Levi Gritts v. Walter Fisher

• Decision Date: 13 May 1912
• Docket Number: No. 896,896
• Citation: 224 U.S. 640,32 S.Ct. 580,56 L.Ed. 928
• Parties: LEVI B. GRITTS et al., Appts., v. WALTER L. FISHER, Secretary of the Interior, and Franklin MacVeagh, Secretary of the Treasury
• Court: U.S. Supreme Court

224 U.S. 640

32 S.Ct. 580

56 L.Ed. 928

LEVI B. GRITTS et al., Appts.,

v WALTER L. FISHER, Secretary of the Interior, and Franklin MacVeagh, Secretary of the Treasury.

No. 896.

Argued January 10 and 11, 1912.

Decided May 13, 1912.

Messrs. John J. Hemphill, William H. Robeson, C. C. Calhoun, and Daniel B. Henderson for appellants.

Solicitor General Lehmann for appellees.

Mr. William W. Hastings for the Cherokee Nation as amicus curioe.

Mr. Justice Van Devanter delivered the opinion of the court:

The question presented for decision in this case is whether children born to enrolled members of the Cherokee tribe of Indians after September 1, 1902, and living on March 4, 1906, are entitled to enrolment as members of the tribe, and to participation in the allotment and distribution of its lands and funds now being made under the legislation of Congress. The Secretary of the Interior and the Secretary of the Treasury, who are respectively charged with important duties in that connection, have taken the position, and are proceeding upon the theory, that under the acts of April 26, 1906, and June 21, 1906, infra, the right of the controversy is with the children; and the purpose of this suit is to test the accuracy of that position, and, if it be held untenable, to enjoin those officers from giving effect to it. The suit was begun in the supreme court of the District of Columbia in 1911, and the plaintiffs are three Indian members of the tribe, duly enrolled as such as of September 1, 1902, under the act of July 1 1902, infra, who sue on behalf of themselves and all others similarly situated. A demurrer to the bill was sustained and a decree of dismissal entered, which was affirmed by the court of appeals. 37 App. D. C. 473. An appeal brought the case here.

During the last twenty years Congress has enacted a series of laws looking to the allotment and distribution of the lands and funds of the Five Civilized Tribes, of which the Cherokee tribe is one, among their respective members, and to the dissolution of the tribal governments. An extended statement of these laws, so far as they concern the Cherokees, as also of the title by which their lands and funds have been held and of the relations of the tribe and its members to the United States, will be found in Stephens v. Cherokee Nation, 174 U. S. 445, 43 L. ed. 1041, 19 Sup. Ct. Rep. 722; Cherokee Nation v. Hitchcock, 187 U. S. 294, 47 L. ed. 183, 23 Sup. Ct. Rep. 115; Cherokee Intermarriage Cases, 203 U. S. 76, 51 L. ed. 96, 27 Sup. Ct. Rep. 29; United States ex rel. Lowe v. Fisher, 223 U. S. 95, 56 L. ed.—, 32 Sup. Ct. Rep. 196, and Heckman v. United States, 224 U. S. 413, 56 L. ed.—, 32 Sup. Ct. Rep. 424.

Anterior to this legislation the lands and funds belonged to the tribe as a community, and not to the members severally or as tenants in common. The right of each individual to participate in the enjoyment of such property depended upon tribal membership, and when that was terminated by death or otherwise the right was at an end. It was not alienable or descendible. And when children were born into the tribe they became thereby members, and entitled to all the rights incident to that relation. Under treaties with the United States the tribe maintained a government of its own, with legislative and other powers, but this was a temporary expedient, and in time proved inefficient and unsatisfactory. As in the instance of other tribal Indians, the members of this tribe were wards of the United States, which was fully empowered, whenever it seemed wise to do so, to assume full control over them and their affairs, to determine who were such members, to allot and distribute the tribal lands and funds among them, and to terminate the tribal government. This Congress undertook to do. The undertaking was a large one and difficulties were encountered. The first legislation was largely preliminary and experimental and need not be specially noticed, because no material change in the situation resulted therefrom.

The act of July 1, 1902, 32 Stat. at L. 716, chap. 1375, which related only to the Cherokees, and is spoken of as the Cherokee agreement, was quite comprehensive and is the one upon which the plaintiffs here rely. It made provision for ascertaining who were members, and permanently enrolling them (§§ 25-30), for reserving certain of the tribal lands for public purposes (§ 24), for appraising the other lands (§§ 9, 10), and for allotting in severalty to each enrolled member land equal in value to 110 acres of the average allottable lands (§ 11). It declared that the enrolment should be made 'as of September 1, 1902,' and should include 'all persons then living' and entitled to enrolment (§ 25); that 'no child born thereafter' should be entitled to enrolment or 'to participate in the distribution of the tribal property' (§ 26); that during the months of September and October, 1902, applications could be received for the enrolment of infant children born to recognized and enrolled members on or before September 1 of that year, but that the application of no person whomsoever for enrolment should be received after October 31, 1902 (§ 30); that no person not enrolled should be entitled to 'participate in the distribution of the common property' of the tribe, and those who were enrolled should 'participate in the manner set forth' in the act (§ 31); that the enrolment should be made in partial lists, which, when approved by the Secretary of the Interior, were to constitute parts of the final roll 'upon which allotment of land and distribution of other tribal property' should be made, and that when lists embracing all persons lawfully entitled to enrolment were made and approved, the roll should 'be deemed complete' (§ 29). There were provisions that 'no allotment of land or other tribal property' should be made on behalf of any enrolled person dying prior to September 1, 1902, but that his right in the lands or other tribal property should be deemed extinguished (§ 31); and that if any enrolled person should die after September 1, 1902, and before receiving his allotment, the lands to which he would have been entitled if living should be allotted in his name, and should, 'with his proportionate share of other tribal property,' descend to his heirs (§ 20). The act declared that the tribal government should not continue longer than March 4, 1906 (§ 63), directed the payment in full, out of the tribal funds, of the lawful indebtedness of the tribe incurred up to the time of its dissolution, and authorized a pro rata distribution, among the enrolled members, of the tribal funds remaining after the dissolution of the tribal government and the payment of its indebtedness (§§ 66, 67). But it made no specific provision for the distribution or disposal of tribal lands remaining after the prescribed reservations and allotments were made.

But the tribal government was not dissolved on March 4, 1906. By joint resolution of March 2, 1906, Congress provided that the tribal existence and the tribal government should continue until all property of the tribe, or the proceeds thereof, should be distributed among the individual members (34 Stat. at L. 822); and by the act of April 26, 1906, they were further continued until otherwise provided by law (34 Stat. at L. 137, 148, chap. 1876). On those dates the work contemplated by the act of July 1, 1902, had not been completed. Some of the applications for enrolment, received within the time prescribed in the act...