Malone v. Alderdice

• Citation: 212 F. 668
• Decision Date: 30 March 1914
• Docket Number: 4021.
• Parties: MALONE et al. v. ALDERDICE et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

212 F. 668

MALONE et al. v. ALDERDICE et al.

No. 4021.

United States Court of Appeals, Eighth Circuit.

March 30, 1914

Syllabus by the Court.

The Commission to the Five Civilized Tribes was a quasi judicial tribunal empowered to determine who should be enrolled as citizens and freedmen of those tribes, what lands should be allotted to each, and in what way, and its adjudication of those questions and of every issue of law and fact it was necessary for it to determine in order to decide them is conclusive and impervious to collateral attack.

The Commission had no jurisdiction in making its enrollment of the citizens and freedmen of the tribes to determine and conclusively adjudge their respective ages.

John B Campbell, of Muskogee, Okl. (William O. Beall and John B Meserve, both of Muskogee, Okl., on the brief), for appellants.

Robert J. Boone, of Tulsa, Okl. (George C. Butte and S. H Lattimore, both of Muskogee, Okl., and John H. Carter, of Tulsa, Okl., on the brief), for appellees.

Before SANBORN and CARLAND, Circuit Judges, and RINER, District Judge.

SANBORN Circuit Judge.

This case presents one question. In the determination of rights which accrued and of the effect of transactions which were concluded prior to May 27, 1908, are the enrollment records of the Commission to the Five Civilized Tribes conclusive evidence of the age of an Indian citizen or freedman recorded thereon? The Act of May 27, 1908, c. 199, Sec. 3, 35 Stat. 313, provides that the enrollment records of the Commissioner to the Five Civilized Tribes 'shall hereafter be conclusive evidence as to the age' of any enrolled citizen or freedman of those tribes. Mariah Henderson was such a citizen and the parties to this suit have agreed that these are the material facts in this case: She was a minor when on September 1, 1898, she was enrolled a Creek citizen. The enrollment records show her age to have been eight years at that time. The age of her majority was 18 years, so that according to these records she would have been of age in September, 1908. The fact was that she was of age on and prior to August 13, 1907. The defendants claimed title to lands allotted to her under a deed made by her for a valuable consideration on August 13, 1907, and the plaintiffs under a like deed of the same lands made by her on October 8, 1908, for a similar consideration. The plaintiffs contend that, although she was in fact of age when the former deed was made, yet that deed was void because the enrollment records constituted conclusive evidence that she was not 18 years of age prior to September 1, 1908.

The Commission to the Five Civilized Tribes which made the enrollment of their citizens and freedmen was a quasi judicial tribunal empowered to determine who should be enrolled and what lands should be allotted and in what way it should be allotted to every citizen and freedman, and its adjudication of these questions and of every issue of law and fact that it was necessary for it to determine in order to decide these questions is conclusive and impervious to collateral attack. But its determination, recital, or report regarding issues not material to its answers to the questions who should be enrolled and what lands should be allotted to them and how, is, in the absence of special legislation such as the act of May 27, 1908, without judicial or other conclusive effect. Kimberlin v. Commission to Five Civilized Tribes, 104 F. 653, 662, 44 C.C.A. 109, 118.

The question in this case becomes, therefore, was it material to the answer to those questions for the Commission to decide and adjudge the exact age of Mariah Henderson and when her minority would cease? In support of their argument for an affirmative answer to this question, counsel for the plaintiffs review the acts of Congress of March 3, 1893, c 209, 27 Stat. 645; of June 10, 1896, c. 398, 29 Stat. 339; of June 28, 1898, c. 517, 30 Stat. 495; of March 1, 1901, c. 676, 31 Stat. 861; and of June 21, 1906, c. 3504, 34 Stat. 340. They challenge our attention to the facts that the allotment of the lands of the tribes was based on the rolls of their citizens and freedmen prepared by the Commission, that section 21 of the Act of June 28, 1898, provided that 'said Commission shall make such rolls descriptive of the persons thereon so that they may be thereby identified, and it is 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' (30 Stat. 503), that the Creek agreement of March 1, 1901, 31 Stat. 861, provided that all citizens living on the 1st day of April, 1890, entitled to be enrolled under section 28 of the Act of June 28, 1898, 30 Stat. 495, and all children born to citizens so entitled to enrollment up to and including the 1st day of July, 1900, and then living should be placed on the rolls made by said Commission, and that the rolls so made when approved by the Secretary of the Interior should be the final rolls of citizenship of said tribe upon which the allotment of all lands and the distribution of all moneys and other property should be made (section 28, 31 Stat. 870), that...