Morris v. Hitchcock

21 App. D.C. 565 | D.C. Cir. | 1903

Mr. Justice Shepard

delivered the opinion of the Court:

Refore proceeding to the consideration of the substantial questions involved in the case, it becomes necessary to pass upon two grounds of the demurrer which, though overruled in the court below, have been urged on the argument as sufficient to sustain the decree dismissing the bill, regardless of all others.

The first of these is, that there is no jurisdiction for relief in equity because the remedy at law by action for damages is plain, adequate and complete.

The second is, that the Chickasaw Nation is an indispensable party to the siiit.

We agree with the court below that these objections are insufficient.

(1) Assuming the entire want of legal authority for the threatened interference with the property of the complainants, that interference, under the facts alleged in the bill, would not only be an act of wrong and oppression, but might cause irreparable damage. Watson v. Sutherland, 5 Wall. 74; Cherokee Nation v. Hitchcock, 187 U. S. 294.

Moreover, the particular case presents an additional ground why a court of equity should take jurisdiction, in that by so doing it may prevent a multiplicity of suits.

It is true, the complainants have no community of interest in the subject-matter of controversy between each of them and the defendants, because each has a separate and distinct property right that is threatened with invasion; but they do have a common interest in the essential questions of law and fact involved in the general controversy. The question of jurisdiction, however, does not depend upon this last ground alone, hence we need not engage in the controversy that has heen waged concerning its sufficiency, wherein the affirmative has been maintained by Mr. Pomeroy (1 Eq. Jur., Secs. 268— 269), and the negative, with at least equal force and learning, by Chief Justice Campbell, speaking for the Supreme Court of Mississippi. Tribette v. Ill. C. R. Co., 70 Miss. 182.

As equity has undoubted jurisdiction to restrain injuries to property when properly invoked by a single individual, all the authorities agree that a number of persons similarly situated and having a common interest in the questions of law and fact that must be determined in each case, may join, or he joined in order to avoid the vexation, costs, and sometimes delay of justice, that would result from a multiplicity of suits.

(2) A government of the dependent nature and limited powers of the Chickasaw Nation cannot be an indispensable party to a proceeding to restrain officers of the United States, who, acting under the supposed obligation of the laws of the United States as guardians of the Indians, have undertaken to perform duties assigned them by the act of the tribal legislature.

A sovereign State, even, is not a necessary party to a suit to enjoin officers charged with the collection of taxes from seizing or selling property under a law the validity of which may be attacked.

The application of the rule in this case is not affected by the second section of the act of Congress approved June 28, 1898, which reads as follows: “ That when in the progress of any civil suit, either in law or equity, pending in the United States court in any district in said Territory, it shall appear to the court that the property of any tribe is in any way affected by the issues being heard, said court is hereby authorized and required to make said tribe a party to said suit by service upon the chief or governor of the tribe, and the suit shall thereafter be conducted and determined as if said tribe had been an original party to said action.”

Passing by the question whether this section applies to proceedings in any other than the District courts within the territory, it governs in those cases only where the title to property claimed by the tribe is involved. This tax, license, charge, or whatever it may be properly called, is not the property of the tribe in the sense of the statute.

The first main contention on behalf of the appellants is, that the Chickasaw Nation had no power to enact the legislation complained of, because it has never had any legislative or governmental power or authority over white persons, not members of the nation, or over their property for the purpose of taxation.

It is undoubtedly true that the Chickasaw Nation is not a sovereign in the international sense, or in the sense that a state of the Union is sovereign; but a dependent political community under the dominion and guardianship of the United States. Cherokee Nation v. RR. Co., 135 U. S. 641; Cherokee Nation v. Hitchcock, 187 U. S. 294. Hence, the powers of its council and legislature must be exercised subject to supervision by the United States, and under the limitations of treaties made with, arid laws enacted by them.

In determining the question propounded, it is only necessary to recite certain articles of the treaties made with the Chickasaw Indians, that have been relied upon as pertinent thereto.

Article 7 of the Treaty of June 22; 1855, reads:

“ So far as may be compatible with the Constitution of the United States and the laws made in pursuance thereof, regulating trade and intercourse with the Indian tribes, the Choctaws and Ohickasaws shall be secured in the unrestricted right of self-government, and full jurisdiction over person and property within their respective limits; excepting, howevei’, all persons, with their property, who are not by birth, adoption, or otherwise, citizens or members of either the Choctaw or Chickasaw tribe, and all persons not being citizens or members of either tribe, found within their limits shall be considered intruders and be removed from and kept out of the same by the United States Agent, assisted if necessary by the military, with the following exceptions, viz.: such individualc as are or may be in tbe employment of tbe government, and their families; those peacefully travelling or temporarily sojourning in the country or trading therein, under licenses from the proper authority of the United States, and such as may be permitted by the Choctaws or Chickasws, with the assent of the United States Agent, to reside within their limits without becoming citizens or members of either of said tribes.” (11 Stat. 611.)

By Article 14, the United States obligated themselves to protect the said Indians from domestic strife, hostile invasion and “ from aggression by other Indians and white persons, not subject to their-jurisdiction and laws.”

By the treaty of April 28, 1866, the two tribes mentioned agreed to such legislation as Congress may deem necessary for the better administration of justice and the protection of rights of persons and property in the Indian Territory: “ Provided, however, such legislation shall not in any wise interfere with or annul their present tribal organization, or their respective legislatures, or judiciaries, or the rights, laws, privileges or customs of the Choctaw and Chickasaw Nations, respectively.” (14 Stat. 769.)

Article 8 of the same treaty conferred power of legislation upon all subjects pertaining to the intercourse of the Indians with each other, “ the administration of justice between members of the several tribes of the said Territory and persons other than Indians and members of said tribes or nations, the construction of works of internal improvement and the common defence and safety of the nations of said Territory.” All laws are made subject to suspension by the Secretary of the Interior or the President of the United States, and none shall be enacted inconsistent with the Constitution or laws of the United States, or existing treaty stipulations with the United States.

Under these and former treaties, the Chickasaw Indian Nation was inducted into, and has been confirmed in, the possession of a large body of public land over which, held and occupied in common, it has been permitted to exercise the powers recognized and confirmed by those treaties.

Under the duties assumed in the said treaties, and the general obligation of their relations as guardians of the Indians, the United States have from time to time enacted laws regulating intercourse with them and looking to the protection of their guaranteed rights and privileges. The older laws of the kind are found in Title XXVIII, R S.

Among the pertinent sections embodied in thau title, one prescribes a penalty for driving stock upon the lands of an Indian tribe, to graze thereon without the consent of such tribe. (Sec. 2117.) Another pi’escribes a penalty for settlement on Indian lands and the removal of settlers by the me of the militaiy force of the United States when necessary. (Sec. 2118.) By another, the Superintendent of Indian Affairs, and the agents are authorized to remove intruders by force. (See. 2147.)

A later enactment (June 12, 1858), provides that: “ The Commissioner of Indian Affairs is authorized and required with the approval of the Secretary of the Interior, to remove from any tribal reservation any person being therein without authority of law, or whose presnce within the limits of the reservation may, in the judgment of the Commissioner, be detrimental to the peace and welfare of the Indians; and may employ for the purpose such force as may be necessary to enable the agent to effect the removal of such persons.” R. S., Sec. 2149.

The right of the Indian tribes to regulate their own domestic concerns was uniformly recognized by the United States in all their treaties, dealings with, and legislation respecting the Indians; and persons, not within the exceptions of Article 7 of the Treaty of 1855, or under the permission of the tribes as provided therein, have often been removed from the tribal limits, as intruders whose presence was detrimental to the peace and welfare of the Indians, by the executive officers of the United States, without question in so far as we have been advised.

By the terms of the act, the enforcement of which is sought to be enjoined, if the privilege or permit tax be not paid upon demand, “ the presence of such live stock, and owners or holders thereof, within the limits of said. Nation, shall be deemed detrimental to the peace and welfare of the Chickasaw Indians.” If this is to be regarded as a condition of permission to enter and remain within the limits of the nation, it seems clearly within the power vested in its legislature; and persons failing to comply with the conditions become intruders, and subject to removal by the authorities of the United States. Maxey v. Wright (Court of Appeals I. T.), 54 S. W. Rep. 807. That case, which arose after the passage of the “ Curtis ” bill, involved the right of the Creek Nation— under authority similar to that claimed by the Chickasaw Nation in this case — to impose an occupation tax upon lawyers, not members of the nation. The right was upheld, and the court refused the injunction prayed for to restrain the removal of the plaintiff who had refused to pay the tax. That judgment was affirmed by the Circuit Court of Appeals for the Eighth Circuit, without a written opinion. See also 17 Op. Atty.-Gen. 134; 18 Idem, 35; 23 Idem, 214.

We are unable to agree with the contention of the appellants, that the sections of the Revised Statutes above referred to “ are not in force in the Chickasaw Nation because inapplicable to conditions existing there, and inconsistent with subsequent legislation.” It may be conceded that many of the provisions of the “ Trade and Intercourse ” laws contained in Title XXVIII, R. S., are inconsistent with subsequent legislation enacted to meet changed conditions in the Indian Territory, and are therefore to be regarded as repealed by implication.

But whilst former statutes may be repealed, or annulled by implication through the enactment of subsequent legislation, the doctrine is not a favored one, and, therefore, to work such repeal or annulment, the repugnancy between the one and the other, in relation to a particular subject-matter, must be so clear as to admit of no other reasonable construction. Cope v. Cope, 137 U. S. 682, 686. We have been cited to no special provisions of subsequent legislation that necessarily indicate the repeal or annulment of those sections, before referred to, which, in addition to the general powers of supervision of the affairs of the Indians, as long as their tribal relations shall exist, make provision for the protection of the Indians from the intrusion of strangers without their consent, in execution of treaties that have been recognized by the latest legislation affecting the nations of the Indian Territory. (30 Stat 495; 32 Stat. 641.) The particular provisions of those acts and the changes wrought thereby will be discussed later when we come to consider the effect of the leases made to the appellants by individual members of the tribe, upon their right to graze cattle within the tribal limits.

Assuming the right of the defendants to remove the owners of the cattle as intruders upon Indian lands, it is further contended that there is no corresponding right to remove the cattle, because property of the kind is not mentioned in the aforesaid removal laws, the nature of which l’equires their strict construction. We cannot yield assent to this view. The right to remove the owner of the property because his presence has become detrimental to the peace and welfare of the Indians, in our opinion, includes the right to remove his property also. Echols v. Tate, 53 Ark. 12.

The State of Arkansas is contiguous to the Indian Territory, and her laws have been adopted for the government of the latter. Like the decisions of the Court of Appeals of the Indian Territory, that of the Supreme Court of Arkansas, giving interpretation to the laws relating to the guardianship and protection of the Indians, is entitled to more than ordinary weight.

The entry and persistent residence of unlicensed persons within the limits of the Chickasaw Nation, for the purpose of grazing cattle upon lands therein, may create a continuing nuisance of serious character and consequences. When, in the judgment of the Commissioner of Indian Affairs, (R. S. 2149) this presence is detrimental to the peace and welfare of the Indians, it becomes his plain duty to remove the persons by force if necessary. If this cannot be done by removing the owners, then we see no reason why he should not abate the nuisance by the removal of the cattle; for it is the grazing of herds of cattle that constitute the gravamen of the nuisance, whether they be controlled by the owners in person, or through agents who may be members of the nation, or otherwise entitled to reside within its boundaries.

It is by the removal of the cattle that the peace and welfare of the Indians are to be secured.

The exercise of the discretion of the executive officers of the United States in such cases is not subject to review in this proceeding; but, if it were, we could scarcely find a better foundation for it in the present case, than in the formal declaration of the Indian legislature.

We are inclined to the view that the charge imposed by the Indian legislature is to be regarded as a condition of the admission of cattle to graze upon Indian lands, by way of a license fee or tax, and not as of the nature of a regular tax upon property of the kind. This intention is indicated in the act, which does not provide for the seizure and sale of the cattle for the tax, but merely for their removal, that is to say, the withdrawal of permission, as the sole condition of nonpayment.

But in either view, we regard the act as within the legislative power of the Chickasaw Nation.

The Indian treaties, as we have seen, recognized and guaranteed the existence of a tribal government by the Chickasaw Nation within the limits assigned thereto.

A government of the kind necessarily has the power to maintain its existence and effectiveness through the exercise of the usual power of taxation upon all property within its limits, save as may be restricted by its organic law. Any restriction in the organic law in respect' of this ordinary j)ower of taxation, and the property subject thereto, ought to appear by express provision or necessary implication. Board Trustees v. Indiana, 14 How. 268, 272; Talbott v. Sliver Bow Co., 139 U. S. 438, 448. Where the restriction upon this exercise of power by a recognized government, is claimed under the stipulations of a treaty with another, whether the former be dependent upon the latter or not, it would seem that its existence ought to appear beyond a reasonable doubt. We discover no such restriction in tbe clause of Article Y of tbe Treaty of 1855, which excepts white persons from the recognition therein of the unrestricted right of self-government by the Chickasaw Nation, and its full jurisdiction over persons and property within its limits. The conditions of that exception may be fully met without going to the extreme of saying that it was also intended to prevent the exercise of the power to consent to the entry of noncitizens, or the taxation of property actually within the limits of that government and enjoying its benefits. The power of the Creek Nation — under treaties identical with those made with the Chickasaw Nation- — -to impose an occupation tax upon a citizen of the United States, licensed to trade therein, has been upheld by the Circuit Court of Appeals for the Eighth Circuit. Crabtree v. Madden, 54 Fed. Rep. 426, 429. In that ease it was said by Sanborn, C. J. r “ These treaties and this legislation demonstrate that this-tribe has carefully preserved its separate political identity, and that it is still managing its own affairs, and exercising, through officers of its own selection, legislative, executive and judicial functions within its territorial jurisdiction. The tax which it is sought to collect by this action was imposed by the laws of the tribe. If the tribe had lawful authority to impose it, it had equal power to prescribe the-remedies and designate the officers to collect it.” The same doctrine as regards the right of the Cherokee Nation to impose a tax upon hay exported therefrom, though cut under valid contracts with the lawful occupiers of Indian lands, has been maintained by the Attorney-General in a recent opinion given upon the request of the Secretary of the Interior. 23 Op. Atty.-Gen. 528.

The right to impose this hay tax came before the Court of Appeals of the Indian Territory in a recent case, but was not determined, because the Indian legislative act was not proved, and the court declined to take judicial notice of it. Kelly v. Churchill, 69 S. W. Rep. 817.

Some of the expressions, however, of the same court in another case (Buster v. Wright, 69 S. W. Rep. 882), would seem to be opposed to tbe view that property, as well as tbe owner thereof refusing to pay a tax, may be removed from the territory. The case arose in the town of Wagoner on a bill brought by citizens of the United States to enjoin their removal, and the closing of their place of business for refusal to pay the Indian tax. The court reaffirmed the doctrine enounced in Maxey v. Wright, as to the right of removal of the person, but denied the right to close the place of business of the complainants, saying: “ The one is the enforcement of a penalty for being an intruder; the other, if allowed, would be the means of collecting a debt.'"’ Without going into the consideration of the effect of various acts of Congress relating to town sites and municipal corporations organized therein, it is sufficient to say that the decision was not necessary to the disposition of the case, because, after the decree below, Congress passed the act of May 27, 1902, making it unlawful to remove any person in lawful possession of a lot or parcel of land in any designated town site. Moreover, the view that the tax was of the nature of a debt to be collected by judicial process — unless there has been some additional legislation by Congress not referred to in the opinion —• is opposed to the decision of the Circuit Court, of Appeals before referred to. Crabtree v. Madden, 54 Fed. Rep. 426, 431.

A further contention on behalf of the appellants is, that assuming the right to regulate the occupation of Indian lands and to remove intruders and their cattle therefrom under the former treaties, and acts of Congress in aid of their guaranties, an exceptional condition has been created by certain special provisions of the agreement embodied in the “ Curtis ” bill, to the benefits of which they are entitled by virtue of contracts made with individual members of the Chickasaw Nation.

The bill, it will be remembered, alleges that the cattle of complainants are grazing upon land in the Chickasaw Nation that has been held, used, and claimed by individual Indians of said nation as their approximate shares upon allotment, under contracts with, and upon terms satisfactory to said individual Indians. Tlie additional allegation, that there is not now, and for four years has not been any public domain of said nation; but that practically all the land in the nation is now enclosed, claimed and occupied by individual members of the nation as their approximate shares upon allotment, by reason of which the nation has no longer jurisdiction over the same, states a conclusion of law that is not admitted by the demurrer.

The “ Curtis ” bill, approved June 28, 1898, has undoubtedly woi'ked a great change in the public policy heretofore controlling relations with the Chickasaw and other nations of the Indian Territory. It provides for an allotment of the lands among the individual members of the nation upon certain terms and conditions. It abolishes the tribal courts, but maintains the tribal organization for eight years from March 4, 1898, with legislative power, which when exercised in certain particulars must be approved by 1he President of the United States. These eight years of tribal organization were provided to give ample time for the settlement of ail disputes as to membership, for the allotment of the lands, and for preparation for statehood; and upon their expiration the Chickasaws will become possessed of all the rights and privileges of citizens of the United States. Section 11 of this act provides that the lands susceptible of allotment, with some reservations, shall be allotted to citizens of the nation, giving each his fair and equal share thereof. Section 16 reserves to the tribe the rents and royalties for the use of minerals and timber, and provides that where any citizen shall be in possession of such lands as would be his reasonable share, he may continue to use the same and receive the rents thereof until allotment shall be made to him. Section 23. annuls all leases of agricultural and grazing land by January 1, 1900; “but this shall not prevent individuals from leasing their allotments wrhen made to them as provided in this act, nor from occupying or renting their proportionate shares of the tribal land until the allotments herein provided for are made.”

Allotments are to be made under the general supervision of the Secretary of the Interior, and he is empowered to appoint an Indian inspector to perform the duties required of the Secretary. (That officer is one of the defendants in this case.)

Without giving further details of the act, it is sufficient to say in the language of Maxey v. Wright, supra: “The ‘ Curtis Bill,’ from beginning to end recognizes this continued authority of the Secretary of the Interior Department, and in many instances enlarges it.” And it was further said in the same case: “ Whatever effect the ‘ Curtis Bill ’ may. have upon the Creeks (Chickasaws) it has not yet been carried into operation so far as it changes their title to their lands, or their tribal relations with the United States.”

The “ Curtis Bill ” has been amended by the act approved July 1, 1902 (32 Stat. 641). These amendments do not affect the sections of the former law above referred to, but make some changes in respect of allotments. It requires that three hundred and twenty acres shall he allotted to each' member of the tribe, of which one hundred and sixty acres shall constitute a homestead, and be inalienable for twenty-one years from the date of the certificate of allotment. The remaining land shall be alienable after issue of patent as follows: one-fourth in one year, one-fourth in three years, and the remainder in five years; provided, however, that it shall not be alienable at any time before the expiration of the tribal governments for less than its appraised value. These provisions fully confirm the extract above made from the opinion in Maxey v. Wright.

Neither of the aforesaid acts of Congress undertakes to repeal or annul the provisions of the Revised Statutes that have been before mentioned, looking to the protection of the Indians from intruders upon their lands. We are, therefore, of the opinion that as long as the tribal government shall exist with the modified powers of government recognized in the “ Curtis Bill,” those laws will remain in full force. Consequently, the power conferred upon individual Indians of leasing their several proportions of the tribal lands, must be exercised in subordination to those laws, and subject to tbe jurisdiction of the nation within the governmental powers still remaining therein. Included in these, as we have seen, and subject to the approving power of the President of the United States, are the power to impose conditions upon the entry of unauthorized persons, and the power to impose taxes by way of condition, or license, or upon property generally. At least until the allotments shall have been made, if not until the tribal government shall end by the terms of the act of 1898, the title to the lands, to the extent recognized by the United States, remains in the nation. Cherokee Nation v. Hitchcock, 187 U. S. 294.

■ "Whether the duty of enforcing its regulations, or collecting its taxes can be imposed upon the Secretary of tbe Interior and bis subordinates, by the legislature of the Chickasaw Nation, is a question that is not involved in the case.

By the terms of the “ Curtis Bill,” the laws of the nation were denied enforcement in the courts of the United States for the Indian Territory. (Sec. 26.)

Section 28 abolishes all of the tribal courts. Another section authorizes the Secretary of the Interior to appoint an Indian inspector in the territory who may, under his authority and direction, perform any duties required of the Secretary relating to affairs therein. (Sec. 27.)

The administrative control of the affairs of the Indians by the United States, through their executive officers, not only remains unimpaired, but has been increased.

The abolition of the tribal courts and the taking away from the territorial courts of the United States of all jurisdiction to enforce tribal laws, would, under the expressly continued legislative power of the nation, render those laws wholly inoperative without the assistance of the executive officers of the United States. It is unnecessary to refer to the various sections of the Bevised Statutes investing these officers with power to superintend and control the affairs of the Indians.

• Under those laws and the provisions of the “ Curtis Bill,”’ we are of the opinion that the Secretary of the Interior had the right, if it were not his duty, to enforce an enactment ■within the powers of the legislature of the Chickasaw Nation that had received the requisite formal approval of the President of the United States.

We regard it as unnecessary to consider the several articles -of the regulations prescribed by the Secretary of the Interior for the complete enforcement of the act in question, in order to determine whether they add to its provisions, or ■exceed its objects, or are beyond the general powers invested in him for the control of Indian affairs. Those articles looking to the ascertainment of the permit tax, the dates of commencement, the giving of notice, and the like, are not involved in the case. The appellants admit the occupation of the lands, and the refusal to pay the tax under any conditions. The single question then is, whether, failing to pay the tax, they and their cattle may be removed from the territory of the Chickasaw Nation by the Secretary of the Interior and the officers acting under his direction; and that has been determined.

Other propositions that have been argued need not be discussed, as they are included in the conclusions before ■enounced.

The decree dismissing the bill was right, and will be affirmed, with costs. It is so ordered. 'Affirmed.

A writ of error to the Supreme Court of the United States was prayed by the appellants and allowed, April 21, 1903.

Case Details

Case Name: Morris v. Hitchcock

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 7, 1903

Citation: 21 App. D.C. 565

Docket Number: No. 1273

Court Abbreviation: D.C. Cir.