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Office Of The Assistant Attorney-General
Washington, D. C., October 5, 1905
The Secretary Of The Interior
SIR: I received by reference of September 15, 1905, the record in case of Harry Still, applicant for enrollment as a Cherokee freedman. The letter of reference states that:
It appears that the supreme court of the Cherokee Nation on June 7, 1871, admitted the applicant to all the rights of Cherokee citizenship entitled under the treaty of July, 1800.
Your opinion is requested as to whether the applicant is entitled to be enrolled as n Cherokee freedman by reason of the admission of said court.
The final judgment of an Indian court in a matter of which it had jurisdiction is as conclusive upon the facts in issue and decided as is that of the Territories, States, or of the United States. Mehlin v. Ice (56 Fed., 12, 18); Exendine v. Pore (ib., 777); Mackey v. Coxe (18 How., 100, 103).
It is, however, not to be overlooked that Congress has plenary power over the Indian tribes and their regulation of their own membership and internal affairs. Judgments determining citizenship in an Indian nation are not adjudications of property rights, but of political status. Being of this character they are within control of the legislative department of government. In a case depending on a similar question as to the power of Congress, in Stephens v. Cherokee Nation (174 U. S., 445, 488), the court held:
But in any aspect we are of opinion that the constitutionality of these acts in respect of the determination of citizenship can not be successfully assailed on the ground of the impairment or destruction of vested rights. The lands and moneys of these tribes are public lands and moneys, and are not held in individual ownership, and the assertion by any particular applicant that his right therein is so vested as to preclude inquiry into his status involves a contradiction in terms.
The adjudication of the supreme court of the Cherokee Nation, upon the authorities above cited, has therefore the same effect as the adjudication of similar cases by the United States courts under the act of June 10, 1896 (29 Stat., 321, 339), and is entitled to all the respect of a judicial determination of the facts necessarily determined. When reopened to inquiry upon the facts, such adjudication is to be considered by the Commission as evidence of great cogency, to be followed unless it appear that fraud was practiced upon the court, or that the evidence then before the court, and that now available before the Commission show that the conclusion of the court upon the case for fraud or lack of evidence then available was clearly wrong. The Commission should regard itself rather as a court reviewing the case as upon a petition for a new trial than as exercising an original jurisdiction, and ought not to overturn the finding made after the impairment and loss of available evidence by the lapse of more than thirty years.
In addition to the direct evidence in the present record of the time of Harry Still s personal return to the nation, it is noticeable that some who seem to have been of the same party or borne on the confirmed roll of 1880; that the applicant in 1865 could have been but about 14 years old, as his age is stated as about 50 in 1901; that he was then a minor pupilage, whose place of legal residence was that of his parent or person with whom he lived, and that the return to the nation contemplated by the treaty was legal domicile rather than physical presence, as is held in the cases of George Ross, Burrell Daniels, Charles Foreman, Josie Alberty, and others. If in 1865 the head of the family, and perhaps himself, were in the nation and fixed a place of abode for the family, but by reason of lack of subsistence, scarcity of means there to live, they were unable continuously to remain, and left temporarily, returning seasonably and prosecuting that initiated settlement in good faith and with reasonable diligence, then they must be regarded as returning in good faith and permanently locating in the nation from the time of their original settlement.
Such circumstances and facts the citizenship court had full power to consider, and the Commission, under the enrollment acts, should also consider. The determination of those questions by the court favorably to the applicant when comparatively near the events respecting which it inquired should not be over turned or disregarded at this later time unless shown to be vitiated by fraud or clear evidence that it was erroneous.
Frank L. Campbell, Assistant Attorney-General
Approved October 5, 1905
E. A. Hitchcock, Secretary