Morris v. Hitchcock/Opinion of the Court

We think the court below was right in holding that the first and second grounds of demurrer were not well taken, but do not think it necessary to review the subject, as the opinion which we have reached on the merits of the case will dispose of the entire controversy.

The act of Congress approved June 28, 1898, commonly known as the Curtis act (30 Stat. at L. 495, chap. 517), under which the act of the Chickasaw Nation and regulations of the Secretary of the Interior which are assailed were adopted, is entitled 'An Act for the Protection of the People of the Indian Territory and for Other Purposes.' The question of the validity and construction of that act was under consideration in Stephens v. Cherokee Nation, 174 U.S. 445, 43 L. ed. 1041, 19 Sup. Ct. Rep. 722, and Cherokee Nation v. Hitchcock, 187 U.S. 294, 47 L. ed. 183, 23 Sup. Ct. Rep. 115, and in view of the rulings in those cases the constitutionality of the statute is not now open to question.

While it is unquestioned that, by the Constitution of the United States, Congress is vested with paramount power to regulate commerce with the Indian tribes, yet it is also undoubted that in treaties entered into with the Chickasaw Nation, the right of that tribe to control the presence within the territory assigned to it of persons who might otherwise be regarded as intruders has been sanctioned, and the duty of the United States to protect the Indians 'from aggression by other Indians and white persons, not subject to their jurisdiction and laws,' has also been recognized. Treaty June 22, 1855, arts. 7 and 14 (11 Stat. at L. 611); Treaty April 28, 1866, art. 8 (14 Stat. at L. 769). And it is not disputed that, under the authority of these treaties, the Chickasaw Nation has exercised the power to attach conditions to the presence within its borders of persons who might otherwise not be entitled to remain within the tribal territory.

Legislation of the same general character as that embodied in the act of the legislature of the Chickasaw Nation, here assailed as invalid, had been enacted by the Chickasaw Nation before the passage of the Curtis act. The essential provisions of one such law, passed on October 17, 1876, were recited in a report made to the Senate by the committee on the judiciary, on February 3, 1879, from which we copy the following:

'The law in question seems to have a twofold object,-to prevent the intrusion of unauthorized persons into the territory of the Chickasaw Nation, and to raise revenue. By its terms no citizen of any state or territory of the United States can either rent land or procure employment in the Chickasaw country without entering into a contract with a Chickasaw, which contract the latter is to report to the clerk of the county where he resides, and a permit must be obtained for a time not longer than twelve months, for which the citizen is to pay the sum of $25.

'Every licensed merchant, trader, and every physician, not a Chickasaw, is required to obtain a permit, for which the sum of $25 is exacted.'

Declaring in substance that under the existing treaties with the tribe the Chickasaws were not prohibited from excluding from the territory of the nation the persons affected by the act, the committee expressed the opinion that the act which was the subject of the report was not invalid.

Again, on December 14, 1898, the legislature of the Chickasaw Nation passed an act which, in § 2, with some exemptions mentioned in a proviso, imposed the following permit taxes:

'Sec. 2. That any noncitizen who owns horses, jacks, jennets, mules, or other cattle, and who holds them upon the public domain or within the Chickasaw Nation, shall be required to pay an annual permit tax of 25 cents per head for each horse, jack, or jennet, mule, or bovine, and 5 cents per head for each sheep and goat so held within this nation.'

By the 9th section of the same act it was provided as follows:

'Sec. 9. That any noncitizen, subject to a permit tax under the provisions of § 1 of this act, and who shall refuse to pay his permit tax, after due notice for thirty days, shall be deemed an intruder by virtue of the intercourse law of the United States of America, and subject to removal; and such intruder shall be reported to the United States Indian agent (or inspector) to the Five Civilized Tribes, and shall forthwith be removed from the Chickasaw Nation, under the direction of the said United States Indian agent or inspector.'

The agreement made by the commission to the Five Civilized Tribes with the commissions representing the Choctaw and Chickasaw tribes of Indians on April 23, 1897, as amended by the Curtis act, was, in § 29 of that act, ratified and confirmed, and made operative on December 1, 1898 [30 Stat. at L. 505, chap. 517].

By that agreement certain modifications, not material to be stated, were made in the legislative authority and judicial jurisdiction of the tribal governments, and, so modified, the tribal governments were continued in force, and are to so continue until March 4, 1906. One of the clauses of the agreement reads as follows: 'It is further agreed that no act, ordinance, or resolution of the council of either the Choctaw or Chickasaw tribes, in any manner affecting the land of the tribe, or of the individuals, after allotment, or the moneys or other property of the tribe or citizens thereof (except appropriations for the regular and necessary expenses of the government of the respective tribes), or the rights of any persons to employ any kind of labor, or the rights of any persons who have taken or may take the oath of allegiance to the United States, shall be of any validity until approved by the President of the United States. When such acts, ordinances, or resolutions passed by the council of either of said tribes shall be approved by the governor thereof, then it shall be the duty of the national secretary of said tribe to forward them to the President of the United States, duly certified and sealed, who shall, within thirty days after their reception, approve or disapprove the same. Said acts, ordinances, or resolutions, when so approved, shall be published in at least two newspapers having a bona fide circulation in the tribe to be affected thereby, and when disapproved shall be returned to the tribe enacting the same.'

On September 17, 1900, and September 21, 1901, the proper construction of the Curtis act was considered, at the request of the Secretary of the Interior, in opinions of Attorney General Griggs and Attorney General Knox, respectively. In the first of those opinions it was, in substance, held as follows:

'Under the treaties with the Five Civilized Tribes of Indians no person not a citizen or member of a tribe, or belonging to the exempted classes, can be lawfully within the limits of the country occupied by these tribes without their permission; and they have the right to impose the terms upon which such permission will be granted.

'The provisions of the act of June 28, 1898 (30 Stat. at. L. 495, chap. 517), for the organization of cities and towns in said Indian country, and the extinguishment of Indian title therein, have not yet been consummated, and it is still Indian country. This act does not deprive these Indians of the power to enact laws with regard to licenses or taxes, nor exempt purchasers of town or city lots from the operation of such legislation.

'Purchasers of lots do so with notice of existing Indian treaties, and with full knowledge that they can only occupy them by permission from the Indians. Such lands are sold under the assumption that the purchasers will comply with the local laws.

'Sections 2147 to 2150, inclusive, of the Revised Statutes, expressly confer the right to use the military forces of the United States in ejecting trespassers upon Indian lands, and the grant of this power carries with it the duty of its exercise.

'It is the duty of the Department of the Interior to remove all classes forbidden by treaty or law, who are within the domain of the Five Civilized Tribes without Indian permission; to close all businesses which require permit or license, and are being conducted without the same; and to remove all cattle which are being pastured on said land without Indian permit or license.'

And in the last-mentioned opinion it was, in substance, declared that, under § 16 of the Curtis act, the Secretary of the Interior had authority to collect a tribal tax imposed by the laws of the Cherokee Nation of Indians upon the exportation of prairie hay from that nation, and that the tax was just as applicable to hay raised upon lands occupied by individual members of the nation, as their share of the public domain, pending allotments, as in any other case, and would be so even if the shipper was the absolute owner of the land on which the hay was raised.

Since the rendition of these opinions of the legal advisers of the government, Congress has created an express exception in favor of owners of town lots, prohibiting their being proceeded against as intruders, but has not legislated against the enforcement of the legislation now under review, which was then operative. Thus, on May 27, 1902, in the Indian appropriation act (32 Stat. at L. 259, chap. 888), it was provided 'That it shall hereafter be unlawful to remove or deport any person from the Indian territory who is in lawful possession of any lots or parcels of land in any town or city in the Indian territory which has been designated as a townsite under existing laws and treaties, and no part of this appropriation shall be used for the deportation or removal of any such person from Indian territory.'

Viewing the Curtis act in the light of the previous decisions of this court and the dealings between the Chickasaws and the United States, we are of opinion that one of the objects occasioning the adoption of that act by Congress, having in view the peace and welfare of the Chickasaws, was to permit the continued exercise, by the legislative body of the tribe, of such a power as is here complained of, subject to a veto power in the President over such legislation, as a preventive of arbitrary and injudicious action.

The refusal to pay the permit tax in question caused the cattle and horses of the complainants to be wrongfully within the territory, and we cannot decline to recognize such fact because of the hardships which it is alleged must arise if the act and regulations are enforced. Being of opinion that the regulations of the Secretary of the Interior are valid, and that the act of the legislature of the Chickasaw Nation, approved by the governor on May 5, 1902, and sanctioned by the President of the United States on May 15, 1902, was not the exercise of arbitrary power, as claimed, and that neither the act nor the regulations in any respect violate the Constitution of the United States, it follows that the judgment below is correct, and it must, therefore, be affirmed.