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Office Of The Assistant Attorney-General
Washington, D. C., August 31, 1905
The Secretary Of The Interior
SIR: I received by reference of June 19, 1905, the record in the case of Mary Ann Riley and others, applicants for enrollment as Cherokee freedmen, with request for my opinion “whether the applicants in said case are entitled to enrollment.”
The applicants are Mary Ann Riley, born about 1820; her daughter, Mary Hazelrig, nee Riley, born about 1855, for herself and minor children, William A., Jesse, Lacy, Alexander, Joseph E., James M. T., James L., and Fred; Mary Brown, nee Hazelrig, for herself and minor children, Robert Lee and George R. The Commission to the Five Civilized Tribes found that:
Mary Ann Riley and Mary Hazelrig are mother and daughter, and were the slaves of a Cherokee citizen at the commencement of the rebellion; that they were taken out of the Cherokee Nation during said rebellion and did not return thereto and establish a residence therein within the time specified in the decree of the Court of Claims, rendered February 8, 1890, in the case of Moses Whitmire, trustee, etc., v. The Cherokee Nation et al., for the return of Cherokee freedmen to said nation. The other applicants herein are children and grandchildren of the applicant, Mary Hazelrig, were born since 1866, and possess no rights to enrollment other than as descendants of the said Mary Hazelrig. None of the applicants herein can be identified on the Cherokee authenticated tribal roll of 1880, or the Cherokee census roll of 1896. The applications should be denied. It is so ordered.
The applicant, Mrs. Riley, is identified on the Kerns-Clifton roll, and Mrs. Hazelrig on that roll and the Wallace roll of freedmen. The Indian Office recommend approval of the action of the Commission. Counsel for applicants make no contention upon the facts as found by the Commission. I therefore accept them as true for the purposes of this opinion.
Counsel, however, contend that by their enrollment upon the Kerns-Clifton roll:
These people were judicially declared to be citizens of the Cherokee Nation and freedmen. They were judicially declared to be entitled to all the rights which they got under the treaty of 1866. It was the valid judgment of the court, saying that they had brought themselves under the provisions of that treaty, and were entitled to all rights and privileges of it, and therefore that the Cherokee Nation and the United States were forever enjoined from keeping them out of the provisions of such treaty. The only exception made was that the person who should make application to go on the roll should not have forfeited or abjured his citizenship at the date of the entering of the decree. Not only was this roll made and entered under the decree of the court and approved by the Secretary of the Interior, but the Cherokee Nation was a participant in its making. Its representative was present, cross-examined witnesses, with the amplest opportunity presenting testimony, and contesting the rights of every person claiming to be entitled as a freedman to citizenship and rights of the Cherokee Nation. It is therefore estopped in contesting the right of the claimants to share in the lands and moneys of the Cherokee Nation.We do not believe, therefore, that Congress intended by the Cherokee treaty to go behind that roll, but even if it did, Congress could not disturb the judgment of that court.
The reference is to the adjudication in the case of Whitmire, trustee, v. The Cherokee Nation (30 C. Cls., 138, 180-196). Jurisdiction was conferred upon that court by the act of October 1, 1890 (26 Stat, 636), among other things:
to hear and determine what are the just rights in law or in equity of the Cherokee freedmen who are settled and located in the Cherokee Nation under the provisions and stipulations of article 9 of the aforesaid treaty of 1806, in respect to the subject-matter herein provided for SEC. 2. That the said freedmen shall have a right to begin and prosecute a suit or suits against the Cherokee Nation and the United States Government to recover from the Cherokee Nation all moneys due either in law or equity and unpaid to the said freedmen, which the Cherokee Nation have before paid out, or may hereafter pay, per capita, in the Cherokee Nation, and which was, or may be, refused to or neglected to be paid to the said freedmen by the Cherokee Nation, out of any moneys or funds which have, or may be, paid into treasury of, or in any way have come, or may come, into the possession of the Cherokee Nation, Indian Territory, derived from the sale, leasing, or rent for grazing purposes on Cherokee lands west of 96 west longitude, and which have been, or may be, appropriated and directed to be paid out per capita by the acts passed by the Cherokee council, and for all moneys, lands, and rights which shall appear to be due to the said freedmen under the provisions of the aforesaid articles of the treaty.
This was a jurisdiction to determine the rights in the common tribal property of the freedmen as a class, and neither in terms nor by necessary implication did it extend to determination of what particular persons composed and constituted such class, or who were freedmen.
May 8, 1895, in its opinion (30 C. Cls., 185) the court, after discussion, said: “The court therefore takes the Wallace roll as furnishing the true number for the freedmen, 3,524,” but this was to be corrected (ib., 188) by the exclusion of the dead and of those who had ceased to be citizens and by adding descendants born after March 3, 1883, and prior to May 3, 1894, and “when thus amended and changed it shall represent the freedmen entitled to participate in the fund.” In the decree (ib., 193) it was adjudged that the “freedmen and free colored persons aforesaid and their descendants are entitled to participate hereafter in the common property of the Cherokee Nation,” etc. This decree was annulled and another by consent was entered (6th Ann. Rep. Commission to the Five Civilized Tribes, p. 70), with a paragraph in substantially the same terms, but the basis adopted was the Cherokee freedmen s roll of 1880, prepared by the tribal authorities. That roll was to be corrected by a commission appointed by the Secretary of the Interior, one member of which was nominated by the Cherokee Nation. The Kerns-Clifton roll was prepared by this commission. There was no provision for review by the court of the proceedings of this commission by appeal or exceptions. On the contrary this commission was directed to report its roll, not to the court, but to the Secretary of the Interior, and when it was approved by him the fund in control of the court was to be paid to the persons borne on that roll.
The effect of an adjudication of right of citizenship to the persons borne on the Kerns-Clifton roll can be maintained only on the theory that the court delegated its judicial powers to the Commission and the Secretary of the Interior. A mere statement of this proposition refutes the contention. That a court can not delegate its judicial power is a fundamental proposition needing no citation of authority. The right of persons on the Kerns-Clifton, not borne on the Cherokee 1880 freedmen, roll was never in any sense adjudicated. As to them, the Kerns-Clifton enrollment was an administrative proceeding or act simply. It, being a purely administrative proceeding, remained subject to revision and correction in any manner then or thereafter provided by law.
The court, in Whitmire v. The Cherokee Nation, supra, as part of its original and final decree, defined the class of persons whose rights were thereby established and who were to be enrolled by making reference to article 9 of the treaty of July 19, 1866:
with respect to the rights of said freedmen who had been liberated by voluntary act of their former owners or by law, and all free colored persons who resided in the Cherokee country at the commencement of the rebellion and who on the said date resided therein, or who returned thereto within six months thereafter, and their descendants. It being understood that the freedmen and their descendants and free colored persons above referred to shall include only such persons of said class as have not forfeited or abjured their citizenship of said Cherokee Nation at the date of the entering of this decree.
Except in punctuation the definition of the class of persons was clearly in tended to be a substantial quotation (in past tense) of that in article 9 of the treaty, so that the treaty provision itself was given to the Commission as guide for its action, restricted by the added direction as to forfeiture and abjuration of Cherokee citizenship. Having this precept as a limitation on its powers, the enrollment of other persons not within the class so defined was in excess of the powers of the commission and never sanctioned by the court.
The difference of punctuation above noticed, and any construction founded on the punctuation of article 9 of the treaty, is in the present case immaterial. It is unnecessary to reenter into a discussion of the proper construction of this provision of article 9 of the treaty, heretofore fully considered in my opinion of March 22, 1904, and in that of May 9, 1905, in case of Burrell Daniels. If the six months period was applicable to this class, the applicants, as the Commission find, did not comply with it; if it was not applicable, they were merely made Cherokee citizens by the treaty, with “all the rights of native Cherokees,” and became at once liable without benefit of a six months period to operation of section 2 of article 1 of the Cherokee constitution, if they settled and became legally domiciled at Lawrence, Kans. If either state of facts be conceded to be true, it, in nay opinion, follows that the Kerns-Clifton Commission exceeded its powers in assuming to grant their enrollment.
That enrollment having been, as above shown, an administrative act and not a judicial one, was subject to review and correction in any manner that Congress should by law direct The act of June 28, 1898 (30 Stat, 495, 502), directed the Commission to the Five Civilized Tribes that:
It shall make a roll of Cherokee freedmen in strict compliance with the decree of the Court of Claims rendered the third day of February, eighteen hundred and ninety-six.
Congress confirmed some Indian tribal rolls. It might as easily have confirmed the Kerns-Clifton roll, and naturally would have done so had it regarded that roll as either an adjudication of right or even only an accurate roll. In stead of so doing it directed compilation of a roll in strict compliance with the terms of the decree. This implies that Congress did not regard the Kerns-Clifton roll as made in compliance with that decree, else it would have confirmed that roll, as it did the tribal roll of 1880.
If the facts were conceded to be as stated in the findings, it would follow that the Commission acted in strict compliance with the direction given by Congress in the act of 1898, supra. It is represented, however, that, in fact, Tom Riley returned to the nation in 1800, and some evidence in the record is to the effect that he left Kansas with the announced intention of returning to the nation as early as February, 1866, before the date of the treaty. Since reference of the case to me a further paper is filed on behalf of the applicants in the nature of an application for rehearing, which, among other things, represents:
that Tom Riley never established a home or owned any land elsewhere than the place of his early associations, to wit, in the Cherokee Nation, where he was a Cherokee slave that the testimony adduced at the original trial tending to show that Tom Riley resided in the State of Kansas during the years after he returned to the Indian Territory in the fall of 1800 was procured by undue influence and improper inducements that the case was not properly presented to the Dawes Commission and was hurriedly prepared without time for careful consideration and preparation, and also by reason of the dense ignorance of the applicants.
It is within the discretion of the Secretary, and entirely proper for him to grant such application.
Frank L. Campbell, Assistant Attorney-General
Approved August 31, 1905
Thos. Ryan, Acting Secretary