Cherokee Nation v. Moses Whitmire

• Decision Date: 29 January 1912
• Docket Number: No. 735,735
• Citation: 56 L.Ed. 370,223 U.S. 108,32 S.Ct. 200
• Parties: CHEROKEE NATION and the United States, Appts., v. MOSES WHITMIRE, Trustee for the Freedmen of the Cherokee Nation
• Court: U.S. Supreme Court

223 U.S. 108

32 S.Ct. 200

56 L.Ed. 370

CHEROKEE NATION and the United States, Appts.,

v MOSES WHITMIRE, Trustee for the Freedmen of the Cherokee Nation.

No. 735.

Argued January 9 and 10, 1912.

Decided January 29, 1912.

Mr. William W. Hastings for the Cherokee Nation.

Assistant Attorney General John Q. Thompson and Mr. George M. Anderson for the United States.

Messrs. Samuel A. Putman, Charles Poe, and Robert H. Kern for appellee.

Messrs George S. Ramsey, Charles M. Rice, C. C. Calhoun, Frank J. Boudinot, John J. Hemphill, and Daniel B. Henderson as amici curioe.

Mr. Justice McKenna delivered the opinion of the court:

This appeal is prosecuted to review a supplemental decree of the court of claims enjoining and directing the Secretary of the Interior to enroll upon the final roll of the citizens of the Cherokee Nation for allotment of lands the names of certain persons and their descendants claiming rights as Cherokee freedmen, whose names were found upon the roll called the Kern-Clifton roll, which the decree adjudged was directed to be made by a former decree of the court. The names of those persons who are appellees in this case, after investigation by the Secretary of the Interior, were found by him not entitled to be enrolled, and not entitled to participate in the distribution of the tribal property.

The decision in United States ex rel. Lowe v. Fisher [223 U. S. 95, 56 L. ed. ——, 32 Sup. Ct. Rep. 196] has simplified the decision in this case. Indeed, the ultimate question in both is the same, the power of Congress over the allotment of Indian lands and the manner of ascertaining what persons shall be entitled to them. There were, however, contentions made in that case which are not made here. There are propositions of law conceded in this case which were contested in that. Therefore a brief summary of the elements necessary to a decision is appropriate.

Preceding the merits, however, motion to dismiss the appeal must be disposed of. The motion is made on the following grounds: (1) The decree of February 3, 1896, was a final decree from which no appeal was prosecuted to this court; (2) that the decree of February 20, 1911, hereafter referred to, was merely in the nature of an execution of that of February 3, 1896, and defined no new rights, but enforced merely rights established and consented to; and (3) because, although the decree of February 20, 1911, was regularly entered on that day, the appeal new pending was not allowed or prosecuted until the 17th of June, 1911, more than ninety days after the entry of the decree.

The first and second grounds are untenable. The decree under review has broader application than that of February 3, 1896. It determined rights to allotments which had not then been provided for, and, assuming that it declared the principle by which such rights could be determined, there was, as we shall presently see, intervening legislation by Congress. This legislation gave rise to serious controversy. It confirmed, it was contended by petitioners (appellees here), and is yet contended by them, as we shall presently see, the decree of the court both as to the principle of the decree and also as to the means of identification of the individuals who would be entitled to rights under the principle. By the defendants (appellants here) it was contended that the legislation superseded the decree and made new provision for the identification of persons. The court decided in favor of the petitioners, and we think the decision is more than the execution of the decree of February 3, 1896. It is a decision upon the effect of subsequent legislation by Congress, enacted in the exercise of its power over Indian affairs,—a power which is not questioned.

The third ground urged for the dismissal of the appeal is also without merit. The contention is that the decree of the court became final the instant it was entered, February 20, 1911, and that an appeal was not taken from it until June 17, 1911, which was not within the time allowed by § 1086, of the Revised Statutes (U. S. Comp. Stat. 1901, p. 745). There were, however, intervening proceedings. The record shows that 'on March 30, 1911, the defendants [appellants] filed an application for appeal. On May 15, 1911, the defendants filed a motion to withdraw the application for appeal filed March 30, 1911, which was allowed by the court May 15, 1911.' On May 15, 1911, the defendants filed a motion for new trial, which motion was overruled June 5, 1911, 'with privilege to the defendants to renew their application for appeal heretofore filed.' The record further shows that the defendants, 'from the decree rendered on the 20th day of February, 1911, in favor of claimants, . . . make application for, and give notice of, an appeal to the Supreme Court of the United States.' The application was allowed as prayed.

This court has decided that if a motion for a new trial or petition for rehearing is made in season and entertained by the court, the time for taking an appeal or writ of error does not begin to run until the motion or petition is disposed of. Kingman & Co. v. Western Mfg. Co. 170 U. S. 675, 42 L. ed. 1192, 18 Sup. Ct. Rep. 786. It is, however, urged that the court lost jurisdiction of the case by the application for appeal filed March 30, 1911. United States v. Adams, 6 Wall. 101, 18 L. ed. 792, is cited to support this contention. In that case the paper filed was as follows: 'The United States, by E. P. Norton, its solicitor, makes application to the honorable court of claims for an appeal of the case of Theodore Adams v. The United States to the Supreme Court of the United States.' This application was filed within the ninety days allowed by the statute. The order allowing it, however, was not made until after the expiration of the ninety days. It was contended that both application and allowance should have been made within that time, but this court held otherwise, saying 'that the filing of this paper was taking the appeal, and that the delay in the subsequent proceeding to render it effectual does not touch its validity.'

It was not, however, decided that the court of claims lost control of the case. It was only decided that the party had secured a right under the statute. The rules of the court of claims, made under regulations prescribed by this court, provided for further action to perfect the right acquired by the party, which was made necessary by certain statutes under which only questions of law could be brought here for review. And the action was more than formal. It consisted in the finding of the ultimate facts in the nature of a special verdict, and the questions of law therefrom to be certified to this court.

The practice in the court of claims is adverse to appellees' contention. The court followed the practice in entering the decree of February 3, 1896, the decree upon which appellees based all of their rights. It was substituted for a decree passed May 8, 1895. On the 20th of July, following entry of the latter decree, the defendants filed a motion for rehearing and an application for appeal from the decree. A few days afterward the claimants also filed an application for an appeal. Later the defendants filed a motion for new trial. On January 30, 1896, the applications for appeal were withdrawn by leave of the court, and, on February 3, the decree of May 6, 1895, was vacated and the decree of the former date was entered.

It will be observed, therefore, that if the contention of appellees is correct that the court of claims lost jurisdiction of the decree under review by the application of appellants for an appeal March 30, 1911, the court lost jurisdiction of the case by the applications for appeal from the decree of May 8, 1895, and therefore had no jurisdiction to enter the decree of February 3, 1896, which is the foundation of the rights of appellees. Counsel would hardly like us to push their contention that far, and that far it might have to be pushed if it were tenable. The motion to dismiss is denied.

The court of claims obtained its jurisdiction of the questions involved by an act of Congress approved October 1, 1890, entitled, 'An Act to Refer to the Court of Claims Certain Claims of the Shawnee and Delaware Indians and the Freedmen of the Cherokee Nation, and for Other Purposes.' The rights referred to the court of claims for adjudication were those 'in law or in equity . . . of the...