Erwin Morris v. Ethan Hitchcock

• Decision Date: 16 May 1904
• Docket Number: No. 272,272
• Citation: 24 S.Ct. 712,194 U.S. 384,48 L.Ed. 1030
• Parties: ERWIN T. MORRIS, Appt. , v. ETHAN A. HITCHCOCK et al
• Court: U.S. Supreme Court

194 U.S. 384

24 S.Ct. 712

48 L.Ed. 1030

ERWIN T. MORRIS, Appt.,

v ETHAN A. HITCHCOCK et al.

No. 272.

Submitted April 29, 1904.

Decided May 16, 1904.

This is an equity suit, begun in the supreme court of the Distrit of Columbia by Edwin T. Morris and nine other persons, all averred to be citizens of the United States, and not Indians, against Ethan A. Hitchcock, as Secretary of the Department of the Interior, William A. Jones, as Commissioner of Indian Affairs, J. George Wright, as Indian inspector, and J. Blair Shoenfelt, as United States Indian agent, resident at the city of Muscogee, in the Indian territory. Certain of the complainants were averred to be residents either of the state of Texas or of the state of Missouri, and others were averred to be residents of the Indian territory.

It was alleged that each complainant was the owner in his own right of not less than 500 head of cattle and horses, of the value of not less than $15 per head, which were grazing upon land in the Chickasaw Nation, Indian territory, under contracts with individual members of said tribe, holding such lands as their approximate shares upon allotments to be made. The purpose of the suit was to obtain a decree perpetually enjoining said defendants from seizing, molesting, or removing the cattle and horses of plaintiffs from the Indian territory, as it was averred they threatened to do under the pretended authority of an act of the legislature of the Chickasaw Nation and regulations promulgated by the Secretary of the Interior, which were averred to be repugnant to the 4th and 5th Amendments to the Constitution of the United States. The statute and regulations referred to are copied in the margin.

Regulations (June 3, 1902) Governing the Introduction by Noncitizens of Live Stock in the Chickasaw Nation, Indian Territory.

Section 29 of the act of Congress, approved June 28, 1898 (30 Stat. at L. 495, chap. 517), ratifying the agreement with the Choctaw and Chickasaw Nations, Indian territory, provides in part as follows:

'It is further agreed that no act, ordinance, or resolution of the council of either the Choctaw or Chickasaw tribes, in any manner affecting the land of the tribe, or of the individuals, after allotment, or the moneys or other property of the tribe or citizens thereof (except appropriations for the regular and necessary expenses of the government of the respective tribes), or the rights of any persons to employ any kind of labor; or the rights of any persons who have taken or may take the oath of allegiance to the United States, shall be of any validity until approved by the President of the United States. When such acts, ordinances, or resolutions, passed by the council of either of said tribes, shall be approved by the governor thereof, then it shall be the duty of the national secretary of said tribe to forward them to the President of the United States, duly certified and sealed, who shall, within thirty days after their reception, approve or disapprove the same. Said acts, ordinances, or resolutions, when so approved, shall be published in at least two newspapers having a bona fide circulation in the tribe to be affected thereby, and when disapproved shall be returned to the tribe enacting the same.

'It is further agreed, in view of the modification of legislative authority and judicial jurisdiction herein provided, and the necessity of the continuance of the tribal governments so modified, in order to carry out the requirements of this agreement, that the same shall continue for the period of eight years from the fourth day of March, eighteen hundred and ninety-eight.'

Under these provisions, the following act of the Chickasaw national council, approved by the governor on May 3, 1902, was approved by the President of the United States on May 15, 1902, and entitled:

The bill of complaint was demurred to upon the grounds following: (a) Want of jurisdiction in equity because of ade- quate right to relief at law; (b) defect of necessary parties, in that neither the Chickasaw Nation or tribe, or any mem- ber or representative thereof, was joined as a defendant; and (c) want of equity.

After argument, the court overruled the first and second grounds of demurrer, and sustained the third ground. The complainants elected to stand upon their bill of complaint, and a decree was consequently entered, dismissing the bill. On appeal, the decree was affirmed by the court of appeals of the District of Columbia. 21 App. D. C. 565. The cause was then brought to this court.

Messrs. Jackson H. Ralston, Frederick L. Siddons, and Davis & Garnett for appellants.

Assistant Attorney General Campbell and Mr. A. C. Campbell for appellees.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

We think the court below was right in holding that the first and second grounds of demurrer were not well taken, but do not think it necessary to review the subject, as the opinion which we have reached on the merits of the case will dispose of the entire controversy.

The act of Congress approved June 28, 1898, commonly known as the Curtis act (30 Stat. at L. 495, chap. 517), under which the act of the Chickasaw Nation and regulations of the Secretary of the Interior which are assailed were adopted, is entitled 'An Act for the Protection of the People of the Indian Territory and for Other Purposes.' The question of the validity and construction of that act was under consideration in Stephens v. Cherokee Nation, 174 U. S. 445, 43 L. ed. 1041, 19 Sup. Ct. Rep. 722, and Cherokee Nation v. Hitchcock, 187 U. S. 294, 47 L. ed. 183, 23 Sup. Ct. Rep. 115, and in view of the rulings in those cases the constitutionality of the statute is not now open to question.

While it is unquestioned that, by the Constitution of the United States, Congress is vested with paramount power to regulate commerce with the Indian tribes, yet it is also undoubted that in treaties entered into with the Chickasaw Nation, the right of that tribe to control the presence within the territory assigned to it of persons who might otherwise be regarded as intruders has been sanctioned, and the duty of the United States to protect the Indians 'from aggression by other Indians and white persons, not subject to their jurisdiction and laws,' has also been recognized. Treaty June 22, 1855, arts. 7 and 14 (11 Stat. at L. 611); Treaty April 28, 1866, art. 8 (14 Stat. at L. 769). And it is not disputed that, under the authority of these treaties, the Chickasaw Nation has exercised the power to attach conditions to the presence within its borders of persons who might otherwise not be entitled to remain within the tribal territory.

Legislation of the same general character as that embodied in the act of the legislature of the Chickasaw Nation, here assailed as invalid, had been enacted by the Chickasaw Nation before the passage of the Curtis act. The essential provisions of one such law, passed on October 17, 1876, were recited in a report made to the Senate by the committee on the judiciary, on February 3, 1879, from which we copy the following:

'The law in question seems to have a twofold object,—to prevent the intrusion of unauthorized persons into the territory of the Chickasaw Nation, and to raise revenue. By its terms no citizen of any state or territory of the United States can either rent land or procure employment in the Chickasaw country without entering into a contract with a Chickasaw, which contract the latter is to report to the clerk of the county where he resides, and a permit must be obtained for a time not longer than twelve months, for which the citizen is to pay the sum of $25.

'Every licensed merchant, trader, and every physician, not a Chickasaw, is required to obtain a permit, for which the sum of $25 is exacted.'

Declaring in substance that under the existing treaties with the tribe the Chickasaws were not prohibited from excluding from the territory of the nation the persons affected by the act, the committee expressed the opinion that the act which was the subject of the report was not invalid.

Again, on December 14, 1898, the legislature of the Chickasaw Nation passed an act which, in § 2, with some exemptions mentioned in a proviso, imposed the following permit taxes:

'Sec. 2. That any noncitizen who owns horses, jacks, jennets, mules, or other cattle, and who holds them upon the public domain or within the Chickasaw Nation, shall be required to pay an annual permit tax of 25 cents per head for each horse, jack, or jennet, mule, or bovine, and 5 cents per head for each sheep and goat so held within this nation.'

By the 9th section of the same act it was provided as follows:

'Sec. 9. That any noncitizen, subject to a permit tax under the provisions of § 1 of this act, and who shall refuse to pay his permit tax, after due notice for thirty days, shall be deemed an intruder by virtue of the intercourse law of the United States of America, and subject to removal; and such intruder shall be reported to the United States Indian agent (or inspector) to the Five Civilized Tribes, and shall forthwith be removed from the Chickasaw Nation, under the direction of the said United States Indian agent or inspector.'

The agreement made by the commission to the Five Civilized Tribes with the commissions representing the Choctaw and Chickasaw tribes of Indians on April 23, 1897, as amended by the Curtis act, was, in § 29 of ...