' 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 citizenship cases' were omitted, or if a comma were inserted after the words 'the United States,' that obscurity would practically disappear; and the rule is well settled that, for the purpose of arriving at the true meaning of a statute, courts read with such stops as are manifestly required. Hammock v. Trust Co., 105 U.S. 77 , 84; U. S. v. Lacher, 134 U.S. 624, 628 , 10 S. Sup. Ct. 625; U. S. v. Oregon & C. R. Co., 164 U.S. 541 , 17 Sup. Ct. 165.
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 and intention that the right of appeal should be more extensive in [174 U.S. 445, 481] cases between an Indian tribe and an individual applicant for citizenship therein.
Reference to prior legislation as to appeals to this court from the United States court in the Indian Territory confirms the view we entertain.
By section 5 of the judiciary act of March 3, 1891 (26 Stat. 826, c. 517), 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 construction or application of the constitution of the United States, and in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, was drawn in question.
By section 6, the circuit courts of appeals established by the act were invested with appellate jurisdiction in all other cases.
The thirteenth section read: 'Appeals and writs of error 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 regulations as from the circuit or district courts of the United States, under this act.'
The act of March 18, 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 superintending 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, deprived 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 [174 U.S. 445, 482] Territory had no jurisdiction over capital cases, but by that act its jurisdiction was extended to embrace them. And we held in Brown v. U. S., 171 U.S. 631 , 19 Sup. Ct. 56, 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 5 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 to be 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, under section 5 of the act of March 3, 1891 (chapter 517), was because of the express limitation in another part of that section of appeals upon the question of jurisdiction; and there is no kindred limitation in the act now before us. Horner v. U. S., 143 U.S. 570, 577 , 12 S. Sup. Ct. 522. The judgments of the [174 U.S. 445, 483] 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 Satates 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 definitely expressed in a proviso inserted in the Indian appropriation act of March 3, 1871 (16 Stat. 544, 566, c. 120), to the effect:
The treaties referred to in argument were all made and ratified prior to March 3, 1871, but it is 'well settled that an act of congress may supersede a prior treaty, and that any questions that may arise are beyond the sphere of judicial cognizance, and must be met by the political department of the [174 U.S. 445, 484] government.' Thomas v. Gay, 169 U.S. 264, 271 , 18 S. Sup. Ct. 340, 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 Kan. Ry. Co., 135 U.S. 641, 653 , 10 S. Sup. Ct. 965, from whose opinion we quote as follows:
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 persons 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:
The act of June 7, 1897, declared that the commission should 'continue to exercise all authority heretofore conferred on it by law to negotiate with the Five Tribes, and any agreement made by it with any one of said tribes, when ratified, shall operate to suspend any provisions of this act if in conflict therewith as to said nation: provided, that the words 'rolls of citizenship,' as used in the act of June tenth, eighteen hundred and ninety-six making appropriations for current and contingent expenses of the Indian department and fulfilling treaty stipulations with various Indian tribes for the fiscal year ending June thirtieth, eighteen hundred and ninety-seven, shall be construed to mean the last authenticated rolls of each tribe which have been approved by the council of the nation, and the descendants of those appearing on such rolls, and such additional names and their descendants as have been subsequently added, either by the council of such nation, the duly authorized courts thereof, or the commission under the act of June tenth, eighteen hundred and ninety-six. And all other names appearing upon such rolls shall be open to investigation by such commission for a period of six months after the passage of this act. And any name appearing on such rolls and not confirmed by the act of June tenth, eighteen hundred and ninety-six, as herein construed, may be stricken therefrom by such commission where the party affected shall have ten days' previous notice that said commis- [174 U.S. 445, 488] 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 provided in the act of June tenth, eighteen hundred and ninety-six.
We repeat that, in view of the paramount authority of congress 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 citizenship in each of the tribes, and make out correct rolls of such citizens, an essential preliminary to effective action in promotion 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 assailed on the ground of the impairment or destruction of vested rights. The lands and moneys of these tribes are public 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- [174 U.S. 445, 489] sage of the act of June 28, 1898, commonly known as the 'Curtis Act,' and necessarily the effect of that act was not considered. 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 prefixed 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 survey 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 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.'
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 Cherokee Nation whose parents, by reason of their Cherokee blood [174 U.S. 445, 490] 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 legal 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.' 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 African descent as may have been rightfully admitted by the lawful authorities of the Creek Nation.'
The commission was authorized and directed to make correct 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 authority of law, enrolling such only as may have la ful 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 descriptive of the persons thereon, so that they might be thereby identified, and to take a census of each of said tribes, 'or [174 U.S. 445, 491] 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 constitute 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 ratification to a pupular 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 Chickasaw 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 Indians 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 contained a provision continuing the tribal government, as modified, 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 needful 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 [174 U.S. 445, 492] in the report of the commissioner of Indian affairs for 1898, p. 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 WHITE and Mr. Justice McKENNA dissented as to the extent of the jurisdiction of this court only.
[ Footnote 1 ] Article nine of the treaty of July 19, 1866, with the Cherokee Nation (14 Stat. 799, 801), is as follows: 'The Cherokee Nation having, voluntarily, in February, eighteen hundred and sixty-three, by an act of their national council, forever abolished slavery, hereby covenant and agree that
[ Footnote 2 ] No. 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, Anderson 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,
Jordan 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 er 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. Halford et al.; No. 489, Same v. Poyner et al.; 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, Same v. 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, Same v. 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, Same v. Peery et al.; No. 528, Same v. Stinnet; No. 529, Same v. Stinnett et al.; No. 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. Car on et al.; No. 535, Same v. Shanks et al.; No. 536, Same v. Paul; No. 537, Clark et al. v. Creek or Muscogee 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 et al. v. Same; No. 552, Henley et al. v. Same; No. 553, Same v. Same; No. 554, McKee et al. v. Same; No. 555, Singleton et al. v. Same; No. 556, Brown et al. v. Same; No. 557,
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. v. Same; No. 571, Black et al. v. Same; No. 572, Archer et al. v. Same; No. 573, 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, Bennight et al. v. Choctaw Nation; No. 579, Wade et al. v. Cherokee Nation; No. 582, Choctaw Nation v. Jones et al.; No. 583, Same v. 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, Slayton 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.