Office Of The Secretary
Washington, D. C., February 15, 1905
Commission To The Five Civilized Tribes
Muscogee, Ind. T.
GENTLEMEN: Enclosed herewith is a communication, dated December 10, 1904, from Mrs. Loula West, of Ardmore, Ind. T., forwarding a petition ad dressed to the President, praying him to cause an investigation to be made of the allegations contained in said petition, and, if said allegations are found to be true, to cause her name to be placed upon the final roll of the Choctaw Nation.
It appears from said petition that your Commission deems itself precluded from considering her case by reason of a decision of the Choctaw-Chickasaw citizenship court denying her enrollment.
In an opinion dated February 10, 1905, approved by the Department, the Assistant Attorney-General held that your Commission has jurisdiction to examine into the claimant s case, and should adjudicate it upon its merits, regardless of any judgment of the citizenship court.
Enclosed herewith is a copy of said opinion for your guidance. You will permit the petitioner to submit such testimony in support of her claim as she may see fit.
M. W. Miller, Acting Secretary
Office Of The Assistant Attorney-General
Washington, B. C. February 10, 1905
The Secretary Of The Interior
SIR: I received by reference of December 23, 1004, with request for opinion thereon, the communication of Mrs. Loula West, addressed to the President, asking an investigation of the Choctaw citizenship case of herself and others of the same family.
The petition states that she is of Choctaw descent, born in Tennessee, removed to the nation twenty years ago, and has ever since resided there; that she applied to the Choctaw authorities for readmission and was denied, but appealed to the Indian agent at Muscogee; the matter was fully heard, the agent found her claim proven, recommended her admission July 15, 1889, and this action was approved by the Secretary of the Interior January 9, 1890; that she was regularly borne on the tribal rolls, and drew the leased district money payment in 1893, as shown by the authenticated rolls in the possession of the present Commission.
She then states that she applied to the Dawes Commission under the act of June 10, 1896 (29 Stats., 321, 339), and was admitted, from which the Choctaw Nation appealed to the United States court for the central district of Indian Territory, which affirmed the judgment, after which the citizenship court, organized under the act of July 1, 1902 (32 Stat, (Ml, 64(5-648), annulled this judgment, and the cause was transferred to that court to be adjudicated, whereupon she filed a motion for dismissal of the cause upon the ground that the court had no jurisdiction of it, but the motion was overruled, and ultimately the court denied her enrollment.
She states that the Commission to the Five Civilized Tribes admit the justice of her claim to Choctaw citizenship, but deem themselves precluded from considering it by the judgment of the citizenship court, and she prays investigation of her case by the President and an order to the Secretary of the Interior that she be placed on the rolls, if such allegations are found to be true.
Accepting such allegations as true, for the purposes of discussion here, I am of opinion that the Commission has ample jurisdiction to examine into the merits of her claim, and, if the facts are found to be as stated, that she is entitled to be enrolled.
The act of June 10, 1896, confirmed the tribal rolls, and under it the Commission had no jurisdiction or power to eliminate persons therefrom. In respect to such persons, already recognized as citizens on the tribal roll, they had no power other than identification and entry upon the roll by them to be prepared. Such action was not a decision of admission of such applicant to citizenship, as that status already existed. In her case (as the facts are stated) it existed by virtue of her recognition and enrollment as a Choctaw by the Secretary of the Interior January 9, 1890. That the Commission had no power to deny enrollment of such an applicant was decided by the Department May 21, 1903, in the Choctaw case of Wiley Adams.
The United States court, under the act of 1896, supra, had in citizenship cases no other jurisdiction than an appellate one, and from the very nature of such jurisdiction obtained no jurisdiction by an attempted appeal of a matter wherein the original tribunal had no jurisdiction. My opinion was so expressed in the recent Creek case of Mary C. Keifer (I. T. D. 5066, 1902, 6236, 1903). It follows that the attempted appeal by the Choctaw Nation in the case here under consideration, if the facts are as stated, vested no jurisdiction in the court to which the appeal was attempted to be taken, and, its judgment being essentially and necessarily a nullity, the citizenship court itself obtained no jurisdiction in the case by going through the form of annulling a judgment that for total want of original jurisdiction had never any validity or operation.
I am therefore of opinion that the Commission to the Five Civilized Tribes have jurisdiction, upon the facts stated, to examine into the claimant’s case, and should adjudicate it upon its merits regardless of any judgment of the citizenship court.
Frank L. Campbell, Assistant Attorney-General
Approved February 10, 1905
E. A. Hitchcock, Secretary
Office Of The Secretary
Washington, D. C., December 13, 1905
Commissioner To The Five Civilized Tribes
Muscogee, Ind. T.
SIR: There is enclosed a copy of the opinion of the Assistant Attorney-General of December 8, 1905, in the Choctaw enrollment case of Loula West et al., approved the same day, in which he adheres to his former opinion.
You will proceed in this and analogous cases in accordance with such opinion. Thomas Norman, of Ardmore, Ind. T., appears as attorney for the applicants in this case.
Thos. Ryan, First Assist ant Secretary
Office Of The Assistant Attorney-General
Washington, D. C., December 6, 1905.
The Secretary Of The Interior
SIR: I received by reference of April 22, 1005, the motion of counsel for the Choctaw and Chickasaw nations for reconsideration of my opinion of February 10, 1905, in case of Loula West and others (I. T. D. 10.353, 1004), applicants for enrollment as citizens of the Choctaw Nation. The motion assigns error in the most general terms that “the conclusions of law therein reached are erroneous and should not stand.” No error of statement of fact is alleged, and for all purposes of this motion it stands conceded that
Loula West is a Choctaw, born in Tennessee, who removed to the nation twenty years ago and has ever since resided there. She applied to the Choctaw authorities for readmission, was denied, appealed under a Choctaw law to the Indian Office, was admitted January 0, 1890, by the Secretary of the Interior, was thereafter borne on the tribal rolls and participated in the 1803 leased district money payment. She was enrolled by the Dawes Commission under the act of June 10, 1896 (20 Stat, 321, 330). The Choctaw Nation appealed to the United States court, central district, Indian Territory, which affirmed the judgment, after which the citizenship court, under the act of July 1, 1902 (32 Stat., (641, 641-648), in the test suit, annulled this judgment; the cause was transferred to that court for adjudication; she filed a motion for its dismissal upon the ground that the court had no jurisdiction; the motion was overruled, and the court entered a judgment denying her enrollment. She applied to the present Commission for enrollment, and was denied upon the ground that the Commission is barred from consideration of her case by the judgment of the citizenship court.
Upon these facts, February 10, 1905, I rendered an opinion that, as the tribal rolls were confirmed by the act of June 10, 1896, supra, the Commission had no jurisdiction to purge the tribal rolls, and had only a ministerial duty to enroll all enrolled persons, and as the United States court and the citizenship court had no original jurisdiction in such cases, but only an appellate one in cases appealed from decisions of the Commission upon applications by unenrolled persons for admission to citizenship, all the proceedings in the case of Loula West were without jurisdiction of either the United States or the citizenship court and a nullity, and that it was the duty of the Commission to the Five Civilized Tribes to consider the case and adjudicate it upon its merits.
In oral argument the general assignment of error in the conclusions of law was defined to be:
- (1) In holding that any rolls of the Choctaw Nation existed which were confirmed by the act of June 10, 1800.
- (2) But whether so or not, these applications belong to the class of persons “deprived of a favorable judgment” of the United States court by the judgment of the citizenship court, which thereby acquired jurisdiction to act finally and to conclude them by its final judgment.
With the motion is also transmitted for my consideration the letter of the Commission to the Five Civilized Tribes and of May 27, 1905, wherein the Commission recites the facts in case of Loula West, above briefly set out, and, among other things, says:
The Commission has not as yet complied with the instructions contained in depart mental letter of February 15, 1905, and before doing so desires to call attention to certain departmental opinions heretofore rendered in reference to persons who applied for citizenship in the Choctaw and Chickasaw nations under the provisions of the act of Congress approved June 10, 1896 (29 Stat., 321).
Reference is then made to the opinion of this Office of March 17, 1899, as to the finality of decisions of the Commission under the act of 1896, supra; to the act of July 1, 1902 (32 Stat., 041), declaring that “the judgment of the citizen ship court in any or all of the suits or proceedings committed to its jurisdiction shall be final;” to the opinion of the Acting Attorney-General of May 9, 1904, in the matter of Richard B. Coleman; departmental letters of June 1.0, 1904 (I. T. D. 1610-1904), in case of Andrew D. Pollock, and August 3, 1904 (I. T. D. (J174-1904), in case of Dr. Clay McCoy, and my opinion of July 30, 1904, therein, and proceeds to say that the Commission under these departmental plain constructions of the acts of June 10, 1890, and July 1, 1902 has uniformly held:
- (1) that the decisions of the Commission in 1896 admitting persons to citizenship in the Choctaw and Chickasaw nations, which were unappealed from, are conclusive as to the rights of such persons to be enrolled and
- (2) the decrees of the Choctaw and Chickasaw citizenship court are, irrespective of any facts that might have been considered in connection with the applications of such persons final.
This broad grant of power now seemingly conferred by the opinion of the Assistant Attorney-General of February 10, 1905, will practically reopen for adjudication a number of cases which have been adjudicated by the Commission under the act of June 10, 1896, and by the Choctaw and Chickasaw citizenship court. If this direction is adhered to the Commission will be compelled to proceed to a trial de novo of numerous cases of applicants whose rights had, in our opinion, become resadjudicata, and where any proceedings wherein they might appear as parties in interest have been dismissed.
The plaint of the Commission seems to be, in substance, when analyzed, that consideration of the cases of persons claiming right of citizenship, resident in the nation and borne on the tribal rolls, will involve so much labor and be so inconvenient that it prefers they should not be heard, regardless of whether they were ever properly within the jurisdiction of the Commission in 1896 and of the citizenship court, or not, so only these tribunals, or the latter one, assumed to render a decision depriving them of their clear right. It is needless to say that I am of the opinion that the considerations suggested by the Commission are not of a character entitled to executive or judicial consideration.
It was first held by the Department, so far as I am advised, May 21, 1903, in case of Wiley Adams, that the Commission under the act of 1896 was without authority to admit or deny citizenship of persons borne on the tribal rolls as citizens. I have had occasion in several more recent cases to examine the question, among others, in cases of Benjamin J. Vaughn (I. T. D. 11952-1904), March 24, 1905; Stonewall J. Rogers (I. T. D. (1340-1904), March 25, 1905; Mary Elizabeth Martin, March 24, 1905, and Dr. Clay McCoy, and have no doubt that the decision of the Department was a true construction of the power of the Commission under the act.
It is also well founded and well established that in appellate proceedings the appellate tribunal obtains no jurisdiction of a cause by appeal, if the original tribunal had none over the subject, and that such objection may be taken at any time, and that consent of parties can not give jurisdiction. Elliott s Appellate Procedure, 1892, says:
- SEC. 13. It is a necessary sequence that parties can not by consent confer upon the appellate tribunal authority to decide questions which are not in the record, except in cases where it has original jurisdiction.
- SEC. 470. Objections to the jurisdiction of the trial court over the subject may be successfully urged at any time. If the trial court did not have jurisdiction of the subject the appellate court acquires none (citing Morris v. Gilmer, 129 U. S., 315; Chapman v. Barney, ib., 077).
- SEC. 498. The rule that a party must adhere to the theory adopted in the trial court does not preclude him from insisting on appeal that the trial court had no jurisdiction of the subject, for nothing that a party can do, short of executing the judgment in some way, can deprive him of the right of objecting to the jurisdiction. The theory of the law is that where there is absolute want of jurisdiction there is no court, and it is too clear for controversy that a party can neither create a court nor endow it with authority over a subject not placed within its jurisdiction by law.
- SEC. 503. Where there is no jurisdiction there is no court, and if no court there is, of course, no officer or tribunal capable of acting in the matter at all. The phrase coram non judice does not mean that the person who assumes to be a judge is not a judge, but an intruder, or usurper; on the contrary, it simply means that he is not a judge in the particular case or class of cases.
- SEC. 12. Jurisdiction of the subject can not be given to any court by the parties, since such jurisdiction can be conferred only by law.
I deem the matter too clear to admit of debate that if the Commission had no power to purge the rolls and Mrs. West was on a tribal roll, all the power of the Commission in 1896 was the ministerial duty to inscribe her on the roll to be prepared. Had the Commission denied her right, its action was a mere nullity. Any appeal taken from their action was a mere nullity. Any judgment of the United States court upon such appeal other than to dismiss it for want of jurisdiction was a mere nullity. Any action of the citizenship court upon it was a mere nullity. That court had no jurisdiction, and should have dismissed it upon her motion. The Commission should proceed to hear her case upon the merits.
It is proper also for me here to add that it is not my province, nor do I assume to make a “broad” or yet any “grant of power” to the Commission. That is the province of Congress. I have merely endeavored to define what powers were granted to the Commission and to the courts by the acts of June 10, 1896, and July 1, 1902. I have carefully examined the decisions of the Department, the opinion of the Attorney-General, and the former opinions from this Office referred to by the Commission, and, without discussing them in detail, find nothing therein inconsistent with the views herein expressed or in my former opinion herein, which is based on a want of jurisdiction of the subject matter under the acts of 1896 and 1902, and I adhere to my former opinion herein.
Frank L. Campbell, Assistant Attorney-General.
Approved, December 8, 1905
E. A. Hitchcock, Secretary