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Office Of The Assistant Attorney-General
Washington, D. C., June 19, 1905
The Secretary Of The Interior
SIR: I received, by reference of June 5, 1905, with request for opinion thereon, the record in the case of Thomas J. Lasley and others for enrollment as citizens by blood of the Cherokee Nation.
The applicant based his claim of right upon being the son of George Lasley and Sarah (nee Walker), his wife, both of whom were recognized Cherokees. As proof of that right he relied upon a judgment of the United States court of the Indian Territory, northern district, under the act of June 10, 1896 (29 Stat, 321, 339), on appeal from denial of his application to be enrolled rendered by the Dawes Commission November 6, 1890. A transcript of the judgment admitting him, September 30, 1897, was filed with the present Commission. The Cherokee Nation opposed the application on the ground that it was fraudulently recovered, and adduced a considerable amount of testimony of old acquaintances and relatives of George and Sarah Lasley tending to show that the applicant s alleged parents were married in 1859; that they never had but two children the oldest, a daughter, now living and enrolled, and a son George, born a few months after his father was killed during the war of the rebellion, and that this son died an infant at Sulphur when only about six months old. One witness testified to being present at the child s death and burial. The daughter testified and denied the claimed relationship. John Rattlingourd, or John R. Gourd, and Martha Ann Grinstead were shown by the record of the United States court to be the proof witnesses of the applicant’s identity as son of his claimed parents. Rattlingourd testified before the present Commission, and claimed that he was never sworn to the affidavit bearing his signature by mark, and that he did not have any knowledge or means of knowledge of the facts set out therein. The applicant introduced no evidence to sustain the judgment or to rebut the evidence of fraud. The Commission gave no consideration to the testimony offered, and, March 10, 1904, held that “Said judgment under the law, 29 Statutes, supra, became final, and this Commission has no authority to review the same,” and enrolled the applicants. The Cherokee Nation protests against the decision and has filed a brief, which was served April 1, 1904, by registered mail, upon the applicant, who has not responded thereto.
The act of June 28, 1898 (30 Stat, 495, 502), provides that:
Said Commission is authorized and directed to make correct rolls of the citizens by blood of all the other tribes, eliminating from the tribal rolls such names as may have been placed thereon by fraud or without authority of law, enrolling such only as may have lawful right thereto and their descendants born since such rolls were made, with such intermarried white persons as may be entitled to Choctaw and Chickasaw citizenship under the treaties and the laws of said tribes.
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The provision of the act of 1896, supra, that such judgments shall be “final,” is but the usual form of expression that no appeal or further step in the same proceeding lay for review for errors of fact or of law. Remedy for fraud in recovery of judgments, even those of courts of last resort whose judgments are “final,” is a familiar subject of the jurisdiction of courts of equity. When Congress gave the Commission authority to purge the tribal rolls of names which had obtained place thereon by fraud, that jurisdiction extended to every case by which such enrollment was fraudulently obtained, regardless of the avenue through which the name attained place on the roll.
I am of opinion that, as the statute makes no exception or classification of cases in which the Commission may cancel an enrollment obtained through fraudulent devices, no narrowing of its authority to any particular class of cases was intended. December 7, 1904, the Attorney-General, construing the act of 1898, supra, in case of admission by act of the Choctaw national council, held that:
It appears to me the above-quoted provisions of the statute impose upon the Commission to the Five Civilized Tribes the duty and give it the power to determine whether any name appearing upon a tribal roll was placed there by fraud or without authority of law, and that the mere fact that such enrollment was by virtue of an act of the national council is not sufficient to preclude an inquiry. An act of the council should be treated with respect as prima facie valid and efficacious, and nothing done as the result thereof should be lightly set aside; but if it clearly appears that the act was procured by deliberate fraud and perjury, I do not think Congress intended that benefits thereunder should be enjoyed.
That reasoning is equally applicable to an enrollment through fraud practiced upon the court. The Commission should have considered the evidence, and if it “clearly” appeared that such judgment was obtained by practice of fraud, should have denied enrollment of the applicants.
My attention is directed by the letter of reference to my former opinions in cases of Francis M. Dawson, February 18, 1904 (I. T. D., 7442-1903); William H. Shoemake, May 27, 1904 (I. T. D., 512-1904), and Angeline White, January 31, 1905 (I. T. D., G226-1904).
In the first of these cases the fraud was charged to have been committed on the tribal court in January, 1883, “by bribery of the clerk and perjured testimony.” The admissions had been acquiesced in by the nation for fully thirteen years, accepting the allegiance of those admitted, calling them to its official service which they had rendered, marriages had been contracted, homes had been built, and children and been born to that allegiance. During all this time the nation had plenary power as an autonomous community to call the parties to answer and, by due exercise of its own powers, might have vindicated any wrong that had been perpetrated, but acquiesced and was silent. The nation was deemed concluded by its own laches, reference being made to the decision in Throckmorton v. United States (98 U. S., 6l, 65), wherein it was held that:
There is also no question that many rights originally founded in fraud become by lapse of time, by the difficulty of proving the fraud, and by the protection which the law throws around rights once established by formal judicial proceedings in tribunals established by law, according to the methods of the law no longer open to inquiry in the usual and ordinary methods.
The case of Shoemake was of similar character and arose in the same year (1883), but the alleged fraud in that case was affirmatively disapproved, as will appear by reference to that opinion.
The case of Angeline White did not involve a question of fraud, but the rights of intermarried whites under the thirty-eighth article of the treaty of April 28, 1806 (14 Stat., 769, 779), and the express mandate of Congress to the Commission in the act of June 28, 1898, to enroll this class of persons. I fail to see that that opinion has any relevancy to the present case, nor are the other opinions in conflict therewith.
I am of opinion that the evidence presented, and nowise rebutted or attempted to be explained, is sufficient to sustain a finding that the judgment was obtained fraudulently; that the Commission might well have so found, and that the Department in its review of the case has jurisdiction to pass upon that question and may so find, and deny the applicant s enrollment.
Frank L. Campbell, Assistant Attorney-General
Approved June 19, 1905.
E. A. Hitchcock, Secretary