5 Indian Terr. 646 | Ct. App. Ind. Terr. | 1904
Lead Opinion
The appellants have filed two specifications of error, as follows: "(1) The court erred in overruling the demurrer filed by appellants. (2) The court erred in rendering judgment against appellants, perpetually enjoining them from carrying out the orders of the Secretary of the Interior to close the stores of the appellees in the city of South McAlester because of their failure to secure the legislative permit of the nation to expose goods, wares, and mei’chandise for sale.”
To have a clear understanding what relief appellees sought when they asked to enjoin appellant Shoenfelt, we must consider what Shoenfelt proposed to do. The allegation in their complaint is, that, unless they paid the amount “demanded by the Choctaw Nation for the privilege of doing business in the Choctaw Nation,” he would close their stores. The demand, then, was a demand of the Choctaw Nation for the exercise of the privilege of doing business — simply a license or permit fee. This is not a tax, in the ordinary acceptation of that term, and can only be so designated in the sense that any exaction by governmental authority might be called a tax; but as applied in this case the term is inaccurate, and to call it a debt is without authority in the decisions of any court. A license fee is a sum demanded of an individual in return for the grant of a privilege, which he did not previously possess. A tax, as ordinarily understood, is a contribution demanded by a sovereign from his subjects, as one evidence of their allegiance, in return for his protection. But these tribal governments are not sovereign in any such a sense. Sovereignty, in its very nature, implies unlimited jurisdiction over persons and property within its territorial limits. In the very nature and structure of our government, there can be but two sovereignties — the sovereignty of the federal government and that of the states. Mr. Justice Miller, in the ease of United States vs Kagama, 118 U. S. 375, 6 Sup. Ct. 1109, 30 L. Ed. 228, happily expresses this idea: “But these Indians are within the
What is, then, the relation of these tribal governments to the government of the United States? It is essential that this relation should be clearly understood, in order that we may correctly apprehend the questions submitted to us upon this appeal. In Cherokee Nation vs Kansas Railway Company, 135 U. S. 653, 654, 10 Sup. Ct. 969, 970, 34 L. Ed. 295, Justice Harlan, in delivering the opinion of the court, says: “From the beginning of the government to the present time, they have been treated as ‘wards of the nation/ ‘in a state of pupilage/ ‘ dependent political communities/ holding such relations to the general government that they and their country, as declared by Chief Justice Marshall in Cherokee Nation vs Georgia, 5 Pet. 1, 17, 8 L. Ed. 25, ‘are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands or to form a political connection with them would be considered by all as an invasion of our territory and an act of hostility.’ ”
We know, as a matter of history, that the Indians embraced in the different tribes or nations originally occupied the territory now included within the United States and territories. Neither the white man, after his settlements, • nor the colonial governments or foreign governments, ever recognized any Indian title, other than that of possession or occupancy of the country. The territory now within the limits of the Choctaw Nation was a part of the Louisiana Purchase, and was ceded to the government of the United States by France in 1803. By treaty of August 24, 1818 (7 Stat. 176), the Quapaw Indians relinquished to the United States their claim to a large tract of country, in-
It will thus be seen that the Choctaw Nation is not holding its territory by simple occupancy, but by a patent conveying and describing by metes and bounds the territory conveyed to it by the United States government. Its relations to the government
It thus clearly appears by the treaty of 1855 that the Choctaws and Chickasaws shall be secured in the unrestricted right of self-government, and full jurisdiction — where? “Within their respective limits.” They are not to have jurisdiction over noncitizens and their property “found within their limits,” and such shall be considered intruders and be removed, but an exception to those to be removed are those “trading”' therein under license from the United States;” and by the treaty of 1866, art. 39. “No person shall expose goods for sale as a trader without a permit of the legislative authorities of the nation he proposes to trade in;” the treaty of 1855 being thus modified by the later treaty of 1866 so that the license shall be granted by the legislative authorities of the nation, instead of by the government of the. United States. By the express terms of the treaties, the only persons to be removed are the non-citizens “found within their limits,” but “traders” are not to expose goods for sale without a permit from the legislative authorities, and are expressly excepted from those to be removed. The appellees, by their own complaint, admit that they are traders “without license from the
As has heretofore shown, these Indian tribes are not sovereign. The United States government is their sovereign, and, when the Constitution of the United States gave to Congress the power “to regulate commerce with foreign nations and among the several states and with the Indian tribes,” it placed the whole subject of intercourse with Indians in the hands of Congress. The courts on numerous occasions have spoken of them as domestic dependent nations, as wards of the government of the United States, and of the government as the guardian of these Indian tribes and people. We must therefore look to the treaties, agreements, and acts of Congress to determine the power of these limited Indian governments, and also to learn what obligations the government of the United States has imposed upon itself in its care and supervision of its Indian wards. By the treaty of 1855 the United States obligates itself to secure to the Choctaws and Chickasaws the unrestricted right of self-government “within their respective limits,” and by the treaty of 1866 it obligates itself to see that “no person shall expose goods for sale without a permit.” Are these provisions of those treaties still in force?
It is expressly agreed by the learned counsel for the appellees that this license fee was a legal imposition, but they say, when Congress and the Choctaws and Chickasaws entered into the Atoka agreement, that, by the provisions thereof segregating the land within the boundaries of the respective municipalities, they by implication repealed the provision of .article 39 of the treaty of 1866. It is not claimed that there was any express repeal. By the treaty of September 27, 1830, art. 2 (7 Stat. 333), it is provided that “the United States, under a grant specially to be made by the President of the United States, shall cause to be conveyed to the Choctaw Nation a tract of country west of the
Repeals by implication are not favored, and the rule has frequently been declared, when a repeal of a former statute is sought by the enactment of a subsequent statute 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. In 9 Op. Attys. Gen. p. 47, it is said: “It is so easy for the Legislature, in making one law, to say that another law on the same subject is repealed, and when it is meant it is so likely to be said, that we never presume it when' it is not said, unless the two laws are in such palpable conflict that both cannot be executed. When different statutes give to different persons privileges or powers which cannot subsist together, the latter grant must of necessity be construed as a withdrawal of the earlier one. But in order to justify such a construction, it must appear to be a ease of flat repugnancy or of irreconcilable inconsistency.” In Ex parte Crow Dog, 109 U. S. 570, 3 Sup. Ct. 405, 27 L. Ed. 1030, Justice Matthews says: “Implied repeals are not favored. The implication must be
The Attorney General of the United States, on this question, in his letter advising the Secretary of the Interior, under date of September 7, 1900, says: “But however this may be, and even if the Indian title to the particular lots sold has been extinguished, and conceding that the statute authorizes the purchase of such lots by an outsider, and recognizes his right to do so, the result is the same, for the legal right to purchase lands within an Indian nation gives the purchaser no right of exemption from the laws of such nation, nor does it authorize him to do any act in violation of the treaties with such nation. These laws requiring a permit to reside or carry on a business in the Indian country existed long before and at the time this act was passed. And if an outsider saw proper to purchase a town lot under this act of Congress, he did so with the full knowledge that he could occupy it for a residence or business only by permission from the Indians. I do not say that Congress might not violate its treaty promises, and authorize the outside world to enter upon and occupy the lands of the Indians without their consent, but do say that provisions very different from any contained in this act would be required to justify the imputation of any such intention. All that this act does in this respect is to give the consent of the United States to such purchase, with the assumption that the purchaser, if he wishes to occupy, will comply with the local laws just as in other cases. The United States might sell land which it holds in a state, but it would be a strange contention that this gave the purchaser any immunity from local laws or taxation. The case is much like that of a federal license to manufacture and sell spirituous liquors, which, while good against the United
By the treaty of 1830, heretofore quoted, the tract of country conveyed to the Choctaws is “to inure to them while they shall exist as a nation and live on it,” and by treaty of 1855 they are to have unrestricted right of self-government “within their respective limits.” The lots in the different municipalities segregated under the Atoka agreement were not sold to non-citizens alone, but to Indians as well. By the same agreement it is provided: “In view of the modification of legislative authorities and judicial jurisdiction herein provided, and the necessitjr of the continuance of the tribal governments so modified, in order to carry out the requirements of this agreement, that the same shall continue for the period of eight years from the fourth day of March, eighteen hundred and ninety-eight. This stipulation is made in the belief that the tribal government so modified will prove so satisfactory that there will be no need or desire for further change till the lands now occupied by the Five Civilized Tribes shall, in the opinion of Congress, be prepared for admission as a state of the Union. But this provision shall not be construed to be in any respect an abdication by Congress of power at any time to make needful rules and regulations respecting said tribes.” It is thus expressly provided that these tribal governments shall continue for a period of eight years from the 4th day of March, 1898, and until they expire they certainly exist as a nation, and have unrestricted jurisdiction “within their respective limits.” Why? Because Congress has said so.
By the foregoing repeal of the authority to remove intruders, counsel for appellees contend that no penalty is left to the Choctaw Nation to prohibit traders from exposing goods for sale- without license. It is persistently assumed that intruders and traders who expose goods for sale without license refer to the same class of people, and that the repeal of the penalty against the enforcement of the quasi penal statute against intruders repeals the statute which prohibits traders to expose goods for sale without license. No authority is cited, and the contention has heretofore been shown to be incorrect.
When Congress found the Indian question was not settled, and it had no more reservations to which to remove the Indians, it appears to have arrived at the conclusion to allot the lands in severalty, establish municipal governments in thickly settled portions of the territory, and, so far as possible consistent with its sacred obligations as guardian for innocent wards, to comply with the wishes of the clamorous white settlers of the Indian Territory to be placed in possession of the earth and the fullness thereof. Having sold the lots in. the town sites under the provisions of the Atoka agreement, it acted justly when it repealed the authority to remove intruders who had purchased any of those lots. But nowhere and at no time has Congress said that persons desiring “to expose goods for sale” shall not pay a license. fee as provided in the treaty of 1866, and courts of justice, when called upon by traders who confess to be violating the laws,
Before an injunction can issue restraining the Secretary of the Interior, or those acting under him, it must appear that he was'not authorized to exercise discretion of judgment in the premises. How can this be said? In this very case the Secretary of the Interior, as was his duty, called upon the Attorney General of the United States for an opinion, which was rendered, and under which he was proceeding to act. Can it be said that action taken under these circumstances is not that calling for the exercise of the highest judgment and discretion? It is certainly true that, if such action can be taken, it can only be done upon some principle not heretofore announced, and will constitute a departure involving the gravest consequences. If this can be done, then the executive department of the government can, on the varied matters committed to its care in the Indian Territory, only act under the direction of the United States Courts established within this jurisdiction.
The absolute power and dominion of the United States in the exercise of its political and administrative power in dealing with Indians and Indian property is illustrated and asserted in numerous decisions. We cite Cherokee Nation vs Georgia, 5 Pet. 1, 8 L. Ed. 25; Johnson vs McIntosh, 8 Pet. 543, 5 L. Ed. 681; United States vs Kagama, 118 U. S. 375, 6 Sup. Ct. 1109, 30 L. Ed. 228; Choctaw Nation vs United States, 119 U. S. 1, 7 Sup. Ct. 75, 30 L. Ed. 306; Cherokee Nation vs Southern Kansas Railway Co., 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295; Stephens vs Cherokee Nation, 174 U. S. 445, 19 Sup. Ct. 722, 43 L. Ed. 1041. In Lone Wolf vs Hitchcock, 187 U. S. 553, 23 Sup.Ct. 216,
The courts will take judicial knowledge of the'rules and regulations of the executive of the government. See Caha vs United States, 152 U. S. 221, 14 Sup. Ct. 517, 38 L. Ed. 415. In this case Justice Brewer says: “It maybe laid down as a general rule deducible from the cases that wherever, by the express language of any act of Congress, power is intrusted to either of the principal departments of government to prescribe rules and
In Re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55, Justice Miller, discussing the powers of the executive departments of the government, says: “In the view we take of the Constitution of the United States, any obligation fairly and properly inferable from that instrument, or any duty of the marshal to be derived from the general scope of his duties under the laws of the United States, is ‘ a law,’ within the meaning of this phrase. It would be a great reproach to the system of government of the United States, declared to be within its sphere sovereign and supreme, if there is to be found within the domain of its powers no means of protecting the judges, in the conscientious and faithful discharge of their duties, from the malice and
That the order of the Department of the Interior in this matter is a legal writ of process, and not in violation of article 5 of the amendments to the Constitution of the United States, see United States vs Mullin (D. C.) 71 Fed. 682. This authorised the action of the appellants.
The treaty of 1866 says no person shall expose goods for sale without a permit, and counsel for appellees say: “But the penalty has been repealed, and that repeals the statute. Therefore the President is powerless to do anything.” This does not seem to coincide with the views of Atty. Gen. Black upon that condition of things. In 9 Op. Attys. Gen., 519, Atty. Gen. J. S. Black says: “The acts of Congress sometimes give the President a broad discretion in the use of the means by which they are to be executed, and sometimes limit his power so that he can exercise it only in a certain prescribed manner. Where the law directs a thing to be done without saying how, that implies the power to use such means as may be necessary and proper to accomplish the end of the Legislature. But where the mode of perforfning a duty is pointed out by statute, that is the exclusive mode, and no other can be followed. The United States have no common law to fall back upon when the written law is defective. If, therefore, an act of Congress declares that a certain thing shall be done by a particular officer, it cannot be done by a different officer. The agency which the law furnishes for its own execution must be used to the exclusion of all others.” In 19 Op. Attys. Gen. p. 515, Atty. Gen. Miller, in discussing the powers of the Postmaster General, says: “Power to establish post offices and postroads is conferred upon Congress, but the policy of the government from the time the general post office was established has been to delegate the power to designate the places where the
“It is not within the legitimate province of a court of equity to assist a wrongdoer, like the appellee, in retaining the possession of property which it has acquired in open violation of an act of Congress, when the party against whom relief is sought is an officer of the United States who is acting under the direction and control of the Secretary of the Interior.”
We are of the opinion, after a careful examination of the record and briefs filed in this case, that the judgment of the court • below should be reversed, the demurrer sustained, and the complaint dismissed by this court, and it is so ordered.
Concurrence Opinion
concurs in the judgment of the court.in reversing the lower court, but does not assent to either the reasons assigned in the opinion for the reversal, nor certain conclusions reached therein by the court, and assigns his reasons as follows:
A complete statement of the case is found in the opinion of the court preceding, and I will but summarize. Appellees are
Plaintiffs allege that they are citizens of the United States residing and carrying on business in the city of South McAlester; that said city is duly incorporated as permitted by law; that plaintiffs, and each of them, are engaged in mercantile business in said city of different kinds, carrying stocks of merchandise ranging in value from $500 to $75,000; that a number of plaintiffs are the owners in fee of the lots of ground on which their business houses are located within said city, and own the buildings in which they are doing business, and that all of plaintiffs are in lawful possession of the lots upon which they are doing business; that they have made all payments thereon required by law, and are not in default of anything by law required of -them, but are ready and willing and intend to pay the amounts which shall become due under the Atoka agreement; that on April 23, 1897, the Atoka agreement was entered into between the Choctaw and Chickasaw Nations and the United States, by the provisions of which lands within said city were segregated from the public domain of the Choctaw Nation and set apart as a town site; that
Appellants make the following assignments of error:
“(1) The court erred in overruling the demurrer filed by appellants. (2) The court erred in rendering judgment against appellants perpetually enjoining them from carrying out the orders of the Secretary of the Interior to close the stores of the appellees in the city of South McAlester because of their failure to secure the legislative permit of the nation to expose goods, wares, and merchandise for sale.”
Appellants, in the first assignment of error, say the court erred in overruling the demurrer to the complaint. The demurrer is as follows:
“Come now the defendants, J. W. Zevely, Acting United '• States Indian inspector, J. Blair Shoenfelt, United States Indian agent, Union Agency, John West, Alf McKay, J. F. Wisdom, and demur to the complaint of the plaintiffs, and for ground therefor state:
“First. Because the bill in equity of the plaintiffs filed in this case does not state facts sufficient to entitle them to the*679 relief prayed for, and because the same states no_ cause of action.
“Second. Because the defendants committed the acts complained of in their capacities as officials, as.stated in said bill, acting under the authority conferred upon them by law as such officials, and the direct orders of their superiors in office, whom they are bound to obey. That the defendants, in all of the acts complained of, were lawfully acting within the scope of the authority conferred upon them by law, and m the exercise of the discretion vested in them by their superiors in office, as a coordinate branch of the government, acting within the legitimate scope of its authority. That said action is in conformity with the long-established construction of the laws of the United States relating to Indian affairs, and the treaties entered into between the Ünited States and the Choctaw or Chickasaw Nations or tribes of Indians. That, in order that the authority under which defendants have acted may fully appear, the following letters and communications are hereto attached as exhibits, to wit:
“Marked ‘A.’ A letter from the office of the United States Indian inspector to the United States Indian agent, dated April 18, 1903, advising him of the ruling of the honorable Secretary of the Interior that stores should be closed for noncompliance with the tribal laws.
“Marked ‘B.’ A letter from the United States Indian-inspector to the United States Indian agent dated April 20, 1903, instructing hilm to personally notify certain persons and firms reported by the Principal Chief as having failed to pay the tribal tax.
“Marked ‘C.’ A letter from the United States Indian inspector to the United States Indian agent dated May 4, 1903, transmitting report of the principal Chief of the Choctaw Nation*680 that certain persons and firms named still refused to pay the tax demanded, and instructing him to close the places of business of such persons and companies unless such tax was paid.
■ “Marked ‘D.' A copy of an order of the United States Indian agent dated May 5, 1903, to the captain of the Indian police, directing him to close the places named.
“Marked ‘E.’ A copy of the notice served by the United States Indian agent upon all persons named.
“Third. Because the court has no jurisdiction over the parties and subject-matter of this action.
“Fourth. Because, the premises considered, the court has no jurisdiction of power to control by injunction or otherwise the discretion vested by law in the defendants as a part of a coordinate branch of the government, acting within the scope of its authority.”
If, for any of the four reasons assigned as grounds for demurrer, the court erred in overruling it, the case must be reversed for such error. |(
Section 5028, Mansf. Dig. (Ind. Ter. St. 1899, § 3233), defines a demurrer: “Sec. 5028. The defendant may demur to the complaint where it appears on its face, either, first, that the court has no jurisdiction of the person of the defendant orthe subject-matter of the action; or, second, that the plaintiff has not legal authority to sue; or, third, that there is another action pending between the same parties for the same cause; or fourth, that there is a defect of parties plaintiff or defendant; or, fifth, that the complaint does not state facts sufficient to constitute a cause of action.”
An examination of the second and fourth grounds of demurrer in this ease shows that they do not come within the office of a demurrer at all, but the facts stated therein and the exhibits referred to therein might properly be matters of defense if stated in an answer.
By this demurrer we are driven only to examine the face of the complaint in two respects: First, does it state a cause of action? And, second, did the court have jurisdiction over the parties and subject-matter of the action? These are the only matters properly before this court for consideration.
The demurrer admits all the facts well pleaded in the complaint as true, and on its face I must say that under the law the court has jurisdiction of both subject-matter and parties. But does this complaint state facts sufficient to constitute a cause for action?
That part of the Atoka agreement referred to in the com-plaintand pertinentis asfollows: “Itisfurther agreed that there. shall be appointed a commission for each of the two nations,” who “shall lay out town sites,” who “shall have prepared plats” to be “filed” and “approved” before same ‘-shall take effect.” “When said towns are so laid out, each lot on which permanent, substantial and valuable improvements, other than fences, tillage, and temporary houses, have been made, shall be valued by the commission, provided for the nation in which the town is located at the price a fee-simple title to the same would bring in the 'market at the time the valuation is made, ‘but not to include in such value the improvements thereon. The owner of the improvements on each lot shall have the right to buy one residence
There is no doubt in my mind, that so long as the Choctaw Nation retains the title to the land in the nation, whether situated within incorporated towns or otherwise, such nation has the right, under the laws of and the ti’eaties with the United States— particularly article 39 of the treaty of 1866 — to require that “no person shall expose goods or other articles as a trader without a permit of the legislative authorities of the nation he may propose to trade in,” 'but Choctaw citizens are not required to have such permit. Nor is there any doubt in my mind that until patent shall issue from the Choctaw Nation, conveying the title to lots in the incorporated town site of South McAlester to purchasers thereof under the Atoka agreement, the nation still retains the title therein, unless full payment therefor as provided in said agreement shall have been made. Mere delay in the issue of the patent by the nation would not suffice to continue the title in it, provided all the conditions required of the purchaser under the agreement had been met. But the allegations in the complaint do not show that one single plaintiff named therein either had a patent for his lot in said town site, or was at the date of filing the complaint entitled to a patent, but shows to the contrary. It follows, then, as a matter of course, if my premises are correct, that until patent from the Choctaw Nation has issued, or is at least due by reason of the fulfillment of all conditions re
It ordinarily would be sufficient for one assenting to a judgment to stop after having given the reasons for such assent. But this case is of vast importance, and, as I view the law, the opinion of the court is based not only on a misconstruction of the issues raised by the demurrer, but the reasons assigned in the opinion, if the issues of fact were properly before the court, are insufficient, in my opinion, as a base for the conclusions reached.
If the complaint, in addition to other matters complained of, showed by its allegations that the title to the town site of South McAlester had actually passed from the Choctaw and Chickasaw Nations by unconditional conveyance, or that plaintiffs, as lot holders, had performed all conditions precedent required by the Atoka agreement to entitle them to patent for such lots — a condition which is assumed as a fact in the opinion of the court — I would be compelled to dissent from the conclusions arrived at in such opinion, as the questions to be decided would be altogether different from those properly raised by the demurrer to the complaint. I would then have to decide: First. Whether article 39 of the treaty of 1866 between the United States and the Choctaw Nation had been repealed in so far as related to
Has article 39 of the treaty of 1866 been repealed, so far as incorporated town sites are concerned? The article is as follows: “Art. 39. No person shall expose goods or other articles for sale as a trader without a permit of the legislative authorities of the nation he may propose to trade in.” But Choctaw citizens within the nation are not required to have a permit. Article 39 forbids every person, except Choctawr citizens, from “exposing goods or other articles for sale as a trader in the Choctaw Nation except such person has a permit from the legislative authorities of the nation.” Nothing is said in the article which authorizes the nation to make a money charge, in any way, shape, or form, for the privilege of exposing goods for sale in such nation as a trader." The permit evidently contemplated it to be given by the Legislature — that each proposed trader first have a grant from the legislative authorities of the nation before he was authorized to expose goods and other articles for sale therein as a trader, There
Where, then, do defendants obtain their authority to demand of the plaintiffs the payment by plaintiffs to the nation of any sum of money for the privilege of exposing goods and other articles for sale in the Choctaw Nation? It does not appear in the case at bar, but, should we waive the consideration of this very vital question, has not article 39 been repealed, so far as town sites duly incorporated under United States laws are concerned?
Perhaps a review of some of the legislation leading up to the present conditions in this section will be appropriate. Slowly at first, but more and more rapidly later on, all of the Five Civilized Tribes permitted the ever encroaching whites to occupy portions of their several nations, thus allowing the barriers of the law isolating each nation to be broken down. The strict rules of an earlier date under the treaties were relaxed, and more and more relaxed by the Indians themselves, until in 1889 Congress found such conditions existing in the Indian Nations composing the Five Civilized Tribes that it was compelled to the act of March 1st of that year, c. 333, 25 Stat. 783, providing for the establishment of a United States Court in Indian Territory, and the enactment of certain general laws for it; in this way dealing with the whole of these tribes as a unit, whereas before they had been dealt with separately by treaty. This was followed by the act of May 2, 1890, c. 182, 26 Stat. 81, enlarging the jurisdiction
When Congress by the act of May 2, 1890, c. 182, 26 Stat. 81, provided that Mansfield’s Digest of the Laws of Arkansas in reference to municipal corporations should obtain in Indian Territory, it made its first attack upon the Choctaw Nation as Indian country, and recognized that white men were here, and legally so, and had gathered themselves into communities sufficient in number to entitle them to be incorporated as towns, and to be in need of a system of municipal government, and entitled to protection in their rights/and made the contracts between the
Here we have a peculiar situation, indeed, if article 39, as to South McAlester is still in force. A Choctaw citizen is to be regarded and taxed on his property in the town as any other citizen — he may be required to pay an occupation tax or pay for public privileges in the town — yet article 39 specially excepts him from so doing in the Choctaw Nation. Again, a citizen of the United States pays his taxes to South McAlester for occupation tax or otherwise and yet defendants claim the right to close his store and prevent his pursuing his business or occupation without other authority than a rule of the Secretary of the Interior promulgated primarily to aid in the execution of a penalty, authority for which is abrogated by statute. And this in view, of the fact that in section 29 of the act for the protection of the people of June 28, 1898, c. 517, 30 Stat. 505, it is provided:
We may say truthfully that although the reason of a law has failed, from changed conditions of society or otherwise, nevertheless the law itself may still be enforced, unless it has in, some way been repealed. True it is again that repeals by impli
The leading case in the United States Supreme Court upon this subject is that of the United States vs Tynen, 11 Wall. 88,
I am constrained to hold that the adoptiop of the Atoka agreement by the United States and the Choctaw Nation, relating to town sites, and the adoption of sections 14 and 29 of the Curtis bill (chapter 517, 30 Stat. 499, 505), and the carrying into effect of the provisions of said section 14 and of said agreement by sale of the town site to plaintiffs and others, and the repeal of the only statutory penalty for violation of such article 39, as to town sites, are so repugnant and incompatible to the enforcement of article 39 of the treaty of 1866 as to be equivalent to the repeal thereof, so far as the town site of South McAlester and other-towns similarly situated are concerned, if we take the fact to be, as to said town- sites, that the Choctaw Nation no longer has
Is South McAlester longer to be considered as Indian country, the Choctaw Nation having parted with its title therein? Under the Atoka agreement, it is questionable, at least, whether the Choctaw Nation has not absolutely and in terms surrendered its jurisdiction and control over South McAlester, and towns in its nation similarly situated, after segregation, platting, appraising, filing its plat, and approval thereof, by the honorable Secretary of the Interior, and sale of the lots in the town site, whether the purchase price has been paid in full or not. All that remains for the Choctaw Nation to do in the matter is to issue its patents and receive its pay from the United States. The nation can by no process of law recover the segregated lands. If the first purchasers default in payment, the lots are to be resold.
It is a matter of notoriety that, at the time of the filing of this complaint, South McAlester was a city of four or five thous- and inhabitants, situated in a populous region, surrounded on all sides by mining and manufacturing industries, with two great railway systems centering the town, with graded streets and sidewalks, and hundreds of business houses and residences — some of the business houses, of large dimensions, and carrying immense stocks of goods, valued at many thousands of dollars, with electric lights, telephone systems, and motor car systems, with great educational institutions maintained from the municipal taxes, with many churches, hospitals, and with all the modern civilized appliances, necessities, and comforts pertaining to the most progressive, cultured, and refined communities in the United States. Its population and the population surrounding it were mostly white, and, with its population in this condition, and with the Indian Nation and the United States by treaty hav
In Maxey vs Wright, 3 Ind. Ter. Rep. 243, (54 S. W. 807), decided January, 1900, this court recognized the probability in the future of the very condition we are now considering, and decided that case with the understanding that the Creek Nation had not parted with its title to the lands embraced in town sites, and reserved the right to decide what the effect would be when the Indian title to lands in incorporated towns was determined, as follows: “Nor does the fact that Congress, by the provision of the Curtis bijl, has provided for the creation of cities and towns in this nation, and the extinguishment of the Indian title to the lands embraced within the limits of such municipal corporations, alter the case, because this provision of that act has not yet been carried into effect. The Indian title to such lands still remains in them, and it is their country. What effect the provision of this stated rule to cities and towns, when fully consummated, ma^have, we do not now decide.”
I cannot conceive that a statute or a rule enacted or promulgated primarily to protect Indians upon Indian reservations can be held to apply to the above situation. On the contrary, the United States citizen, owning the fee in lots in the town of South MeAlester, acquired legally from the Indian nation, without conditions in his deed of conveyance, or without a condition in the treaty authorizing the conveyance, must be held to have every constitutional right under United States law, and to be entitled to protection in his life, liberty, and property. Nor can he be divested thereof, or injured therein, except by due process
If South McAlester is no longer Indian country, and article 39 of the treaty of 1866, supra, has become inoperative as to it and town sites in the Choctaw Nation similarly situated, under what law are the defendants presuming to act, in threatening to close the stores of plaintiffs if they do not pay the demands of the Choctaw nation? Under said article 39, as we have seen, the law requiring the Commissioner of Indian Affairs, with the approval of Secretary of the Interior (section 2149, Rev. St.), to remove persons detrimental to the peace and welfare of the Indians was held to apply to the Choctaw Nation, [and after the act of July 31,1882 (1 Supp. Rev. St. (2d Ed.) 362), this was the only statutory remedy for violation of said article 39. But in the act of May 27, 1902, 32 Stat. 259, this remedy was taken away as to citizens of town sites in lawful possession of any lots or parcels of land, and plaintiffs bring themselves within the protecting folds of this statute.
Whence, then, comes the authority of defendants to require plaintiffs to pay any sum to the Choctaw Nation for any purpose, or where the authority of defendants to close the stores of plaintiffs until the demands of the nation are met? Clause 2 of defendants' demurrer says that the authority under which defendants have acted in doing the things complained of comes from, certain "letters” and “communications” attached as ex
The penalty for coming into the nation and doing business therein without paying the permit tax or fee was removal of the person from the nation, as objectionable, until the act of Congress approved on May 27, 1902, in which the Secretary of the Interior is forbidden to remove any person from the Indian Territory, who is in lawful possession of- any lot or parcel of. land in any town or city of the Indian Territory which has been designated as a town site under existing laws and treaties; and, except as the closing of a store is but the method under a rule promulgated by the honorable Secretary for preventing a violation of the treaty— that is, stopping the unlawful act of trading without complying with the terms of the treaty — there is now no specific provision
I think that the honorable Secretary has fairly stated the meaning of the law in this rule, provided he has the power to act at all; but, before he can act, the conditions must be such as are covered by the law under which this rule -was promulgated. The honorable Secretary’s rules providing for the closing of stores must not only be based upon the law, but can only be exercised in Indian country. His rules must be such as conform to the penalties prescribed by the law itself. Here the penalties prescribed by the law are repealed as to noncitizens lawfully in possession of town lots in the town sites in the Choctaw Nation. If the penalty of the law is repealed, then, as the greater includes the less, the rule promulgated to enforce the penalty must fall, and be nugatory and of no effect. Complainants bring themselves clearly within the class of persons against whom the honorable Secretary is prohibited from removing from the territory, and he cannot prescribe some other method, and dp indirectly that which the law says he must not do directly. Where the Choctaw Nation, by treaty, has solemn^ agreed to the segregation of town sites within their nation, and by deed of conveyance have sold and conveyed such segregations to noncitizens and others, without conditions, such town site segregation, in my judgment, cannot be longer considered as Indian country; and the treaty and acts of Congress providing for such segregations, and the erection of town sites and municipal incorporations, and the sale of town lots therein to noncitizens, make article 39 of the treaty of 1866 as ineffective and inoperative as though the same had been repealed in express terms, so far as town sites are concerned .
Can it be said that persons living in the towns authorized by the laws of the United States, owning the lands on which their places for business stands — permanent places for handling their merchandise — are traders, in the sense of this article 39? Common sense would at once say, “No!” Do these merchants, some of whom, from their names, are great wholesale corporations,. whose operations are probably not confined to the Indian Territory, but reach out into adjoining states and territories, come under the appellation of traders contemplated in article 39? Most assuredly no! But the government of the United States, in superintending the operations of noncitizen merchants within the Five Civilized Nations, has treated this law as including them within its terms, so long as they were doing business in the Indian country; and, where such merchants have sought to do business
But it is urged at this point that in the Atoka agreement was reserved the right still to say to noncitizens coming within the boundaries of the nation, even though such noncitizens lived in the town sites under the laws of the United States, and were allowed, as citizens thereof, to participate in municipal government and tax themselves therefor, and although such citizens should acquire and pay for the fee of the lots on which they lived, and on which they might erect business houses, that the nation still claimed the right to require such citizens, before transacting business therein, to pay a license or permit fee for the transaction of such business. If we analyze the sections of the Atoka agreement referred to by appellant, we will find that no such reservation is intended. Let us see. Atoka Agreement, § 57x35' (Ind. Ter. St. 1899, p. 41): “That no law or ordinance shall be passed by any town which interferes with the enforcement of, or is in conflict with the laws of the United States, in force in said territory, and all persons in such towns shall be subject to said laws.” In my judgment, the construction to be given to this section must be that “all persons in such towns shall be subject to said laws” refers to the laws and ordinances of the towns, which laws and ordinances must not interfere with the laws of the United States; and certainly, as heretofore shown, the provisions of section 14 of the Curtis bill are expressly excepted from any reservations whatever in the provisions of said Atoka agreement; See last clause of section 29 of the Curtis bill (Ind. Ter. St. 1899, 57x19). While there has never been any express repeal of article 39 of the treaty of 1866, the acts of Congress and the Atoka agreement have been inimical to and incompatible with the enforcement of article 39 in incorporated towns in the Choctaw Nation, and the fact that the nation consented to the segregation of, and
Congress and the Choctaw Nation itself provided for the extinguishment of the Indian title in incorporated towns in the Choctaw Nation. Congress threw over every citizen in such nation the protecting folds of the Constitution of the United States. It provided for the forum in which all rights of United States citizens legally within the Choctaw Nation should be tested. Any other way of divesting the right of United States citizens legally within the Choctaw Nation, than as provided by law in the forum established by law, is without due process of law, and cannot be upheld. I am of opinion, if the premises of the opinion of the majority of the court be accepted, that, as to United States citizens legally within the incorporated town of South McAlester, and transacting business there, the Choctaw Nation having parted with its title thereto, such nation has voluntarily parted with the right to further continue exaction from such citizens in the way of a permit tax or license fee, and that, the nation no longer having this power or right, the honorable Secretary and his subofficers, in threatening to close the stores of such merchants, are not acting under due process of law, and should be restrained, and the decision of the lower court restraining such officers should be affirmed.
