United States v. Bessie Wildcat

Citation244 U.S. 111,61 L.Ed. 1024,37 S.Ct. 561
Decision Date21 May 1917
Docket NumberNo. 741,741
PartiesUNITED STATES v. BESSIE WILDCAT et al. 1
CourtUnited States Supreme Court

[Syllabus from 112 intentionally omitted] Assistant Attorney General Kearful, Solicitor General Davis, and Mr. S. W. Williams for the United States.

Messrs. Joseph C. Stone, John J. Shea, Charles B. Stuart, A. C. Cruce, George S. Ramsey, Malcolm E. Rosser, Edgar A. de Meules, Villard Martin, John Devereux, J. E. Wyand, K. B. Turner, J. B. Furry, E. C. Motter, P. J. Carey, W. C. Franklin, Burdette Blue, Thomas F. Shea, William A. Collier, Hazen Green, E. J. Van Court, Charles A. Moon, Francis Stewart, M. E. Turner, for Bessie Wildcat et al.

Messrs. A. A. Davidson, Preston C. West, and James A. Veasey for Bissett et al.

Messrs. R. C. Allen, James C. Davis,

Grant Foreman, James D. Simms, as amici curiae.

Mr. Justice Day delivered the opinion of the court:

This action was begun by the United States, in behalf of the Creek Tribe of Indians, in the district court of the United States for the eastern district of Oklahoma, against Bessie Wildeat and others, heirs of Barney Thlocco, a full-blood Creek Indian, to obtain cancelation of the allotment certificate and deeds for his allotment of 160 acres. The bill of complaint alleges that Thlocco was a Creek Indian by blood; that he died at about the beginning of the year 1899 and prior to April 1, 1899, and that he was not entitled to be enrolled as a citizen of the Creek Nation, or to receive an allotment of any part of its lands under the acts of Congress; that on or about May 24, 1901, the Commission to the Five Civilized Tribes caused his name to be placed on the roll of Creek citizens by blood which that Commission was then preparing; that thereafter, on June 30, 1902, the Commission issued a certificate of allotment in Thlocco's name, and homestead and allotment patents purporting to convey the land allotted were executed by the principal chief of the Creek Nation on March 11, 1903, and approved by the Secretary of the Interior on April 3, 1903; that thereafter, on December 13, 1906, the Secretary of the Interior, by executive order, caused Thlocco's name to be stricken from the roll of citizens by blood of the Creek Nation, and he is not an enrolled citizen by blood or otherwise of the Creek Nation, and is not now and has never been entitled to an allotment of land therein because he has never been a lawfully enrolled citizen thereof, and because he died prior to April 1, 1899; and that the patents have never been delivered to Thlocco or to any other person, but are in the possession of complainant through its officers and agents. The bill alleges that these instruments and proceedings constitute a cloud upon the Creek Nation's title to the land and that the existence of this cloud hinders and delays complainant in the performance of the duty imposed on it by law to allot and otherwise dispose of the lands and to wind up the affairs of the Creek Nation, and prays that the allotment certificate and patents be declared void and of no effect as instruments of conveyance; that the defendants be decreed to have no right, title, interest, or estate in and to the land; that the title to the land be quieted in complainant and the Creek Nation; that whatever cloud is cast upon the title to the land by reason of the matters aforesaid be decreed to be dissolved and the land decreed to be a part of the public and unallotted tribal land of the Creek Nation, subject to disposition by complainant in accordance with law; that the enrolment of Barney Thlocco be canceled, and that he, or any person claiming by, through, or under him, including the defendants, be decreed not to be entitled to participate in the disposition of the lands, moneys, or other property of the Creek Nation, and that the defendants be forever enjoined from asserting any claim of title to, or interest in, the tract of land hereinbefore described, adverse to the complainant and the Creek Nation. It is alleged that no hearing was held or investigation made by the Commission, and no evidence of any kind was obtained or had by it on the question of Thlocco's right to be enrolled; that no notice was given to the Creek Nation that his name was about to be enrolled; that there was no controversy, contest, or adverse proceeding of any kind before the Commission in this respect; and that the Commission, in causing Thlocco's name to be placed on the roll of Creek citizens by blood, acted arbitrarily and summarily, and without knowledge, information, or belief that he was living or dead on April 1, 1899, and acted on a mere arbitrary and erroneous assumption wholly unsupported by evidence or information that he was living on that date and entitled to be enrolled.

The answer avers that Thlocco was living April 1, 1899, and denies that the Commission acted arbitrarily and without evidence in placing his name on the roll and allotting the lands to him, and alleges that the Commission, in causing both these acts to be done, was not guilty of any gross mistake of fact or of law, but acted upon evidence satisfactory to it, and sufficient in law and in fact. It further alleges that the Dawes Commission was vested with jurisdiction to determine what persons were entitled to enrolment as citizens of the nation, and entitle to allotment out of the tribal lands, and that its decision in that regard having been approved by the Secretary of the Interior, 'said enrolment, allotment, and patent cannot be canceled, nor can the issue of fact upon which the Commission placed the name of Barney Thlocco upon the approved Creek Roll be tried again; and these defendants say that this court is without authority of law to reopen or retry the question of fact sought to be put in issue by the United States.'

Other defendants claimed an interest in part of the same property under a subsequent allotment, and intervened for the same relief as was asked by the United States.

Upon the trial of the case, the government offered to show by witnesses and circumstances that Thlocco in fact died in January, 1899. Upon objection to this evidence by the defendants, the trial court ruled that the question whether Thlocco was living on April 1, 1899, was one of the questions which the law submitted to the Dawes Commission, and that its decision, placing Thlocco's name on the tribal roll, could only be attacked upon the ground of fraud, error of law, or gross mistake of fact, or upon the ground that the Commission acted arbitrarily and wholly without evidence; that it was not open to the govern- ment, for the purpose of attacking the allotment certificate and deeds to Thlocco, to retry the question of fact as to whether he was living April 1, 1899.

At the conclusion of the trial the government renewed its offer of proof, to which objections were sustained on the ground just stated. A decree was then entered dismissing the bill for the reason that the government had failed to show that the Commission, in enrolling Thlocco, acted arbitrarily and without evidence. Appeal was then taken to the circuit court of appeals for the eighth circuit, which court certified certain questions of law to this court. Subsequently a writ of certiorari was issued, bringing the whole case here. Judicial Code, § 239 [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1916, § 1216].

The government in the brief filed in its behalf reduces the questions necessary to decide the merits of this appeal to two: First, should the evidence offered by the government to show that Thlocco died prior to April 1, 1899, have been admitted? Second, should the judgment of the district court be reversed because the enrolment of Thlocco and the allotment to him were made arbitrarily and without evidence as to whether he was living or dead on April 1, 1899?

As to the first question, an understanding of certain legislation is necessary to its answer. By the Act of Congress of June 10, 1896 (29 Stat. at L. 339, chap. 398), the Commission to the Five Civilized Tribes, more commonly known as the Dawes Commission, was authorized to hear and determine applications for citizenship in any of the Five Civilized Tribes. By that act the rolls of citizenship of those tribes as they then existed were confirmed and the Commission commanded in determining applications for citizenship to 'give due force and effect to the rolls, usages, and customs of each of said nations or tribes.' It was provided by the Act of June 7, 1897 (30 Stat. at L. 84, chap. 3), that the term 'rolls of citizenship' should mean 'the last authenticated rolls of each tribe which have been approved by the council of the nations, and the descendants of those appearing on such rolls,' and certain others specified who had been lawfully added to the rolls. By the Curtis Act of June 28, 1898 (30 Stat. at L. 495, 502, chap. 517), the Commission was authorized and directed to make correct rolls of the citizens by blood of the Creek Tribe, eliminating from the tribal rolls such names as might have been placed thereon by fraud or without authority of law, enrolling such only as might have lawful right thereto, and their descendants born since such rolls were made. It was provided that the Commission should make such rolls descriptive of the persons thereon, so that they might be identified thereby, and the Commission was authorized to take a census of each of said tribes, or to adopt any other means by them deemed necessary to enable them to make such rolls, with the right of access to all rolls and records of the several tribes, and with authority to administer oaths, examine witnesses, and send for persons and papers. The rolls so made, when approved by the Secretary of the Interior, were to be final, and the persons whose names were found thereon, with their descendants thereafter born to them, with such persons as might intermarry according to tribal laws, were alone to constitute the several...

To continue reading

Request your trial
58 cases
  • United States v. Mid-Continent Petroleum Corporation, 763.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • September 1, 1933
    ...limits of its jurisdiction, are subject to attack only as judgments of courts are, for fraud or mistake. United States v. Wildcat, 244 U. S. 111, 118, 37 S. Ct. 561, 61 L. Ed. 1024; Campbell v. Wadsworth, 248 U. S. 169, 39 S. Ct. 63, 63 L. Ed. 192; United States v. Atkins, 260 U. S. 220, 43......
  • Roberts v. Anderson
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • September 1, 1933
    ...681, and to the cases which hold that the action of the Dawes Commission is not subject to collateral attack, United States v. Wildcat, 244 U. S. 111, 37 S. Ct. 561, 61 L. Ed. 1024; United States v. Atkins, 260 U. S. 220, 43 S. Ct. 78, 67 L. Ed. 224; Tiger v. Twin State Oil Co. (C. C. A. 10......
  • Gray v. Mcknight
    • United States
    • Oklahoma Supreme Court
    • June 24, 1919
    ...right constituted an estate of inheritance and went by operation of law to his heirs." ¶15 See, also, United States v. Bessie Wildcat et al., 244 U.S. 111, 37 S. Ct. 561, 61 L. Ed. 1024; Jesse et al. v. Chapman, 68 Okla. 199, 173 P. 1044, and cases therein cited. ¶16 Although the facts in n......
  • Norton v. Larney
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 25, 1923
    ...289 F. 395 NORTON et al. v. LARNEY. No. 6164.United States Court of Appeals, Eighth Circuit.April 25, 1923 [289 F. 396] ... determine in order to decide those questions. U.S. v ... Wildcat, 244 U.S. 111, 37 Sup.Ct. 561, 61 L.Ed. 1024; ... Kimberlin v. Commission ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT