Opinion of Mr. Justice Anderson on Motion for Temporary Injunction

No. 84

In the supreme court of the District of Columbia, George Bullette et al. v. Ethan Allen Hitchcock, Secretary of the Interior, et al., No. 28991.

Opinion of Mr. Justice Anderson on motion for temporary injunction.

Statement Of The Case

On the 2d day of June, 1908, the complainants, George Bullette and others, on their own behalf and on behalf of the Delaware Indians residing in the Indian Territory, filed their bill of complaint against the defendants, Ethan Allen Hitchcock, Secretary of the Interior, and Tams Bixby, Thomas B. Needles, Clifton R. Breckenridge, and William E. Stanley, members of and constituting the Commission to the Five Civilized Tribes of Indians, generally known and called the "Dawes Commission," praying among other things for an injunction to restrain the defendants from receiving or entertaining applications for allotment of any portion of the 157,600 acres of land purchased by the Delaware from the Cherokee Nation under a certain agreement or treaty made between them on or about April 8, 18B7, and which lands the bill alleges were thereafter, to wit, in January, 1903, duly segregated and set apart for them by said Commission, pursuant to an act of Congress approved July 1, 1902, and also from entertaining or considering any contests based upon such applications, and that a mandatory writ of injunction issue out of this court, commanding the defendants to strike from the files of their office all such applications which have been or which may be filed touching such segregated lands, until the rights of said Delaware Indians in and to the lands and funds of said Cherokee Nation under said agreement of April 8, 1867, have been finally passed upon and determined by the Supreme Court of the United States in a suit brought in the Court of Claims of the United States by the Delaware Indians against the Cherokee Nation under the authority of section 25 of an act of Congress approved June 28, 1898, and now pending in the Supreme Court of the United States on appeal from a decree rendered by the Court of Claims February 2, 1908, dismissing said suit.

It is alleged in the bill of complaint that under said agreement of April S, 1S67, the Cherokee Nation sold to the Delaware (then residing in the State of Kansas) an amount of land east of the ninety-sixth degree, in the aggregate equal to 1(50 acres for each individual Delaware who had been enrolled on a certain register made February 18, 1867, and such as might be added thereto within a specified time, and for which lands the Delaware agreed to pay the Cherokees $1 per acre; that pursuant to that agreement it was ascertained that the number of Indians so enrolled and entitled to be enrolled was 985, and the number of acres to which they were thus entitled was 157,600; that thereafter and during the year 1867 the Delaware, in pursuance of the terms of said agreement, paid into the treasury of the Cherokee Nation the sum of $157,600, the agreed purchase price for said land: that although the 157,600 acres were not then segregated or set apart, yet the individual Delaware Indians enumerated in the said enrollment at once, after the payment of the $157,600, removed to and occupied and improved about 157,600 acres of land in the Cherokee Nation pursuant to the terms of said agreement, and also certain other lands under claim of right.

Touching the segregation of the 157,600 acres from the other lands of the Cherokee Nation, the complainants further allege that by section 25 of an act of Congress approved June 28, 1898, entitled "An act for the protection of the people of the Indian Territory, and for other purposes" (80 Stat. L., 495) it is provided:

"That before any allotment shall be made of lands in the Cherokee Nation there shall be segregated there from by the Commission heretofore mentioned, in separate allotments or otherwise, the one hundred and fifty-seven thousand six hundred acres purchased by the Delaware tribe of Indians from the Cherokee Nation under agreement of April eighth, eighteen hundred and sixty-seven, subject to the judicial determination of the rights of said descendants and the Cherokee Nation under said agreement. That the Delaware Indians residing in the Cherokee Nation are hereby authorized and empowered to bring suit in the Court of Claims of the United States, within sixty days after the passage of this act, against the Cherokee Nation for the purpose of determining the rights of said Delaware Indians in and to the lands and funds of said nation under their contract and agreement with the Cherokee Nation, dated April eighth, eighteen hundred and sixty-seven; or the Cherokee Nation may bring a like suit against said Delaware Indians; and jurisdiction is conferred on said court to adjudicate and fully determine the same, with right of appeal to either party to the Supreme Court of the United States."

The complainants further allege that, pursuant to the authority contained in this section (25), the Delaware Indians residing in the Cherokee Nation within the time limited in this section (viz, within sixty days from its passage) brought suit in the Court of Claims of the United States against the Cherokee Nation for the purpose therein provided, and such proceedings were therein had that on about February 2, 1903, a decree was rendered by said court dismissing said suit, and thereupon, on or about March 19, 1903, the Delaware by their counsel duly appealed from said decree to the Supreme Court of the United States, and which appeal is now on the calendar of that court, but has not yet been argued or determined.

It is further alleged that thereafter, to wit, July 1, 1902, Congress passed an 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," approved July 1, 1902 (public. No. 241), which was duly ratified by the Cherokee Nation (as provided in said section 75) at a general election held on or about August 7, 1902, and that by reason of such ratification the Cherokee Nation and the individual members thereof thereby ratified and consented to the provisions of said section 23 of said act, which provides for the segregation and withdrawal from allotment of the 157,600 acres claimed by the Delaware. Said section 23 reads as follows:

"All Delaware Indians who are members of the Cherokee Nation shall take lands and share in the funds of the tribe as their rights may be determined by the judgment of the Court of Claims or by the Supreme Court, if appealed, in the suit instituted therein by the Delaware against the Cherokee Nation and now pending; but if said suit be not determined before said Commission is ready to begin the allotment of lands of the tribe as herein provided, the Commission shall cause to be segregated one hundred and fifty-seven thousand six hundred acres of land, including lands which have been selected and occupied by Delaware, in conformity to the provisions of their agreement with the Cherokees, dated April eighth, eighteen hundred and sixty-seven, such lands so to remain subject to disposition according to such judgment as may be rendered in said cause; and said Commission shall, when final judgment is rendered, allot lands to such Delaware in conformity to the terms of the judgment and their individual rights thereunder. Nothing in this act shall in any manner impair the rights of either party to said contract, as the same may be finally determined by the court, or shall interfere with the holdings of the Delaware under their contract with the Cherokees of April eighth, eighteen hundred and sixty-seven, until their rights under said contract are determined by the courts in their suit now pending against the Cherokees, and said suit shall be advanced on the docket of said courts and determined at the earliest time practicable."

It is then alleged in the bill that by said act of Congress last mentioned (viz, act of July 1, 1902), it was provided with respect to the lands of the Cherokee Nation, excluding said 157,600 acres of land, that Cherokee citizens might file with the defendants applications for allotment thereof, and that the Dawes Commission should have exclusive jurisdiction to determine all matters relative to such allotments and of any contest in relation thereto, and that after the expiration of nine months from the date of original allotment by or for any Cherokee citizen no contest should be instituted against such selections, and that as early thereafter as practicable a patent should issue therefor.

The complainants therefore allege and so contend that according to the provisions of section 23 of said act of Congress of July 1, 1902, and according to the true intent and meaning thereof, said Commission was required, until the final determination of said suit by the Supreme Court of the United States, to cause said 157,600 acres of land to be segregated and to be kept segregated and apart from all other lands of the Cherokee Nation, and to remain so segregated until final judgment shall be rendered by the Supreme Court; and that if any allotment of land of the Cherokee Nation should be made to such Cherokee" citizens prior to said determination of the Supreme Court, it should he made from lands other than those to be so segregated, and that the Commission was thereby ordered and directed not to allow any applications for allotment for such segregated lands to be filed, and not to allow any contests to be instituted with respect to any such lands until at least after such final determination of said suit should be made; and that only upon the rendering of such final judgment should such segregated lands he allowed in severalty, either to said Delaware, in case of their success in said suit, or to them or other members of the said Cherokee Nation in case said suit should be unsuccessful.

The complainants further allege that in December 1902, the Delaware tribe, pursuant to said section 23, filed with the Commission a list of selections of land made by them, respectively, aggregating 157,600 acres, and in January 1903, an amended and corrected list, which was then received, accepted, and placed on file by said Commission as and for a designation and description of the Delaware lands segregated under the authority of said acts of 1898 and 1902; and that in January, 1903, the Commission caused said 157,600 acres of land to be segregated and set apart in obedience to the mandates contained in said acts of Congress.

It is also alleged that after the segregation of these lands the Dawes Commission opened a land office at Vinita, Ind. T., and since January 1, 1903, have allowed numerous persons who are, or who claim to be, citizens of the Cherokee Nation, to file with said Commission applications for various of the lands so segregated, and have notified numerous Delaware who have improved and are occupying said segregated lands that such applications have been filed, and that unless they appear before the Commission and contest the same within nine months from the date of the filing of such applications they will be forever barred from any interest therein, as provided in section 69 of the act of July 1, 1902, notwithstanding said applications for allotment have reference to and cover lands within a part of said 157,600 acres segregated and set apart for the Delaware.

And it is further alleged that said Commission threatens and intends in the future to continue to receive and act upon such illegal applications, and claims the right so to do, despite the provisions of said section 23, the pendency of said suit, and the protests of complainants. And, furthermore, that defendants threaten to hold and determine that the provisions of said act of Congress approved July 1, 1902, touching applications for and contests over the allotment of lands in the Cherokee Nation generally, and the statute of limitations set forth in section 69 of said act apply to all lands in the Cherokee Nation, including said segregated lands, notwithstanding the provisions of section 23 of said act and notwithstanding the pendency of said suit in the Supreme Court of the United States, and that unless the defendants be enjoined from receiving such applications and from holding that the limitation of nine months applies thereto, irreparable injury will be done the complainants and their associates and that a multiplicity of suits will be inevitable.

A mandatory injunction is therefore asked to direct the defendants to strike from the tiles all applications for lands within the segregation and to eject there from all persons who have gone upon said lands in pursuance of such applications.

An injunction is also asked to prevent defendants from receiving further similar applications and from holding the nine months' limitation (named in section 69) applicable thereto. Process was issued upon this bill of complaint and service thereof was had upon the Secretary of the Interior and upon Tarns Bixby, chairman of the Dawes Commission, who at the time of filing the bill chanced to be in the District of Columbia. The other defendants, members of the Dawes Commission, have not been served.

Answer

To this bill of complaint the Secretary of the Interior filed his answer under oath, in which he denies that the segregation of said 157,600 acres of land, provided for by section 20 of the act of 1898 and section 23 of the act of 1902, has been made.


Answering the thirteenth paragraph of the bill, he alleges that on December 16, 1902, there was filed with said Commission a schedule of lands aggregating 157,600 acres, alleged to have been theretofore selected by the Delaware, and claimed by them under their agreement with the Cherokee Nation of April 8. 1867; that on the next day, December 17, 1902, said Commission, by resolution, instructed Tams Bixby, its acting chairman, to cause to be set aside and segregated the lands designated and described in said schedule. That thereafter, and in compliance with that resolution, Bixby, as such chairman, caused the tracts described in this schedule to be marked on maps in the office of the Commission as segregated under said acts; that thereafter, and upon further examination, the Commission discovered numerous errors in said schedule and called the attention thereto of the person who had filed it; that on January 23, 1903, the Commission received a corrected list, and thereupon the schedule filed December 16, 1902, was corrected to correspond with the schedule filed January 23, 1903, and that this corrected schedule was received and accepted by the Commission as a proper designation of the lands to be selected and segregated under said section 23; that thereafter a number of Cherokee citizens, not Delaware, complained to the Commission that this schedule, as amended, embraced lands belonging to them and then in their possession and upon which they had made improvements; that complaint was also made by certain Delaware that their lands theretofore selected and occupied by them had been omitted from this schedule, and requesting the Commission to he allowed to make final selections of lands containing improvements and upon which they resided and which were not included in said corrected schedule; that it was also discovered by the Commission that said corrected schedule embraced lands which were by law reserved for town sites, under section 24 of said act of 1902, and therefore not subject to segregation under the provisions of said section 23; and further, that the lands designated and described in said corrected lists were not selected with due regard either for the benefit of the Delaware citizens generally or other citizens of the Cherokee Nation. That on April 20, 1903, the Commission made a report of its acts and proceedings, with respect to the filing and acceptance of said schedule, to the Secretary of the Interior for his approval, which report was received by the Secretary of the Interior April 30, 1903, and has not been fully considered by him; and that such acts and proceedings of the Commission, as set forth, have not received his approval, and that he has not accepted or approved said corrected schedule as a proper designation and description of the land to be segregated under section 23.

He also denies that said Commission now claims to have the right to receive applications for the allotment of lands designated and described in said schedule, or now claims to have the right, upon the filing of any such applications, to consider that the individual Delaware are barred or foreclosed of any interest in the 157,600 acres of land to be segregated under said section 23 of the act of July 1, 1902.

He also denies that said Commission threatens and intends in the future to continue to receive, accept, and file further applications and to call upon individual Delaware to defend against the same, or threatens and intends to hold and determine that unless said Delaware institute a contest within said nine months their rights to said segregated lands shall lapse, or that the Commission threatens and intends to hold and determine that the provisions of the act of Congress approved July 1, 1902, touching applications for and contests over the allotment of lands in the Cherokee Nation generally, or that the statute of limitations set forth in section 69 of said act apply to all lands of the Cherokee Nation, including said segregated lands, notwithstanding- the provisions of section 23 of said act and notwithstanding the pendency of said suit in the Supreme Court of the United States.

He also denies that either he or said Commission have disregarded any protests by said Delaware, but alleges that all such protests were being considered by him, as such Secretary, in connection with the acts and proceedings of said Commission under said section 23 of the act of July 1, 1902, at the time of the filing of the bill of complaint herein, and that proper action thereon and on such acts and proceedings of said Commission has not yet been taken because of the issuance of the temporary restraining order herein. And he denies that either he or said Commission has done any acts or threatened or intend to do any acts to the prejudice of the rights of the complainants -or their associates to said segregated lands, but, on the contrary, that when said segregation is finally made and approved no allotments will be made of any lands included therein until the suit between the Delaware and Cherokees is finally determined by the Supreme Court.

He not only admits but specifically affirms the allegations of the bill of complaint that, by the several acts of Congress creating and defining the powers of said Commission, and all the acts and proceedings of such Commission under said laws, are subject to the directions of the Secretary of the Interior. But he denies that the acts and proceedings of said Commission, with respect to said schedules of land received and filed by said Commission, were done by and with his direction and approval, as Secretary of the Interior or otherwise.

And finally he alleges that he, as such Secretary of the Interior, and said Commission to the Five Civilized Tribes of Indians, constitute a special tribunal charged with the duty of segregating and allotting the lands in the Cherokee Nation; that said duty requires upon the part of said tribunal the exercise of judgment and discretion; that before the segregation of said 157,600 acres provided for in section 23 of the act of 1898 is complete or effective, it must be approved by him as such Secretary of the Interior; that this duty involves on his part, as such Secretary, the exercise of judgment and discretion, and is not, therefore, as he is advised, subject to review, control, or interference by the judicial branch of the Government in injunction proceedings, and he prays the same benefit as if he had demurred on that ground.

The affidavits of the defendants, the Secretary of the Interior and Tanis Bixby, are filed with, the answer, and are substantially to the same effect.

Amendment To Bill

Thereupon the complainants amended the thirteenth paragraph of their hill, and alleged that the acts and proceedings of the Dawes Commission, the Commissioner of Indian Affairs, and the Secretary of the Interior, in the administration and execution of the provisions of said selection 23, are fully set forth in certain of their reports and letters, copies of which are filed with said hill and made part thereof; and that it appears from said reports and letters, and that the fact is, that the segregation of the 157,600 acres, as required by said section 23, was completed by said Commission in December, 1902, and was held and considered by the Commission and by the Secretary of the Interior as having been made and completed by said Commission and by the Secretary of the Interior, and was, in fact, then approved and considered to have been approved by said Secretary. That there upon, and because it was held by the Secretary of the Interior to have been made in compliance with the law the Commission thereupon proceeded, under the direction and with the approval of the Secretary of the Interior, to the allotment of the remaining lands in the Cherokee Nation under the authority of said section 28 of the act of July 1, 1902; that on January 1, 1903, the Commission opened a land office at Vinita, Ind. T., for the purpose of receiving applications from Cherokees for lands, other than those so segregated, and making allotments thereof; that thereupon and during the months of January and February, 1903, more than 1,600 applications were filed, and more than l,300 allotments were made and reported by said Commission and the report thereof approved by the Secretary of the Interior; that said land office continued open until the filing of this suit in June, 1903, during which time it is alleged that more than 8,000 applications, covering more than 800,000 acres of land, were made, and more than 5,000 allotments, covering 500,000 acres of land, were reported to and approved by the Secretary of the Interior, and that said allotments could not have been legally made and approved if the segregation of the 157,600 acres had not already been made under said section 23 as preliminary and as a prerequisite to the making of said allotments.

Answer to Amendment of Paragraph 13 of Bill

The Secretary of the Interior filed a sworn answer to this amendment and denied that the acts and proceedings of the Secretary and of the Dawes Commission, or of either of them, in the administration and execution of the provisions of section 23, are fully set forth in said reports and letters filed with said amendment, and also denies that it appears from said re]>orts and letters that there has been any segregation of the 157,600 acres of land, as required by said section 23 of the act of July 1, 1902; or that it was held and considered by the Commission or the Secretary, or either of them, as having been so made or completed, or that it was in fact approved V)y him as therein alleged.

He also denies that the Dawes Commission proceeded to the allotment of any lands in the Cherokee Nation under his direction and approval, as set forth in the amendment to said bill. He further alleges that about January 1, 1903, the Dawes Commission opened a land office at Vinita, Ind. T., for the purpose of receiving and passing upon applications from Cherokee citizens, not Delaware, for lands in the Cherokee Nation, and that until the filing of the bill of complaint, said Commission received and passed upon such applications for allotments but no such applications for allotments have been approved by the defendant as Secretary of the Interior: and that the time of the filing of the bill of complaint herein the defendant, as such Secretary, was considering the acts and proceedings of said Commission in so receiving and passing upon allotments, in order to determine whether they were in conformity with the requirements of said act of July 1, 1902.

And finally the Secretary alleges that the title to all lands in the Cherokee Nation is still held by said nation; and that until the title to lands embraced in any segregation provided for in section 23 of the act of 1902 has passed from said nation, he, as Secretary of the Interior, has the power and authority, under the law, to correct, modify, amend, vacate, or set aside any segregation of lands in the Cherokee Nation if any has been made, even though the same may have received his approval.

Opinion

It will be observed that this bill of complaint and the relief prayed for is founded upon the theory:

1. That, as a question of fact, the 157,600 acres of laud to which the Delaware Indians are entitled under their contract of purchase made with the Cherokees April 8, 1867, have been finally segregated and set apart for their use and for final allotment, at the appropriate time, as provided for in the acts of 1898 and 1902.

2. That, as a question of law, said lands having been so segregated, neither said Commission nor the Secretary of the Interior has or can exercise any further jurisdiction over the same other than to keep them free from encumbrances, or other charges, and prevent the impairment of the rights of the Delaware therein and thereto until the Supreme Court of the United States has rendered its final judgment in the suit of the Delaware against the Cherokee Nation now pending in that court.

The right determination of these questions involves the interpretation of the acts of Congress mentioned, and an examination of the state of the case as to what has actually been done thereunder.

Section 25 of the act of Congress approved June 28, 1898 (30 Stat. L., 495), known as the Curtis Act, imposed upon the Commission to the Five Civilized Tribes, or on what is generally known as the "Dawes Commission" (which was created by the act of March 1, 1893, 27 Stat. L., 612, 645), the duty of segregating from the other lands of the Cherokee Nation the 157,600 acres purchased by the Delaware tribe of Indians from the Cherokee Nation under their agreement of April 8, 1867. Such segregation, as provided by said section, was to be made by the Commission "subject to the judicial determination of the rights of said descendants and the Cherokee Nation under said agreement."

By the same section jurisdiction is conferred upon the Court of Claims of the United States, with the right of appeal to the Supreme Court of the United States, to adjudicate and finally determine the rights of the Delaware Indians in and to the lands and funds of the Cherokee Nation under their contract of April 8, 1867. There upon, and pursuant to that section, the Delaware, in August 1898, instituted such suit against the Cherokee Nation in the Court of Claims, which was thereafter, on or about February 2, 1903, dismissed by a decree of that court. On or about ^larch 19, 1903, the Delaware appealed from said decree to the Supreme Court of the United States, where said appeal is now pending. During the pendency of said suit in the Court of Claims, viz, July 1, 1902, 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." (32 Stat. L., 716.)

This act was duly ratified by the Cherokee Nation at a general election held on or about August 7, 1902, as provided in section 75 thereof.

Section 23 of that act makes further provision for said segregation as follows:

1. "All Delaware Indians who are members of the Cherokee Nation shall take lands and share in the funds of the tribe as their rights may be determined by the judgment of the Court of Claims, or by the Supreme Court, if appealed, in the suit instituted therein by the Delaware against the Cherokee Nation and now pending.

2. "But if said suit be not determined before said Commission is ready to begin the allotment of lands of the tribe as herein provided, the Commission shall

(a) "Cause to be segregated 157,600 acres of land, including lands which have been selected and occupied by Delaware, in conformity to the provisions of their agreement with the Cherokees dated April 8, 1867, such lands (the 157,600 acres) so to remain subject to disposition according to such judgment as may be rendered in said cause.

(b) "And said Commission shall thereupon (after segregating said 157,600 acres) proceed to the allotment of the remaining lands of the tribe aforesaid, and lastly

(c) "Said Commission shall, when final judgment is rendered, allot lands to such Delaware in conformity to the terms of the judgment and their individual rights thereunder."

And then in order to safeguard the rights of both parties pending said suit the same section provides that--

(d) "Nothing in this act shall in any manner impair the rights of either party to said contract as the same may be finally determined by the court, or shall interfere with the holdings of the Delaware under their contract with the Cherokees of April 8, 1867, until their rights under said contract are determined by the courts in their suit now pending against the Cherokees."

It is apparent from the plain reading of these two sections (viz, section 25 of the act of June 28, 1898, and section 23 of the act of July 1, 1902) that Congress intended to and did confer on the Delaware Indians the right to have the 157,600 acres of land purchased by them from the Cherokees duly segregated and set apart from the other lands of the Cherokees as soon as the same has been duly selected and designated, and when so selected and segregated to have the same so kept and maintained until final judgment is rendered in the suit now pending in the Supreme Court of the United States, and that "when (such) final judgment is rendered, said Commission shall thereupon allot lands to the Delaware in conformity to the terms of the judgment and their individual rights thereunder" (section 23).

By section 22 of said act Congress also conferred upon said Commission, under the direction of the Secretary of the Interior, exclusive jurisdiction to determine all matters relative to the allotment of lands in the Cherokee Nation.

Section 24 provides that certain lands, including town lots, shall be reserved from allotment.

It seems clear, in the light of these statements, that the segregation of the 157,600 acres is to be made not by the Commission alone, but by the Commission, subject to the direction of the Secretary of the Interior. Indeed, this is expressly admitted in paragraph 26½ of the bill, which alleges, and which is admitted by the answer, "that by the several acts of Congress creating and defining the powers of said Commission to the Five Civilized Tribes all the acts and proceedings of said Commission are subject to the direction of the Secretary of the Interior."

It would seem to follow, therefore, that while the segregation must be made by the Dawes Commission, it must be made under the direction of the Secretary of the Interior and have his official approval before it is complete and effective.

The first question, then, as already suggested, is whether the segregation of the l57,600 acres has been made and is now final and effective.

The Secretary of the Interior, in his sworn answer and in his affidavit as well, denies in the most direct and positive terms that this segregation has been made or that he has approved it. The answer of the Secretary might well be accepted as conclusive on this point were it not for the amendment to paragraph 13 of the bill of complaint, which sets up certain reports of the Commission and of the Commissioner of Indian Affairs and certain correspondence of the defendants, which the complainants claim shows such proceedings had and such acts done by the Dawes Commission and the Secretary of the Interior as to leave no question that, as a matter of fact as well as matter of law, such segregation has been made by the Commission and duly approved by the Secretary, and is therefore complete and final.

Two theories are presented as to the segregation of these lands. The contention of the complainants is that when the Delaware filed with the Commission in December, 1902, the schedule of lands selected by them, and the same was thereafter revised and corrected January 23, 1903, and so received and filed by said Commission, that such corrected schedule was thereby finally accepted by the Commission as a proper designation of the lands actually selected and segregated under said act of Congress, and that in the light of the reports and correspondence heretofore mentioned such acts and procedure constitute in fact and in law a full, complete, and final segregation of the 157,600 acres as provided in the acts of 1898 and 1902. On the other hand, the contention of the Secretary of the Interior is that "said corrected schedule was received and accepted by said Commission not as a proper designation of the lands actually selected and segregated, but of the lands to be selected and segregated under his direction and approval, and therefore no actual segregation has been made by said Commission or approved by the Secretary." If the latter view is correct, that would seem to end the controversy, and the consequent denial of the writ of injunction and the discharge of the temporary restraining order would necessarily follow; otherwise the complainants are entitled to the relief prayed for, because, if the segregation has been finally made and completed, neither the Commission nor the Secretary has any further jurisdiction in the matter, other than to maintain the status quo, until the Supreme Court of the United States has decided the case now before it.

In support of the contention of the complainants that the l57,600 acres were segregated in January, 1903, and the jurisdiction of the Commission and of the Secretary in that behalf, thereby ousted, they argue that inasmuch as section 23 (act of July 1, 1902) plainly requires that before the Commission shall proceed to the allotment of the Cherokee lands (that is lands other than the 157,600 acres to be set apart to the Delaware) the Commission shall first segregate and set apart the lands selected and occupied by the Delaware; and inasmuch as the Commission, after the filing of said corrected schedule in January 1903, did proceed to the allotment of the other lands of the Cherokees, they could only have done so on the supposition and belief on the part of the Commission and the Secretary (who they allege had knowledge of the same) that the segregation had before that time been made and completed; other-wise, they insist, their acts would have been in flagrant disobedience of the law. That the Dawes Commission did so believe and did proceed in the matter of the allotment of the Cherokee lands, other than the 157,600 acres, in the manner pointed out, admits of no serious question. Indeed the reports and correspondence filed with the amendment to the bill leaves room for no other interpretation; besides the answer of the Secretary, in effect, admits it, although he expressly denies that "said Commission proceeded to the allotment of said lands under his direction and approval."

It is equally clear, however, that no matter what view the members of the Dawes Commission may have entertained as to their jurisdiction touching the segregation of the 157,600 acres and the subsequent allotment of Cherokee lands, they could neither enlarge their own, nor limit the jurisdiction of the Secretary of the Interior in relation thereto, through any mistaken interpretation of the law or assumption of authority on their part; so that, if they assumed that under the law they had the power to make and conclude the segregation of these lands independent of the Secretary of the Interior, and that in accepting and filing said schedule of selected lands in December, 1902, and in the revision and correction of same in January, 1903, they thereby made and completed said segregation and the same thereby became immediately effective, and in that belief they then proceeded to the allotment of the other lands of the Cherokees, such belief and course of procedure on their part would not constitute a segregation within the meaning of the law, unless they either have exclusive jurisdiction in the matter, of their acts in that behalf have had the sanction and approval of the Secretary of the Interior.

As already pointed out, in my view of these statutes, and as admitted by paragraph 265 of the bill of complaint, this segregation must be made by the Commission subject to the direction of the Secretary of the Interior, and hence the Commission does not have and can not exercise exclusive jurisdiction in the matter. Moreover, section 23 of the act of 1902 provides that such segregation must be first so made before the Commission can properly proceed to the allotment of the remaining Cherokee lands, i. e., lands other than the segregated lands, and therefore, unless such alleged segregation was in fact made, subject to the direction of the Secretary, it necessarily follows that it did not become complete and effective upon the mere receipt and filing of said schedule of selected lands in December, 1902, or of the amended and corrected schedule in January, 1903, or at any other time; and that all subsequent steps on the part of the Commission looking to the allotment of the other Cherokee lands referred to were untimely and irregular, and can in no wise affect the rights of the Delaware in the final segregation and allotment, unless, as stated, the same was in fact done under the direction and with the approval of the Secretary and is now beyond his recall.

The Secretary, both in. his answer and in his affidavit, as already pointed out, alleges directly and emphatically that this segregation has not been so made and approved by him.

While it is true that it appears from the Secretary's answer that the Dawes Com-mission opened a land office and received applications for allotments of land outside of the land described in the schedule filed with the Dawes Commission, he alleges that none of these acts were done under his direction nor have they received his approval, but that at the very time of the filing of this bill he was considering the question if their legality. As to whether the attempted segregation has been approved by the Secretary depends, therefore, upon the effect to be given the reports and documents referred to in the amendment to the bill, and upon which counsel for complainants predicated their argument that, as a matter of law, the Secretary has approved such segregation.

After a careful reading and rereading of these reports and documents, I am clearly of opinion that they do not support this contention. If it has been so approved, and the Commission, under the direction and with the approval of the Secretary of the Interior, had proceeded to make, or was about to make, allotments that affected any of the lands so segregated, as charged in the bill, then it would clearly be the duty of the court, under the circumstances of this case, to restrain such action by injunction; because, under section 23 of the act of July 1. 1902, it is made the plain duty of the Commission, in the event that the suit now pending in the Supreme Court be not determined before the Commission is ready to begin the allotment of lands of the tribe, to cause said 157,800 acres to be segregated, and to be kept segregated and apart from all other lands of the Cherokee Nation, and there stop so far as said segregation is concerned until final judgment has been rendered by the Supreme Court of the United States.

The language of said section being:

"If said suit he not determined before said Commission is ready to begin the allotment of lands of the tribe as herein provided, the Commission shall cause to be segregated 157,600 acres of land, including lands which have been segregated and occupied by Delaware in conformity with their agreement with the Cherokees dated April, 1867, such lands so to remain subject to disposition according to such judgment as may be rendered in said cause; and said Commission shall thereupon (but not before) proceed to the allotment of the remaining lands of the tribe as aforesaid."

It is likewise the plain duty of the Commission, in proceeding to "allot the remaining lands of the tribe," to make the same from lands other than the 157,600 acres segregated (or to be segregated) for the use of the Delaware. And yet, despite these plain provisions of the law and the apparent assumption on the part of the members of thc Commission that they have the exclusive right to make this segregation, and had so made it, they unwittingly, or at least erroneously, proceeded to destroy their own handiwork by including in "the allotment of the remaining lands of the tribe" certain of the lands included in their so called segregation, and at the same time omitted from the segregation itself certain other lands which had been selected and occupied by the Delaware in conformity with their agreement of April, 1867, with the Cherokees, which other lands section 23 expressly provides shall be included in the segregation of the 157,600 acres.

As the hands of the Delaware are tied, so far as the allotment or disposition of the 157,600 acres are concerned, the moment said segregation is once completed it would be a grievous wrong to thus professedly set apart for them all they are entitled to under their contract of 1867 and then proceed to take from them a portion of the very lands thus segregated, in making allotments to the Cherokee out of what is treated as "the remaining lands of the tribe." While it was evidently not the intention of Congress to delay the allotment work in the Cherokee Nation until the suit between the Delaware and Cherokees shall have been finally determined, it was never the intention that, in making such allotment, the rights of the Delaware should be thereby defeated or in any wise prejudiced. This is made clear by section 23 of the act of 1902, which declares that "Nothing in this act shall in any manner impair the rights of either party to said contract as the same may be finally determined by the court, or shall interfere with the holdings of the Delaware under their contract with the Cherokees of April 8, 1867, until their rights under said contract are determined by the courts in their suit now pending against the Cherokees."

It follows, therefore, that any attempted allotment of lands in violation of this section that might be effective and thereby defeat or prejudice the rights of the Delaware thereunder should be promptly restrained.

In his answer the Secretary of the Interior, however, denies, under oath, that either the attempted segregation of said lands or the receiving of said applications for allotments in the Cherokee Nation, was under his direction or has ever received his approval. He also denies that said Commission now claims to have the right to receive applications for the allotment of lands designated and described in said schedule, or the right, upon the filing of any such applications, to consider that the individual Delaware are barred or foreclosed of any interest in the 157,600 acres of land to be segregated under section 23 of the act of 1902; and he further denies that the Commission threatens and intends in the future to continue to receive, accept, and file further applications and to call upon individual Delaware to defend against the same, or to do any of the many things with which they are charged in the bill as intending to do. In view of this broad and emphatic disclaimer of either authority under the law or of any purpose or intention on the part of the defendants to do the acts or to exercise the authority complained of in the bill, it would seem to be clear, under the plain provisions of these statutes, that no matter what view the Commission originally entertained as to their authority in the premises that their acts and proceedings touching said segregation and allotment have not become effective, and can not become so until they have the final sanction and approval of the Secretary of the Interior, and, therefore, in this view of the case, which to my mind is the real and logical situation, no real injury to the rights of the Delaware has been done or is threatened by the defendants, and no substantial ground exists for the interposition of a court of equity. It is perhaps due the members of the Dawes Commission to say, in passing, that while they seem to have proceeded upon the theory that they have exclusive jurisdiction in this matter, they later on discovered and recognized that they and the Secretary of the Interior constitute a special tribunal charged with the duty of segregating and allotting these lands, and that all their acts and proceedings were subject to his direction and approval. Therefore it was, that on April 20, 1903, after objection to said segregation by certain Delaware, and by certain Cherokee citizens not Delaware, and after the Commission discovered that said corrected schedule embraced lands which were by law reserved for town sites under section 24 of the act of 1902, and therefore not subject to segregation, and was otherwise objectionable, they made a report of their acts and proceedings in respect to the filing and acceptance of said schedules to the Secretary of the Interior, for his consideration and approval, which was received by him April 30, 1903, and, which he alleges in his answer, he had under consideration at the time of the issuance of the temporary restraining order herein, with a view of determining whether said acts and proceedings were in conformity with section 23 of the act of July 1, 1902. (32 Stat. L., 717.)

Admitting, however, that the Secretary of the Interior has approved this segregation, as claimed by the complaints, his power and authority to correct, modify, or vacate the same in whole or in part is, in the opinion of the court, clear and undisputable under the law applicable to this case.

Section 441 of the Revised Statutes provides that-- "The Secretary of the Interior is charged with the supervision of public business relating to the Indians."

Sections 22, 58, and 59 of the act of July 1, 1902, provides as follows:

"Sec. 22. Exclusive jurisdiction is hereby conferred upon the Commission to the Five Civilized Tribes, under the direction of the Secretary of the Interior, to determine all matters relative to the appraisement and the allotment of lands.

"Sec. 58. The Secretary of the Interior shall furnish the principal chief with blank patents necessary for all conveyances herein provided for, and when any citizen receives his allotment of land, or when any allotment has been so ascertained and fixed, that title should, under the provisions of this act, be conveyed. The principal chief shall thereupon proceed to execute and deliver to him a patent conveying all the right, title, and interest of the Cherokee Nation, and of all other citizens, in and to the lands embraced in his allotment certificate.

"Sec. 59. All conveyances shall be approved by the Secretary of the Interior, which shall serve as a relinquishment to the grantee of all the right, title, and interest of the United States in and to the lands embraced in his patent."

Section 441 also provides that the Secretary of the Interior is charged with the supervision of the public business relating to "the public lands, including mines."

The general powers and authority of the Secretary of the Interior, as expressed in the statute (which are manifestly the same in principle with the provisions of the statute in respect to the duty and powers of the Secretary of the Interior in the disposition of the lands of the Cherokee Nation), have received a broad and comprehensive interpretation by the Supreme Court of the United States. In the case of Knight V. United States Land Association (142 U. S., 161, 178), it was held that-- "Respecting the public domain, the Secretary of the Interior is the supervising agent of the Government to do justice to all claimants and preserve the rights of the people of the United States."

See also: New Orleans v. Pain (147 U. S., 261, 266-267); Williams v. United States (138 U. S., 514, 528-524); Hawley v. Diller (178 U. S., 476, 488, 490); Michigan Land and Lumber Co. v. Rust (168 U. S., 589, 592, 594-595); Beley v. Naphtaly (169 U. S., 358, 364); Brown v. Hitchcock (173 U. S., 473, 476-478); United States ex rel. v. Hitchcock (190 U. S.), decided May 18, 1903.

In Knight against the Land Association, just cited, the Commissioner of the General Land Office approved the survey of certain lands involved in that action; although no appeal was taken from such approval to the Secretary of the Interior, he subsequently set the survey aside. It was insisted that his action was illegal. In passing upon this question the court, speaking through Mr. Justice Lamar, said:

"The statutes, in placing the whole business of the Department under the super-vision of the Secretary, invest him with authority to review, reverse, amend, annul, or affirm all proceedings in the Department, having for their ultimate object ti) secure the alienation of any portion of the public lands, or the adjustment of private claims to lands with a just regard to the rights of the public and of private parties."

In New Orleans v. Pain (147 U. S., 261, 266-267), was involved the power of the Secretary of the Interior to set aside a survey of the public lands already approved, and to approve a subsequent survey thereof. In passing upon the question, the court, speaking through Mr. Justice Brown (p. 266), says:

"If the Department was not satisfied with this (the first) survey, there was no rule of law standing in the way of its ordering another. Until the matter is closed by final action, the proceedings of an officer of a department are as much open to review or reversal, by himself or his successor, as are the interlocutory decrees of a court open to review upon the final hearing."

In Williams v. The United States (138 U. S., 514, 523-524), the Government under the act of June 16, 1880, had certified to the State of Nevada certain lands which the State subsequently sold to Williams. Thereafter it was discovered by the Land Department that, in procuring the State of Nevada to have the lands certified to it, Williams committed a fraud. Thereupon the Attorney-General, at the request of the Secretary of the Interior, brought suit to set aside the certification to the State of Nevada. In disposing of the case, the court, speaking through Mr. Justice Brewer, said:

"The certification after selection by the State is to be approved by the Secretary of the Interior. This is no mere formal act. It gives to him no mere arbitrary discretion, but it does give power to prevent such a monstrous injustice as was sought to be accomplished by these proceedings. * * * it is obvious, it is common knowledge, that in the administration of such large and varied interests as are entrusted to the Land Department, matters not foreseen, equities not anticipated, which are therefore not provided for by express statute, may sometimes arise and, therefore, that the Secretary of the Interior is given superintending and supervising power which will enable him in the face of these unexpected contingencies to do justice."

In Brown v. Hitchcock (173 U. S., 433, 476-178), the complainant filed a bill in equity against the Secretary of the Interior in this court, praying that the Secretary be restrained from holding certain lands in the State of Oregon subject to entry under the general land laws of the United States, claiming that these lands had become the property of the State of Oregon, under the act of September I28, 1850, and the amendments thereto, known as the swamp-land act, and were included in a certain selection list filed by the State of Oregon, which list was approved by Secretary of the Interior Teller on September 16, 1882. In 1880 the State had sold these lands to one Owen, and by subsequent conveyance they had been transferred to the complainant; therefore, in December 1888, Secretary of the Interior Vilas made and entered an order canceling and revoking said selection list. The main question involved in the suit was the power of Secretary Vilas to revoke and annul the order made by Secretary Teller, approving said selection list. In disposing of this question, the court, among other things, said:

"Until the legal title to publii- lands pa.^ses from the (iovermnent, in<juiry as to all equitable rights comes within the cognizance of the Land Dejjartment."

In United States v. Schurz (102 U. S., 378, 396), which was an application for a mandamus to compel the delivery of a patent, it was said:

"Congress has also enacted a system of laws by which rights to these lands may be acquired, and the title of the Government conveyed to the citizen. This court has, with a strong hand, upheld the doctrine that so long as the legal title to these lands remains in the United States, and the proceedings for acquiring it were as yet in fieri, the courts would not interfere to control the exercise of the power thus vested in that tribunal. To that doctrine we still adhere."

In the case of the United States ex rel. Riverside Oil Co. v. Hitchcock, Secretary of the Interior, decided May 18, 1903, the court of appeals of the District of Columbia, among other things, said:

"Congress has constituted the land Department, under the supervision and control of the Secretary of the Interior, a special tribunal with judicial functions, to which is confided the execution of the laws which regulate the purchase, selling, care, and disposition of the public lands. The court has no general supervisory power over the affairs of the Land Department by which to control their decision upon questions within their jurisdiction."

It would seem from these cases that it is settled law that until title has passed from the Government, the Secretary of the Interior, under the general powers conferred upon him by the statutes heretofore cited, has power to review, correct, modify, reverse, or vacate any act or decision heretofore made by him or his predecessor in office, in respect to the disposition of public; lands. The power and duty of the Secretary in respect of the administration of the act of July 1, 1902, are in all essential respects of similar import as those conferred upon him by the public; land laws; and, therefore, upon the authority of the cases above cited, it would seem to be clear that until the title to the lands here involved as well as the interest of the Government therein and it has an interest, although remote and contingent has been finally divested by the issue of patents as provided in said sections 58 and 59 of the act of 1902, the Secretary has the power to reconsider, correct, or annul his own decisions made in the due administration of said act of July 1, 1902, and hence it follows that in the opinion of the court the action of the Commission in segregating said 157,600 acres of land, even if done under the direction and with the approval of the Secretary of the Interior, does not oust the jurisdiction of the Secretary to reconsider and correct the same.

If, however, the right to reconsider, correct, and amend his own and the acts and proceedings of the Commission, as a specially constituted tribunal to carry into effect the acts of 1898 and 1902, does not come within the scope of the general powers vested in the Secretary of the Interior, such power seems to be expressly conferred upon him by section 22 of the latter act, viz, that of July 1, 1902, which reads as follows:

"SEC. 22. Exclusive jurisdiction is hereby conferred upon the Commission to the Five Civilized Tribes, under the direction of the Secretary of the Interior, to determine all matters relative to the appraisement and the allotment of lands."

As I read the decided cases upon this point, it seems to be settled law that when an act is required to be done "under the direction of the Secretary of the Interior," this, in effect, requires his approval before said act becomes complete and effective, and therefore the phrase "under the direction of the Secretary of the Interior," as used in the act of July 1, 1902, imposes upon the Secretary the power and duty of directing and supervising all acts and proceedings of the Commission under that act, and certainly the segregation of the 157,600 acres is not only one of the "matters relating to the allotment of lands," but it is a condition precedent to their allotment under section 23 of the act, 1902. (Bishop of Nisqually v. Gibbon, 158 U. S., 155, 167; Knight v. Land Association, 142 U. S., 161, 177.)

In the oral argument counsel for the complainants, in opposing this view, cited the case of Northern Pacific Railway Company v. Barnes (S. Dak., 366, 369); but, as was claimed by counsel for defendants at the time, and as it seems to the court, the South Dakota case is opposed to the doctrine laid down by the Supreme Court of the United States in Knight v. Land Association (142 U. S., 161), and other cases cited in their brief.

In the Knight case Mr. Justice Lamar, in speaking for the court, said:

"The phrase, 'under the direction of the Secretary of the Interior,' as used in these sections of the statutes (referring to certain sections of the Revised Statutes relating to the duties of the Commissioner of the General Land Office in respect to the surveying and sale of the public land to be performed 'under the direction of the Secretary of the Interior'), is not meaningless, but was intended as an expression in general terms of the power of the Secretary to supervise and control the extensive operations of the Land Department of which he is the head, and 'such supervision,' says the court, 'may be exercised by direct orders or by review on appeal.' "

The wisdom of Congress in thus giving to the Secretary of the Interior supervisory power over the segregation of these lands is made manifest by the very confusion and mischief that would result were this segregation, with its many errors, to stand as the final and finished work of the Commission. The Secretary, however, possessing and claiming, as he does, the power to revise, correct, and, if necessary to amend in whole or in part these acts and proceedings of the Commission, and thus prevent the very evils that might otherwise follow, has now before him a full report of such acts and proceedings with a view of determining whether they are in conformity with the acts of Congress pertaining thereto, or not.

The question thus presented is, has this court the power to impose by injunction to restrain him from doing this?

If the court is correct in its conclusion that this is a matter within the jurisdiction and control of the Secretary, then it must be admitted that its determination involves the exercise of judgment and discretion, and therefore can not be enjoined or controlled by the judicial power.

It has been the uniform holding of the Federal courts that an executive officer, while engaged in the performance of a duty involving the exercise of judgment and discretion, can not be interfered with in respect to such duty by the judicial power.

In the case of New Orleans v. Pain (147 U. S., 261), Mr. Justice Brown, in delivering the opinion of the court, said:

"The general rule is that the judicial power will not interpose, by mandamus or injunction, to limit or direct the action of departmental officers in respect of matters pending within their jurisdiction and control. That if the (meaning the head of a department) were engaged in the performance of a duty which involved the exercise of discretion or judgment he was entitled to protection from any interference by the judicial power."

In Brown v. Hitchcock (173 U. S., 433, 477) the court, among other things, said:

"As a general rule, no mere matter of administration in the various Executive Departments of the Government can, pending such administration, be taken away from such departments and carried into the courts; those departments must be permitted to proceed to the final accomplishment of all matters pending before them, and only after that disposition may the courts be invoked to inquire whether the outcome is in accord with the laws of the Ignited States."

It is said by the court in Dunlap v. Black (p. 48):

"The court will not interfere by mandamus with the executive officers of the Government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose. * * * Whether, if the law were properly before us for consideration, we should be of the same opinion or of a different opinion is of no consequence in the decision of the case.

"In Kirwin v. Murphy (189 U. S., 55) the court quotes with approval the following passage, found in the case of Litchfield v. The Register and Receiver (9 Wall.. 577,579):

"The principal has been so repeatedly decided in this court that the judiciary can not interfere, either by mandamus or injunction, with executive officers, such as the respondents here, in the discharge of their official duties, unless those duties are of a character purely ministerial and involving no exercise of judgment or discretion, that it would be useless to repeat it here.' "

In United States ex rel. Riverside Oil Company v. Hitchcock (decided May 1S, 1903, by the court of appeals, District of Columbia the court says that--

" Neither an injunction nor mandamus will be against an officer of the Land Department to control him in discharging an official duty which requires the exercise of his judgment and discretion. Mandamus has never been regarded as the proper writ to control the judgment and discretion of an officer as to the decision of a matter which the law gave him the power and imposed upon him the duty to decide for himself."

Associate Justice Miller, in delivering the opinion of the court in Gaines v. Thompson (7 Wall., 347, 352, 35;>), said that this doctrine--

Is as applicable to the writ of injunction as it is to the writ of mandamus.

â- 'In the one case the officer is required to abandon his right to exercise his personal judgment, and to substitute that of the court, by performing the act as it commands. In the other he is forbidden to do the act which his judgment and discretion tell him should be done. There can be no difference in the principle which forbids interference with the duties of these officers, whether it be by writ of mandamus or injunction."

In Mississippi v. Johnson, supra, 498, the court draws a distinction between a ministerial and judicial duty in the following language:

"A ministerial duty, the performance of which could, in proper cases, be required of the head of a department by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law."

It is settled law that where the law prescribes that before an act shall be final it must receive the approval of the head of a department, the duty of approval is a judicial and not a ministerial duty. (See Wisconsin Central Railroad Company v. Price, supra; United States v. Williams (138 U. S., supra); Ops. Attorney-General, Vol. XIV, pp. 50, 52, 645.)

If there is any plain ministerial duty to be performed by the Secretary in this whole matter, it is found in section 59 of the act of 1902, which requires him to approve the patents issued to allottees for their respective allotments by the principal chief of the Cherokee Nation; that is to say, if the Secretary were to refuse to approve such patents, after the same have been regularly executed for deliver by the principal chief, he could not excuse himself from so doing by insisting that such act was one of administrative propriety involving judicial discretion rather than a merely ministerial duty.

Mr. Justice Miller in Johnson v. Towsley (13 Wall., 7283):

"When the law is confided to a special tribunal, the authority to hear and deter-mine such matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others."

1. The solicitors for complainants have strongly insisted and ably argued, however, "that Congress, in and by section 25 (act of 1898) and section 23 (act of 1902), intended to provide, and did provide, for the judicial ascertainment and adjudication of the 'rights' of the Delaware to the lands selected and occupied by them (including their titles), and for the 'segregation' of said lands in such manner as shall pre-serve them in such condition that the judgment of the court, when rendered, may be applied thereto."

2. "That in this plain purpose and scheme of legislation there is no room or occasion for the exercise of any 'discretion' by the Secretary of the Interior," Congress having thus committed to the judiciary the jurisdiction which, in respect to the public lands, rests with the Secretary; that when the judgment of the Supreme Court shall have been rendered and the Commission shall proceed to the work of allotment in conformity to the terms of the judgment and the individual rights of the Delaware, the question of the duty of the Secretary, in respect to that situation and the correction of errors, will be resented.

If you concede the first proposition, viz, that Congress has by these two sections committed to the judiciary the jurisdiction which, in respect to the public lauds, rests with the Secretary, and has also committed to the judiciary the adjudication, not only of the rights of the Delaware to the lands selected and occupied by them but the very titles to them, as well as the segregation of said lands, in such manners as the court may determine appropriate to its judgment, then you may well concede the second, viz, that in this scheme of legislation there is neither room nor occasion for the exercise of "discretion" by the Secretary of the Interior, and that the statute lays no duty upon him until it comes to the matter of allotment in conformity to the court's judgment, when the question of correcting errors may be presented.

But why should Congress have made this case so exceptional? And especially when it has been the settled and uniform policy of the Government, ever since the establishment of the Department of the Interior more than half a century ago, to place the supervision and control of the Indians and of Indian affairs in the hands of the Secretary of the Interior; a policy that certainly is not to be abrogated unless the intention so to do is plainly manifest in the statute. The court has already called attention to these two sections in connection with section 22 of the act of 1898, as clearly imposing upon the Secretary the duty of directing said segregation and officially approving it before it can become effective, and that this duty is not ministerial, but judicial in its character, and therefore calls for the exercise of a sound discretion.

The jurisdiction thus conferred upon the Commission and Secretary is, in the opinion of the court, quite apart from that conferred upon the Court of Claims and the Supreme Court of the United States on appeal. A controversy having arisen between the Cherokee Nation and the Delaware in respect to these lands that is, as to what the Delaware obtained by their purchase of 1867 and their "rights" under that contract. Congress determined that this controversy should be made the subject of judicial inquiry and adjudication. It therefore conferred jurisdiction upon the Court of Claims with the right of appeal to the Supreme Court of the United States, for that purpose and for no other. The jurisdiction thus conferred upon the judiciary was exclusive, leaving nothing for the determination of the Secretary of the Interior, so far as the subject-matter of the suit, or the "rights" of the Delaware therein, are concerned. The jurisdiction of the Commission and the Secretary of the Interior, touching the segregation and allotment of said lands, is equally exclusive, leaving nothing, so far as the segregation and allotment of said lands are concerned, for the determination of the courts.

The jurisdiction of the court and of this special tribunal being thus independent of each other as to their respective duties, and Congress having framed the act of 1902 so as to meet the situation, whether the segregation preceded or succeeded the final judgment of the court, it must be assumed from that fact and from the very issue involved in the suit that in the meantime the rights of both parties, "as the same may be finally determined by the court," are fully and absolutely protected, as is expressly provided for in section 23, and moreover, that when the court renders its judgment there can be no possible difficulty in allotting and disposing of said lands to the Delaware " in conformity to the terms of the judgment and their individual rights thereunder."

In the course of the argument in this case, which was able and exhaustive on both sides, considerable stress was laid upon the fact that, by stipulation of counsel, the amended schedule of segregated lands, so called, has been embodied in the record of the suit now pending in the Supreme Court of the United States, and therefore the judgment of that court must necessarily be based upon such schedule. Even the Commission, in its report of April 20, 1903, expressed some apprehension that the Supreme Court, in deciding the Delaware suit, may approve this schedule, thus made a part of the record in that case. In my view of the case this apprehension is entirely groundless. No stipulation of counsel can oust either the court, or the Commission, or the Secretary of the Interior, of their respective jurisdiction and duty under the law.

This attempted segregation did not thereby become complete and final, and it can not become so until the specific lands to be set apart for the Delaware have been duly selected and properly and correctly scheduled; exclusive jurisdiction to do this is conferred upon the Dawes Commission, subject to the direction of the Secretary of the Interior, as provided in section 23 of the act of 1902. While an imperfect, unapproved, and impossible schedule has thus found its way into the record in the pending suit of the Delaware against the Cherokees, it can be of no binding force until it has been revised and amended so as to meet the requirements of the statutes, and is then finally ratified and affirmed by the Commission and the Secretary of the Interior, to whom are given exclusive jurisdiction in this behalf.

The province of the court is not to approve such schedule, but it is simply to decide the questions involved in that suit and to determine what interest the Delaware citizens have in the lands and funds of the Cherokee Nation.

The segregation of the 157,000 acres was not, and is not, a condition precedent to the institution and final determination of said suit; the final judgment of the court is not to apply to a given schedule of segregated lands embodied or to be embodied in the record of the case, but on the contrary it was and is to apply to the specific lands embraced in the final and completed segregation, when made by the Commission, under the direction of the Secretary, whether that segregation be made before the bringing of the suit, or during its pendency, or after final judgment therein.

1. Section 25 of the act of 1898 provides that before any allotment shall be made in the Cherokee Nation the Commission shall segregate there from 157,000 acres, but that such segregation shall be subject to the judicial determination of the rights of said descendants and the Cherokee Nation, under their agreement of April 8, 1867.

2. The same section authorizes the bringing of the suit now pending in the Supreme Court for that purpose.

3. Section 28 of the act of 1902 declares that "all Delaware Indians who are members of the Cherokee Nation shall take lands and share in the funds of the tribe as their rights" (thereto) "may be determined by the judgment of the Court of Claims, or by the Supreme Court if appealed in the suit now pending."

Therefore it was that, inasmuch as the Commission had not, up to that time (July 1, 1902), segregated the 157,600 acres or made any allotments to the Cherokee Nation, as they were empowered to do under section 25 of the act of 1898; and might not do so until after the Supreme Court had decided said suit, and thereby determined the rights of the parties under the agreement of 1867, that it was expressly provided by section 23 what should be done by the Commission in the meantime, viz:

(a) "If said suit be not determined before said Commission is ready to begin the allotment the Commission shall cause to be segregated 157,600 acres of land, etc. such lands so to remain, subject to disposition according to such judgment as may be rendered in said cause.

(b) "And said Commission shall thereupon proceed to the allotment of the remaining lands."

The necessary inference being that if the suit was decided before the Commission is ready to begin the allotment they must proceed in the same way, viz:

1. Segregate the 157,600 acres for the Delaware.

2. Allot the remaining lands of the Cherokee Nation.

But in any event, whether this segregation and allotment took place before or after the determination of said suit, the 157,600 acres once segregated were to be kept segregated.

"Subject to disposition according to such judgment as may be (or may have been) rendered in said cause, and when (such) final judgment is rendered (said Commission) shall allot lands to such Delaware in conformity to the terms of the judgment and their individual rights thereunder."

In view of the fact that section 23 also provides that "nothing in this act (1902) shall in any manner impair the rights of either party to said contract (1867) or interfere with the holdings of the Delaware under the same until their rights are determined by the courts in their suit now pending."

There was nothing in the situation demanding that the 157,600 acres should first be segregated and a schedule thereof made a part of the record in that case in order that the judgment might be effective. In the very nature of the case the judgment can operate with equal certainty and with equal justice on these segregated lands, whether such segregation occurs before or after such judgment is rendered. The only possible way to defeat this would be through an actual and conflicting allotment of the remaining lands (such as was partially effected in this case) before the segregation has been regularly and finally completed.

Congress has wisely provided against such contingency

"1. By providing in effect that the segregation to be made by the Commission is to be made under the direction of the Secretary of the Interior, which in effect means subject to his approval.

"2. That no allotment of the remaining lands can be legally made until there is first segregated and set apart there from the 157,600 acres for the Delaware in manner and form required by the statutes."

It therefore follows that as no allotment can be made until the segregation is finally and correctly completed, and as such segregation will not be so completed until all necessary amendments and corrections thereof have been made and finally approved, that the rights of both parties to the contracts of 1867 and the holdings of the Delaware thereunder, as the same may be finally determined by the court, are amply safeguarded, and that the judgment of the court, which is to determine the rights of the Delaware in and to the lands and funds of the Cherokee Nation generally, and not the title to specific lands and allotments, will operate with equal effect upon the 157,600 acres, whether the same be segregated before or after the rendition of such judgment by the Supreme Court of the United States.

"It is not the mere fact that a public officer is attempting to exercise a void authority which induces a court of equity to restrain him, but that, notwithstanding he is a public officer, he is about by such exercise to do an act which brings the case within its peculiar jurisdiction." (Eaton on Equity, p. 604.)

So, in this case, there is nothing in the light of the sworn answer of the Secretary of the Interior and accompanying affidavits and exhibits filed herein to warrant the relief prayed for, either on the ground of irreparable injury to the rights of the complainants, the avoidance of a multiplicity of actions or proceedings to correct alleged wrongs, or upon any other ground set up in the bill or falling within any one of the acknowledged heads of equity.

In view of the opinion thus announced by the court, the injunction prayed for in this case is denied and the temporary restraining order discharged.

Allotment of Lands to Delaware Indians

Allotment of Lands to Delaware Indians, 58th Congress, 2nd Session, Senate, No.104, 1904