United States v. Lena

• Decision Date: 20 October 1919
• Docket Number: 5311.
• Parties: UNITED STATES v. LENA et al.
• Court: U.S. Court of Appeals — Eighth Circuit

261 F. 144

UNITED STATES v. LENA et al.

No. 5311.

United States Court of Appeals, Eighth Circuit.

October 20, 1919

D. H Linebaugh, Sp. Asst. Atty. Gen., of Muskogee, Okl. (W. P McGinnis, U.S. Atty., Alvin F. Molony, Sp. Asst. U.S. Atty and James C. Davis, Creek National Atty., all of Muskogee, Okl., on the brief), for the United States.

N. A. Gibson, of Muskogee, Okl. (J. L. Hull and T. L. Gibson, both of Muskogee, Okl., and Harry H. Rogers, of Tulsa, Okl., on the brief), for appellee Harwell.

Joseph C. Stone, of Muskogee, Okl. (George C. Greer, of Dallas, Tex., B. B. Blakeney and J. H. Maxey, both of Tulsa, Okl., George S. Ramsey and Malcolm E. Rosser, both of Muskogee, Okl., Villard Martin, C. R. Thurwell, and A. A. Hatch, all of Tulsa, Okl., Joseph M. Hill, of Pryor, Okl., and Charles A. Moon and Francis Stewart, both of Muskogee, Okl., on the brief), for appellees Lena and others.

Before SANBORN, Circuit Judge, and MUNGER and YOUMANS, District judges.

YOUMANS District Judge.

On June 5, 1915, the United States brought this suit in the District Court of the United States for the Eastern District of Oklahoma, in behalf of the Creek Nation of Indians, to set aside two patents, one for a homestead and the other for an allotment, to Emma Coker, a citizen of the Creek Tribe of Indians. The theory of the original bill was that Hettie Lena and Emma Coker were identical, and that the issuance of patents to the latter constituted a duplicate issue.

During the trial an amended bill was filed to meet what the United States conceived to be the effect of the proof. The amended bill charged:

'That the Dawes Commission, after having enrolled on January 26, 1900, Hettie Lena as a citizen of the Creek Nation under her correct name, did, on the 23d and 24th of May, 1901, open an enrolling division and office at Okmulgee, Indian Territory, for the purpose of closing up the Creek Roll; that said Commission to the Five Civilized Tribes at that time, in view of section 28 of the Original Creek Agreement (31 Stat. 861), prohibiting it, or probably prohibiting it, from enrolling, or listing the name of any Creek for enrollment, as a citizen, or adding to said rolls, any name after May 25, 1901, opened an office at Okmulgee, Indian Territory, the capital of the Creek Nation, just a few days before May 25, 1901, and made an effort to list for enrollment before the ratification of said Original Creek Agreement the names of all Creeks not theretofore listed or enrolled, and in said work at Okmulgee said Commission acted hurriedly, and without the opportunity for full investigation, and, acting without evidence in this case, took the name 'Emma' from the 1895 Creek Tribal Roll and placed it on a card for further consideration, and on subsequent consideration rejected that name and the person it represented, and thereupon enrolled a person by the name of Emma Coker, 30 years of age, whose mother was Loskey, and which person complainant alleges was in fact either the same person represented by the name Hettie Lena already enrolled, or represented no person in being on April 1, 1899, or subsequent to that date, and therefore placed the name 'Emma Coker' on the rolls by mistake, although said Hettie Lena had been enrolled prior thereto by the Commission to the Five Civilized Tribes on January 26, 1900; alleges that the said Commission placed upon the rolls the name Emma Coker, under the mistake and belief that the name 'Emma Coker' represented a person in being, to wit, the same person theretofore enrolled by the Commission under the correct name of Hettie Lena, and on account of said confusion in the identity of the names, Hettie Lena and Emma Coker, the name Emma Coker was enrolled by the Commission and approved by the Secretary of the Interior, and on account of the above this complainant did not discover, until a short while before the institution of this suit, that there was in fact and in reality no such person as Emma Coker.' The testimony shows that the name 'Emma,' together with other names, appears on the Creek Tribal Roll of 1895 under the name of Loskey. The name Loskey indicated the head of the family or ancestor. Under that name as descendants were eight other names, Sophia, Hettie, Jacob, Lucinda, William, Sallie, Noah and Emma. Mr. Edward Merrick, an employe of the Commission, described the method pursued as follows:

'In March, 1901, the Commission transferred its Creek enrollment work from its office in Muskogee to the town of Okmulgee, the then capital of the Creek Tribe of Indians. I went to Okmulgee in May, 1901, in this work. The object of the Commission in transferring this work to Okmulgee was to secure the enrollment, or the listing for enrollment, of members of the Creek Tribe whose applications the Commission had not received. During the month of May, the Creek National Council was in session at Okmulgee, considering whether the Original Creek Agreement should be ratified. There was a portion of the agreement providing that no person should be added to the rolls of Creek Indians after the ratification of the agreement, and it was thought necessary, in order to preserve or save the rights of Indians, that they should be listed on a card, in some manner to indicate that application had been made for and on their behalf. There were 1,500 or 2,000 names on the 1890 and 1895 rolls for whom no application had been made for enrollment. On May 19th or 20th the Commission was advised that the Creek Council was about ready to act upon the ratification of the agreement, and, in order to get listed upon cards before the council took action, all of the names which were upon the 1890 and 1895 rolls, for whom no application had been made, we took blank census cards, which we had numbered and brought from the Muskogee office, and took these tribal rolls, and made a census card for each name appearing thereon, about whom we had not received information, by placing the name on the census card as it appeared on the tribal roll, and also noting on the card the tribal enrollment, and the band or town in which the name belonged, as it appeared on the tribal roll. I would say there were several hundred names on the tribal rolls about whom the Commission had received no information when we began, the last few days before the action of the Council in ratifying the agreement, writing on the census card the name and tribal enrollment as it appeared on the tribal roll. I think Mr. Hastain and myself wrote most of these cards.

'No arbitrary allotments were made until after the roll had first been approved by the Secretary of the Interior. When the Commission believed an applicant was entitled to enrollment, such applicant was permitted to apply for an allotment immediately after his application for enrollment was received. Thereupon a certificate of allotment was issued, which has the field number of the allottee's census card. When the enrollment was approved by the Secretary of the Interior, patents would be issued to such allottee, which patents had placed on them the number opposite which such allottee's name appeared on the approved roll. * * *

'The name 'Emma' appeared on the 1895 Little River Tulsa 279, unaccounted for, up to May 23, 1901, and she was one among those that we listed on cards to have their names on a card prior to the ratification of the Agreement, in order to preserve any rights she might have. At the time this card was prepared we had absolutely no information with reference to Emma. We did not know whether a person represented by this name was entitled to enrollment, or was living. All we knew was the name appeared on the Little River Tulsa town tribal roll. The expression 'Little River Tulsa town' refers to a clan or band of Creek Indians. The Creek tribe was divided into 47 bands or towns; each was separate from the other, and had separate rolls of its members. I am familiar with the method employed by the Commission in making its recommendations to the Secretary of the Interior for the enrollment of Creeks. We had to secure evidence that the person represented by this name was living on April 1, 1899, before the name would be recommended for enrollment. We also sought information concerning each person, so the enrollment records would be descriptive of the person enrolled. In this case such information was secured after I entered the name on this card. The notation 'Rewritten' on this card means that the name on this card was placed on another card, together with the information desired by the Commission. The notation 'enrolled as Emma Coker' indicates that the word 'Emma' was placed on another card and given the name Emma Coker. The notation 'Don't find on 1890 roll' indicates the name 'Emma' does not appear on the 1890 Creek tribal roll. The notations appearing on this and other census cards indicate some fact which the Commission ascertained during the progress of its investigations concerning persons represented by the names appearing on the card. * * *

'The instrument identified as Government's Exhibit No. 7 is in the handwriting of Mr. Wm. T. Martin, and is the 'rewritten' card referred to by the notation on Exhibit No. 5. This card is filled out as other census cards were. The notation with reference to residence indicates that the first post-office address of this person was given as Keokuk Falls, and later it was ascertained that her post office was changed to Salem, and was at Salem on April 13, 1912. The number 2974 was placed on this card at the time we prepared the roll. The field number 3274 is the number of the field card. Comparing Exhibits 5 and 7, all information upon No. 7, not appearing on No. 5, was obtained by the Commission, or some employe for the Commission, other than

...