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 TAIU^K (»K sri'.JKCTS. 
 
 I'aKC 
 
 Slalfmiiil of the case 1 
 
 History of llu- case 3 
 
 The purpose for wlneh suit was instituted 46 
 
 The purpose for which tht> tlecree of February II, IHitti, was entered. . 50 
 
 The Secretary of the Interior invested with <'xclusive jurisdiction 
 
 to make Kern-Clifton roll 58 
 
 Cougrest* refused to conlirni the Kern-Clifton roll 70 
 
 Action of the Secretary of the Interior in making up and approving 
 
 the final roll of the Cherokee Nation is res judicata 75 
 
 The petitioners' prayer for relief 79 
 
 TAl'.LE OF l.MroinWXT PAPERS. 
 
 Rejected amendment confirming Kern-Clifton roll 32, 33 
 
 Rejected amendment to section 3 of the act of April 2(1, 1906 43, 44 
 
 Report of Interior Department showing Kern-Clifton roll was not 
 
 made in accordance with decree of February 3, 18!)G 44 
 
 The decree of February 3, 1896 84 
 
 Proposed instructions by coimsel and order of court thereon of Feb- 
 
 ruar>- 15, 1896 95 
 
 Letter of the Chief Justice to the Commissioner of Indian Affairs con- 
 struing the treaty of July 19, 1866. in connection with the fifth- 
 
 paragraph of the above instructions 98 
 
 Instructions of the Secretarj^ of the Interior to the Kern-Clifton com- 
 mission 100 
 
 Proposed instructions of attorney forfreedraen to Kern-Clifton com- 
 mission and order of court of April 15. 1896 109 
 
 TABLE OF CASES CITED. 
 
 Adams r. The United States 36 C. Cls., 104. 
 
 Abbotsford, The 98 U. S., 440. 
 
 Adams Express Co. v. Ohio State Auditor 165 U. S., 194. 
 
 Brown v. The United States 113 U. S., 568. 
 
 Buflington i. The Dawes Commission Ann. Rep. Int. 
 
 Dept., 1904, Pt. 2, 
 pp. 138, 161. 
 
 Claflin i. Commonwealth Ins. Co 110 U. S., 81. 
 
 Cherokee Nation v. The Delaware Indians 155 U. S., 196. 
 
 Cherokee Nation v. Shawnee Indians 155 U. S., 218. 
 
 Cherokee Intermarriage Cases 203 U. S., 92. 
 
 Day V. The United States 21 C. Cls., 262. 
 
 14296—09 1 I 
 
TI 
 
 Delaware Indians v. Cherokee Nation 28 C. Cls., 281. 
 
 Delaware Indians v. Cherokee Nation 30 C. Cls., 172. 
 
 Dela wares, Shawnees and Freedmen v. The Cherokee 
 
 Nation 31 C. Cls., 140. 
 
 Fleming et al. v. McCurtain et al 215 U. S., — . 
 
 Garfield 1). Goldsby 211 U. S., 249. 
 
 Harvey i). Tyler 2 Wall., 328. 
 
 Joins, Ex Parte 191 U. S., 93. 
 
 Keim v. The United States 177 U. S., 290. 
 
 Kimberlin v. The Dawes Commission 104 Fed. Rep., 653. 
 
 Lumber Company v. Butchel 101 U. S., 638. 
 
 Laurel Oil & Gas Co. v. Morrison 212 U. S., 291. 
 
 Osborn v. The United States 9 C. Cls., 153. 
 
 Plummer v. The United States 24 C. Cls., 517. 
 
 Pam-to-pee v. The United States 187 U. S., 371. 
 
 Romadka v. Sessions 145 U. S., 41. 
 
 Steele v. Smelting Company 106 U. S., 447. 
 
 Stephens v. The Cherokee Nation 174 U. S., 445. 
 
 Sass & Crawford v. Thomas 214 U. S., 489. 
 
 United States ^;. Cal. & Oregon Land Co 148 U. S., 31. 
 
 Whitmire v. The Cherokee Nation 30 C. Cls., 138. 
 
 Whitmire v. The Cherokee Nation 30 C. Cls., 180. 
 
 Wallace i). Adams 143 Fed. Rep., 716. 
 
 Wallace v. Adams 204 U. S., 415. 
 
 West v. Hitchcock 205 U. S., 80. 
 
 INDEX TO ACTS AND TREATIES. 
 
 Treaty of July 19,1866 14 Stat., 799. T. 
 
 Act of June 16, 1880 21 Stat., 248. ' J 
 
 Act of May 19, 1883 22 Stat., 624. '"/ 
 
 Act of October 19, 1888 25 Stat., 609. / 
 
 Act of March 2, 1889 25 Stat., 980, 1005. 
 
 Act of October 1, 1890 26 Stat., 636. 
 
 Agreement of December 19, 1891 S. Ex. Doc. 56, p. 
 
 16, 52d Cong., Ist 
 sess. 
 
 Act of March 2, 1893 27 Stat., 640. 
 
 Act of March 3, 1893 27 Stat., 645. 
 
 Act of June 10, 1896 28 Stat., 321. 
 
 Act of June 7, 1897 30 Stat., 83. 
 
 Act of June 28, 1898 30 Stat., 495. 
 
 Act of May 31, 1900 31 Stat., 221. 
 
 Act of July 1, 1902 32 Stat., 716. 
 
 Act of April 26, 1906 34 Stat., 137. 
 
^n thcd! mill ut (!! laiiiifi of ihr aliutc d.^tatf s. 
 
 Moses Whitmire, trustee for the 
 
 Froodnion of tli^ Cherokee Nation, 
 
 •V. 
 
 The Cherokee Nation and the 
 
 United States. 
 
 k\o. 17209. 
 
 BRIEF FOR THE UNITED STATES ON THE DEFENDANTS' 
 MOTION FOR A REHEARING AND NEW TRIAL. 
 
 STATEMENT OF THE CASE. 
 
 On September 26, 1891. suit was brought by Moses 
 Whitmire, trustee for the Cherokee freedmen, under 
 special act of Congress giving this court jurisdiction 
 to consider certain rights of the freedmen under article 
 9 of the treat}' between the United States and the 
 Cherokee Nation, of July 19, 1866. 
 
 On March 4, 1895, judgment was entered by the 
 court in favor of the freedmen, but the entry of a 
 final decree was suspended until the court could be 
 furnished with definite information as to the number 
 of freedmen entitled to participate in the distribu- 
 tion of the judgment. 
 
 On March 18, 1895, judgment was entered by the 
 court for $903,365, and on May 8, 1895, a decree 
 
2 
 
 was entered providing for the distribution of the 
 judgment. From this judgment of the court both 
 the claimant and defendants filed applications for 
 appeal to the Supreme Court, and a motion for a new 
 trial was also filed by the defendants. 
 
 On January 30, 1896, the claimant and defendants 
 filed motions to withdraw their applications for ap- 
 peal, and on February 3, 1896, the decree of May 8, 
 1895, was vacated and a new and final decree was 
 entered by the court by the consent of all of the par- 
 ties to the suit. 
 
 On September 30, 1907, the attorney for the Chero- 
 kee freedmen, Robert H. Kern, filed a motion for the 
 substitution of a trustee, Jacob B. Wilson, in the 
 place of Moses Whitmire, deceased, and for leave to 
 file a supplemental petition to reopen the decree of 
 February 3, 1896, which provided for the distribution 
 of the judgment of the court. 
 
 On January 20, 1908, the motion was argued, and 
 on April 20, 1908, allowed by the court. 
 
 On May 6, 1908, the supplemental petition of the 
 new trustee was filed, and on March 1 and 2, 1909, 
 the case was argued on this petition. On March 29, 
 1909, leave was granted to the claimant to proceed 
 under the supplemental petition — the form and extent 
 to be thereafter considered. 
 
 On May 17, 1909, the defendants filed a motion for 
 a rehearing and new trial upon the ground that the 
 court erred in not holding that the decree of Febru- 
 ary 3, 1896, had performed its office, and in holding 
 that the ''Kern-Clifton roll" had been confirmed by 
 
Cono;ress, and that the duties of the Dawos Commis- 
 sion in makinp: up the ClnM-okor rolls under the acts 
 of June 2S, 1898, and July 1, l'.H)2, were merely min- 
 isterial, and it is upon this motion that the case now 
 comes up for a hearing;. 
 
 HISTORY OF THE CASE. 
 
 \W the treaty of July 19, 18()() (14 Stat., 799), 
 })etween the Cherokee Nation and the United States, 
 ratified July 27, 1866, the Cherokee confiscation laws 
 were repealed and the former owners of the confis- 
 cated lands were restored to their homes. (Art. 3.) 
 The Cherokee Nation on its part agreed "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 com- 
 mencement of the rel)ellion and are now residents 
 therein or who ma}' retiu'n within six months, and 
 their descendants, shall have all the rights of native 
 Cherokees." (Art. 9.) 
 
 Section 5 of the amendments to article 3 of the 
 Cherokee constitution, adopted in 1866, provides 
 that- 
 All native born Cherokees, all Indians and 
 whites legally menil)ers of the nation by 
 adoption, and all freedmen who have been 
 liberated by voluntary' act of their former 
 ow^ners or by law, as well as free colored per- 
 sons who were in the country at the com- 
 mencement of the rebellion and are now resi- 
 dents therein, or who may return within six 
 months from the 19th dav of Julv, 1866, and 
 
their descendants who reside within the Hmits 
 of the Cherokee Nation, shall be taken and 
 admitted to be citizens of the Cherokee Na- 
 tion. (40 C. Cls., 141.) 
 
 Section 2 of article 1 of the constitution of the 
 Cherokee Nation provides that — 
 
 Whenever any citizen shall remove with his 
 effects out of the limit of this nation and be- 
 come a citizen of any other government, all 
 his rights and privileges as a citizen of this na- 
 tion shall cease: Provided, nevertheless, That 
 the national council shall have power to read- 
 mit 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 memorializ- 
 ing the national council for such readmission. 
 
 Under article 17 of the treaty of July 19, 1866, 
 the Cherokee Nation sold certain lands west of the 
 ninety-sixth degree of west longitude, known as 
 "neutral lands," and also sold certain other lands 
 west of the ninety-sixth degree of west longitude 
 under the provisions of article 16 of said treaty to 
 the Delawares, Osages, and other friendly Indians. 
 
 By the acts of June 16, 1880 (21 Stat., 248), and 
 May 19, 1883 (22 Stat., 624), Congress appropri- 
 ated $300,000 each, to be paid into the treasury of 
 the Cherokee Nation as compensation for the said 
 lands belonging to said nation west of the Arkansas 
 River (west of the ninety-sixth degree of west longi- 
 tude), to "be expended as the acts of the Cherokee 
 legislature direct." 
 
5 
 
 III 1SS0 a i-oll was made of the Cherokee Nation 
 for \\\v j)urj)ose of sho\vin»i- (he luinihor of Cherokees 
 by l)loo(.l and the nunil)er of Delawares, Shawnees, 
 and freednien entitled to citizenship in the Cherokee 
 Nation under the treaty of July 11), 18()G. The 
 names of 1,874 freedmen appear upon this roll. (In- 
 structions of the Commissioner of Indian Affairs to 
 the Commissioners who mad(^ the K(Mn-(Tifton roll, 
 Appendix D.) 
 
 In accordance with this roll the .$G()( ),()()() paid for 
 the lands west of the ninety-sixth degree of west lon- 
 gitude were distributed among the Cherokees l)y 
 blood to the exclusion of Delawares, Shawnees, and 
 freedmen. 
 
 By the act of October 19, 1888 (25 Stat., 609), 
 Congress appropriated $75,000 to be distributed per 
 capita among the freedmen and their descendants 
 mentioned in the ninth article of the treaty of July 
 19, 1866, and among the Delawares and Shawnees, 
 in such amount or amounts as would equal the per 
 capita payment made to the Chei'okees by blood, in 
 accordance with the act of the Cherokee legislature, 
 out of the sum of $300,000 appropriated by the act 
 of March 3, 1883 (22 Stat., 624), and made the said 
 $75,000 a lien upon the lands of the Cherokee Nation 
 west of the Arkansas River, which is the same as the 
 west of the ninety-sixth degree of west longitude. 
 
 Under the act of October 19, 1888, and the supple- 
 mental act of March 2, 1889 (25 Stat., 980), a com- 
 missioner was appointed by the Secretary of the In- 
 terior, and a roll was made . up of those living on 
 
6 
 
 March 3, 1883, known as the "Wallace roll," which 
 was afterwards in 1890 revised and corrected by two 
 agents of the Interior Department, and was then 
 known as the "corrected Wallace roll," numbering 
 3,524 freedmen, and upon that roll the freedmen 
 were paid their proportion of the $75,000. 
 
 Congress, by section 14 of the act of March 2, 1889 
 (25 Stat., 1005), authorized the President "to 
 appoint three commissioners, not more than two 
 of whom shall be members of the same political 
 party, to negotiate with the Cherokee Indians and 
 with all other Indians owning or claiming lands 
 lying west of the ninety-sixth degree of west longi- 
 tude in the Indian Territory for the cession to the 
 United States of all their title, claim, or interest of 
 every kind or character in and to said lands." 
 
 On the 19th day of December, 1891, the commis- 
 sioners appointed under the above act entered into an 
 agreement at Tahlequah with the Cherokee Nation, 
 by article 1 of which it provided that "The Cherokee 
 Nation, by act duly passed, shall cede and relinquish 
 all its title, claim, and interest of every kind and 
 character in and to that part of the Indian Territory 
 bounded on the west by the one-hundredth degree 
 of west longitude, on the north by the State of Kansas, 
 on the east by the ninety-sixth degree of west longi- 
 tude, and on the south by the Creek Nation, the 
 Territory of Oklahoma, and the Cheyenne and 
 Arapahoe Reservation created or defined by execu- 
 tive order dated August 10, 1869, the tract of land 
 embraced within the above boundaries containing 
 
1 
 
 ei^ht million one liimdrcd mid foily-foiir Ihousjiiid 
 six huiulred and oi<i;hty-t\v() and ninety-one one- 
 hiindrodths (8,144,()82.91) acres, more oi- less." 
 
 By the second article, para<i;raph (i of the agree- 
 ment, the United States agreed to pay as an addi- 
 tional consideration for the cession and relincjuish- 
 ment of the al)ove lands the sum of $8,595,736.12 in 
 excess of the sum of $728,389.46, the aggregate 
 amounts which had aheady been ai)i)ropriated by 
 Congress and charged against the lands of the 
 Cherokees west of the Arkansas River, and also in 
 excess of the amount paid ))y the Osage Indians for 
 then* reservation. 
 
 The same paragraph also provided that ^'should 
 the Cherokee Nation determine to distribute said 
 money, or any part thereof, principal or interest, to 
 any of its citizens, per capita, and should the classes 
 of persons provided for in the ninth and fifteenth 
 articles of the treaty of July 19, 1866, claim that in 
 such distribution they have been unjustly or illegally 
 discriminated against, then on complaint made by 
 such persons Congress shall by law authorize a suit in 
 a proper court by and between such classes of persons 
 and the United States and the Cherokee Nation, to 
 determine that question, giving to any party thereto 
 the right of appeal to the Supreme Court of the 
 United States," etc. (S. Ex. Doc. 56, pp. 16, 17, 19; 
 52d Cong., 1st sess.) 
 
 Prior to the agreement of December 19, 1891, Con- 
 gress, by the act of Octo):»er 1, 1890 (26 Stat., 636), 
 gave to the Court of Claims jurisdiction to determine 
 
8 
 
 the right of the Delaware and Shawnee Indians and 
 the freedmen to participate in the compensation to 
 be paid to the Cherokee Nation for its lands west of 
 the ninety-sixth degree of west longitude in the fol- 
 lowing language: 
 
 Be it enacted by the Senate and House of 
 Representatives of the United States of America 
 in Congress assembled, That full jurisdiction is 
 hereby conferred upon the Court of Claims, 
 subject to an appeal to the Supreme Court of 
 the United States as in other cases, to hear 
 and determine what are the just rights in law 
 or in equity of the Shawnee and Delaware 
 Indians who are settled and incorporated into 
 the Cherokee Nation, Indian Territory, east of 
 ninety-six degrees west longitude, under the 
 provisions of article fifteen of the treaty of 
 July nineteenth, eighteen hundred and sixty- 
 six, made by and between the United States 
 and the Cherokee Nation, and articles of 
 agreement made by and between the Cherokee 
 Nation and the vShawnee Indians June seventh, 
 eighteen hundred and sixty-nine, approved by 
 the President June ninth, eighteen hundred 
 and sixty-nine, and articles of agreement 
 made with the Delaware Indians April eighth, 
 eighteen hundred and sixty-seven; and also 
 of the Cherokee freedmen who are settled and 
 located in the Cherokee Nation under the 
 provisions and stipulations of article nine of 
 the aforesaid treaty of eighteen hundred and 
 sixty-six in respect to the subject-matter 
 herein provided for. 
 
 Sec. 2. That the said Shawnees, Delawares, 
 and freedmen shall have a right, either sepa- 
 
9 
 
 rately or jointly, to Ix^nin nnd [)roseciite a 
 suit or suits nuainsl llic ("hcrokoo XMlioii 
 and the rnit(>(l States (Jovornnicnt to recover 
 iVoni \ho dierokoe Nation all moneys due 
 either in law or e(|uit\' and unpaid to the said 
 Shawnees. Delawares, or t'reednuMi, which the 
 C'herokee Nation have before })aid out, or may 
 hereafter pay, per capita, in the Cherokee 
 Nation, and which was, oi- may he, refused to 
 or neglected to be paid to the said Shawnees, 
 Delawares, or freedmen by the Cherokee 
 Nation, out of any money or funds which liave 
 been, or may be, paid into the treasury of, or 
 in any way have come, or may come, into the 
 possession of the Cherokee Nation, Indian 
 Territory, derived from the sale, leasing:;, or 
 rent for grazing purposes on Cherokee lands 
 west of the ninety-sixth degree of west longi- 
 tude, and which have been, or may be, appro- 
 priated and directed to be paid out, per capita, 
 by the acts passed by the Cherokee council, 
 and for all moneys, lands, and rights which 
 shall appear to be due to the said Shawnees, 
 Delawares, or freedmen under the provisions 
 of the aforesaid articles of the treaty and 
 articles of agreement. 
 
 Under the above act the Delaware Indians, through 
 their principal chief, Charles Journeycake, brought 
 suit against the Cherokee Nation and the United 
 States for their share, under the treaty of April 8, 
 1867, of the proceeds of lands west of the ninety- 
 sixth degree of longitude, leased and sold by the 
 United States. This court held on April 24, 1893, 
 that they were entitled to their proportionate share 
 
10 
 
 of $600,000; the proceeds of the sale of Cherokee 
 lands west of the ninety-sixth degree of longitude, 
 which had been distributed per capita among citi- 
 zens of the Cherokee Nation by blood, under acts 
 of the Cherokee National Council, excluding adopted 
 citizens and their descendants, and that said acts 
 were void and unconstitutional. (28 C. Cls., 281 
 to 321.) The decision of the Court of Claims was 
 affirmed on appeal to the Supreme Court. (155 U. S., 
 196.) 
 
 The Shawnee Indians, through their principal chief, 
 Johnson Blackfeather, also brought suit against the 
 Cherokee Nation and the United States, under the 
 same jurisdictional act, to recover their proportionate 
 part of the funds which had been distributed jper 
 capita among the Cherokee citizens by blood to the 
 exclusion of those who were Cherokees by adoption. 
 This court decided on the authority of the Delaware 
 case that they also were entitled to their proportion- 
 ate share of the $600,000 distributed per capita as 
 above stated. No opinion was rendered in the case, 
 but the judgment of the court was affirmed by the 
 Supreme Court at the same time the opinion in the 
 Delaware case was handed down. (155 U. S., 218.) 
 
 By section 10 of the act of March 2, 1893 (27 Stat., 
 640, 641, 642), the agreement between the United 
 States and the Cherokee Indians, dated December 19, 
 1891, referred to above, by which they agreed to cede 
 to the Government the remainder of their lands west 
 of the 96° of west longitude, known as the Cherokee 
 Outlet, in consideration of moneys already paid and 
 
11 
 
 the additional sum of $S,r)*)r),7;i(), was ratified. Of 
 which additional consideration tlie sum of $29.5,7.'i() 
 was made ininiediately availai)le, and u|>on the pay- 
 ment of the same th(> lands in (|uestion were imino- 
 diatoly to l)ecome a part of the j)ul)li(' domain. The 
 balance of the additional consideration, H;8,3()( ),()()(), 
 was made payable in five ecjual installments, com- 
 mencing on March 4, 1895, and ending March 4, 1899, 
 deferred |xiyments to bear interest at 4 i)er cent. 
 The section of the act then makes the following 
 provision : 
 
 That of the money hereby appropriated a 
 sufficient amount to pay the Delawares and 
 Shawnees their pro rata share in the proceeds 
 of said Outlet shall remain in the Treasury of 
 the United States until the status of said Dela- 
 ware and Shawnee Indians shall be determined 
 by the courts of the United States before which 
 their suits are now pending; and a sufficient 
 amount shall also be retained in the Treasury 
 to pay the freedmen who are citizens of the 
 Cherokee Nation or their legal heirs and repre- 
 sentatives such sums as may be determined 
 by the courts of the Ignited States to be due 
 them. 
 
 The Delaware Indians, through their principal 
 chief, Charles Journeycake, afterwards filed a motion 
 to reopen the decree in the Delaware case in order to 
 cause it to extend, first, to the proceeds derived 
 from the sale of the Cherokee Outlet; second, to 
 increase the proportion of the per capita payments 
 which would come to the Delawares in the distri- 
 
12 
 
 bution of the funds derived from the sale of the 
 Cherokee Outlet. The court consented to the first 
 proposition, but refused to increase the rate of the 
 per capita payments, and in overruling that part of 
 the motion, said : 
 
 A decree in equity, so long as the case 
 remains open and within the jurisdiction of 
 the court, may be extended to a subsequently 
 accruing cause of action the right to which 
 has been determined by the original decision; 
 but this extension of the decree must be 
 strictly according to the decision. No new 
 issue either of law or fact can be determined 
 upon a motion of this kind. 
 
 Where the complainants rest content with 
 a decree in their favor, and it having been 
 appealed comes back affirmed, the court can 
 not make a new decision affecting the legal 
 rights of the parties and increasing the amount 
 of the recovery. 
 
 Where the original decree fixed the propor- 
 tionate share of the complainants in a certain 
 fund, they can not introduce evidence to show 
 that they were entitled to a larger proportion. 
 Such a change is not the correction of an arith- 
 metical mistake or clerical error, but a change 
 of the basis upon which the recovery rests. 
 (30 C. Cls., 172 to 179.) 
 
 Section 25 of the act of June 28, 1898 (30 Stat., 
 490), gave the court jurisdiction to hear and adjudi- 
 cate a suit brought by the Delawares "for the pur- 
 pose of determining the rights of said Delaware In- 
 dians in and to the lands and funds of said nation 
 
13 
 
 uiulei' their coiili-act and a^irccincnt with the ('hcro- 
 kee Nation, dated April eighth, eij2;hteeii hiiiKhcd and 
 sixty-se\'(Mi." 
 
 Undei* tliisact the Dehiwares l)r()ii«!;ht a suit, which 
 was d(M'i(led hy this court on l"'el)i"uary 2, 190.'^ (38 ('. 
 Cls., 234), and l)v the Sii])renie Court on appeal on 
 February 23, 19t)4 (193 U. S., 127), and it was held 
 by both courts that the rej^istered Delawares were 
 " entitled to participate e(|ually with Cherokee citizens 
 of Cherokee blood in the allotments of lands" and 
 that the jurisdiction of act and suit were necessary to 
 accomplish that purpose. 
 
 The Cherokee freedmen, through their trustee, 
 Moses Whitmire, brought suit in this court against 
 the Cherokee Nation (30 C. Cls., 138) for their pro- 
 portionate share of the proceeds derived from the 
 sale of Cherokee lands west of the ninety-sixth 
 degree of west longitude, known as the ''Cherokee 
 Outlet," and the court on March 4, 1895, held that 
 under the treaty of July 19, 1866, and the Cherokee 
 constitution of the same year, they were equally 
 interested as a class with other citizens of the Cher- 
 okee Nation in the common property and its pro- 
 ceeds when distri])uted per capita. The court, how- 
 ever, refused to enter a decree " that the freedmen 
 are entitled to participate with all the other mem- 
 bers of the nation in all of the remainmg common 
 property upon equal terms with the other members 
 of the nation," upon the ground that there might 
 be trust estates among the common property of the 
 nation for the l)enefit of designated individuals or 
 
14 
 
 communities over which "the Cherokee government 
 has no legitimate control," and in which "the freed- 
 men have no interest." The court said that when 
 it was informed of the number of freedmen entitled 
 to participate in the various funds which had been 
 distributed by act of the Cherokee national council 
 to "Cherokees by blood," it would fix the amount 
 of the judgment and enter a final decree for its dis- 
 tribution among those entitled. The court then 
 stated that it would entertain suggestions of counsel 
 as to how the requisite information should be ob- 
 tained, and that in the meantime until further order 
 of the court the entry of judgment would be sus- 
 pended. 
 
 In the preparation of the decree to be entered 
 in pursuance of the opinion of the court of March 4, 
 1895, the counsel of the parties litigant were unable 
 to reach any agreement; the claimant insisted on 
 recovering at the same rate per capita which the 
 Cherokee Nation had adopted when distributing the 
 funds among the "Cherokees by blood;" the de- 
 fendants insisted that the court should adopt the 
 number of freedmen, 2,052, which entered into the 
 calculations of proportionate numbers in the Dela- 
 ware and Shawnee cases. The court, however, on 
 March 18, 1895 (30 C. Cls., 180), adopted the "cor- 
 rected Wallace roll" of 3,524 freedmen as the basis 
 for computation, after its further correction and 
 approval by the Secretary of the Interior, of the 
 amount due the freedmen of the moneys distributed 
 to the Cherokees by blood, and fixed the amount 
 
15 
 
 for (lislril)uti()n at $U()3,3()5, or $25().;i4 per nipitd, 
 less the fees ol" couiisol, expenses of inakiiiu: the roll 
 and distribution of the fund, etc. 
 \\\v court said, at j)a^e ISS: 
 
 This is not an action lo iccovei- (himages in 
 the natui-e of a suit at hiw, nor is it a proceed- 
 in^' in e(]uity to wind up and dispose of the 
 alTairs and assets of a partnership. It is sim- 
 ply a suit in equity, brought by the equitable 
 owners of a specific funti to i-ecover their j)ro- 
 portionate share in the same. The jurisdic- 
 tional act recognizes this principle, for it au- 
 thorizes suits to be brought for the propor- 
 tionate shares of the parties in funds derived 
 from the sales or leasing of lands of the Chero- 
 kee Nation. The coiu-t can not go beyond this 
 if it would, and no court of eqiuty will award 
 to a party more than he is legally and equi- 
 tably entitled to, because a party having a 
 right to share in the fund is not within the 
 jurisdiction of the court. 
 
 The court then ordered a decree to be entered fol- 
 lowing the form of the decree last entered in the 
 Delaware case, and that the Wallace roll should " be 
 further corrected by adding thereto descendants born 
 since March 3, 1883, and prior to May 3, 1894, and 
 striking therefrom the names of those who have 
 died or have ceased to l^e citizens of the Cherokee 
 Nation, so that when thus amended and changed it 
 shall represent the freedmen entitled to participate in 
 the distribution of the fund now awarded to the 
 complainant." 
 
 14291—09 2 
 
16 
 
 The court authorized the Secretary of the Interior 
 " to appoint a commissioner to proceed to the Cher- 
 okee country and ascertain and report to the Secre- 
 tary the facts necessary for the correction of the roll 
 above described." The court then directed that the 
 expenses of the commissioner should be paid out of 
 the fund awarded by the decree, and that ''when a 
 new and corrected roll is thus made and approved 
 by the Secretary of the Interior he will cause the 
 amount remaining of the fund awarded the com- 
 plainants under this decree (after deducting the 
 costs hereinafter directed to be paid by the com- 
 plainants) to be paid and distributed to the freed- 
 men entitled thereto, the cost of such distribution 
 likewise being a charge upon this fund, pursuant to 
 the act 2d March, 1895, section 11." 
 
 On May 8, 1895, a decree was entered in accord- 
 ance with the opinion of the court in which the acts 
 of April 26, 1886, November 25, 1890, and May 3, 
 1894, of the Cherokee National Council, providing 
 for the payment of funds derived from the sale of 
 public domain to Cherokees by blood, to the exclu- 
 sion of Delawares, Shawnees, and freedmen, were 
 declared invalid; the "corrected Wallace roll" was 
 adopted as the basis for a roll to be made and ap- 
 proved by the Secretary of the Interior, and the 
 Secretary of the Interior was directed to distribute 
 the judgment of $903,365, or $256.34 per capita, after 
 deducting attorney's fees, expenses, etc., among the 
 freedmen whose names should be found upon the 
 roll made and approved by him, and that any balance 
 
17 
 
 left after such payments should \)v paid over (o (he 
 Cherokee Nation l)v the Secret aiy of (he luterioi-. 
 
 After the entry of the decree of Ahiy S, IS'J.j, the 
 attorneys for the Delawares, Sliawnees, and freed- 
 nicn filed motions in their respective cases asking the 
 court to reopen the decree and increase their per 
 capita to $295.35, the amount (hstrihuted per capita 
 by the Cherokee government to Cherokees by l)lood; 
 and in the case of the freedmen the motion also 
 . asked the court to appoint commissioners to reascer- 
 tain the number of freedmen. All of the motions 
 were considered at the same time (31 C. Cls., 140- 
 147). In the case of the freedmen the Cherokee 
 national council had passed an act in which it had 
 accorded to them the amount per capita, $295.35, 
 asked for in the motion. The court, however, on 
 Januar}^ 27, 1896, overruled the motion as follows: 
 
 In the case of Whitmire, trustee, v. The 
 Cherokee Nation, the application of the claim- 
 ant to reopen the decree and for the appoint- 
 ment of commissioners to reascertain the num- 
 ber of the freedmen and for judgment for 
 $1,300,000 is overruled. 
 
 The court in its opinion said that it could not 
 allow a larger award to the freedmen than contem- 
 plated by the jurisdictional act of October 1, 1890 
 (26 Stat., 636), simply because the Cherokee Nation 
 had consented to the increase. In other words, that 
 ''consent does not confer jurisdiction" (p. 144). 
 That the court fixed their rights under the treaty to 
 their distributive shares in the fund referred to, and 
 
18 
 
 ''when the court awards those distributive shares its 
 authority ends" (pp. 144 and 145). That while the 
 court has made its award to the Delawares, Shaw- 
 nees, and freedmen as a class, their identity must be 
 determined by the Secretary of the Interior. 
 
 The question 'of identity of individuals en- 
 titled to the benefits of a treaty, being in its 
 nature political and within the Secretary's 
 official jurisdiction, the court would adopt his 
 determination if the complainants were to be 
 named individually in the decree. By placing 
 the funds in his hands for distribution and 
 prescribing the principles under which they 
 are to be distributed and the class of persons 
 who are entitled to participate in the distribu- 
 tion, and leaving to the Secretary only the re- 
 sponsibility of ascertaining and determining 
 who those individuals are, the court reaches 
 the desired end more quickly and more con- 
 veniently than by setting forth in each decree 
 the names of the complainants who are en- 
 titled to recover (pp. 143 and 144). 
 After the disposition of the motions by the court 
 the counsel for the freedmen and the Cherokee Na- 
 tion withdrew their respective apphcations for appeal 
 to the Supreme Court and agreed to the substitution 
 of a new decree in the place of the one entered by the 
 court. Accordingly, on February 3, 1896, the de- 
 cree of May 8, 1895, was vacated and set aside and a 
 new decree entered as the final decree of the court in 
 the case. 
 
 The decree of February 3, 1896 (Appendix A), 
 contained practically the same provisions for the 
 
19 
 
 distril)ution of (lie jii(l«!;inent of $9(KS,.365 as the 
 decree whicli it superseded, except thai it prn\'ided 
 for the inakin«j; of a new roll of freedineii. As in 
 the previous decree it declared the acts of the Chero- 
 kee national council of April 2(), hS.SO, November 
 25, 1S9(), and May 3, 1894, by which funds derived 
 from the sale of the public domain were distributed 
 among Cherokees l)V l)lood to the exclusion of 
 adopted citizens and their descendants, to l)e void 
 and contrary to and in derogation of the constitution 
 of the Cherokee Nation and article 9 of the treaty 
 of July 19, 1806, "with respect to the rights of said 
 freedmen, who have been liberated by voluntary 
 act of their former owners or by law, and all free 
 colored persons who resided in the Cherokee country 
 at the commencement of the rebellion and who on 
 the said date resided therein, or who returned 
 thereto within six months thereafter, and their 
 descendants; and that the said Cherokee Nation or 
 its trustees, the United States, account for, render, 
 and pay to the aforesaid freedmen and free colored 
 persons and their descendants, out of any funds 
 of the said nation in its national treasury, or in the 
 custody of the United vStates as trustee, or held by 
 agreement between said nation and the United States 
 for the purpose of satisfying the decree herein ren- 
 dered, not specifically appropriated by law to other 
 purposes, or out of funds which may hereafter come 
 to the possession of said trustee l)elonging to the 
 Cherokee Nation, a sum equal to the aggregate 
 amount which said freedmen and free colored per- 
 
20 
 
 sons and their descendants would have received if 
 the above-mentioned void and unconstitutional re- 
 strictions in said statutes had not existed." 
 
 The decree next provided that the Cherokee freed- 
 men, free colored persons, and their descendants living 
 and in being on the 3d day of May, 1894, were enti- 
 tled to participate thereafter "in the common prop- 
 erty of the Cherokee Nation in the same manner and 
 to the same extent as Cherokee citizens of Cherokee 
 blood or parentage may be entitled, and that in the 
 distribution of the proceeds and avails of the public 
 domain or common property of the nation among the 
 citizens thereof by distribution per capita at any time 
 hereafter, the defendant, the Cherokee Nation, and the 
 defendant, the United States, as trustee of the Chero- 
 kee Nation, be enjoined and prohibited from, making 
 any discrimination between the Cherokee citizens of 
 Cherokee blood or parentage and Cherokee citizens 
 who are or were freedmen who had been liberated by 
 voluntary act of their former owners or by law, as well 
 as all free colored persons who were in the Cherokee 
 country at the commencement of the rebellion, and 
 were residents therein at the date of said treaty, or 
 who returned thereto within six months thereafter, 
 and their descendants, to the prejudice of the latter, 
 it being understood that the freedmen and their 
 descendants and free colored persons above referred 
 to shall include only such persons of said class as have 
 not forfeited or abjured their citizenship of said Cher- 
 okee Nation at the date of the entering of this decree." 
 
21 
 
 'Ihv dvvwv next prox idcil for the distrihution ot the 
 judgnuMit of $0(K^,.S()5 lo (ho froodinon, aftoi- the 
 deduction of attoi'iicvs' W'i^s and other expenses inci- 
 dent to the suit and (listri))ution of the funds, "such 
 payments to 1)0 made uj)on a I'oli of said froednien 
 and free colored persons and their descendants as 
 prepared and approved by the Secretary of the Inte- 
 rioi' in accordance witli provisions hereinafter set 
 forth in this decree." 
 
 The decree then authorized the Secretary of the 
 Interior to appoint three commissioners — one on the 
 nomination of the complainant, and one on the nom.- 
 ination of the defendant, the Cherokee Nation, both 
 to be approved by him, and one on his own nomina- 
 tion — " to proceed to the Cherokee country and hear 
 the testimony both for and against the identity of all 
 freedmen, free colored persons, and their descend- 
 ants claiming to be entitled to share in the distribu- 
 tion of said $903,365 that may be offered by the 
 respective parties to this suit; and that each of said 
 parties shall be entitled to be represented before said 
 commissioners, either at the taking of testimony in 
 the Cherokee country or elsewhere; and that the 
 said commissioners in ascertaining the identity of the 
 freedmen entitled to share under this decree shall 
 accept what is known as the authenticated Cherokee 
 roll, the same now l)eing on file in the ofhce of the 
 Secretary of the Interior, having been furnished to 
 him and purporting to have been taken by the Chero- 
 kee Nation in 1880 for the purpose of showing the 
 
22 
 
 number of freedmen then entitled to citizenship in 
 the said nation under the terms of the treaty between 
 the United States and the Cherokee Nation, herein- 
 before referred to, and their descendants; and the 
 said commissioners shall ascertain who of said per- 
 sons named on said roll were alive and what descend- 
 ants of said persons were alive on May 3, 1894, and no 
 evidence shall be accepted by said commission tend- 
 ing to disprove the citizenship of any of the persons 
 whose names appear upon said roll." 
 
 The decree then provides that when the roll made 
 by the said commissioners shall have been approved 
 by the Secretary of the Interior that he will cause the 
 judgment of $903,365, after deducting costs and 
 expenses, to be paid and distributed to persons 
 entitled, such payments, however, not to exceed 
 $256.34 per capita. 
 
 The decree then in great detail directs how and to 
 whom counsel fees, costs, and expenses of the suit and 
 distribution of the fund shall be paid, ''and that any 
 balance of the amount hereby decreed to said plain- 
 tiffs, and not consumed in the per capita payment 
 herein provided for, shall be paid over to the Cherokee 
 Nation as other moneys provided for in the agreement 
 between said nation and the Secretary of the Interior 
 hereinbefore referred to." 
 
 The decree then ordered that the Cherokee Nation, 
 the defendant, should pay the costs of the suit as 
 above provided, ''and that if this judgment and decree 
 be not carried out and satisfied within six months 
 from the date hereof the claimant may apply to this 
 
23 
 
 couil for such i'uitlKM- ordci-, relief, or I'cnicdy as the 
 phiiiilirt" heriun may (Icein nocossMry, ami thai if any 
 further proceeding he had under this decree the rights 
 of the attorneys and counsel foi- the plaintiff herein 
 to further costs and allowances he reseixcd to be 
 hereafter determined and fixed hy the couit, and the 
 court reserves the right to make all such fui-ther orders 
 in aid hereof as to it may seem meet." 
 
 Soon after the entry of the decree the counsel for 
 the respective parties submitted to the court a draft 
 of instructions for the guidance of the commissioners 
 appointed imder the decree of the court (Appendix 
 B). The court decUned to consider the instructions 
 in the following indorsement : 
 
 Respectfully referred to the Secretary of the 
 Interior. The instructions to be given to the 
 commissioners must be determined by him. 
 The within, proposed by counsel, seem unob- 
 jectionable to the court, except the second. 
 But with the approval of the Secretary the 
 court will appoint the commissioners selected 
 by him commissioners of this court to take 
 testimony, which will authorize them to ad- 
 minister oaths. 
 
 WiLi.iA!\i A. Richardson. 
 
 February 15, 1896. 
 
 The second paragraph to which the court referred 
 as objectionable reads as follows: 
 
 Second. It shall have the same power to 
 administer oaths to witnesses, to compel the 
 attendance of the same, to compel the pro- 
 duction of written testimonv, and to determine 
 
24 
 
 the admissibility of all evidence offered as the 
 Court of Claims would have in making the 
 investigation prescribed for said commission. 
 
 On February 18, 1896, the court gave its opinion, 
 at the request of the Commissioner of Indian Affairs, 
 upon the legal construction of the fifth of the proposed 
 instructions referred to the Secretary of the Interior 
 on February 15, 1896. The proposed instruction 
 reads as follows: 
 
 Fifth. In making the investigation pre- 
 scribed in said decree it shall confine itself to 
 the identity of the following classes of persons 
 only: (1) All persons who had been held in 
 bondage by any member of the Cherokee Na- 
 tion and who had been liberated by act of law 
 or by voluntar}^ act of their owners, and the de- 
 scendants of such; (2) all free colored persons 
 who were in the Indian Territory at the com- 
 mencement of the rebellion and were residents 
 thereof at the time of the treaty of July 9, 
 1866, or who returned thereto within six 
 months after the conclusion and ratification 
 of said treaty, and their descendants; (3) all 
 of the aforesaid classes who were citizens of 
 the Cherokee Nation on May 3, 1894. 
 
 The court in its opinion said: 
 
 The decree in this case follows and refers to 
 Article IX of the treaty with the Cherokee 
 Nation, July 19, 1866, and the persons therein 
 designated are the complainants in this case 
 entitled to payment under the decree. 
 
 The court is of the opinion that the clauses 
 in that article in these words, '^and are now 
 
reside fits tin rein, or irlio may return williin six 
 months, and their deseeyidants,'^ were intended 
 foi- the protiM-tion of the Cherokee Nation, as 
 a limitation upon the number of persons who 
 might avail themselves of the provisions of the 
 treaty; and ('onse(]U(Mitl\' tliat they refer to 
 botli 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. 
 
 (31 C. Cls., 140.) 
 
 On February 20, 1896, the Commissioner of Indian 
 Affairs prepared a draft of instructions for the com- 
 missioners appointed by the Secretary of the Interior, 
 which was approved by him on that date, and after- 
 wards, on April 21, 1896, formally approved in a 
 communication to the Commissioner of Indian Af- 
 fairs. The instructions directed that in ascertaining 
 the identity of the freedmen the commissioners 
 should accept the roll of 1880 and make no inquiry 
 respecting it other than to ascertain who of said per- 
 sons named on said roll were alive and what descend- 
 ants of said persons were alive on May 3, 1894, and 
 that no evidence should be accepted tending to 
 disprove the citizenship of any of the persons whose 
 names appeared on that roll. The Secretary, how- 
 
26 
 
 ever, stated that no such roll as the authenticated 
 Cherokee roll of 1880 was on file in the Interior De- 
 partment, but that when Mr. Wallace was making 
 up the roll of freedmen, in 1889, who were living on 
 March 3, 1883, he was furnished with a copy of the 
 roll of 1880 containing the names of 1,874 freedmen. 
 
 The commissioners were directed to enroll only 
 such persons as were alive and in being May 3, 1894, 
 and were at that time residents of the Cherokee 
 Nation, "it being understood that the freedmen and 
 their descendants and free colored persons above 
 referred to include only such persons of said classes 
 as have not forfeited or abjured their citizenship of 
 said Cherokee Nation at the date of the entering of 
 said decree (February 3, 1896).'' 
 
 The commissioners were finally directed that upon 
 the completion of their labors they should "submit 
 a schedule of the names of the persons determined 
 by you as being entitled to share in the distribution 
 of the fund of $903,365 mentioned in the aforesaid 
 decree, with a typewritten report of your daily pro- 
 ceedings and of all evidence where claimant is not 
 admitted by a vote of the majority of said commis- 
 sion, and file stenographic notes of all testimony 
 taken." 
 
 In the letter of the Secretary approving the in- 
 structions he says that it is the duty of the commis- 
 sion "to ascertain and determine who are the indi- 
 vidual freedmen and free colored persons of the 
 Cherokee Nation now entitled to share in the dis- 
 
11 
 
 Iribulion ut' llu> siiin awarded by said dt'crec of the 
 Court of Claims, filed Fel)ruarv 1^, 1S<H)." 
 
 While tlie I'oll was in process of preparation hy the 
 eonnnissioners appointed 1»\ tlie Secretary of tlie In- 
 terior the attoin(\v foi- tin* freedmen filed, on April 
 11. 1S!)(). a motion askinji; the court to instruct the 
 commissioners to enroll the names of all those freed- 
 men who had been liberated by the voluntary act 
 of their owners or by law, and their descendants, as 
 provided by the treaty of .July 19, 18(3(3, "and if it 
 shall appear to said commission that any person or 
 persons of the aforesaid class had l)een taken from 
 the Cherokee Nation during the rebellion either by 
 the owners thereof or was absent therefrom during 
 said time because of his or their belonging to either 
 of the armies that were engaged in the late rebellion, 
 and were unable to return to the Cherokee Nation 
 within six months after the conclusion and ratifica- 
 tion of the treaty referred to in the decree in said 
 cause, of date July 16, 1866, because of circumstances 
 beyond their control, but returned as soon as practi- 
 cable, then no such person shall be excluded by said 
 commission from the roll to be prepared by it, l)ut 
 the same shall be placed thereon, as well as the de- 
 scendants of such." 
 
 After full consideration of the question presented 
 by the attorney for the freedmen, the court entered 
 the following order (Appendix E) : 
 
 The court is of the opinion that the act 2d 
 March, 1895 (28 Stat. L., p. 910, sec. 11), pre- 
 scribes the manner in which payments per 
 
28 
 
 capita shall be made and that the matter of 
 payment is exclusively within the jurisdiction 
 of the Secretary of the Interior. 
 
 The court, after further consideration, ad- 
 heres to the opinion communicated to the 
 Commissioner of Indian Affairs, February 18, 
 1896. 
 
 The within motion for instructions is over- 
 ruled. 
 
 April 15, 1896. 
 
 By the court: 
 
 Wm. a. Richardson, 
 
 Chief Justice. 
 
 Mr. Kern, who filed the motion as attorney for the 
 freedmen, was also a member of the commission 
 which made the '^Kern-Clifton roll." The roll was 
 completed in December, 1896, and payment begun 
 in February of 1897, under the decree of February 
 3, 1896, and all of their proportion of the funds 
 derived from the sale of the Cherokee Outlet have 
 been distributed per capita to the freedmen whose 
 names were found on that roll, the last payment 
 having been made about twelve years ago. 
 
 On March 3, 1893 (27 Stat., 645), Congress created 
 a commission to the Five Civilized Tribes, commonly 
 known as the ''Dawes Commission," for the purpose 
 of procuring the extinguishment of the national or 
 tribal title to the lands held by the tribes living in 
 the Indian Territory, and their cession to the United 
 States for allotment in severalty among the members 
 thereof. 
 
2U 
 
 By the act of Juiir 10, ISlKi ('2\) Stal., iiLMj, ("oii- 
 gross directed the Dawes Coniinission to make a roll 
 of the Five Cixilizcd 'IVihcs, and at I he same time 
 ratified the ti'il)al rolls ;is tiiev then existed, so that 
 the duty of tlu^ commission was hmited to passiiiji; 
 upon the qualihcatioiis of applicants for enrolhnent. 
 The act further })ro\ides that : 
 
 The said conunission shall also make a roll 
 of freedmen entitled to citizenship in said tribes, 
 and shall include their names in the lists of 
 members to be filed with the Commissioner of 
 Indian Affairs. 
 
 The act of June 7, 1897 (30 Stat., 83), provided: 
 
 That said commission shall continue to exer- 
 cise all authoi'ity heretofore conferred on it by 
 law to negotiate with the Five Tril)es, and any 
 agreement made by it with any 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 appropiiations for current and con- 
 tingent 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 descendards 
 of those appearing on such rolls, and such ad- 
 ditional names and their descendants as have 
 been subsequently added, either by the council of 
 
30 
 
 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 he 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 com- 
 mission will investigate and determine the 
 right of such party to remain upon such roll 
 as a citizen of such nation: Provided also. 
 That anyone 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. 
 
 On June 28, 1898 (30 Stat., 495), Congress passed 
 what is known as the "Curtis Act," by section 21 of 
 which the Dawes Commission was directed to make a 
 roll of Cherokee citizens as follows: 
 
 Section 21. That in making rolls of citizen- 
 ship of the several tribes, as required by law, 
 the Commission to the Five Civilized Tribes 
 is authorized and directed to take the roll of 
 the Cherokee citizens of eighteen hundred and 
 eighty (not including freedmen) as the only 
 roll intended to be confirmed by this and pre- 
 ceding acts of Congress, and to enroll all per- 
 sons 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 heen cn- 
 roUed hy the li-ihal autliorities who liave here- 
 tofore made permanent settlement in the 
 Cherokee Nation whose parents, hy reason of 
 their Cherokee blood, have been lawfiill}- 
 achnitted to eitizenship by the tribal authori- 
 ties, and who were minors when their parents 
 were so admitted; and they shall investi<!:ate 
 the rio;ht of all other persons whose names are 
 found on any other rolls and omit all sueh as 
 may have been placed thereon by fraud or 
 without authority of hiw, enrolling only such 
 as ma}- 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. 
 It shall make a roll of Cherokee freedmen in 
 strict compliance with the decree of the Court 
 of Claims rendered the third day of February, 
 eighteen hundred and ninety-six. 
 
 ***** 
 
 After a number of other provisions the act pro\'ides 
 in the same section 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 intermany ac- 
 cording to tribal laws, shall alone constitute 
 the several tribes which they represent. 
 
 The act of June 28, 1898, passed the House of 
 Representatives as H. R. No. 8581 on April 14, 1898, 
 with a provision in section 22 (which on its final 
 
 1429G— 09 3 
 
32 
 
 passage became section 21), directed to the Dawes 
 Commission : 
 
 It shall make a roll of Cherokee freedmen 
 in strict compliance with the decree of the 
 Court of Claims, rendered the third day of 
 February, eighteen hundred and ninety-six. 
 
 The Congressional Record shows that House bill 
 No. 8581 (the Curtis bill) was read twice in the 
 Senate on April 16, 1898, referred to the Senate 
 Committee on Indian Affairs, and reported back to 
 the Senate on May 23, 1898, with the following 
 proposed amendment to section 22 of the bill, which 
 was debated at considerable length : 
 
 The roll of the freedmen of the Cherokee 
 Nation m.ade under the provisions of the de- 
 cree entered of record in the Court of Claims 
 of the United States, February third, eighteen 
 hundred and ninety-six, in the case of Moses 
 Whitmire, trustee of the freedmen of the Chero- 
 kee Nation, against the Cherokee Nation and 
 the United States, is hereby confirmed, and 
 the Commission to the Five Civilized Tribes 
 shall make a roll of said freedmen by adopting 
 the aforesaid roll as made in the aforesaid case. 
 
 And it shall add thereto the names of the 
 descendants of all persons thereon born since 
 May third, eighteen hundred and ninety-four, 
 and the names of all persons who applied be- 
 fore the commission that made the roll of 
 freedmen in said case, and whose names were 
 not placed upon either said roll or the rejected 
 roll of freedmen made by said commission in 
 said case, if in their judgment the evidence 
 
olToreil hol'orc said coniinission lo the I'ivo 
 Civilized 'ri'il)os justifiod ihoir i)oin«2; niadr citi- 
 zens of the CluM'okee Nation in accoidance 
 witli the provisions of said decree, and the 
 descen(hints of said persons horn since May 
 thinh ei<!;hteen hnndied and ninety-four; and 
 from the roll tiuis madc^ tlie said commission 
 shall expuno;e the names of all persons on said 
 roll who have died since May third, eit]i;hteen 
 hundred and ninety-four, or who shall have 
 abjured their citizenship in the Cherokee 
 Nation; and the roll as thus made shall l)e 
 the final and complete roll of the freedmen of 
 the Cherokee Nation, 
 
 On June 7, 1898, the Curtis bill (H. R. No. 8581) 
 again came up for discussion in the Senate, and after 
 further debate was passed with Senate amendments. 
 The above amendment, to confirm the '^ Kern-Clifton 
 roll," however, was rejected and stricken out. The 
 provision for making the Cherokee freedman roll was 
 passed in the identical language in which it had 
 passed the House, and in which it finally became a 
 law^ in the Cm^tis Act of June 28, 1898. (Congres- 
 sional Record, vol. 31, part 6, pp. 5582, 5583.) 
 
 The instructions of the Secretary of the Interior of 
 November 23, 1899, to the Commission to the Five 
 Civilized Tribes for their guidance in making out the 
 roll of freedmen followed literally the language of 
 the decree of February 3, 1896, and directed them to 
 take the roll of 1880 as the only roll to be used in 
 identifying applicants for enrollment under the act 
 of June 28, 1898, and that the names of such appli- 
 
34 
 
 cants must either be found upon that roll or testi- 
 mony furnished to trace their ancestry to some freed- 
 man whose name should be found upon it. 
 
 On May 14, 1900, the departmental instructions 
 of November 23, 1899, were revoked and new in- 
 structions issued to the Dawes Commission. After 
 discussing the Whitmire case in connection with the 
 provision in the act of June 28, 1898, for making 
 out the roll of Cherokee freedmen ''in strict com- 
 pliance with the decree of the Court of Claims, 
 rendered the third day of February, eighteen hun- 
 dred and ninety-six," the Secretary said: 
 
 A roll was made under this decree, known 
 as the ''Chfton roll," which was approved 
 by this department in 1897. It has been 
 claimed that said roll contains many names 
 not properly belonging there, but whether 
 this fact influenced Congress to disregard 
 that roll and direct that a new one be made 
 in strict compliance with said decree is im- 
 material, for the fact remains that the decree 
 alone is to be taken as a guide for making the 
 roll which your commission is to prepare. 
 
 The roll of 1880, made by the Cherokee 
 Nation, is to be accepted by you as conclusive 
 of the right of all persons whose names are 
 found thereon and of their descendants to be 
 enrolled by you. Your only duty in relation 
 thereto is to ascertain who of the persons 
 named therein are alive and who of their 
 descendants are alive and place their names 
 on your roll, omitting, however, all who have 
 forfeited or abjured their citizenship. 
 
35 
 
 In (lie roi'iiicr (Icci'cc (he W'jillncc i-oll, after 
 l)eiii,i!; ('()i-iV('t(HJ hy addini;- (lie names of de- 
 seendants and striking- ofT the names of those 
 who had died or ceased to be citizens, was to be 
 taken as tlie correct roll of all freedmen, 
 free colored persons, and their descendants 
 entitled to citizenship. The same explicit direc- 
 tion was not .Jiiven in the modified decree as 
 to the roll of ISSO. By the former decree the 
 ►Secretary of the Interior was authorized to 
 appoint a connnissioner to ascertain and report 
 the facts necessary for the correction of the 
 Wallace roll, but in the modified decree he 
 was, for the purpose of ascertaining and de- 
 terminini2; who are the individual freedmen, 
 authorized to appoint three commissioners " to 
 proceed to the Cherokee country and hear 
 testimony both for and against the identity of 
 all freedmen, free colored persons, and their 
 descendants claiming to be entitled to share 
 in the distribution of said $903,365. " This 
 commission was not restricted to ascertainino- 
 the facts necessary to complete and bring up 
 to date the roll of 1880, but in addition to 
 that duty were also to hear testimony both for 
 and against the identity of all freedmen, free 
 colored persons, and their descendants claim- 
 ing citizenship in the Cherokee Nation, but no 
 evidence was to be accepted tending to dis- 
 prove the citizenship of any person whose 
 name appears upon the roll of 1880. Evi- 
 dently something more than the completion 
 and correction of the roll of 1880 was intended. 
 It was intended that a full and complete roll 
 should be made that should include the names 
 
36 
 
 of all freedmen, free colored persons, and their 
 descendants entitled to be recognized as citi- 
 zens of the Cherokee Nation. It is your duty 
 now to make such a roll, which shall include 
 the names of all Cherokee citizens "who are 
 or were freedmen who had been liberated by 
 voluntary act of their former owners or by 
 law, as well as all free colored persons who 
 were in the Cherokee country at the commence- 
 ment of the rebellion and were residents 
 therein at the date of said treaty or who re- 
 turned thereto within six months thereafter, 
 and their descendants." 
 
 The instructions of November 23, 1899, upon 
 this subject are hereby revoked. 
 
 (Annual Report of Department of Interior 
 for 1902, pt. 2, p. 125.) 
 
 After the issuance of the instructions of May 14, 
 1900, Thomas M. Buffington, at that time principal 
 chief of the Cherokee Nation, and three other citizens 
 of the Cherokee Nation filed a petition in the United 
 States District Court at Muskogee for an injunction 
 to restrain the Dawes Commission from enrolling the 
 names of any Cherokee freedman whose name could 
 not be found on the roll of 1880, or who could not 
 trace their ancestry to some freedman whose name 
 could be found upon that roll. The allegation was 
 made " that in proceeding to make such roll they 
 [the Dawes Commission] are receiving, considering, 
 and making a record of intermarried freedmen and 
 other persons who do not appear upon any roll of 
 citizens of said nation, or upon the authenticated 
 
37 
 
 I'oII of ISSO. or ill coini)!'!:!!!!'!' with the (Icci'cc of llu> 
 ('ourl of Cl.'iiius Mild the ;i.-l of Max- 15 1, !<)()()." The 
 District Court took jui'isdidiou of I ho case in an 
 int(M'lo('utorv opinion filed in open coui't October 26, 
 11)01, in wliich a tonij^orarv injunction was <i;i-antod 
 until the Chorokoo Nation should intervene and the 
 questions inxolved in the fxMilion he considered uj)on 
 their merits. (Annual Report of Department of In- 
 terior for 1002, Part 2, \^\^. 121 to 123.) 
 
 The act of May 31, 1900 (31 Stat., 221), referred 
 to in the interlocutory opinion of the court, provided: 
 
 That said commission shall continue to ex- 
 ercise all authority heretofore conferred on it 
 by law; but it shall not receive, consider, or 
 make am' record of an}- application of any 
 person for enrollment as a member of any 
 tri]:)e in Indian Territory who has not been a 
 recognized citizen thereof, and duly and law- 
 full}' enrolled or admitted as such, and its re- 
 fusal of such applications shall be final when 
 approved by the Secretary of the Interior. 
 
 The injunction was dissolved on August 25, 1903, 
 in a very exhaustive opinion by Judge Raymond, 
 and the bill dismissed for want of equity. The court 
 said that it was the duty of the Dawes Commission 
 in making a roll of the freedmen "in strict compliance 
 with the decree of the Court of Claims, rendered the 
 third day of February, eighteen hundred and ninety- 
 six," to construe the decree of the Court of Claims, 
 and the learned judge reached the conclusion that 
 the "common property of the Cherokee Nation is 
 
38 
 
 now about to be divided. It would seem that this 
 commission appointed by the Secretary of the Inte- 
 rior was for the purpose only of fixing a basis for the 
 payment of the $903,365, and not as a basis for 
 division of the public lands of the nation." (Annual 
 Report of Interior Department for 1904, part 2, pp. 
 138-161.) 
 
 The district court in dissolving the injunction took 
 the ground that the duties of the Secretary of the 
 Interior in making and approving the roll of freedmen 
 ''in strict compliance with the decree of the Court of 
 Claims" were judicial in their character and not sub- 
 ject to review by the courts. In this he followed the 
 opinion of Judge Sanborn in Kimberlin v. Commission 
 to the Five Civilized Tribes, decided October 15, 1900 
 (104 Fed. R., 653), where the court in construing the 
 act of June 28, 1898, the act under consideration in 
 this case, said, speaking of the powers delegated to the 
 Dawes Commission : 
 
 Nevertheless, in the determination of the 
 citizenship of the parties who apply to them for 
 membership in the Five Nations, they are 
 vested with judicial powers by the acts of 
 Congress. 
 
 Further on the court said : 
 
 Under these acts of Congress the Commission 
 to the Five Civilized Tribes is a special tribunal, 
 vested with judicial power to hear and deter- 
 mine the claims of all applicants to citizenship 
 in the Five Tribes, and its enrollment or refusal 
 to enroll the applicant in each particular case 
 
constitutps its jiidniiuMit in lliat cause. In the 
 case l)ofore us tliis tril)uu:il has heard and 
 detcriniiied tlie claim ol" the plaintiff. Whether 
 its decision was ri«!;ht or \vron«!; is immaterial in 
 this court, and that ([uestion will not l>e con- 
 sidered. Congress saw fit to intrust to the 
 judicial discretion of the commission the de- 
 termination of the application of the plaintiff 
 in error, and of every (juestion of law and of 
 fact which that decision involved. Under the 
 settled rules to which attention was called in 
 the opening of this opinion, no court has juris- 
 diction by the use of the writ of mandamus 
 to substitute its own opinion for that of the 
 tribunal to which the law intrusted the decision 
 of these ciuestions, to control the judicial discre- 
 tion of that tribunal, to correct its errors, or to 
 reverse its decision. The judgments of the 
 courts below were right, and they are affirmed 
 (pp. 662, 663). 
 
 The Supreme Court, in the case of the Laurel Oil 
 and Gas Company v. Robert IT. Morrison et al. (212 
 U. S., 291), decided February 23, 1909, said: 
 
 Section 12 of the act of March 3, 1905 (33 
 Stat., 1081, c. 1479), in force when the proceed- 
 ings in the present case were had, provides: 
 
 " Tliat hereafter all appeals and writs of error 
 shall be ta.ken from the Ignited States courts 
 in the Indian Territory to the United States 
 Court of Appeals in the Indian Territory, and 
 from the United States Court of Appeals in 
 the Indian Territory to the United States Cir- 
 cuit Court of Appeals for the l^ighth Cii-cuit, 
 in the same manner as is now provided lor in 
 
40 
 
 cases taken by appeal or writ of error from the 
 Circuit Courts of the United States to the Cir- 
 cuit Court of Appeals of the United States for 
 the Eighth Circuit." 
 
 We find no statute giving an appeal from 
 that Circuit Court of Appeals to this court, 
 and perceive no reason for concluding that Con- 
 gress intended that parties in such cases should 
 ])e entitled to three appeals. 
 
 Appeal dismissed. 
 
 On March 22, 1909, in another case from the Eighth 
 Circuit, Sass and Crawford v. Minnie Thomas and 
 Charley Thomas (214 U. S., 489), the Supreme Court 
 dismissed the appeal upon the authority of the Laurel 
 Oil and Gas Company case without comment. 
 
 On November 16, 1907, the State of Oklahoma, 
 composed of the Indian Territory and the Territory 
 of Oklahoma, was admitted into the Union. 
 
 On July 1, 1902 (32 Stat., 716), Congress passed 
 another act entitled, ''An act to provide for the 
 allotment of the lands of the Cherokee Nation, for 
 the disposition of town sites therein, and for other 
 purposes," commonly known as the "Cherokee agree- 
 ment," v/hich provided that a roll of the Cherokee 
 Nation should be made as follow^s: 
 
 Sec. 25. The roll of citizens of the Cherokee 
 Nation shall be made as of September first, 
 nineteen hundred and two, and the names of 
 all persons then living and entitled to enroll- 
 ment on that date shall be placed on said roll 
 by the Commission to the Five Civilized 
 Tribes. 
 
11 
 
 Skc. 'id. The luimos of all persons livin<; on 
 tlio firsl (lay of SoptonilxM'. niiiolccii huiKlrcd 
 :i.ii(l two. oii(itl(Ml to 1)(' cni'oilcd as provided 
 in section t\v(>nf y-fivc hereof. shn.II l)e j)Ia('e(l 
 npon the r(tll ni.-ide by said ( 'oininission. and 
 no eliild horn thereafter lo a citizen, and no 
 white person who has intermarried with a 
 Cherokee citizen since the sixteenth chiy of 
 December, eij2;hteen hundred and ninety-five, 
 shall l)e entitled to enrollment or to partici- 
 pate in the distribution of the tribal property 
 of the Cherokee Nation. 
 
 Sec. 27. Such rolls shall in all other respects 
 be made in strict compliance with the provi- 
 sions of section twenty-one of the act of Con- 
 gress approved June twenty-eighth, eighteen 
 hundred and ninety-eight (thirtieth Statutes, 
 page four hundred and ninety-five), and the 
 act of ( ongress approved May thirty-first, 
 nineteen hundred (Thirty-first Statutes, page 
 two hundred and twenty-one). 
 
 Sec. 28. No person whose name appears 
 upon the roll made by the Dawes Commission 
 as a citizen or freedman of any other tril)e 
 shall be enrolled as a citizen of the dierokee 
 Nation. 
 
 Sec. 29. For the purpose of expediting the 
 enrollment of the Cherokee citizens and the 
 allotment of lands as herein provided, the said 
 commission shall, from time to time and as 
 soon as practicable, forward to the Secretary 
 of the Interior lists upon which shall be placed 
 the names of those persons found by the 
 commission to be entitled to enrollment. 
 The lists thus prepared, when approved by the 
 
42 
 
 Secretary of the Interior, shall constitute a 
 part and parcel of the final roll of citizens of 
 the Cherokee tribe upon which allotment of 
 land and distribution of other tribal property 
 shall be made. When there shall have been 
 submitted to and approved by the Secretary 
 of the Interior lists embracing the names of 
 all those lawfully entitled to enrollment, the 
 roll shall be deemed complete. The roll so 
 prepared shall be made in quadruplicate, one 
 to be deposited with the Secretary of the In- 
 terior, one with the Commissioner of Indian 
 Affairs, one with the principal chief of the 
 Cherokee Nation, and one to remain with the 
 Commission to the Five Civilized Tribes. 
 
 Section 2 of the act of April 26, 1906 (34 Stat., 137), 
 in part provides : 
 
 That the rolls of the tribes affected by this 
 act shall be fully completed on or before the 
 fourth clay of March, nineteen hundred and 
 seven, and the Secretary of the Interior shall 
 have no jurisdiction to approve the enroll- 
 ment of any person after said date. 
 
 And section 3 of said act in part provides : 
 
 The roll of Cherokee freedmen shall include 
 only such persons of African descent, either 
 free colored or the slaves of Cherokee citizens 
 and their descendants, who were actual per- 
 sonal bona fide residents of the Cherokee 
 Nation August eleventh, eighteen hundred and 
 sixty-six, or who actually returned and estab- 
 lished such residence in the Cherokee Nation 
 on or before February eleventh, eighteen hun- 
 dred and sixty-seven; but this provision shall 
 
43 
 
 not jtr(^V('nl i iKMMirolliiKMil of ;iny jxM'son wlio 
 lius horolofore made application to the Com- 
 mission to the VWo Civilized Tribes or its suc- 
 cessor and has been adjiKlf!;ed entitled to en- 
 rollment by the Secretary of the Inteiior. 
 
 On January IS, 1906, House bill No. oOTO, Fifty- 
 nmth Congress, first session, entitled "A bill to 
 provide for the final disposition of the affairs of the 
 Five Civilized Tribes of tlie Indian Teri'itory, and 
 for other purposes," which aftenvards became the 
 act of April 26, 1906 (34 Stat., 137), came up for 
 debate in the House of Representatives, and after 
 considerable discussion, an amendment was offered 
 to section 3 by Mr. Campbell, of Kansas, for the 
 purpose of allowing the enrollment of freedmen who 
 had not returned to the Cherokee Nation within six 
 months from the promulgation of the treaty of Jul>' 
 19, 1866, as provided by the 9th article, which 
 amendment reads as follows: 
 
 Provided, That the roll of Cherokee freedmen 
 shall include the names of all such persons as 
 are mentioned in article nine of the Cherokee 
 treaty of Jul}' nineteenth, eighteen hundred 
 and sixty-six, who made application for such 
 em-ollment on or prior to December first, 
 nineteen hundred and five, who were taken 
 from the nation or driven therefrom under 
 circumstances which were beyond their control, 
 and who did not, subsequent to August 
 eleventh, eighteen hundred and sLxty-six, 
 make application for citizenship in any other 
 tribe. 
 
44 
 
 This amendment, however, was rejected and the 
 bill became a law in the identical language of section 
 3 quoted above. (Congressional Record, vol. 40, 
 part 2, pp. 1240, 1248, and 1249.) 
 
 The Cherokee roll was completed and approved 
 by the Secretary of the Interior as provided by the 
 act of April 26, 1906, supra, on March 4, 1907. 
 
 On October 2, 1909, the following report was 
 received from the Department of the Interior: 
 
 Referring to the letter (G. M. A.) of Sep- 
 tember 30, 1909, from Assistant Attorney- 
 General John Q. Thompson, in regard to the 
 eiu-ollment of Cherokee freedmen, you are 
 advised that the records of the Department 
 of the Interior show that upon the final roll 
 of the Cherokee freedmen prepared by the 
 commission, or the Commissioner to the Five 
 Civilized Tribes, and approved by the Depart- 
 ment under the acts of Congress of June 28, 
 1898 (30 Stat. L., 495) and July 1, 1902 
 (32 Stat. L., 716), there are enrolled 174 freed- 
 men whose names are also on the Cherokee 
 roll of 1880, but who are not identified on the 
 Kern-Clifton roll. 
 
 On September 30, 1907, the attorney for the freed- 
 men in the original Whitmire case, No. 17209, R. H. 
 Kern, together with two additional attorneys, Messrs. 
 Putman & Poe, filed a motion to be allowed to file a 
 supplemental petition for the purpose of opening up 
 the decree rendered February 3, 1896, and procuring 
 from the court the issuance of some kind of an order, 
 upon the ground that Congress had used language in 
 
45 
 
 the acts ol'.Iiiiic "JS, ISDN, ;iii(l .lul\ 1, P.iOL'. in dealing 
 witli (he allotnuMit of ("licrokoc lands (>asl ol" tlic 
 ninoty-sixth (loi2;reo of west l()ii«!;itu(l(\ which nii«j;ht 
 hy inference be supposed to confer jurisdiction upon 
 the court to issue sucli order undei- a deci'cc deahn*;- 
 witli the proceeds of conunon lands west of the 
 ninety-sixth degree of west longitude, and l)ecause, 
 as they say, the Dawes Commission, under the act of 
 July 1, 1902, "has made a roll of freedmen, including 
 persons not on the court's roll and excluding persons 
 on the court's I'oll, and even persons on the i-oll of 
 ISSO, as made by the Cherokee Nation itself." 
 
 The court, of its own motion, upon the filing of 
 the claimants' motion and supporting brief, without 
 waiting for the defendants' brief, remanded the case 
 to the law calendar for oral argument for the reasons 
 stated in a memorandum attached thereto, which 
 reads as follows: "Has not the act under which the 
 suit of Whitmire was originally brought peformed 
 its office? Is it not too late now to bring the suit 
 contemplated by the supplemental petition"? " 
 
 On April 20, 1908, over one year after the Cherokee 
 final rolls had been completed and approved by the 
 Secretary of the Interior, an order was passed by the 
 court allowing the appointment of a substitute 
 trustee and the fifing of the claimant's supplemental 
 petition. The petition contains the following prayer 
 for re fief: 
 
 The premises considered, your petitioner 
 prays that this honorable court will pass a 
 decree declaring the action of the said Dawes 
 
46 • 
 
 Commission and the Secretary of the Interior 
 whereby the names of said freedmen were 
 excluded from the roll and citizenship of the 
 Cherokee Nation be declared to be unlawful, 
 and further enjoining and prohibiting the de- 
 fendants, the Cherokee Nation, and the United 
 States, as trustee for the Cherokee Nation, 
 from making any discrimination between the 
 said freedmen and other citizens of the Chero- 
 kee Nation in the allotment of lands and dis- 
 tribution of the said property and assets of 
 said nation, and further enjoining the said de- 
 fendant, and particularly the United States 
 acting through the Secretary of the Interior, 
 from further disturbing said freedmen in the 
 possession and occupation of their said homes 
 and improvements, and further enjoining upon 
 the said defendant, the United States acting 
 through the Secretary of the Interior, to rein- 
 state such of said freedmen as have hereto- 
 fore been ousted from the occupancy and pos- 
 session of their said homes and improvements. 
 
 ARGUMENT. 
 The purpose for which this suit was instituted. 
 
 The primary object of the institution of this suit 
 was to determine the right of the Cherokee freedmen 
 to participate in the per capita distribution of the pro- 
 ceeds derived from the sale of lands west of the ninety- 
 sixth degree of west longitude, and incidentally the 
 right of such freedmen to participate in the per capita 
 distribution of any funds derived from the sale of the 
 Cherokee pubHc domain. Since the removal of the 
 Cherokee Indians from their old homes in the east to 
 
tlio Indian TcMTitory, and llicir set t Icnicnl upon the 
 lands conijirisiiij;- the })ul)lic domain of tlip Cherokee 
 Nation, up (o the present time no lands have been 
 sold 1)\- the Cherokee Nation east of the ninety-sixth 
 degree of west lonnituchv At various times, how- 
 ever, lands were ceded to tlie United States west of 
 the ninety-sixth degree of west longitude, until finally 
 the nation parted with all of its lands west of the 
 ninety-sixth degree of west longitude in the sale of 
 the Cherokee Outlet. By the act of March 2, 1889, 
 supra, Congress authorized the President to appoint 
 a commission to negotiate for the cession of the Chero- 
 kee Outlet. 
 
 Congress in the jurisdictional act of October 1, 
 1890, supra, authorized this court to determine the 
 right of the Delawares, Shawnees, and freed men to 
 participate in the per capita distribution of the pro- 
 ceeds derived from the sale, leasing, or rent of the lands 
 west of the ninety-sixth degree of wTst longitude; and 
 while the adjudication of this question necessarily 
 involved the determination of the right of the Dela- 
 wares, Shawnees, and freedmen to participate in the 
 distribution of the funds derived from the sale of the 
 common property of the tribe, the jurisdictional act 
 did not authorize a judgment or decree for that pur- 
 pose. Paragraph 6 of article 2 of the Tahlequah 
 agreement of December 19, 1891, supra, for the ces- 
 sion of the Cherokee Outlet, distinctly recognizes the 
 fact that suits had been authorized to determine the 
 beneficiaries of the proceeds of the cession. 
 
 14296—09 4 
 
48 
 
 Congress also recognized the fact that the suits of 
 the Delawares, Shawnees, and freedmen were brought 
 for their pro rata shares of the proceeds of the Chero- 
 kee Outlet. The act of March 2, 1893, appropriating 
 the compensation for the cession of the Cherokee Out- 
 let, provided that a sufficient amount to pay the Del- 
 awares, Shawnees, and freedmen their pro rata share 
 of the proceeds of the Cherokee Outlet should remain 
 in the Treasur}^ until their status should be deter- 
 mined by the courts. 
 
 The object of this suit was also clearly recognized 
 by this court in its opinion delivered on March 4, 1895 
 (30 C. Cls., 138). The court then held that, as a 
 general proposition, under the treaty of July 19, 1866, 
 supra, and the Cherokee constitution of the same 
 year, the freedmen were equally interested as a class 
 with other citizens of the Cherokee Nation in the com- 
 mon property, and its proceeds when distributed per 
 capita, but refused, however, to enter a decree " that 
 the freedmen are entitled to participate with all the 
 other members of the nation in all of the remaining 
 common property upon equal terms with the other 
 members of the nation," upon the ground that there 
 might exist among the common property of the na- 
 tion trust estates for the benefit of designated indi- 
 viduals or communities over which " the Cherokee 
 government has no legitimate control," and in which 
 "the freedmen have no interest." The court said 
 that when it was informed of the number of freedmen 
 entitled to participate in the various funds which had 
 been distributed by act of the Cherokee national 
 
41) 
 
 council (\\('liisi\('ly to " Clicrokccs l»y hlood." // 
 icoulil fix the affiounl of (he jitdf/ment und cnlcr a final 
 decree for its (h'strlbiilion niitomi Ihosc entitled. 
 
 TluM'ourt in its second opinion in this ciise del i\-cred 
 on March 18, 1895 (30 (\ (Ms., 18(J), fixed the amount 
 of its jud«i:ment in fa\'oi- of the Chei-okee fi-eedmen at 
 $903, oGo, or $250. o4 per eopild, \vss counsel fees, 
 expenses for makin*;- the roll, and distribution of the 
 fund, etc. Before entering the decree for the distri- 
 bution of the judgment the court said : 
 
 This is not an action to recover damages in 
 the nature of a suit at law, nor is it a pro- 
 ceeding in equity to wind up and dispose of the 
 affairs and assets of a partnership. It is simply 
 a suit in equity, brought by the equitable owners 
 of a specific fund to recover their proportionate 
 share in the same. The jurisdictional act rec- 
 ognizes this principle, for it authorizes suits 
 to be brought for the proportionate shares 
 of the parties in funds derived from the sale 
 or leasing of lands of the Cherokee Nation. 
 The court can not go beyond this if it would, and 
 no court of equity will award to a party more 
 than he is legally and equitably entitled to, 
 because a party having a right to share in the 
 fund is not within the jurisdiction of the 
 court (p. 188). 
 
 The jurisdictional act of October 1, 1890, did not 
 authorize or contemplate the institution of suits in this 
 court for the determination of the rights of Delawares, 
 Shawnees, and freedmen to allotments in the tribal 
 lands east of the ninety-sixth degree of west longitude. 
 This construction of the jurisdictional act was fully 
 
50 
 
 recognized by Congress in section 25 of the Curtis 
 Act of June 28, 1898 (30 Stat., 490), when it gave this 
 court jurisdiction to hear and adjudicate a suit 
 brought by the Delawares '' for the purpose of deter- 
 mining the rights of said Delaware Indians in and to 
 the lands and funds of said nation, under their con- 
 tract and agreement with the Cherokee Nation dated 
 April eighth, eighteen hundred and sixty-seven." 
 Under this act the Delawares brought a suit which 
 was decided by the court on February 2, 1903 (38 
 C. Cls., 234), and affirmed by the Supreme Court on 
 appeal February 23, 1904 (193 U. S., 127), in which 
 it was held by both courts that the registered Dela- 
 wares were "entitled to participate equally with 
 Cherokee citizens of Cherokee blood in the allotments 
 of lands," and that the jurisdictional act and the suit 
 instituted thereunder were necessary for the accom- 
 plishment of that purpose. 
 
 The rights of the Delawares, Shawnees, and freed- 
 men to institute suits under the jurisdictional act of 
 October 1, 1890, were coextensive and identical, and 
 if it was necessary for the Delawares to secure a 
 jurisdictional act to entitle them to have their status 
 in regard to the lands east of the 96th degree of west 
 longitude determined, it was equally necessary for 
 the freedmen. 
 
 The purpose for which the decree of February 3, 1896, was 
 entered. 
 
 The sole purpose for which the decree of May 8, 
 1895, and the subsequent decree of February 3, 1896, 
 were entered by the court was for the distribution of 
 
51 
 
 the judj2;ment of $903,305 oiilcivd in favoi- of tlio 
 Cherokee freedmeii. 
 
 The decree of >hiy 8, 1895, entered in accordance 
 with the opinion of March 18, 1895, provided that 
 the " corrected Wallace roll" should be adopted as the 
 basis for a roll to be made and api)roved by the Secre- 
 tary of the Interior, and the Secretary of the Interior 
 was directed to distribute the judgment, after deduct- 
 inii; attorneys' fees, expenses, etc., among the Chero- 
 kee freedmen whose names should be found upon such 
 roll, and the balance left, after the designated pay- 
 ments, was directed to be paid over to the Cherokee 
 Nation by the Secretary. 
 
 After the entry of the decree of May 8, 1895, the 
 attorneys for the Delawares, Shawnees, and freed- 
 men filed motions in their respective cases asking the 
 court to reopen the decree and increase their per 
 capita to $295.35, the amount distributed per capita 
 by the Cherokee government to Cherokees by blood. 
 In the case of the freedmen the motion also requested 
 the court to appoint commissioners to reascertain the 
 numljer of freedmen entitled to participate in the dis- 
 tribution of the judgment. All of the motions were 
 considered by the court at the same time. In the 
 case of the freedmen the Cherokee national council 
 had passed an act giving them the amount per capita 
 requested in the motion. The court, however, on 
 January 27, 1896, overruled the motion as follows 
 (31 C. Cls., 140-147): 
 
 In the case of Whitcmirc, trustee, v. The 
 Cherokee Nation, the application of the claim- 
 
52 
 
 ant to reopen the decree and for the appoint- 
 ment of commissioners to reascertain the num- 
 ber of the freedmen and for judgment for 
 $1,300,000 is overruled. 
 The court in its opinion said that it could not 
 allow a larger award to the freedmen than was con- 
 templated by the jurisdictional act of (3ctober 1, 
 1890 (26 Stat., 636), simply because the Cherokee 
 Nation had consented to the increase. In other 
 words, "consent does not confer jurisdiction" (p. 144). 
 The court in the same opinion, fixed their rights 
 under the treaty, to their distributive shares in the 
 fund referred to, and said that ''when the court 
 awards those distributive shares its authority ends." 
 That while the court has made its award to the Dela- 
 wares, Shawnees, and freedmen as a class, their iden- 
 tity must be determined by the Secretary of the 
 Interior. 
 
 The question of identity of individuals en- 
 titled to the benefits of a treaty, being in its 
 nature political and within the Secretary's 
 official jurisdiction, the court would adopt his 
 determination if the complainants were to be 
 named individually in the decree. By placing 
 the funds in his hands for distribution and 
 prescribing the principles under which they 
 are to be distributed and the class of persons 
 who are entitled to participate in the distribu- 
 tion, and leaving to the Secretary only the 
 responsibility of ascertaining and determining 
 who those individuals are, the court reaches 
 the desired end more quickly and more con- 
 
voni(Mill\' tlmii l)y s(>ttii»<i; forth in each (Iccrco 
 tlu^ names of tlio coniplaiiiaiils who arc vn- 
 tillod to r(H'ov(M- (pp. 1 Jo and 111). 
 
 The Cherokee Nation was dissatisfied with l)oth 
 tlie amount of the ju(l.i!;m(Mit and th(^ "Wallaee roll" 
 under whieh it was ordered to be paid. It was, 
 however, more dissatisfied with the "Wallace loU'' 
 than with the judgment, and it was agreed between 
 the counsel for both parties that the judgment should 
 stand, the applications for appeals be withdrawn, 
 and a new decree entered, ordering; a new roll to be 
 prepared, and the judpiient to be paid, per capita, 
 to the freedmen found upon such court roll. The 
 court accordingly, on February 3, 1896, entered a 
 new decree in which it directed that the judgment 
 of $903,365 should be distributed per capita among 
 the freedmen who should be foimd upon a roll made 
 by three commissioners appointed by the Secretary 
 of the Interior, and afterwards approved by him. 
 
 The decree of February 3, 1896 (Appendix A), 
 provided for the making of a new roll, otherwise it 
 contained practically the same provisions for the 
 distribution of the judgment of $903,365 as the 
 decree it superseded. As in the previous decree, the 
 acts of the Cherokee National Council of April 26, 
 1886, Novem])er 25, 1890, and May 3, 1894, appro- 
 priating funds derived from the sale of the public 
 domain among Cherokees by blood exclusively, were 
 declared to be void and contrary to and in derogation 
 of the constitution of the Cherokee Nation and arti- 
 cle 9 of the ti-eaty of July 19, 1866, sujirn, "with re- 
 
54 
 
 spect to the rights of said freedmen, who have been 
 liberated by vohmtary act of their former owners or 
 by law, and all free colored persons who resided in 
 the Cherokee country at the commencement of the 
 rebellion and who on said date resided therein, or 
 who returned thereto within six months thereafter, 
 and their descendants." The decree then provided 
 the manner in which the judgment shall be paid out 
 of funds of the Cherokee Nation in the hands of the 
 United States, "si sum equal to the aggregate amount 
 which said freedmen and free colored persons and 
 their descendants would have received if the above- 
 mentioned void and unconstitutional restrictions in 
 said statutes had not existed." 
 
 The decree then provided that the Cherokee freed- 
 men, free colored persons and their descendants, 
 living and in being on the 3d day of May, 1894, 
 were entitled to participate thereafter ''in the com- 
 mon property of the Cherokee Nation in the same 
 manner and to the same extent as Cherokee citizens 
 of Cherokee blood or parentage may be entitled, and 
 that in the distribution of the proceeds and avails of 
 the public domain or common property of the na- 
 tion among the citizens thereof by distribution per 
 capita at any time hereafter the defendant, the 
 Cherokee Nation, and the defendant, the United 
 States, as trustee of the Cherokee Nation, be en- 
 joined and prohibited from making any discrimina- 
 tion between Cherokee citizens of Cherokee blood or 
 parentage and Cherokee citizens who are or were 
 freedmen who had been liberated by vohmtary act 
 
of tluMr lorincr owiicis or hy law, as well as all free 
 colored persons who were in (he Cherokoo coiinlry 
 at the ('oiiiineiicenuMit of the relx'llioii, and were 
 residents therein at the date of said treiity, or who 
 i-etnrned thereto within six months thereafter, and 
 tiieii- descendants, to the prejudice of the hitter. It 
 beino: understood that the freedmen and their de- 
 scendants and free colored persons al)ove referred to 
 shall include only such persons of said class as hiive 
 not forfeited or abjured their citizenshij) of said 
 Cherokee Nation at the date of the entering of this 
 decree." 
 
 The decree then provided for the distrilmtion of 
 the judgment of $903,365 to the freedmen, after 
 deducting attorneys' fees and other expenses inci- 
 dent to the suit, "such payments to be made upon 
 a roll of said freedmen and free colored persons and 
 their descendents as prepared and approved l)y the 
 Secretary of the Interior in accordance with the pro- 
 visions hereinafter set forth in this decree." 
 
 The decree authorized the Secretary of the Interior 
 to appoint three commissioners, one on the nomina- 
 tion of the complainant, and one on the nomination 
 of the defendant, the Cherokee Nation, both to be 
 approved by him, and one on his own nomination, 
 "to proceed to the Cherokee country and hear the 
 testimony both for and against the identity of all 
 freedmen, free colored persons and their descendants, 
 claiming to be entitled to share in the distribution of said 
 $903,365 J that ma\- be offered by the respective par- 
 ties to this suit ; and that each of said parties shall be 
 
56 
 
 entitled to be represented before said commissioners 
 either at the taking of testimony in the Cherokee 
 country or elsewhere." 
 
 The decree then substitutes the Cherokee roll of 
 1880 for the corrected Wallace roll as a basis for 
 making the new roll. The language of the decree 
 would appear to indicate that the court intended 
 that only those freedmen and free colored persons 
 whose names should be found on the roll of 1880, or 
 their descendants, should be placed upon the roll 
 prepared by the Secretary of the Interior for the dis- 
 tribution of the judgment. The decree on this point 
 reads as follows: 
 
 Said commissioners in ascertaining the iden- 
 tity of the freedmen entitled to share under 
 this decree shall accept what is known as the 
 authenticated Cherokee roll, the same now 
 being on file in the office of the Secretary of 
 the Interior, having been furnished to him 
 and purporting to have been taken by the 
 Cherokee Nation in 1880, for the purpose of 
 showing the number of freedmen then entitled 
 to citizenship in the said nation under the 
 terms of the treaty between the United States 
 and the Cherokee Nation, hereinbefore re- 
 ferred to, and their descendants; and the said 
 commissioners shall ascertain who of said per- 
 sons named on said roll were alive and what 
 descendants of said persons were alive on May 3, 
 1894, «^c? no evidence shall he accepted by said 
 commission tending to disprove the citizenship 
 of any of the persons whose names appear upon 
 said roll.- 
 
57 
 
 The (]o(M'(M^ (lu'ii j)r()\i(l('(l lluit when the loll had 
 been iiiade ami aj)pr()V('(l l)y (Ik* Sccrctai-y ol' the 
 Interior he should cause the judirinent of $9(Ki)^()r>, 
 after deduetin<j; costs and expenses, to ))e distril)uted 
 to the citizens entitled, the payments not to exceed 
 $256.34 /)(•/• capita. 
 
 The decree then in «j;reat detail directs how and to 
 wlioin counsel fees, costs, and expenses of the suil and 
 distribution of the judgment shall be ])ai(l. It jtio- 
 vides that any balance left over, and not consumed 
 in the per capita payments, shall be paid over to the 
 Cherokee Nation. 
 
 The decree then directed that the Cherokee Nation 
 should pay the costs of the suit, "and that if this 
 judgment and decree be not carried out and satisfied 
 within six months from the date hereof the claimant 
 may apply to this court for such further order, relief, 
 or remedy as the plaintiff herein may deem neces- 
 sary." 
 
 The concluding language of this quotation from the 
 decree has been eagerly seized upon by the attorneys 
 for the petitioner in this case as showing that ''the 
 court reserves the right to make all such further or- 
 ders in aid hereof as to it may seem meet," as though 
 the words "in aid hereof" had been omitted and the 
 language used had been intended as an independent 
 sentence. What the court really meant by this lan- 
 guage was, that if the judgment should not be satisfied 
 within six months from the date of the decree, it would 
 issue such further order as might be necessar>' in aid 
 
58 
 
 of its distribution of the judgment as contemplated 
 by the decree. 
 
 The opinion of the court and the language of the 
 decree show conclusively that the only purpose the 
 court had in view was the distribution of the judg- 
 ment of $903,365, less counsel fees, costs, and ex- 
 penses, among the Cherokee freedmen whose names 
 should be found on the Cherokee roll of 1880, or who 
 could trace their descent from some ancestor on that 
 roll. The Secretary of the Interior was directed to 
 prepare and approve the final roll, but he was limited 
 to those fieedmen on the roll of 1880 and their de- 
 scendants. 
 
 The Secretary of the Interior was invested with exclusive juris- 
 diction to malie the Kern-Clifton roll. 
 
 The court in its opinion, rendered on January 27, 
 1896, in overruling the motions of the Delawares, 
 Shawnees, and freedmen to reopen the decree of May 
 8, 1895, said that while the court had made its award 
 to the Delawares, Shawnees, and freedmen as a class, 
 their identity must be determined by the Secretary 
 of the Interior. 
 
 Soon after the entry of the decree of February 3, 
 1896, counsel for the respective parties submitted to 
 the court a draft of instructions for the guidance of 
 the commissioners appointed by the Secretary of the 
 Interior under the decree of the court (Appendix B). 
 The court declined to consider the proposed instruc- 
 tions in the following indorsement : 
 
 Respectfully referred to the Secretary of the 
 Interior. The instructions to be given to the 
 
51) 
 
 coniniissioners nuist \)v (IcIcM-iniiicd l)\' him. 
 'Vhv within, {)rc){)()so(l hy counsel, seem uiioh- 
 jectionahle to the court, except tlie second. 
 But, with the approval of tlie Secretaiy, the 
 court will appoint the coninnssioners selected 
 hy him connnissioners of tliis court to take 
 testimony, which will authorize them to ad- 
 minister oaths. 
 
 WlLMAM A. 1\I(I1A1U)S().\. 
 
 February 15, 1896. 
 The second paragraph to which the court referred 
 is as follows: 
 
 Second. It shall have the same power to 
 administer oaths to witnesses, to compel the 
 attendance of the same, to compel the pro- 
 duction of written testimony, and to deter- 
 mine the admissibility of all evidence offered 
 as the Court of Claims would have in making 
 the investigation prescribed for said commis- 
 sion. 
 
 The court refused to give any instructions to the 
 commissioners, upon the ground that that matter 
 rested entirely within the discretion of the Secretary 
 of the Interior. It was noticed, however, that the sec- 
 ond paragraph of the proposed instructions would have 
 given to the commissioners appointed by the Secre- 
 tary power and authority which could only be con- 
 ferred by Congi'ess, and the court suggested to the 
 Secretary that this could be obviated by making the 
 commissioners commissioners of the Court of Claims 
 to take testimony. On February 18, 1896, at the 
 request of the Commissioner of Indian Affairs, the 
 
60 
 
 court gave its opinion (Appendix C; 31 C. Cls., 140) 
 on the legal construction of the fifth of the proposed 
 instructions referred to the Secretary of the Interior 
 on February 15, 1896. 
 
 This instruction (Appendix B) was the construction 
 placed upon article 9 of the treaty of July 19, 1866, 
 by counsel of the parties. Thus it will be seen that 
 the court still absolutely refused to give any instruc- 
 tions to the Secretary of the Interior as to the identity 
 of the individuals who should be placed upon the 
 Kern-Clifton roll. 
 
 On February 20, two days after the receipt of 
 the opinion of the court, the Commissioner of Indian 
 Affairs prepared a draft of instructions for the com- 
 missioners appointed by the Secretary of the Interior, 
 which was approved by him on that date, and after- 
 wards, on April 21, 1896, formally approved in a 
 communication to the Commissioner of Indian Af- 
 fairs. The instructions directed that in ascertaining 
 the identity of the freed men the commissioners 
 should accept the roll of 1880, and make no inquiry 
 respecting it other than to ascertain who of said per- 
 sons named on said roll were alive, and what descend- 
 ants of said persons were alive, on May 3, 1894, and 
 that no evidence should be accepted tending to dis- 
 prove the citizenship of any of the persons whose 
 names appeared on that roll. 
 
 It may be stated, however, that the roll on file in 
 the Interior Department of 1880 contained at the 
 time it was furnished to Mr. Wallace in 1889 the 
 
iKiiiu's ol 1.S71 li'cf'diiKMi. A iiiimhcr wcic, lioucxci', 
 afterwards added to i(. and wIumi ihc I'oll of INSO was 
 used in making the first diytrihution to tlie Dela- 
 wares and Sliawnoos /wr nipita, as tluMi- proportion of 
 the moneys paitl to tlie Cherokees l)y l)loo(l cxchi- 
 sively, there were 2,052 on the roll. 
 
 The commissioners were directed to eni'oll only 
 such persons as were alive and in heinj:; on May 3, 
 1894 (the date of the last Cherokee exclusion act), 
 and wen^ at that time residents of the Cherokee 
 Nation, "it l3eing- understood that the freedmen and 
 their descendants and free colored persons jd)ove 
 referred to include only such persons of said classes 
 as have not forfeited or al:>jured their citizenship of 
 said Cherokee Nation at the date of the entering of 
 said decree (Fel)ru:iiy 3, 189())." 
 
 The commissioners were finally directed upon the 
 completion of their labors to submit a schedule of the 
 names of persons determined by them "as being 
 entitled to share in the distribution of the fund of 
 $903,365 mentioned in the aforesaid decree," together 
 with a typewritten report of the daily proceedings 
 and all evidence where a claimant was not admitted 
 by vote of the majority of the commission. They 
 were directed to file a report of all stenographic notes 
 taken. The directions, so far as the filing of the sten- 
 ographic notes of all the testimony taken was con- 
 cerned, do not appear to have been followed. 
 
 In the letter of the Secretary approving the in- 
 structions he says it was the duty of the commission 
 
62 
 
 "to ascertain and determine who are the individual 
 freedmen and free colored persons of the Cherokee 
 Nation now entitled to share in the distribution of the 
 sum awarded by said decree of the Court of Claims, 
 filed February 3, 1896." 
 
 On April 15, 1896, the Court of Claims decided the 
 identical question involved in this controversy, and 
 it came before them for consideration in the following 
 manner: On April 14, 1896, a motion was filed in 
 the case by the attorney for the freedmen requesting 
 the court to instruct the commissioners to enroll the 
 names of all those freedmen who had been liberated 
 by voluntary act of their former owners or by law, 
 and their descendants, as provided by the treaty of 
 July 19, 1866, ''and if it shall appear to said commis- 
 sion that any person or persons of the aforesaid class 
 had been taken from the Cherokee Nation during the 
 rebellion either by the owners thereof, or was absent 
 therefrom during said time because of his or their 
 belonging to either of the armies that were engaged 
 in the late rebellion, and were unable to return to the 
 Cherokee Nation within six months after the conclu- 
 sion and ratification of the treat 3^ referred to in the 
 decree in said cause of date July 19, 1866, because of 
 circumstances beyond their control, but returned as 
 soon as practicable, then no such person shall be 
 excluded by said commission from the roll to be 
 prepared by it, but the same shall be placed thereon, 
 as well as the descendants of such." (Appendix E.) 
 
The court on those iiisti-uctioiis indorsod (ho lol- 
 lowuij!; opniioii. wliich is also I'ound ol record in \\\r 
 last opinion of the court in this case {'.U C ('Is., 140): 
 
 The* C0U1I is ol" (ho opinion tli:i( (jio act 2d 
 March, 1895 (2S Stat. L., {). 910, see. 11), 
 prescribes the manner in which payments per 
 capita shall \)v made and that the mattoi* of 
 payment is exclusively within the jurisdiction 
 of the Secretary of the Interior. 
 
 The court, after further consideration, ad- 
 heres to the opinion communicated to the 
 Commissioner of Indian Affairs, February 18, 
 189(). 
 
 The within motion for instructions is over- 
 ruled. April 15, 1896. 
 
 By the court: 
 
 Wm. a. Richardson, 
 
 Chief Justice. 
 
 The Kern-Clifton roll was completed in December, 
 1896, and payment was begun in February, 1897, 
 under the decree of February 3, 1896, and all of 
 their proportion, derived from the sale of the Cherokee 
 Outlet, has been distributed per capita, the last 
 payment having been made about twelve years 
 ago; and the decree so far as the purposes of this 
 suit are concerned has performed its office. Of 
 course it may be used as a guide in making other 
 rolls, but so far as this court is concerned its vitality 
 has been exhausted. Those freedmen who have 
 been excluded from the Kern-Clifton roll by the 
 opinion of the court of February 18, 1896, and 
 
 14296—09 5 
 
(34 
 
 whose claim the court again on March 15, 1896, 
 refused to consider, were for the most part placed 
 upon the roll by order of the Secretary of the In- 
 terior after the matter had been referred to him. 
 It is clear therefore that the Secretary of the Interior 
 did not confine himself to the Cherokee roll of 1880, 
 as directed by the decree of February 3, 1896, and 
 this was the reason Congress in the act of June 28, 
 1898, supra, directed the Dawes Commission to 
 "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," and afterwards reenacted the same 
 in the act of July 1, 1902, supra. 
 
 The Dawes Commission in making out the new 
 roll at first considered only the applications of 
 freedmen whose names were found on the roll of 
 1880, or their descendants, but on May 14, 1900, 
 the instructions of November 23, 1899, were revoked 
 and new instructions were issued to the commission, 
 in which it was said that something more than the 
 completion and correction of the roll of 1880 was 
 intended by the decree of the court; that a full and 
 complete roll should be made, that should include 
 the names of all freedmen, free colored persons and 
 their descendants entitled to be recognized as citi- 
 zens of the Cherokee Nation; that it should include 
 the names of all Cherokee citizens ''who are or 
 were freedmen who had been liberated by voluntary 
 act of their former owners or by law, as well as all 
 
free coloreil persons wlio weic in tlie Cherokee coun- 
 try at the coniniencenient of the rel)elH<)n and were 
 residents thcM-ein at the date of said ti-eaty or who 
 returned tliereto within six months tliereafler, and 
 their descendants." 
 
 In conseciuence of the clianf^'e of instructions l)y 
 the Interior Department, the })i-incipal cliief of the 
 Cherokee Nation, Thomas M. I^u(hn«iton, and three 
 other citizens of the Cherokee Nation filed a petition 
 in the United States District Court at Muskogee for 
 an injunction restraining the Dawes Commission 
 from enrolling- any freedman whose name could not 
 be found on the roll of 18S0, or who could not trace 
 his ancestry to some freedman whose name should 
 appear on said roll. The allegation was made 
 " that in proceeding to make such roll they [the 
 Dawes Commission] are receiving, considering, and 
 making a record of intermarried freedmen and other 
 persons who do not appear upon any roll of citizens 
 of said nation, or upon the authenticated roll of 
 1880, or in compliance with the decree of the Court 
 of Claims and the act of May 31, 1900." 
 
 A temporary injunction was granted, for the rea- 
 sons set out in the opinion filed in open court on 
 October 26, 1901, until the Cherokee Nation should 
 intervene and the questions involved in the petition 
 considered upon their merits. (Annual Report De- 
 partment of the Interior, 1902, pt. 2, pp. 121-123.) 
 
 The complaint of the petitioners in the supple- 
 mental petition recently filed in this case by consent 
 
66 
 
 of the court is practically the same complaint made 
 by Buffington et al. in their suit in the United States 
 District Court — that the Dawes Commission under 
 the act of July 1, 1907, '' has made a roll of freedmen, 
 including persons not on the court's roll and exclud- 
 ing persons on the court's roll, and even persons on 
 the roll of 1880, as made by the Cherokee Nation 
 itself." 
 
 The United States District Court in the opinion in 
 the Buffington case considered not only the language 
 used in the act of June 28, 1898, directing the roll to 
 be made " in strict compliance with the decree of the 
 Court of Claims, rendered the third day of February, 
 eighteen hundred and ninety-six," but also the act 
 of May 31, 1900 (31 Stat., 221). 
 
 On August 25, 1903, Judge Raymond dissolved 
 the temporary injunction in the Buffington case and 
 dismissed the bill for want of equity. The court said 
 that it was the duty of the Dawes Commission in 
 making a roll of freedmen '' in strict compliance with 
 the decree of the Court of Claims, rendered the third 
 day of February, eighteen hundred and ninety-six," 
 to construe that decree. The court said also that as 
 the tribal property was about to be divided " it would 
 seem that this commission appointed by the Secre- 
 tary of the Interior was for the purpose only of fixing 
 a basis for the payment of the $903,365, and not as a 
 basis for division of the public lands of the nation." 
 
 In dissolving the injunction the court took the 
 ground, upon the authority of the case of Kimherlin 
 V. Commission to the Five Civilized Tribes (104 Fed. 
 
()7 
 
 R., 653), that the duties of the Secretary ol the 
 Interior in niakin<2; and approving; (he loll of freechnen 
 "in strict conii^hance with the decree of the Court of 
 Chiims" wei'e ju(Hcinl in their character and not 
 subject to review l)y I he courts. (Aiuiual lieport 
 Interior Department, 1904, pt. 2, pp. i:is-l()l.) 
 
 Judge Sanl)oni in the Kinibcrlin case, supra, said 
 that the Dawes C'onnnission in passing upon the 
 chiinis of citizenship in the C'herokee Nation was 
 vested with judicial powers by acts of Congress; that 
 the commission was a special tribunal \'ested with 
 judicial power to hear and determine the claims of 
 applicants, and that its enrollment or refusal to enroll 
 in any particular case constituted its judgment; that 
 whether its decision was right or wTong was immaterial 
 in any other court, and that the question would not be 
 considered; that no court had jurisdiction by the use 
 of mandamus to suljstitute its own opinion for that of 
 a tribunal to which the law had intrusted the decision 
 of the c|uestions, or to control the judicial discretion of 
 that tribunal, correct its errors, or reverse its decision. 
 
 The opinion of Judge Sanborn was rendered on 
 October 15, 1900, in construing the Curtis Act of June 
 28, 1898, and previous acts of Congress. The Curtis 
 Act is the one which is really under discussion by this 
 court. 
 
 The Supreme Court in the case of the Laurel Oil 
 and Gas Company v. Morrison et al. (212 U. S., 291), 
 decided February 23, 1909, and afterwards followed 
 in the case of Sass v. Thomas (214 U. S., 489), dis- 
 missed the appeals from the Eighth United States 
 
68 
 
 Circuit upon the ground that that court was the 
 court of last resort for cases from United States 
 courts of the Indian Territory. This case arose, 
 like the case at bar, prior to the admission of Okla- 
 homa into the Union on November 16, 1907. 
 
 Congress in passing section 27 of the act of July 1, 
 1902 (32 Stat., 716), passed it with the construction 
 placed upon section 21 of the act of June 28, 1898, by 
 Judge Sanborn in his opinion in the Kimberlin case. 
 This we may presume upon the authority of the case 
 of Sessions v. Romadka (145 U. S., 41, 42), where the 
 Supreme Court said : 
 
 This was practically the construction given 
 to corresponding sections of the act of 1837 
 by this court in Smith v. Nichols (21 Wall., 
 112) and, in the Revised Statutes, in Dunbar 
 V. Myers (94 U. S., 187, 193). * * * Con- 
 gress, having in the Revised Statutes adopted 
 the language used in the act of 1837, must be 
 considered to have adopted also the construc- 
 tion given by this court to this sentence and 
 made it a part of the enactment. 
 
 The same principle was afterwards laid down by 
 the Supreme Court in Clajlin v. Commonwealth In- 
 surance Company (110 U. S., 81) and in The Abhots- 
 ford{98V. S., 440). 
 
 The construction of Judge Sanborn must necessa- 
 rily have been known to Congress because the opin- 
 ions in both the Buffington and Kimberlin cases were 
 set out in full in the annual reports of the Secretary of 
 the Interior to Congress. 
 
69 
 
 For llio same reasons the construction placed by 
 the Interior Department on section 21 of tlie act of 
 »lun(> L\S, 189S, may he presumed to liav<' inlluenccd 
 Congress in passing legislation sul)se(juent lo that 
 act. See Brown v. I'nitcd States (113 U. 8., .568), 
 where the question in\()lved the construction of a 
 statute as to whether "any officer of the navy" 
 included warrant officers or only commissioned of- 
 fieers. 
 
 Thus in summing up under this heading it may Ije 
 said that the court in holding on April 15, 1896, that 
 the Secretary of the Interior had exclusive jurisdic- 
 tion of the making of the Kern-Clifton roll under the 
 decree of February 3, 1896, definitely settled that 
 question, even though the decision might have been 
 erroneous, for as this court held in the case of Oshom 
 V. United States (9 C. Cls., 153), that even though de- 
 cided upon principles of law which were afterwards in 
 other cases held by the Supreme Court to be erro- 
 neous, the decision was res judicata between the same 
 parties in another suit upon the same questions of 
 law; and in the case of Adams v. United States (36 
 C. Cls., 104) it was held that— 
 
 A judgment rendered by this court under 
 its general jurisdiction, which stands unva- 
 cated and unreversed, is a final judgment, 
 though founded upon an erroneous ruling of 
 law. 
 
 In addition to the decision of this court upon the 
 question of the exclusive jurisdiction of the Secretary 
 of the Interior, we have the same identical (juestions 
 
70 
 
 now involved in this suit decided by the United 
 States Court at Muskogee and the Circuit Court of 
 Appeals at St. Louis. 
 
 Congress refused to confirm the Kern-Clifton roll. 
 
 The Dawes Commission was created by the act of 
 March 3, 1893 (27 Stat., 645), for the purpose of 
 procuring the extinguishment of the tribal title to 
 the lands held by the Five Civilized Tribes within the 
 limits of the Indian Territory, and their cession to the 
 United States for allotment in severalty among the 
 individual members. 
 
 On June 10, 1896, Congress directed the Dawes 
 Commission to make a roll of the Five Civilized 
 Tribes, and at the same time ratified the tribal rolls 
 as they then existed, and provided that from the 
 decisions of the Dawes Commission applicants for 
 enrollment should have the right of appeal to the 
 United States courts of the Indian Territory. The 
 act also provided that — 
 
 The said Commission shall also make a roll 
 of freeclmen entitled to citizenship in said 
 tribes, and shall include their names in the 
 lists of members to be filed with the Commis- 
 sioner of Indian AiTairs. 
 
 By the act of June 7, 1897 (30 Stat., 83), the 
 powers of the Dawes Commission were considerably 
 enlarged and the tribal rolls were again • confirmed 
 with great particularity. 
 
 Prior to the passage of the act of June 28, 1898, as 
 well as after its passage, it was well known that the 
 Kern-Clifton roll had not been made " in strict com- 
 
71 
 
 pliance with the docroo of llic Court of ("laiiiis." 
 The Secretary of the Iiiterioi', in his instructions of 
 May 14, 1901), to the Diiwes Commission, refers to the 
 fact that "it has l)een claimed that said roll contains 
 many names not i)rop(M-ly helongin*:; there, ))ut 
 whether this fact influenced Congress to disregard 
 that roll and direct that a new one he made in strict 
 compliance with said decree is immaterial, for the 
 fact remains that the decree alone is to be taken as 
 a guide for making the roll which your commission 
 is to prepare." (Annual Report Interior Depart- 
 ment, 1902, pt. 2, p. 125.) 
 
 In a report from the Interior Department dated 
 
 October 2, 1909, filed in this case (ante, p. ), the 
 
 statement is made that the final roll of the Cherokee 
 freedmen prepared b>' the commission, or the Com- 
 missioner to the Five Civilized Tribes, approved by 
 the department under the acts of June 28, 1898, and 
 July 1, 1902, supra, shows that there are enrolled 174 
 freedmen whose names are also on the Cherokee roll 
 of 1880, but who do not appear on the Kern-Clifton 
 roll. 
 
 The fact that the Kern-Clifton roll was erroneously 
 made is also clearly shown by the action of Congress 
 while the bill, \^•hich afterwards became the Curtis 
 Act, was under discussion in the Senate after its 
 passage by the House. Mr. Pettigrew offered an 
 amendment on May 23, 1898, confirming the Kern- 
 Clifton roll in express terms, which was defeated on 
 June 7, 1898, and the provision sought to be amended 
 remained as it had passed the House and as it now 
 
72 
 
 stands. (Congressional Record, vol. 31, pt. 6, pp. 
 
 5582, 5583.) 
 
 There was considerable debate upon the amend- 
 ment at the time it was introduced and at the time 
 it was defeated, and it is very apparent that the 
 cause of its defeat was its want of accuracy. 
 
 This also is the construction placed by Congress 
 upon the meaning to be attached to section 27 of the 
 act of July 1, 1902, as well as section 21 of the act of 
 June 28, 1898, and was a distinct repudiation of the 
 Kern-Clifton roll. 
 
 In addition to this. Congress knew exactly what 
 construction had been placed upon both of the above 
 acts by the Dawes Commission, because its construc- 
 tion was reported to Congress in the annual reports 
 of the Secretary of the Interior referred to. Never- 
 theless Congress by section 2 of the act of April 26, 
 1906 (34 Stat., 137), provided ''that the rolls of the 
 tribes affected by this act shall be fully completed on 
 or before the fourth day of March, nineteen hundred 
 and seven, and the Secretary of the Interior shall have 
 no jurisdiction to approve the enrollment of any person 
 after said date.^^ 
 
 The persons who are now claiming the right to 
 enrollment upon an "injunction of this court" belong 
 to that class who did not return within six months 
 from the promulgation of the treaty of July 19, 1866, 
 and who claim that they were unable to get back. 
 This was the same class that the court refused to con- 
 sider when on April 15, 1896, it was held that the 
 
i *> 
 
 Se('i'(M;ir\' ol the Iiitcrioi' had cxclusiNc jurisdiction of 
 tli(^ makini; of the K(M-ii-( Tiftoii I'oll, ;iii(l i-ofeiTod the 
 proposed instructions of the attoi-iic\- for the fi-ccd- 
 men to him, wlio, notwithstandini; the plain hmgiuige 
 of tlio decree that only fi-(M>(lin(Mi whose names ap- 
 peared on the loll of ISSO. or theii- descendants, should 
 be considered, issued tlie instructions of May 14, 1900, 
 above referred to, which directed the Dawes Com- 
 mission to take up the ri«;ht of citizenship dc novo, 
 and as a consequence many of these claimants were 
 placed on the final roll of the Cherokee Nation. The 
 Buffington case was a protest against this action by 
 the commission, and after that case had been dis- 
 missed for want of jurisdiction, the attorney for the 
 Cherokee Nation came to Washington and had section 
 3 of the act of April 26, 1906, supra, passed, in order 
 to prevent the Dawes Commission from enrolling any 
 more freedmen of the objectionable class. The sec- 
 tion provides that — 
 
 The roll of Cherokee freedmen shall include 
 only such persons of African descent, either 
 free colored or the slaves of Cherokee citizens 
 and their descendants, who were actual per- 
 sonal bona fide residents of the Cherokee 
 Nation August eleventh, eighteen hundred and 
 sixty-six, or who actually returned and estab- 
 lished such residence in the Cherokee Nation 
 on or before Fel)ruary eleventh, eighteen 
 hundred and sixt}'-seven. 
 
 While the act of April 26, 1906, supra, was up for 
 discussion on January 18, 1906, in the House of Rep- 
 
74 
 
 resentatives, an amendment to section 3 was offered 
 by Mr. Campbell, of Kansas, for the purpose of allow- 
 ing the enrollment of freedmen who had not returned 
 to the Cherokee Nation within six months from the 
 promulgation of the treaty of July 19, 1866, as pro- 
 vided by the ninth article thereof, which reads as 
 follows : 
 
 Provided, That the roll of Cherokee freed- 
 men shall include the names of all such persons 
 as are mentioned in article nine of the Cherokee 
 treaty of July nineteenth, eighteen hundred 
 and sixty-six, who made application for such 
 enrollment on or prior to December first, 
 nineteen hundred and five, who were taken 
 from the nation or driven therefrom under 
 circumstances which were beyond their con- 
 trol, and who did not, subsequent to August 
 eleventh, eighteen hundred and sixty-six [the 
 date of the promulgation of the treaty], make 
 application for citizenship in any other tribe. 
 
 This amendment was rejected and the bill was 
 passed in the identical language of the section quoted 
 above. (Congressional Record, vol. 40, pt. 2, pp. 
 1240, 1248, 1249.) 
 
 The Cherokee roll was completed and approved by 
 the Secretary of the Interior as provided by the act 
 of April 26; 1906, swpra, on March 4, 1907. 
 
 Thus it will appear that Congress not only refused 
 to accept the Kern-Chfton roll, but placed the mark 
 of its disapproval upon the action of the Kern-Clifton 
 Commission and the Dawes Commission in enroUing 
 freedmen who had not returned within six months 
 
75 
 
 from \\\o proiniiliiatioii of tlic trciily of July !'.•. 1S()(); 
 and in addition to this we would call the attention of 
 the court to the fact that the Supreme Court fully 
 recoij:iiize(l in the Cherokee Intermarriaije cases (203 
 U. S., 92) the fact that Congress had not approved any 
 roll of the Clierokee Nation except that of ISSO. The 
 court there said: 
 
 The roll of ISSO, made by the Cherokees, was 
 a census roll, and its confirmation was not 
 intended to create any rights whicii citizens of 
 the Cherokee Nation had not before enjoyed, 
 but merely to furnish the l)asis for making up 
 the roll of citizens. Section 21 was in reality 
 a statement that no previous act of Congress 
 was intended to confirm any other roll of the 
 Cherokee Nation 
 
 The action of the vSeoretary of the Interior in malting up and 
 approving the final rolls of the Cherokee Nation is res judicata. 
 
 The acts of Congress delegated authority to the 
 Dawes Commission to prepare the final rolls of the 
 Five Civilized Tribes, and the provisions of the act 
 of June 28, 1898, supra, and the Cherokee agreement 
 of 1902, to the effect that the rolls -^thus prepared, 
 when approved by the Secretary of the Interior, 
 shall constitute a part and parcel of the final roll of 
 citizens of the Cherokee tribe upon which allotments 
 of land and distribution of other tribal property 
 shall be made," created in the Secretary of the 
 Interior a tribunal of exclusive jurisdiction, whose 
 judgments upon the question of citizenship are res 
 judicata. The rule has been well stated by the 
 
76 
 
 Supreme Court in the case of the United States v. 
 
 California & Oregon Land Company (148 U. S., 31), 
 
 as follows: 
 
 Now, it is familiar law that when jurisdiction 
 is delegated to any officer or tribunal, his or 
 its determination is conclusive. Thus in the 
 case of United States v. Arredondo (31 U. S., 6 
 Pet., 691, 729; 8 L. ed., 547), this court said: 
 *' It is an universal principle that, where a 
 power or jurisdiction is delegated to any public 
 officer or tribunal over a subject-matter, and 
 its exercise is confided to his or their discretion, 
 the acts so done are binding and valid as to the 
 subject-matter; and individual rights will not 
 be disturbed collaterally for anything done in 
 the exercise of that discretion within the au- 
 thority and power conferred. The only ques- 
 tions which can arise between an individual 
 claiming a right under the acts done and the 
 public, or any person denying its validity, are, 
 power in the officer and fraud in the party. 
 All other questions are settled by the decision 
 made or the act done by the tribunal or officer, 
 whether executive, legislative, judicial, or spe- 
 cial, unless an appeal is provided for or other 
 provision, by some appellate or supervisory 
 tribunal, is prescribed by law." 
 
 The judgment of a special tribunal is final 
 and conclusive ivhen no provision is made for 
 appeal to any other jurisdiction. (Land tribu- 
 nal.) {Foley V. Harrison, 15 How., 433, 446; 
 14 L. ed., 761.) 
 It will be observed by the court that there is no 
 
 right of appeal granted from the action of the Secre- 
 
77 
 
 tary ol llu> liiliTioi- in citizi'iislii}) cases, and as llic 
 Supreme Court said in Ihirvvij v. Tyler (2 Wall., 
 328-342) : 
 
 \\ here special j)()\veis conteiTed on a court 
 of general jurisdiction are to be exeiciscd in 
 usual form of conunon law and chancery pro- 
 ceedings the presumptions as to conclusion of 
 judgment are the same as attach to cases 
 within its general power. 
 
 And as the Supreme Court said in liie case of 
 Lumber Company v. Butchel (101 U. S., 638, 639): 
 
 Judgment based on referee's finding is con- 
 clusive as to the facts found in subsecjuent 
 controversies between same parties on same 
 contract. 
 
 In the case of Steele v. Smelting Company (106 
 U. S., 447-451) the Supreme Court reviewed a large 
 number of authorities and reached the conclusion 
 that " the decision of a competent special tribunal is 
 conclusive." 
 
 In the case of Adams Express Company v. Ohio State 
 Auditor (165 U. S., 194, 229) the same court said: 
 
 Findings of fact by a special tribunal can 
 not be overturned except by evidence estab- 
 lishing fraud. 
 
 The Supreme Court in the case of Keim \. The 
 United States (33 C. Cls., 174; affirmed l)y the Su- 
 preme Court, 177 U. S., 290) said: 
 
 The Court of Claims will not review the 
 decision of the head of one of the executive 
 departments in matters committed to his 
 discretion. 
 
78 
 
 And this court in the case of Plwnmer v. The 
 United States (24 C. Cls., 517) said: 
 
 Where a statute intrusts a public officer 
 with a designated duty the exercise of his dis- 
 cretion in performing that duty can not be 
 reviewed if he acts within the general scope 
 of his authority under the statute. 
 
 And it may be said in passing that there is no 
 question in this case that the Secretary exceeded his 
 authority in his disallowance of this claim. 
 
 This court also said in the case of Day v. The 
 United States (21 C. Cls., 262): 
 
 The doctrine of res judicata applies to the 
 decisions of the executive departments. 
 
 If this be true as to matters committed generally to 
 the discretion of the executive departments, it should 
 be proportionately of greater force as to matters spe- 
 cifically committed by act of Congress. 
 
 The constitutionality of the act of June 28, 1898, 
 was considered at great length and sustained by the 
 Supreme Court in the case of Stephens v. The Cherokee 
 Nation (174 U. S., 445), and the question of citizen- 
 ship was also extensively reviewed, as well as the 
 power of Congress to reopen the consideration of citi- 
 zenship cases. 
 
 In the case of Wallace v. Adams (204 U. S., 415) the 
 Supreme Court held that Congress had full power over 
 the question of citizenship in Indian tribes, and that 
 '4t may adopt any reasonable method to ascertain 
 who are citizens, and if one method is unsatisfactory- 
 it can try another ; nor is its power exhausted because 
 
79 
 
 tlic lirst plan is by iiKjuiiy in a territorial court. 
 The functions of a territorial couit in sucli a case are 
 those of a coiiuiiission latlier than a couiM." 'I'he 
 court also lu>l(l that the investiijat ion of the (jucstion 
 of citizenship is n(>c(>ssarily judicial in its charaeter. 
 
 In the ease of Wed v. Hitchcock (205 U. S., SO) it 
 was lield that "in the absence of any indication in the 
 act to allow an a[)peal to the courts for applicants 
 who are dissatisfied, mandamus will not issue to re- 
 quire the Secretary to approve the selection of one 
 elaiminji; to be an adopted member of the tribe but 
 whose application the Secretary has denied." The 
 court also held that " where the Secretary of the Inte- 
 rior has authority to pass on the right of one claiming 
 to be a member of a l)and of Indians to select land 
 under an agreement ratified by an act of Congress, his 
 jurisdiction does not depend upon his decision ])eing 
 right." 
 
 The petitioner's prayer for relief. 
 
 Congress provided that the final rolls of the 
 Cherokee Nation should l^e made up of those living 
 on March 4, 1906, and further provided that the 
 rolls should be finally closed on March 4, 1907, after 
 which the Secretary of the Interior should have no 
 authority to place any new names on the roll. On 
 April 20, 1908, over one year after the final rolls had 
 been completed and approved by the Secretary- of 
 the Interior, an order was passed by this court 
 allowing the appointment of a substitute trustee 
 and the filing of claimant's supplemental petition. 
 
 14296—09 G 
 
80 
 
 The petition contains the following remarkable 
 prayer for relief, which for the convenience of the 
 court we will divide into sections: 
 
 1. The premises considered, yom" petitioner 
 prays that this honorable court will pass a 
 decree declaring the action of the said Dawes 
 Commission and the Secretary of the Interior 
 whereby the names of said freedmen were 
 excluded from the roll and citizenship of the 
 Cherokee Nation be declared to be unlawful. 
 
 2. Further enjoining and prohibiting the 
 defendants, the Cherokee Nation, and the 
 United States, as trustee for the Cherokee 
 Nation, from making any discrimination be- 
 tween the said freedmen and other citizens of 
 the Cherokee Nation in the allotment of lands 
 and distribution of the said property and assets 
 of said nation. 
 
 3. Further enjoining the said defendant, and 
 particularly the United States acting through 
 the Secretary of the Interior, from further dis- 
 turbing said freedmen in the possession and 
 occupation of their said homes and improve- 
 ments. 
 
 4. Further enjoining upon the said defend- 
 ant, the United States acting through the Sec- 
 retary of the Interior, to reinstate such of said 
 freedmen as have heretofore been ousted from 
 the occupancy and possession of their said 
 homes and improvements. 
 
 We have already called the attention of the court 
 to the fact that the final roll of the Cherokee Nation 
 had been completed and approved, and nothing more 
 was necessary to be done, for over a year before the 
 
81 
 
 petition was allowed to he filed in this ease. It is 
 very rarely, indeed, that (he writ of injunction is used 
 for the enforcement of allirniative action; its ordi- 
 nary function is to restrain the threatened action of 
 some ollicer of (he ( io\'ernment, or prixate company, 
 or individual. 
 
 In Ex parte Joins (191 U. S., 93-102), the court 
 refused to issue the writ of prohibition aj^ainst the 
 Citizenship Court of the Choctaw Nation, a special 
 tribunal, upon the ground that the case had already 
 been decided. The court said: 
 
 This being so, there is nothing which this 
 court could prohibit, even if it were of opinion 
 that the petitioner made out a good case on 
 the merits, which we do not intimate. There- 
 fore the writ must be denied. 
 
 The case of Fleming et al. v. McCurtain et al. (215 
 
 U. S., ), involving the same questions as the 
 
 Joins case, came up on direct appeal to the Supreme 
 Court and was decided on November 8, 1909, upon 
 its merits. In that case the court was asked to reopen 
 the Choctaw rolls upon the ground that the citizen- 
 ship court had been bribed by the attorneys for the 
 Choctaw Nation. The Supreme Court, however, 
 went to the very root of the matter and held that 
 under the patent to the Choctaw Nation the indi- 
 vidual members of the tribe acquired no such vested 
 interest in the tribal lands as would entitle them to 
 maintain an action to reopen the rolls which had been 
 finally approved l)y the Secretary of the Interior. 
 A comparison of the language used in the Choctaw 
 
82 
 
 and Cherokee patents discloses a title much nearer 
 to a fee simple in the Choctaw Nation than in the 
 Cherokee Nation. So that the rule laid down by 
 the Supreme Court as applicable to the Choctaw rolls 
 is much stronger when applied to the Cherokee rolls. 
 
 The case of Pam-To-Pee v. The United States (187 
 U. S., 371), greatly relied upon by the petitioners, is in 
 reality strongly against their contention in this case. 
 In that case the rolls had been closed and the judg- 
 ment distributed, just as in this case. It afterwards 
 appeared that there was a class of Indians who had 
 been left out, but who were entitled to participate in 
 the judgment. The court held that ''where the cir- 
 cumstances are as in the case at bar any further relief 
 must be obtained from Congress and can not be 
 given by the courts." 
 
 In the case of Garfield v. Goldshy (211 U. S., 249), 
 cited in the Fleming case, supra, the Supreme Court 
 held that ''after the Secretary of the Interior has 
 approved a list containing the name of a person 
 found by the Dawes Commission to be entitled to 
 enrollment for distribution, he can not, without giving 
 that person notice and opportunity to be heard, strike 
 his name from the list. It would not be due process 
 of law." 
 
 CONCLUSION. 
 
 The judgment of the court in this case rests upon 
 two propositions, one of fact and one of law, both 
 of which we have shown to be absolutely erroneous: 
 First, that the Kern-Clifton roll had been confirmed 
 by Congress; second, that the duties of the Dawes 
 
S3 
 
 Commission in making- up the liiial roll of the Cherokee 
 Nation were merely ministerial. 
 
 We ha\e shown, on the contrary, that the Kern- 
 C'lil'ton roll was repudiated and discredited l)y Con- 
 gress and the Interior Department, and that the 
 duties of the Secretary of the Interior in approving 
 the Kern-Clifton roll, as well as the final roll of the 
 Cherokee Nation prepared by the Dawes Commis- 
 sion, were judicial in their character and not subject 
 to review by courts of law. 
 
 We therefore respectfully ask the court to refuse 
 to reopen the decree of February 3, 1896, and to dis- 
 miss the supplemental petition in this case. 
 
 Geo. M. Anderson, 
 Attorney for the United States. 
 
84 
 
 APPENDIX A. 
 
 DECREE OF FEBRUARY 3, 1896. 
 
 Court of Claims. 
 
 Moses Whitmire, trustee for the 
 Freedmen of the Cherokee Nation, 
 
 V. 
 
 The Cherokee Nation and the 
 United States. 
 
 No. 17209. 
 
 It appearing that since the entry of the decree filed 
 May 8, 1895, the defendant, the Cherokee Nation, 
 has filed motions for a rehearing and new trial and 
 an application for an appeal from said decree to the 
 Supreme Court, which motions have not been heard 
 and which application for an appeal has not yet been 
 allowed; and it appearing that both parties are de- 
 sirous of avoiding further litigation and have agreed 
 that if the court shall see fit to modify said decree, it 
 will be accepted as final. 
 
 Now, on motion by the attorney for the complain- 
 ant, the defendant consenting thereto, it is ordered 
 that the said decree be vacated and set aside and 
 that the following decree be entered as to the final 
 decree in this case. 
 
 Court of Claims. 
 Moses Whitmire, trustee for the ^ 
 Freedmen of the Cherokee Nation, 
 
 V. 
 
 The Cherokee Nation and the 
 
 United States. j 
 
 At a sitting of the Court of Claims in the city of 
 Washington, this 3d day of February, 1896. 
 
 ^No. 17209. 
 
Til is (•niisc comiiii!; on to he IicmicI upon the ;ini('ii(.l('d 
 jHMilioii, ;iiis\V(M\ agreed facts, proofs, and ai",<j;uni('nts 
 submitted by the parties respectively, and the court 
 having; heard the same and considered the just rip;hts 
 in hiw and ecpiity of tlie freedmen of the Cherokee 
 Nation, inchiding; all ])ersons who had been lii)erat^d 
 by voluntary act of theii' owners, or by law, and all 
 free colored persons who resided in the Cherokee 
 country at the conunencement of tlu^ rebellion and 
 resided therein July 19, 1866, or returned thereto 
 within six months thereafter, and their descendants 
 who are settled and incorporated into the Cherokee 
 Nation, in pursuance of the authority vested in the 
 court by act of Congress entitled ''An act to refer 
 to the Court of Claims certain claims of the Shawneee 
 and Delaware Indians and the freedmen of the 
 Cherokee Nation, and for other purposes," approved 
 October 1, 1890. 
 
 And it appearing to the court that undei- the })ro- 
 visions of article 9 of the treaty of July 19, 1866, 
 made by and between the Cherokee Nation and the 
 United States, the said freedmen, who had been liber- 
 ated by voluntary act of their foi'mer owners or by 
 law, and all free colored persons who resided in the 
 Cherokee country at the commencement of the rebel- 
 lion and were residents therein at the date of said 
 treaty, or who had returned thereto within six months 
 of said last-mentioned date, and their descendants, 
 were admitted into and became a part of the Cherokee 
 Nation and entitled to equal rights and immunities, 
 and to participate in the Cherokee national funds and 
 common property in the same manner and to the same 
 extent as Cherokee citizens of Cherokee blood. 
 
 It further appearing to the court that under and by 
 virtue of an act entitled " An act making appropria- 
 
86 
 
 tions for current and contingent expenses, and for ful- 
 filling treaty stipulations with Indian tribes, for the 
 fiscal year ending June 30, 1894, ' ' approved March 3, 
 1893, it was provided for the payment to the Cherokee 
 Nation of the sum of $8,595,736, the same to be in 
 full consideration of all the right, title, interest, and 
 claim which said nation might have in the lands lying 
 west of 96 degrees west longitude, commonly known 
 as the Cherokee Outlet, and it further appearing that 
 of the said sum of $8,595,736 the sum of $295,736 
 was appropriated by said act out of the Treasury of 
 the United States and made immediately available, 
 and that the balance thereof, to wit, $8,300,000, was 
 made payable in five annual installments, the first to 
 be payable on the 4th of March, 1895, and all deferred 
 payments to bear interest at the rate of 4 per cent per 
 annum; and that a sufficient amount of the money 
 provided in said act should be paid for the purchase 
 of said Cherokee Outlet to pay the Delawares and 
 Shawnees their pro rata share of said outlet and which 
 should remain in the Treasury of the United States 
 until the status of said Delaware and Shawnee Indians 
 should be determined by the courts of the United 
 States before which their suits were then pending; 
 also a sufficient amount to pay the freedmen who are 
 Cherokee citizens, as the same shall be determined by 
 the courts; and the said act further providing that if 
 the legislative council of the Cherokee Nation should 
 deem it more advantageous to their people they 
 might issue a loan for the principal and interest of the 
 deferred payments, pledging said amounts of interest 
 and principal to secure payment of such debt ; and it 
 appearing to the court that said Cherokee Nation has 
 borrowed from the Union Trust Company of New 
 York the sum of $6,640,000 and pledged as security 
 
S7 
 
 theret'or tlic toui- paynuMits as alurcsaid, lallin<i; duo 
 after the 4th day of Marcli, 1S95, and thai the pay- 
 ment lallina (hi(> on ihc snid l(h ol Mai'ch, 1.S95, 
 amount ini;- to .fl, ()()(),()()(), lias been retained in the 
 Treasury of the United States from which to pay the 
 Dehiwares. Sliawnees, and freedmen, as hereinbefore 
 set fortli; and it fuithei- appearinjz; to the court that 
 the said $(),()4(),()()(), so l)orrowed by tlie Clierokee 
 Nation, lias l)een distril)uted to the Cherokee citizens 
 of Cherokee blood, to the exclusion of the complain- 
 ants, the aforesaid freedmen and free colored persons 
 and their descendants, as well as the two funds of 
 $300,000 each distributed l)y the act of the Cherokee 
 council of date April 26, 1886, and November 25, 
 1890, as charged in the amended petition in this case. 
 It is ordered, adjudged, and decreed that so much 
 of the acts of the Cherokee national council of date 
 April 26, 1886, November 25, 1890, and May 3, 1894, 
 as restricts the distribution of funds which were de- 
 rived from the public domain and from the sale of 
 lands by the Cherokee Nation to the Government of 
 the United States, to citizens of the nation by blood, 
 be held and decreed void and contrary to and in 
 derogation of the constitution of the Cherokee Na- 
 tion and the provisions and stipulations of article 9 
 of the aforesaid treaty of July 19, 1866, with respect 
 to the rights of said freedmen, who have been liber- 
 ated by voluntary act of their former owners or by 
 law, and all free colored persons who resided in the 
 Cherokee country at the commencement of the rebel- 
 lion and who on the said date resided therein, or who 
 returned thereto within six months thereaftei-, and 
 their descendants; and that the said Cherokee Na- 
 tion or its trustees, the United States, account for, 
 render, and pay to the aforesaid freedmen and free 
 
88 
 
 colored persons and their descendants, out of any 
 funds of the said nation in its national treasury, or 
 in the custody of the United States as trustee, or held 
 by agreement between said nation and the United 
 States for the purpose of satisfying the decree herein 
 rendered, not specifically appropriated by law to 
 other purposes, or out of funds which may hereafter 
 come to the possession of said trustee belonging to 
 the Cherokee Nation, a sum equal to the aggregate 
 amount which said freedmen and free colored per- 
 sons and their descendants would have received if 
 the before-mentioned void and unconstitutional re- 
 strictions in said statutes had not existed. 
 
 And it is further adjudged and decreed that the 
 complainants in this suit and those whom they rep- 
 resent, being the freedmen and free colored persons 
 aforesaid and their descendants living and in being 
 on the 3d day of May, 1894, are entitled to participate 
 hereafter in the common property of the Cherokee 
 Nation in the same manner and to the same extent as 
 Cherokee citizens of Cherokee blood or parentage 
 may be entitled, and that in the distribution of the 
 proceeds and avails of the public domain or common 
 property of the nation among the citizens thereof by 
 distribution per capita at any time hereafter, the 
 defendant, the Cherokee Nation, and the defendant, 
 the United States, as trustee of the Cherokee Nation, 
 be enjoined and prohibited from making any discrimi- 
 nation between the Cherokee citizens of Cherokee 
 blood or parentage and Cherokee citizens who are or 
 were freedmen who had been liberated by voluntary 
 act of their former owners or by law, as well as all 
 free colored persons who were in the Cherokee coun- 
 try at the commencement of the rebellion, and were 
 residents therein at the date of said treaty, or who 
 
89 
 
 n'tunied (Ium-cIo within six moiiths thoroattcr aiul 
 thrir (irscoiulants. lo \hv prejudice of the lattei-. 
 
 I( IxMHii; uiidorstood that tlie IV(M'(hn('n and their 
 descendants and free colored persons above referred 
 to shall include only such persons of said class 'is have 
 not forfeited or abjured their citizenship of said Clier- 
 okee Nation at the date of the enterinjj; of this decree. 
 
 And it is further adjudged and decreed with respect 
 to the participation of said freedmen and free colored 
 persons aforesaid and their descendants in tlie thi-ee 
 funds referred to in the three statutes of the Cherokee 
 Nation hereinbefore declared to be void and uncon- 
 stitutional, that the Cherokees by blood having 
 received a sum which amounts at the date hereof to 
 $7,240,000, in which the said freedmen and fi-ee colored 
 persons aforesaid and their descendants were entitled 
 to have and participate in the distribution of said 
 sum; and for the purpose of fixing an amount 
 thereof which ought to be distributed among said 
 freedmen and free colored persons and their descend- 
 ants, it is further adjudged and decreed that said 
 freedmen and free colored persons and their descend- 
 ants are entitled to have and receive the sum of 
 $903,365 out of the sum last aforesaid, after deduct- 
 ing the amounts hereinafter allowed and decreed to 
 be paid to the trustee herein as his compensation for 
 services as trustee and the attorney of record of 
 the complainant herein, and the other expenses 
 incident to the ascertainment and payment of the 
 complainants, the freedmen, as hereinafter provided, 
 such balance remaining to be paid by the Secretary 
 of the Interior to the freedmen and free colored per- 
 sons aforesaid and their 'descendants, per capita, 
 who would have been entitled to receive the same if 
 the unconstitutional restrictions and discriminations 
 
90 
 
 in said statutes had not existed. Such payments to 
 be made upon a roll of said freedmen and free colored 
 persons and their descendants as prepared and 
 approved by the Secretary of the Interior in accord- 
 ance with provisions hereinafter set forth in this 
 decree. 
 
 And it is further ordered and adjudged that for the 
 purpose of ascertaining and determining who are the 
 individual freedmen of the Cherokee Nation now en- 
 titled to share in the distribution of the said sum of 
 $903,365, the Secretary of the Interior be authorized 
 to appoint three commissioners, one on the nomina- 
 tion of the complainant and one on the nomination 
 of the defendant, the Cherokee Nation, but both 
 nominations to be approved by him, to proceed to 
 the Cherokee country and hear the testimony both 
 for and against the identity of all freedmen, free 
 colored persons and their descendants, claiming to 
 be entitled to share in the distribution of said 
 $903,365, that may be offered by the respective par- 
 ties to this suit ; and that each of said parties shall be 
 entitled to be represented before said commissioners, 
 either at the taking of testimony in the Cherokee 
 country or elsewhere; and that the said commis- 
 sioners in ascertaining the identity of the freedmen 
 entitled to share under this decree shall accept what 
 is known as the authenticated Cherokee roll, the 
 same now being on file in the office of the Secretary 
 of the Interior, having been furnished to him and 
 purporting to have been taken by the Cherokee Na- 
 tion in 1880, for the purpose of showing the number 
 of freedmen then entitled to citizenship in the said 
 nation under the terms of the treaty between the 
 United States and the Cherokee Nation, hereinbefore 
 referred to, and their descendants ; and the said com- 
 
missionei's shall ascertain who ol" said persons named 
 on said roll were alive and what descendants of said 
 persons were alixc on May 'A, \S\)\, and no evidence 
 shall be accepted by said conmiission tendin<i to dis- 
 prove the citizenship of any of tin* persons whose 
 names appear upon said roll. 
 
 And it is further ordered and directed that when the 
 foreo;oing roll so reported by the said commissioners 
 shall be approved l)V the Secretary of the Interior he 
 will cause the amount remainin^j; of the fund of 
 $903,365, after deducting the costs and expenses 
 herein directed to be paid by the complainants, to be 
 paid and distributed to the persons entitled thereto, 
 such payments, however, not to exceed $25(5.34 per 
 capita, and the cost of such distril)ution and payment 
 likewise being a charge upon the fund of the complain- 
 ants so to be distributed pursuant to the act of 
 March 2, 1895, section 11. 
 
 And it is further directed that the amount of $(),500, 
 or so much thereof as may be necessary, is hereby 
 allowed for the compensation of the said commission- 
 ers and the necessary costs and expenses incidental 
 to the ascertainment of the individual complainants 
 by them as hereinbefore provided; and it is hereby 
 adjudged that one-half of such compensation and 
 expenses shall be paid by the complainants and de- 
 ducted from the recovery in this suit, and that the 
 remaining one-half part of such compensation and 
 expenses shall l)e paid by the defendant, the Cherokee 
 Nation, in addition to the costs hereinafter adjudged 
 against the said defendant. And the Secretary of 
 the Interior is authorized to fix the compensation of 
 said commissioners and to advance for the necessary 
 and immediate expenses of making the rolls as here- 
 inbefore provided such amount as he may deem 
 advisable. 
 
92 
 
 There is further adjudged and decreed to Robert 
 H. Kern, the attorney of record for complainant, for 
 compensation and counsel fees, including the compen- 
 sation of all associate counsel and the expenses and 
 disbursements incident to the litigation, 2 per cent of 
 the amount of the recovery, to wit, $18,067.30, which 
 amount it is adjudged shall be paid by the Secretary 
 of the Treasury of the United States to the said Robert 
 H. Kern out of the funds hereinbefore mentioned, 
 now in his hands, and that the same when so paid 
 shall be charged to the defendant, the Cherokee 
 Nation. 
 
 And there is further decreed and adjudged to the 
 said Robert H. Kern, attorney of record of the com- 
 plainants, for compensation and counsel fees, includ- 
 ing the compensation of all associate counsel and the 
 expenses and disbursements incident to the litigation, 
 4 per cent upon the amount of the recovery, to wit, 
 $36,134, which amount it is adjudged shall be paid by 
 the Secretary of the Treasury of the United States out 
 of the funds hereinbefore mentioned, now in his 
 hands, and shall be a charge against the freedmen of 
 the Cherokee Nation and paid out of the funds here- 
 inbefore awarded to them. 
 
 It is further adjudged and decreed that Moses 
 Whitmire, as trustee of the coniplainants, be allowed 
 for compensation for his services as such, including 
 expenses and disbursements made by him, the sum 
 of $5,000, which amount it is adjudged shall be paid 
 to said trustee by the Secretary of the Treasury of 
 the United States out of the funds hereinbefore men- 
 tioned, now in his hands, and shall be a charge against 
 the freedmen of the Cherokee Nation and paid out of 
 the funds hereinbefore awarded to them. 
 
03 
 
 Ami the coinplainaiit lia\iiin i-cprosoiitcd tliat the 
 miiiiher of the tVeeHlineii entitled to distrihutioii is not 
 less tlian :^J)'2\, it is further ordered that if said num- 
 ber of persons entitled to distribution shall not eqmd 
 that number the payments made shall not exeeed 
 $25().34 per eapita, and that any balanee of the 
 amount hereby decreed to said plaintiffs, and not 
 consumed in the per capita payment herein provided 
 for, shall l)e paid over to the Cherokee Nation as 
 other moneys provided for in the agreement between 
 said nation and the Secretary of the Interior here- 
 inbefore referred to. 
 
 It is further adjudged that the Secretary of the 
 Interior pay the aforesaid amount decreed to be piud 
 by him out of the aforesaid funds now in the Treasury 
 Department of the United States. 
 
 And it is further ordered, adjudged, and decreed 
 that the defendant, the Cherokee Nation, pay the 
 costs of this suit, as above provided, and that if this 
 judgment and decree be not carried out and satisfied 
 within six months from the date hereof the claimant 
 may apply to this court for such further order, relief, 
 or remedy as the plaintiff" herein may deem necessary, 
 and that if any further proceeding l)e had under this 
 decree, the rights of the attorneys and counsel for the 
 plaintiff herein to further costs and allowances be 
 reserved to be hereafter determined and fixed by 
 •the court, and the court reserves the right to make all 
 such further orders in aid hereof as to it may seem 
 meet. 
 
 It is hereby stipulated and agreed on the part of 
 the complainant and on the part of the defendant, 
 the Cherokee Nation, that the foregoing decree be 
 entered in tliis case in the place and stead of the 
 decree entered and filed May 8, 1895, in this case, and 
 
94 
 
 that it be entered nunc pro tunc as of that date, to wit, 
 May 8, 1895, and that the apphcation for an appeal 
 filed by the complainant and the apphcation for an 
 appeal and motions for a rehearing and for a new 
 trial filed by the said defendant be mutually with- 
 drawn upon the entry of this corrected decree. 
 Dated Washington, February 3, 1896. 
 
 Robert H. Kern, 
 Attorney for the Complainant. 
 e. c. boudinot, 
 Maxwell & Chase, 
 Attorneys for the Cherokee Nation. 
 S. H. Mayes, 
 Principal Chief of the Cherokee Nation. 
 
 The defendants, the United States, offer no objec- 
 tion to the entry of the amended decree as provided 
 in this stipulation. 
 
 > 
 Assistant Attorney-General. 
 
95 
 
 APPENDIX B. 
 
 PROPOSKI) INSTRUCTIONS TO COMMISSION A PPOINTEDUn'dER 
 DECRKK OF FEBRUARY 3, 1890, RV THE SECRETARY OF THE 
 INTERIOR, SUBMITTED BY ("OUNSEE TO THE COURT AND 
 ORDER OF COURT THEREON. (RE( EIV ED IN REPORT FROM 
 INTERIOR DEPARTMENT NOVEMBER 21, 1907.) 
 
 The court tloth adjudf^^e and decree that the com- 
 mission provided for in its decree entered of record in 
 the Court of CUxims on February 3, 1896, in the case 
 of Moses Whitmire, trustee, etc., v. Cherokee Nation 
 et al., being case No. 17209, shall be governed l^y 
 the following rules and directions in the discharge of 
 the duties prescribed for it in said decree, to wit: 
 
 First. Said commission before commencing its 
 duties shall qualify by each member thereof taking 
 an oath before any United States commissioner that 
 he will faithfully perform the duties of his said ofhce. 
 
 Second. It shall have the same power to administer 
 oaths to witnesses, to compel the attendance of the 
 same, to compel the production of written testimony, 
 and to determine the admissibility of all evidence 
 offered as the Court of Claims would have in making 
 the investigation prescribed for said commission. 
 
 Third. It shall, as soon as practicable, proceed to 
 the Cherokee Nation to hear such evidence as may be 
 offered pro and con as to the identity of the freedmen 
 entitled to share in the money mentioned in the de- 
 cree; but before beginning its labors it shall give no- 
 tice there by at least two weekly insertions in the two 
 most widely circulated papers in the nation as to 
 the times and places they will hear evidence on behalf 
 
 14296—09 7 
 
96 
 
 of the parties to this suit. And it shall, as far as prac- 
 ticable, appoint such places for the hearing of such 
 testimony as shall be most convenient to the parties 
 to this suit; and it shall also hear testimony at any 
 place other than the Cherokee Nation that in its judg- 
 ment may be necessary. 
 
 Fourth. It shall make no other inquiry as to the 
 authenticated Cherokee roll mentioned in the decree 
 than to ascertain who of the persons mentioned on 
 said roll and their descendants were alive on May 3, 
 1894, and who were at said date citizens of the 
 Cherokee Nation. 
 
 Fifth. In making the investigation prescribed in 
 said decree it shall confine itself to the identity of 
 the following classes of persons only: (1) All persons 
 who had been held in bondage by any member of 
 the Cherokee Nation and who had been liberated 
 by act of law or by voluntary act of their owners 
 and the descendants of such; (2) all free colored per- 
 sons who were in the Indian Territory at the com- 
 mencement of the rebellion and were residents 
 thereof at the time of the treaty of July 9, 1866, or 
 who returned thereto within six months after the 
 conclusion and ratification of said treaty, and their 
 descendants; (3) all of the aforesaid classes who were 
 citizens of the Cherokee Nation on May 3, 1894. 
 
 Sixth. The commission is hereby authorized to 
 employ a competent clerk. 
 
 Seventh. In determining the identity of the per- 
 sons aforesaid a vote of a majority of said commis- 
 sion shall establish the identity of the person pro- 
 vided for in said decree, and when the commission 
 shall have finished its labors it shall report to the 
 Secretary of the Interior the names of the persons 
 determined by it as being entitled to share in the 
 
97 
 
 proceeds mentioned in I ho jiforesiiid decree, with 
 evidence ;is to idcMitity of tree<linen \vh(M-e conimis- 
 sion is not unaiiinions. 
 
 Eighth. The said commission shall conclude its 
 labors within four months from the time it qualifies 
 as aforesaid. 
 
 (Indorsement:) Respectfully referred to the Sec- 
 retary of the Interior. The instructions to be ^iven 
 to the commissioners must be determined by him. 
 The within, proposed by counsel, seem unobjection- 
 able to the court, except the second. But with the 
 approval of the Secretary the court will appoint the 
 commissioners selected by him commissioners of 
 this court to take testimony, which will authorize 
 them to administer oaths. 
 
 William A. Richardson. 
 February 15, 1896. 
 
98 
 
 Moses Whitmire, trustee, 
 
 V. 
 
 The Cherokee Nation. 
 
 APPENDIX C. 
 
 February 18, 1896. 
 
 Hon. Daniel M. Browning, 
 
 Commissioner of Indian Affairs. 
 
 Sir: The court is informed that the Commissioner 
 of Indian, Affairs desires its opinion in regard to the 
 fifth of the proposed instructions referred for the 
 consideration of the Secretary of the Interior Feb- 
 ruary 15, 1896. 
 
 The decree in this case follows and refers to Article 
 IX of the treaty with the Cherokee Nation, July 19, 
 1866, and the persons therein designated are the 
 complainants in this case entitled to payment under 
 tlie decree. 
 
 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 descend- 
 ants,''^ were intended, for the protection of the Chero- 
 kee Nation, as a limitation upon the number of per- 
 sons who might avail themselves of the provisions 
 of the treaty; and consequently that they refer to 
 both the freedmen and the free colored persons pre- 
 viously named in the article; that is to say, freed- 
 men and the descendants of freedmen who did not 
 return within six months are excluded from the 
 benefits of the treaty and of the decree. 
 
00 
 
 The court is also of tho opinion thai this period of 
 six months extends from the date of ihe pmninUja' 
 (ion ()f (he hrdli/, Au,i!;ust II, ISOO, and consecjuently 
 did not expire until IVhruai-}- II, ISO?. 
 
 W'lM.lAM A. IvK IIARDSOX, 
 
 Chief .1 list ire. 
 (31 C. Cls., 147, 148.) 
 
100 
 
 APPENDIX D. 
 
 instructions by the secretary of the interior to 
 commission appointed by him under the decree of 
 february 3, 1896. (report from interior department 
 of november 21, 1907.) 
 
 Department of the Interior, 
 
 Office of Indian Affairs, 
 Washington, February 20, 1896. 
 William Clifton, Robert H. Kern, William B. 
 
 Thompson, Commissioners. 
 
 Gentlemen : By the terms of a decree of the Court 
 of Claims filed February 3, 1896, by the said court as 
 the final decree in case 17209, entitled Moses Whit- 
 mire, trustee for the Freedmen oj the Cherokee Nation^ 
 V. The Cherokee Nation and the United States, for cer- 
 tain claims of the Shawnee and Delaware Indians and 
 the Freedmen of the Cherokee Nation, etc., it was or- 
 dered and adjudged that for the purpose of ascer- 
 taining and determining who are the individual freed- 
 men of the Cherokee Nation now entitled to share in 
 the distribution of the sum of $903,365 awarded them, 
 the Secretary of the Interior was authorized to ap- 
 point three commissioners — one on the nomination of 
 the complainant and one on the nomination of the 
 defendant, the Cherokee Nation — to proceed to the 
 Cherokee country and hear the testimony both for 
 and against the identity of all the freedmen, free col- 
 ored persons, and their descendants, claiming to be 
 entitled to share in the distribution of said $903,365 
 that may be offered by the respective parties to said 
 suit. 
 
101 
 
 Pursuant to the ai'orcsaid (Iccrcc and in corn- 
 plianco vvitli {\\v diroctions contaiiKHl in Icttci- of the 
 h()noral)le Secrotan' of the Intcrioi* under date of 
 Fel)niarv, 1S96, you are infornuMl that you have 
 been appointed the nieiuhers of said coniinission, to 
 proceed to the Cherokee country and hear the testi- 
 mony l)oth for and a*j;ainst the identity of all freed- 
 men. free colored persons, and their descendants, 
 claiming: to be entitled to share in the distribution 
 aforesaid, that may be offered l)y the respective 
 parties to said suit. 
 
 By the ninth article of the Cherokee treaty of July 
 19, 1866 (14 Stats., p. 801), the Cherokees agreed— 
 
 that all freedmen who have been liberated by 
 voluntary act of their former owners or by 
 law, as well as all free colored persons who 
 were in the country at the commencement of 
 the rel)ellion and are now residents therein, 
 or who may return within six months, and 
 their descendants, shall have all the ria:hts of 
 native C'lierokees: * * * 
 
 and it appearing to the court that under the pro- 
 visions of said article 9 the aforesaid freedmen and 
 free colored persons were admitted into and became 
 a part of the Cherokee Nation and entitled to efjual 
 rights and immunities and to participate in the 
 Cherokee national funds and common property in the 
 same manner and to the same extent as Cherokee 
 citizens of Cherokee blood, it w^as adjudged and de- 
 creed that the complainants in said suit and those 
 whom they represented, being the freedmen and free 
 colored persons aforesaid and their descendants living 
 and in being on the 3d day of May, 1894, are entitled 
 to participate hereafter in the common property of 
 the Cherokee Nation, it l)eing understood tlint the 
 
102 
 
 freedmen and their descendants and free colored per- 
 sons above referred to should include only such per- 
 sons of said class as had not forfeited or abjured their 
 citizenship of said Cherokee Nation at the date of the 
 entering of said decree. 
 
 The commission before entering upon its duties 
 under their appointment must qualify by each 
 member thereof taking an oath before any United 
 States commissioner, or otherwise, that he will faith- 
 fully perform the duties of his said office. 
 
 The commission will be governed by the following 
 rules and directions in the discharge of the duties pre- 
 scribed for it in said decree : 
 
 That you may have the same power to administer 
 oaths to witnesses, to compel the attendance of the 
 same, to compel the production of written testimony, 
 and to determine the admissibility of all evidence 
 offered as the Court of Claims would have in making 
 the investigation prescribed for said commission. 
 You will also be appointed commissioners of the 
 Court of Claims to take said testimony and to 
 administer oaths. 
 
 You will, as soon as practicable, fix upon a day 
 when the commission will meet in Washington to 
 receive such verbal instructions as may be desired, to 
 formulate blanks containing such items of evidence 
 as may be decreed essential in arriving at all the facts 
 necessary to be established to facilitate the estabhsh- 
 ment of the identity of the claimant entitled to par- 
 ticipate in the said distribution, and to prepare a form 
 of schedule that shall present such facts as may be 
 held to be necessary to a ready and prompt under- 
 standing of each individual case, that will aid the 
 Secretary of the Interior in reaching a conclusion as 
 to his approval thereof and in identifying the persons 
 
t'lirollecl tluMvoii wlu-n ilishursini;- said inoiicN'. as j)i-o- 
 vided by said docroo, and in the proparation ol tonus, 
 handl)ills, cii'culais, (>t('., to he sen! out to ciainiants. 
 
 You will at once <2;iv(' due })ul)li(' notice l)y advor- 
 tisonient in two of the most witlely circulated papers 
 in the nation, by at least two weekly insertions, and 
 by such oth(M- methods as you may deem most 
 effectual in reaching; said claimants, such as hand- 
 bills or circulars, of the times and ])laces where the 
 commission will hear oxidencc on Ix'half of the 
 parties to the suit either in the Cherokee Nation or 
 any other place that in your jud<!;ment may be 
 necessary, most convenient to said freedmen and 
 free colored persons. 
 
 I would suggest that in ascertaining and deter- 
 mining what freedmen are entitled "to a distributive 
 share of said fund the following questions be sub- 
 mitted to each claimant, so far as the same may be 
 applical)le to that particular case, viz: 
 
 1. When and where were >'ou born? 
 
 2. Who were your parents? 
 
 3. Were you a slave in February, 1863? 
 
 4. If you were, what was your owner's name, 
 and was your owner a Cherokee Indian? 
 
 5. If not a slave, but the descendant of a slave, 
 state who were your father and mother and the 
 names of their respective owners, and whether such 
 owner was a Cherokee Indian. 
 
 6. Did you reside in the Cherokee Nation at the 
 time of the treaty (July 19, 1866)? 
 
 7. If not, where did you live and when did you 
 return to the Cherokee Nation to reside? 
 
 8. Have you lived there continuously ever since? 
 
 9. If not, state when >'ou left the nation, how 
 often and how long you remained away eacli time. 
 
104 
 
 with the reasons each time for leaving and remaining 
 away. 
 
 10. In cases of married women, give your maiden 
 name; and if married more than once, each of. your 
 married names. 
 
 11. Where do you now reside — give post-office 
 address *? 
 
 12. How long have you lived there consecutively? 
 In ascertaining the identity of the freedmen and 
 
 free colored persons entitled to share under this de- 
 cree, you are directed by the decree to accept what 
 is known as the authenticated Cherokee roll, pur- 
 porting to have been taken by the Cherokee Nation 
 in 1880, and make no inquiry respecting it other than 
 to ascertain who of said persons named on said roll 
 were alive and what descendants of said persons 
 were alive on May 3, 1894, and no evidence must be 
 accepted by you tending to disprove the citizenship 
 of any of the persons whose names appear on said 
 roll. The ''authenticated Cherokee roll" referred to 
 in the decree is alleged to be on file in the office of 
 the Secretary of the Interior, but no such roll is on 
 file in that office, and the only copy known to be on 
 file that could be taken for said ''authenticated 
 Cherokee roll" is a certified copy of said roll fur- 
 nished to J. W. Wallace by the Cherokee authori- 
 ties when he was in the Cherokee Nation in 1889 
 making up his census roll of Cherokee freedmen 
 living and in being March 3, 1883. 
 
 This roll, a copy of which is herewith furnished 
 you, contains the names of only 1,874 persons, while 
 the decree of the court in this case, decided March 
 18, 1895, fixes the number, in 1880, of Cherokee 
 freedmen at 2,052. 
 
105 
 
 In making' tlir invi'sti*::;ati()ii pri'scrihctl in .said 
 decree you will confine yourselves to the identity of 
 the followiuii; classes of persons onl> : 
 
 1. All persons who had been liherated by the vol- 
 untary act of theii* former owners or by law, who 
 were residents in the Cherokee Nation at the time of 
 the ti-eaty of July 19, 1866, or who i-cturncd within 
 six months from the date of the pronud^ation of the 
 treaty, viz, February 11, 18()7, and their descend- 
 ants; 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. 
 
 2. All free colored persons w^ho were in the Chero- 
 kee Nation at the commencement of the rebellion, 
 and w^ere residents in the Cherokee Nation at the 
 time of the treaty of July 19, 1866, or who returned 
 within six months from the date of the promul^ration 
 of the treaty, viz, February 11, 1867. 
 
 It must be further shown that all the persons 
 identified as of either of said classes, were alive and 
 in being May 3, 1894, and were at that time residents 
 of the Cherokee Nation; it being understood that 
 the freedmen and their descendants and free colored 
 persons above referred to include only such persons 
 of said classes as have not forfeited or abjured their 
 citizenship of said Cherokee Nation at the date of 
 the entering of said decree (February 3, 1896). 
 
 In determining the identity of the persons afore- 
 said, a vote of a majority of the commission shall 
 be sufficient to entitle the person to be enrolled on 
 schedule as a beneficiary of the aforesaid fund. 
 
 You are hereby authorized to employ a competent 
 clerk, who shall be a stenographer, at a monthly 
 
106 
 
 salary of $ , and such other temporary clerical 
 
 force as you may find necessary to facilitate and 
 hasten your work. You are also authorized to rent 
 an office in which to transact your business, to em- 
 ploy a competent person from time to time at a 
 
 weekly salary of $ , to keep order during the 
 
 time the commission is in session and taking testi- 
 mony, and to attend to such other duties as may be 
 found necessary by the commission in the prosecu- 
 tion of the work. The above salaries to be fixed by 
 the commission. 
 
 It is expected that you will conclude your labors 
 within four months from the time you qualify as 
 aforesaid, but if before the expiration of that time 
 you ascertain that a longer period is demanded and 
 required to do justice to all alleged claimants you 
 will so report the fact in ample time to the Secretary 
 of the Interior, designating the additional length of 
 time required in your estimation to complete the 
 work, in order that the time may be extended if 
 approved by him. 
 
 You will, on the completion of your labors, submit 
 a schedule of the names of the persons determined by 
 you as being entitled to share in the distribution of 
 the fund of $903,365 mentioned in the aforesaid 
 decree, with a typewritten report of your daily pro- 
 ceedings and of all evidence where claimant is not 
 admitted at all or only admitted by a vote of the 
 majority of said commission, and file stenographic 
 notes of all testimony taken. 
 
 These instructions, with any other duties required 
 of you by the aforesaid decree, a copy of which is 
 herewith furnished you, you are expected to carry 
 out fully, faithfully, and impartiallj^, that justice may 
 be meted out as contemplated by the Court of Claims. 
 
Your attention is callod to the lollowin.ii; paragraph 
 in the dcn-ree limiting the amount of expenditures to 
 $6,500: 
 
 And it is further directed that the amount of 
 $(),5()0, or so nnich thereof as may ))e neees- 
 sary, is herel)y allowed for the eom{)ensation 
 of the said commissioners and the necessary 
 costs and expenses incidental to the ascertain- 
 ment of the individual conij)lainants by them 
 as hereinbefore provided. 
 By direction of the Secretary of the Interior, your 
 compensation will be $1,500 each for the whole work 
 and actual and necessary traveling expenses. 
 
 Under no circumstances will you be allowed to ex- 
 pend more than said sum of $6,500 for your compen- 
 sation and for necessary costs and expenses incidental 
 to the ascertainment of the number of persons, etc., 
 referred to in said decree. 
 Very respectfully, 
 
 D. M. Browning, 
 
 Com7nissioner. 
 Approved : 
 
 Hoke Smith, 
 
 Secretai'y. 
 
 Department of the Interior, 
 
 Washington, April 21, 1896. 
 Commissioner of Indian Affairs. 
 
 Sir: I have approved and returned herewith the 
 draft of instructions prepared by your office and sub- 
 mitted wath your letter of February 20, 1896, for the 
 guidance of the commission provided in the decree 
 of the Court of Claims in cause No. 17209 of Moses 
 Whitmire, trustee for the freedmen of the Cherokee 
 Nation, against the Cherokee Nation and the United 
 
108 
 
 States to ascertain and determine who are the indi- 
 vidual freedmen and free colored persons of the Chero- 
 kee Nation now entitled to share in the distribution 
 of the sum awarded by said decree of the Court of 
 Claims, filed February 3, 1896. 
 
 The papers accompanying your communication are 
 herewith returned. 
 
 Very respectfully, 
 
 Hoke Smith, 
 
 Secretary. 
 (1236 Ind. Div., 1896. Three inclosures.) 
 
109 
 
 APPIONDIX K. 
 
 INSTIUCTIONS PHOI'OSHI) 15Y ATTOllNEV I'OK CIIKKoKKK 
 FREEDMEN AND SUBMITTED TO THE COURT (FILED Al'K. 
 14, 189G). AND ()RDEI{ OF <"OURT THEREON. 
 
 To the honombk Court of Claims: 
 
 The iiiKler8i«2;ned respoctfully represents that he has 
 spent the last few weeks in the Cherokee Nation with 
 a view of having the case of the freedmen prepared 
 for presentation to the commission. That he finds in 
 many instances the former slaves of the Cherokee 
 Nation durino; the rehellion were taken from that 
 country by their owners, the Cherokees, to the far 
 Southern States and in some instances to old Mexico. 
 That at the concl uion of the war some of these 
 slaves who had enlisted in the Union Army were dis- 
 banded at various points of the Union far away from 
 the Cherokee country. That both of these classes of 
 freedmen were left at these various points penniless 
 and ignorant, Init with no intention of abandoning 
 their residence in the Cherokee country. That as soon 
 as possible they returned to the Cherokee country, 
 but some of them not within the six months' limita- 
 tion specified in the treaty. That these people have 
 resided there coi^tinuously since and been as good 
 citizens as that country has. That Secretary Noble, 
 when the Wallace roll was taken, instructed Wallace 
 to enumerate this class of people, and this was done. 
 That in the judgment of the undersigned the number 
 of such people is only a few hundred and that it is the 
 belief of the Interior Department, as well as of the 
 undersigned, that to exclude people of this class would 
 
110 
 
 be contrary to the spirit of the treaty and would be a 
 bone of contention in the Cherokee Nation. That 
 justice to all parties would be best subserved by 
 leaving it in the discretion of the commissioners in 
 taking testimony under the decree of this court to 
 allow such persons to be enrolled. 
 
 The undersigned has been summoned here by the 
 Secretary for a conference in reference to the instruc- 
 tions to guide the commissioners. And that whilst 
 he has seen the letter of Judge Nott in reference to 
 this construction, but he feels that this was perhaps 
 given by the court without its being aware of the 
 fact above stated. He feels his duty to his clients 
 demands that he should ask the court for its advice 
 as to an instruction of this character, and he submits 
 herewith the form of an instruction which he thinks 
 the Secretary would cheerfully give if approved by 
 the court. (Paper marked "Exhibit A.") 
 
 The undersigned further states that he found in the 
 Cherokee country a large number of lawyers proposing 
 to represent the freedmen before this commission and 
 making extravagant contracts with them. That he 
 thereupon assumed to notify the freedmen that the 
 decree in the case contain the following provision, 
 " that each of said parties shall be entitled to be rep- 
 resented before said commissioners, either at the 
 taking of testimony in the Cherokee country or else- 
 where." That he had that provision inserted in the 
 decree so as to enable the trustee to employ counsel 
 to represent the freedmen before the commission. 
 That thereupon he agreed with the freedmen to pre- 
 sent the construction of this provision to the court and 
 to the Secretary, that he felt satisfied that they 
 would decide that it was the duty of the trustee to 
 employ an attorney to take full charge of the freed- 
 
1 1 1 
 
 men's case before the coniniission. Tliut in his judg- 
 ment this should l)e done, hut that (lie trustee will 
 not do so unless he is advised that he can pay such 
 attorney a reasonable compensation for his services 
 out of the funds in this case. That the Cherokees 
 have employed two of the ablest lawyers in the nation 
 to represent them, and he would respectfully ask 
 the advice of the court in this matter so the same may 
 be suggested to the Secretary of the Interior. All of 
 which is respectfully submitted. 
 
 Robert H. Kern. 
 
 exhibit a. 
 
 In making the investigations prescribed in said 
 decree, it shall confine itself to the identity of the 
 following classes or persons only : 
 
 1. All persons who had been held in bondage by 
 any member of the Cherokee Nation, and who had 
 been liberated by act of law or by voluntary act of 
 their owners, and the descendants of such, as pro- 
 vided in the terms of the treaty of July 16, 1866, and 
 if it shall appear to said commission that any person 
 or persons of the aforesaid class had been taken from 
 the Cherokee Nation during the rebellion either by 
 the owners thereof, or was absent therefrom during 
 said time because of his or their belonging to either 
 of the armies that were engaged in the late rebellion, 
 and were unable to return to the Cherokee Nation 
 within six months after the conclusion and ratifica- 
 tion of the treaty refen-ed to in the decree in said 
 cause, of date July 16, 1866, because of circumstances 
 beyond their control, but returned as soon as practi- 
 cable, then no such person shall be excluded by said 
 commission from the roll to be prepared by it, but the 
 
 14296—09 8 
 
112 
 
 same shall be placed thereon, as well as the descend- 
 ants of such. 
 
 2. All free colored persons who were in the Indian 
 Territory at the commencement of the rebellion and 
 were residents thereof at the time of the treaty of 
 July 16, 1866, or who returned thereto within six 
 months after the conclusion and ratification of said 
 treaty. 
 
 3. All of the aforesaid classes who were reisdents of 
 the Cherokee Nation on May 3, 1894. 
 
 ORDER. 
 
 The court is of the opinion that the act 2d March, 
 1895 (28 Stat. L., p. 910, sec. 11), prescribes the 
 manner in which payments per capita shall be made 
 and that the matter of payment is exclusively within 
 the jurisdiction of the Secretary of the Interior. 
 
 The court, after further consideration, adheres to 
 the opinion communicated to the Commissioner of 
 Indian Affairs, February 18, 1896. 
 
 The within motion for instructions is overruled. 
 April 15, 1896. 
 
 Bv the court: 
 
 Wm. a. Richardson, 
 
 Chief Justice. 
 
 O 
 
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LIBRARY OF CONGRESS 
 
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