Rules of Practice in Choctaw, Chickasaw and Cherokee Cases
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Rules Of Practice
Commission To The Five Civilized Tribes
Muscogee, Ind. T., March 17, 1903.
The following Rules of Practice in Choctaw, Chickasaw, and Cherokee allotment contest cases, approved by the Department January 27, 1903, and March 9, 1903, are hereby promulgated for the information and guidance of all concerned.”
The Commission To The Five Civilized Tribes
Tams Bixby, Chairman
Initiation Of Contests
Rule 1. Contests may be initiated by or on behalf of an adverse claimant against any party by or for whom a selection of land has been made in the Choctaw, Chickasaw, or Cherokee nations, for any sufficient cause affecting the right of possession of the land in controversy, by selecting the same land and by filing a complaint with the Commission to the Five Civilized Tribes at the land office in the nation in which the land lies.
Rule 2. When the allottee is deceased the contest shall be brought against the heirs of such deceased allottee and the complaint shall state the names of all the heirs. If the heirs, or any of them, are nonresidents of Indian Territory, or unknown, the complaint shall set forth the fact and be corroborated with respect thereto by the affidavit of one or more persons.
Rule 3. The complaint must conform to the following requirements :
(a) It must be written or partly written and partly printed.
(b) It must describe the land involved.
(c) It must state the land office where, the date when, and for whom the contestant selected said land.
(d) It must make party contestee the person who, by himself or through another, originally selected the land in controversy, and state the date of such selection and by whom made.
(e) If the contestee is an infant or a person of unsound mind, the complaint shall so state, and shall also state the name of the guardian of such infant or person of unsound mind, if there be one, and if there be none the complaint shall state the name of the person having the infant or person of unsound mind in charge.
(g) It must set forth the facts which constitute the grounds of contest.
(h) It must be duly verified.
Notice Of Contest
Rule 4. At least thirty days notice shall be given of all hearings before the Commission, unless by written consent an earlier day shall be agreed upon.
Rule 5. Notice of contest and summons must be made upon the blanks pre pared and supplied by the Commission, and must give a description of the land involved, state the time and place of the hearing, and, except in cases of notice by publication, have a copy of the complaint attached.
Rule 6. Personal service shall be made in all cases where the party to be served is a resident of Indian Territory, except as provided in rule 9, and shall consist in the delivery of a copy of the notice and summons to each of the contestees.
Rule 7. If the person to be personally served is an infant or a person of unsound mind, service shall be made by delivering a copy of the notice and summons to the guardian of such infant or person of unsound mind, if there be one. If there be none, then by delivering a copy to the person having the infant or person of unsound mind in charge, and also to the person who made the selection for such infant or person. And if the contestee is a prisoner, convict, aged and infirm person, or soldier or sailor of the United States on duty outside of the Indian Territory, service shall be made as herein otherwise provided, and a copy of the notice and summons shall also be served on the person who made the selection for such- prisoner, convict, aged and infirm person, soldier, or sailor.
Rule 8. Personal service may be executed by any officer or person.
Rule 9. Notice may be given by publication only when it is shown by affidavit presented on behalf of the contestant, and by such other evidence as the Com mission may require, that due diligence has been used, and that personal service can not be made, or that the person to be served- is a nonresident of Indian Territory, or that the heirs of a deceased allottee against whom the contest is brought are unknown. The affidavit must also state the present post-office address of the person intended to be served, if it is known to the affiant, and must show what effort has been made to obtain personal service.
Notice By Publication
Rule 10. Notice by publication shall be made by advertising at least once a week for four successive weeks in some newspaper published in the nation where the land in contest lies. The first insertion shall be at least thirty days prior to the day fixed for the hearing.
Rule 11. Where notice is given by publication, a copy of the notice shall, at least thirty days before the day fixed for the hearing, be mailed by registered letter to each person to be notified at the last address, if any, given by him, as shown by the records of the Commission, and to him at his present address named in the affidavit for publication required by rule 9, if such present address is stated in such affidavit and is different from his record address. If there be no such record address, and if no present address is named in the affidavit for publication, then a copy of the notice shall be so mailed to him at the post-office nearest to the land. A copy of the notice shall also be posted in the land office where the contest is pending for a period of at least thirty days before the day fixed for the hearing, and still another copy thereof shall be posted in a conspicuous place on the land for at least two weeks prior to the day fixed for the hearing.
Proof Of Service Of Notice Of Contest And Summons
Rule 12. Proof of personal service of notice of contest and summons shall be the written acknowledgment of the person served or the affidavit of the person who served the notice, attached thereto, stating the time, place, and manner of service.
Rule 13. Where service is by publication, the proof of service shall be a copy of the advertisement, with the affidavit of the publisher or foreman attached thereto, showing that the same was successively inserted the requisite number of times, and the date thereof. Proof of service by mail and by posting a copy of the notice on the land shall be the affidavit of the person who mailed the notice, with the post-office receipt for the registered letter attached thereto, and the affidavit of the person who posted the notice on the laud.
Rule 14. Cases will be called for trial on the day and at the hour fixed for the hearing, and if the contestant makes no appearance the case will be dismissed for want of prosecution, in which event written notice of such action, by personal service or registered letter, shall be given by the Commission to the parties in interest or their attorneys.
Rule 15. A postponement of a hearing to a clay to be fixed by the Commission may, for a valid reason, be allowed on the day of trial ; and when the continuance is asked for on account of the absence of material witnesses, the party asking for the continuance shall file an affidavit showing:
- (a) That one or more of the witnesses in his behalf is absent without his procurement or consent.
- (6) The name and residence of each absent witness.
- (c) The facts to which they would testify if present.
- (d) The materially of the evidence.
- (c) The exercise of proper diligence to procure the attendance of the absent witnesses.
- (f) That affiant believes said witnesses can be had at the time to which it is sought to have the trial postponed.
RULE 16. No continuance shall be granted on account of the absence of witnesses when the opposing party shall admit that the witnesses would, if present, testify to the statements set out in the motion for a continuance.
Rule 17. Upon the trial of a contest the Commission will, in all cases when deemed necessary, personally direct the examination of witnesses in order to draw from them all facts within their knowledge requisite to a correct conclusion of any point connected with the case.
Rule 18. Due opportunity will be allowed opposing parties or their counsel to confront and cross-examine the witnesses introduced by either party.
Rule 19. Upon the day originally set for hearing and upon any day to which the trial may be continued the testimony of all the witnesses present shall be taken and reduced to writing. When testimony is taken in shorthand, the stenographer s notes must be written out and the written testimony then and there subscribed by the witness and attested by the officer before whom the same is taken, unless the parties, or their counsel, shall, by stipulation in writing, agree that the transcript of the stenographer s notes, duly verified, shall be considered the testimony of the witnesses with the same force and effect as if it had been signed by the witnesses.
Reinstatement, rehearing, and review
Rule 20. Motions for reinstatement, after dismissal, as provided in rule 14, and for rehearing or review, must be filed within twenty days from service of notice of the final order or decision in case of personal service of said notice and within thirty days in case of service of said notice by registered letter, said motion first having been served on the opposite party or his attorney either personally or by registered letter. The party on whom the motion is served will be allowed the same length of time after service of motion in which to file a reply, service thereof first having been had on the opposite party or his attorney either personally or by registered letter.
Rule 21. Motions for rehearing or review must be accompanied by an affidavit of the party or his attorney to the effect that the motion is made in good faith and not for the purpose of delay.
Rule 22. In case of failure to file a motion to reinstate, or for rehearing or review, within the time prescribed by rule 20 the case will be regularly closed.
Proof Of Service Of Motions, Replies, Etc.
Rule 23. Proof of personal service of motions, replies, etc., shall be the same as that required by rule 12. Proof of service of motions, replies, etc., by registered letter shall be the affidavit of the person who mailed the letter, with the post-office receipt therefor attached, and said affidavit shall state that the letter for which the receipt was given contained a copy of the original motion, etc., as the case may be. And in all cases of service by registered letter the time allowed for filing motions, replies, etc., shall begin to run from the date of the post-office receipt for said letter.
Rule 24. All costs incident to the attendance of witnesses in proceedings in allotment contest cases shall be paid by the respective parties to the contest by whose request they have been subpo3iiaed.
Appeals To The Indian Office and The Department
Rule 25. Appeals from the final order or decision of the Commission lie in every case to the Commissioner of Indian Affairs and from his decision to the Secretary of the Interior, and twenty days will be allowed for appeal and argument from date of service of notice of the decision in case of personal service and thirty days in case of service by registered letter. All appeals and arguments must be served on the opposite party, or his attorney of record, either personally or by registered letter within the time allowed for appeal, and appellee shall have the same length of time after service of appeal and argument in which to file a reply and to serve the same or a copy thereof on the appellant or his attorney of record. When an appeal is considered defective, the party or his attorney will be notified of the defect, and if not amended within fifteen days from the date of service of such notice the appeal may be dismissed by the officer to whom the appeal is taken. All appeals and arguments in connection therewith and replies thereto must be filed in the office wherein the decision to be affected by such appeal was made or in the office of the Commissioner to the Five Civilized Tribes for transmission to the office to which the appeal is taken. Notice of all decisions must be served upon the attorney of record, and time will begin to run from such notice.
Motions For Rehearings and Reviews
Rule 26. Motions for rehearings or for review of decisions of the Indian Office or of the Department and replies thereto must be served as provided in Rule 20 and filed within the time provided in that rule in the office wherein the decision to be affected by the motion was made or in the office of the Commissioner to the Five Civilized Tribes for transmission to the officer to whom the motion is addressed.
Rules 25 and 26 were amended by the Department on November 7, 1905, which amendments are incorporated in said rules.