IN THE UNITED STATES COURT OF APPEALS

Transcription

1 IN THE UNITED STATES COURT OF APPEALS FOR THE INSNDI-I^NSR T E B B I T O B I T _ OCTOBER TERM, 1901, NO. 394 WM. J. THOMSON, ETAL, Appellants, vs. WM. MORGAN, ET AL, CHOCTAW AND CHICKA- SAW NATIONS, Appellees. BRIEF OF APPELLEES. MANSFIELD, McMURRAY & CORNISH, Attorneys for Appellants.

2 J IN THE UNITED STATES COURT OF APPEALS FOR THE iisridi^nsr tebbobt. OCTOBER TERM, 1901, NO WM. J. THOMSON, ET AL, Appellants, vs. WM. MORGAN, ET AL, CHOCTAW AND CHICKA- SAW NATIONS, Appellees. BRIEF OF APPELLEES, The assignments error,made by appellants,are seven in number, but are really embraced in two g-eneral proposions, viz. First. That court erred in making- Choctaw and Chickasaw Nations parties to su. Second. That court erred in holding- judgment, on which plaintiffs rely to establish ir cizenship, could not be received for purpose. Before entering a discussion se two proposions, we desire to correct a mis-statement counsel for appellants, as to ruling - court below. Judgfe Thomas, in over-ruling demurrer plaintiffs to

3 answer and interplea Choctaw and Chickasaw Na- Nations to be made parties to this action, under section 2 tions, stated, in effect, most could be claimed Curtis A c t, which is as follows: f o r judgment in question, was conferred polical cizenship, claimants;, however, even this "SEC. 2. T h a t when in p r o g r e s s any civil su, eher in law or equy, pending in Uned States Court cizenship could not become effective, until a roll contain- in any District in said T e r r i t o r y, shall appear to ing- ir names was approved by Secretary In- Court property any tribe is any way affected by terior, and alleged judg-ment established no rights issues being heard, said Court is hereby authorized and bv which y could maintain an action, as members required to make said tribe a party to said su by service tribe, for possession tribal property. He stated Chief or Governor tribe, and su shall in his opinion Supreme Court Uned States, in reafter be conducted and determined as if said tribe had case Stephens et al. vs. Cherokee Nation et al., U. been an original party to said action." S. Bk. 43, L. C. P. Ed. 1041, did not pass question at stated pa'ss bar, pressed by but rar was in counsel not for avoided. necessary case, but appellants, he He furr for him stated to being if was insisted appellants acquired an interest in property two tribes, by virtue judg-ment exhibed by m, n his opinion was judg-ment was absolutely void and could not be enforced in way. W e also feel constrained to correct anor ment facts by counsel for appellants. mis-state- T h e y insist W e are unable to see how Court below could have taken any or course whout violating this section law. T h i s proposion argues self. T h e remaining assignments error will be covered by a discussion validy judgment, set out as an exhib to plaintiffs' complaint. T h e Choctaw and Chickasaw Nations se j u d g m e n t s are absolutely void. Before contend commencing discussion this question from our standpoint, let us see what posion is taken by counsel for appellants. we understand, y contend this question As is res ad- point involved in this case has heretore been arg-ued judicata, "cing Stephens et al. vs. Cherokee Nation et al., by counsel for Nations, and as result liga- supra; C o n g r e s s tion at time, S u p r e m e Court Uned States cizens said tribes in manner provided in legis- has, in effect, upheld se judgments. lation complained ; j u d g m e n t s are not void for furr f r o m truth. T h e invalidy se judg-ments, as urg-ed by us, was never passed Court. The Nothing- could be by Supreme judges Court never heard con- tention. We lack parties, had power to determine who were because no notice was necessary; and, lastlv, rendion se j u d g m e n t s does not deprive anv member se tribes property, because applicants admted must be deemed to have been own- will now examine, briefly, first assignment error by appellants. T h e Court below required Choctaw and Chickasaw ers a pro rata share tribal property at time y made ir original applications. In fact, effort counsel to argue se questions

4 seems to us to be rar labored, and to practically amount g r e s s for adjudication se questions. only to an assertion some way, or somehow, June 10th, 1896, provided: j u d g m e n t s should be permted to stand, and ir se clients to acquire this p r o p e r t y. Let us examine briefly legislation about this condion affairs. brought Congress, by different acts, " T h a t if tribe, or any per- son, be aggrieved wh decision ties, or Commission T h e A c t provided tribal authori- f o r in this act,, or he, mav appeal from such decision to Uned States District Court: Provided, however, T h a t appeal shall be taken constuted Commission to F i v e Civilized T r i b e s, a whin sixtv days, and j u d g m e n t Court shall be tribunal exercising" judicial powers, to determine who were final." identical persons among- whom should be divided this vast Indian estate. Bv what p r o c e s s reasoning can we reach conclu- It provided no method service sion C o n g r e s s, in establishing a judicial tribunal tribes, but Commission adopted a rule, requiring- such extended powers, and in providing for an appeal to applicants for cizenship to serve a copy ir applica- Uned States Courts, whose j u d g m e n t was made final, did tion not intend lex loci as to pleading and practice to apply? T h i s rule was in- Appellants say in ir brief Cong-ress had " t h e Chief, or Governor, which y claimed to be a member. tended to A y fair apply to all construction this rule, for sake argument, Five Civilized admting- would tribe Tribes. s require, validin Choctaw and Chickasaw Nations, where both tribes were absolute right providing A DECENT, R E A S O N A B L E AND E A I R M A N N E R OE D E T E R M I N I N G W H O A R E, AND W H O A R E N O T, MEMBERS OF THESE INDIAN T R I B E S. " W e find ourselves unable to assent to this remarkable proposion, neher do equally interested in lands to be divided, service we G o v e r n o r s both tribes, and this was evidently in- j u d g m e n t s procured against m, whout notice, eher tended by Commission. fair, reasonable or decent. Commission W e contend, however, had no power to make such rules. A s a judi- believe counsel for appellants would consider In closing, we desire to quote f r o m our brief, filed wh cial tribunal y were bound to proceed in accordance wh Judg-e Uned States Court for Sourn Dis- lex loci, and this requires all those uned in interest to trict Indian T e r r i t o r y, at A r d m o r e, in case G. be joined as plaintiffs or defendants (Mans. Dig-., Sec. 4941). W. Dukes et al. vs. W m. Goodall et al. provides explicly chapter equy, brought by plaintiffs to declare similar j u d g m e n t s judgments, void, alleging defendants were proceeding, mselves, manner service, (see Pleading-and Practice), and provides, all orders, sentences and decrees, made, rendered or nounced, whout notice, and all proceedings T h i s was a bill in pro- to execute said judgments, by f o r c i b l y taking possession reunder, lands said tribes, alleging j u d g m e n t s were (Mans. Dig., Sec ) void and attempted enforcement m, by de- T h e j u d g m e n t must show s face proper j u r - fendants similarly suated, would cause a multiplicy shall be absolutely null and void. sus, and various or g r o u n d s equable relief. isdictional facts to render valid. But this was not all machinery provided by Con- quote: We

5 " D e f e n d a n t s demur to bill herein, and state ' same is not sufficient in lawto require m to a n s w e r / only one Nations was sued, service being had Governor re. W e should not have filed a bill in equy if we had not be- Plaintiffs contend Governor one se Na- lieved we were unable to maintain an action at law. tions could not be served ii. this way. T h e i r powers are de- W e presume, however, defendants intend to challenge fined by a wrten constution. sufficiency bill in equy. and Chickasaws are not held in apolical capacy, in trust, Bv demurring, de- fendants adm allegations bill are true; so by eher this virtually leaves no issue except presented by vice Governor was, refore, void. j u d g m e n t attached to said bill; and furr propo- again, for sake argument, C o n g r e s s had this sion, even enrollment though j u d g m e n t s were valid, as defendants is being- contested before Commission to Five Civilized T r i b e s, rights de- Choctaw T h e lands Choctaws or Chickasaw Governors. Ser- Admting, power, service could be had Governor one said tribes, and such service would legally bind entire tribe, still, plaintiffs contend, before j u d g - fendants will never be perfect, until a final roll C h o c - ments could be valid, y must show ir face taws and Chickasaws is made and approved, and plaintiffs both Choctaw and Chickasaw Nations were parties refore contend,, under allegations contained in said proceedings, and judgment was taken against bill, as to unlawful entry and wasting ir T h i s, is admted, has not been done. lands bv defendants, y would be entled has been sued in which applicant claimed cizenship. to an injunc- tion. 4 to both. Only Nation T h e Choctaws and Chickasaws hold ir lands under A r e j u d g m e n t s exhibed wh this bill good? The plaintiffs contend se j u d g m e n t s are absolutely null and void; first, because A c t C o n g r e s s known as Curtis Bill, under which Commission to Five Civilized T r i b e s, and Courts assumed to act, is void, in so far as attempted to clo any one wh authory to take * any part ir lands, and bestow m applicants f o r cizenship; especially, as said A c t makes no provision for giving notice, eher actual or constructive, to members said tribes, said rights would be adjudicated; second, because, admting, for sake argument, C o n g r e s s had such power, and, acting under g e n eral law in f o r c e in Indian T e r r i t o r y, necessary could be given, j u d g m e n t s disclose, ir notice face, A r t i c l e 1 treaty 1855, which provision is as follows: " A n d pursuant to an act C o n g r e s s, approved May , Uned States do forever secure and guarantee lands embraced whin said lims to members Choctaw and Chickasaw tribes, ir heirs and successors, to be held in common; so each and every member eher tribe shall have an equal undivided interest in whole; Provided, however, no part re shall ever be sold whout consent both t r i b e s. " T h i s treatv provision is simply a re-affirmation what preceded, viz: cession lands to Choctaws in 1820, promise a patent by A c t C o n g r e s s 1830; treaty providing for purchase an undivided interest b y Chickasaws in 1837; and, finally, issuance a formal patent in 1842.

6 T h e sole o b j e c t making- roll, and sole purpose se j u d g m e n t s, is to bestow applicant an equal undivided share, wh every or Choctaw and Chickasaw, se lands. A claimant stands in same attude members Choctaw and Chickasaw tribes tle to ir lands, and vest in individual allottees under judgment. T h e courts, in se cases, must have proceeded under one who claims to be an heir an estate, but whose rig-hts laws in f o r c e whin ir jurisdiction. are contested j u d g m e n t rendered where Court had no jurisdiction, or by or establish his right. heirs. He g o e s into court to He did this in this case bv a proceed- Ordinarily, a in absence parties in interest, is absolutely void. ing equy side docket. W e know no rule Am.-Eng. Ency. PI. and P r a c., Vol , Sec. 3. law which would perm a j u d g m e n t in his favor under (Ib., 856.) which he could be put into possession an equal share T h e laws Arkansas, as to pleading and practice, are estate, unless all known heirs were made parties in f o r c e in Indian T e r r i t o r v. to said petion. tiff was compelled to take j u d g m e n t against all or none A t common law plain- T h i s j u d g m e n t directly affected share every rec- defendants; and, under code practice in Arkansas, ognizedchoctaw and Chickasaw. W h e n an applicant's right a several judgment is only proper, where a several su was denied, all members said tribes had a right to be might have been brought. notified his application before he could procure any j u d g - Park vs. Mayer, 27 A r k., 551. ment against m, which would reduce share prop- 4 A r k., 448, 517. erty y would orwise receive. Upon proposion such judgments will be In passing' this question, we desire to call at- treated as nullies, see American-English E n c y. ; Pleading tention Court to fact our government, in & Practice, V o l. 11, 858; 10 Arkansas, 555; Mansfield's Di- dealing wh se two Indian tribes, has always recognized gest, Sections ; 31 Arkansas, 175; L. R. A.. Book joint holding this property by members said tribes, and fact ir tle, or right, to, could not be affected or diminished, except by joint action both. T h i s appears in all treaties and proceedings between government and se tribes, and will be remembered 3, 620. Under a declaration charging a joint liabily, even admission one defendant will not entle plaintiff to a j u d g m e n t and verdict against him alone. State vs. W i l l - come effective until ratified by a majory vote mem- iams, 17 Arkansas, 371; Benton vs. G r e g o r y, 8 Arkansas, 180. In case Hanlev vs. Donohue, 59 Maryland, 239, bers both tribes. was held, on a judgment Atoka A g r e e m e n t provided, should not bet o hold joint property two tribes can be taken by Dawes Commission and al- recovered in Pennsylvania against two defendants, only one whom was summoned, loted to one se claimants, by virtue a j u d g m e n t re could be no recovery in Maryland against d e f e n d - against onlv one tribe, is to assume posion due ant who was summoned process law is not necessary in a proceeding to divest j u d g m e n t, being a nully as to party not summoned, in original proceeding, as

7 _11 10 was a nully as to both. " I hold, (Congress), has no power to divest a vested T h e case at bar is stronger than right relating to ir lands; rights heretore accrued to this. A decree is void in absence a party whose rights m bv A c t s C o n g r e s s, solemn treaties and deeds f r o m Uned States, granting to m lands, for a valua- must necessarily be affected reby. G r e g o r y vs. Stetson, 133 U. S., 579; ble consideration, and by a fee simple t i t l e....se Indian Shields vs. B u r r o w, 58 U. S., 130; tribes are to be g o v e r n e d.... b y C o n g r e s s, and is, by Coiron vs. Millandum, 60 U. S., 113; law; and highest law, both to c o n g r e s s and se In- Dandridge vs. Washington, 2 Peters, 370. dians, is constution Uned States, which pro- In case Coiron vs. Millandum, supra, court holds, in a proceeding in equy to Stet aside sale vides 'no person shall be deprived life, liberty In same opinion, in r e f e r r i n g to Curtis A c t, he an estate bv two heirs, credors estate interested in proceeds sale were absolutely neces- or propertv whout due process law.' " said: sary parties, and a decree rendered in ir absence " I t was evident intention C o n g r e s s, first to se- as parties, and not against m, is not valid, although cure a partion lands two tribes to ir indi- bill alleged, and was not denied, all said c r e d i t o r s vidual m e m b e r s. " were out jurisdiction court. T h e Constution has been extended by C o n g r e s s over In A n s l e y et. al. vs. Ainswerth et al., in which Indian T e r r i t o r y. T h e laws Uned States are question arose as to vested rights a member C h o c - in f o r c e here, and courts have been established here, which taw tribe to coal under a certain area Choctaw-Chick- have jurisdiction over all controversies which involve asaw lands, Judge Clayton, Central District ownership or possession se Indian lands. Indian T e r r i t o r v, held, any Choctaw law or provision Choctaw constution, in conflict wh treaty 1855 is void. Article 1 He said: " I f Choctaw constution It is certainly true, as a legal proposion,, in absence treaty stipulations to contrary, members was intended to vest an indefeasible tle to coal mines in discoverer, one tribe could not, mselves, in any manner, have increased number who were to share in lands by admting persons to cizenship, and reby decrease would be in violation two provisions treaty share members or tribe. One joint owner can do nothing to take away from or joint owner, a F i r s t, would be an appropriation and sale realty whout consent Chickasaws; and secondly, would be in violation clause treaty portion his property, or to decrease s value. power only over his own He has interest in property. The which provides lands shall be held in common, so only attempt at an argument we have ever heard made, each and every is each tribe had right to adm to cizenship, and member eher tribe shall equal undivided interest in w h o l e. " In same opinion he says: have an, refore, Uned States same thing, where tribe in Courts could do which cizenship was