Office Of The Assistant Attorney-General
Washington, D. C., February 10, 1905
The Secretary Of The Interior
SIR: I received by reference of October 6, 1904, with request for, opinion thereon, the motion of Belle Z. Bowers to set aside departmental decision of February 7, 1902, and that of the Commission to the Five Civilized Tribes there to fore rendered, and to grant a new hearing upon her application for enrollment of herself and her husband and children as citizens by blood of the Cherokee Nation.
January 19, 1902, the Commission rejected her application, with others, upon the ground that:
not one of the foregoing-named persons is a recognized citizen of the Cherokee Nation or has ever been duly and lawfully enrolled or admitted as such. All of them are there fore considered to come under the provision of the act of Congress approved May 31, 1900 (31 Stat., 221, 236): That said Commission shall not receive, consider, or make any record of any application of any person for enrollment as a member of any tribe in Indian Territory who has not been a recognized citizen thereof and duly and lawfully enrolled or admitted as such.”
Upon the record of testimony the Commission found, January 8, 1902, that:
Upon an examination of the tribal rolls of the Cherokee Nation now in possession of the Commission none of the applicants mentioned herein are identified thereon, nor does it appear that they have ever been admitted to citizenship by an act of the Cherokee national council or the Cherokee commissions on citizenship.
This action was affirmed by the Secretary February 7, 1902. The motion for a new hearing is based upon two alleged errors of fact of the Commission, viz, that the records of the Cherokee Nation in possession of the Commission show (1) that the principal applicant, by her maiden name of Belle Z. Flippin, was admitted to citizenship of the Cherokee Nation September 26, 1884, by the Spears commission, and that the names of applicant, Belle Z. Bowers, her husband, M. C. Bowers, and their children then living, Lou F. Berne and Andy H. Bowers, appear on the 1886 Cherokee tribal roll, Cooweescoowee district. July 13, 1904, the Commission advised counsel for applicant by a letter, the original of which is filed with the motion, that such names do appear upon the 1886 tribal roll. A certified and sworn copy of the record of proceedings of the Spears commission on citizenship is also filed, showing the admission of Hannah Flippin and her children, among whom was ” Bell Z.,” September 26, 1884.
The motion and accompanying papers were served upon counsel for the Cherokee Nation, who has responded thereto, not denying the fact of the alleged admission of the principal applicant or the enrollment of 1886. Both the errors of fact of the Commission, which were the basis of its decision of January 19, 1902, and of that of the Department of February 7, 1902, that there was no jurisdiction to consider the merits of the applicants claim of right to enrollment, are thus, for all purposes of the motion, fully established.
There is, however, annexed to the response by counsel to the nation what purports to be a statement of the action taken by the Commission November 24, 1896, in the cases of these applicants, whereby “some” were denied and “others” were admitted, and that an appeal was taken to the United States court for the northern district of Indian Territory, under the act of June 10, 1896 (29 Stat. 321, 329), and that such court rendered a decision therein, an unauthentic copy of which is included in such statement. This unauthentic copy of the proceedings of the court purports to show that the final action of the court upon the applications was adverse to all the applicants, upon the ground that an act of the Cherokee council December 8, 1886, empowered the Adair commission to try a complaint by the Cherokee Nation charging these applicants (and others) “with having obtained citizenship by fraud and bribery,” and to try such charge, to reexamine the merits and annul the admission, and that the Adair commission did annul the action of the Spears commission.
Counsel for applicants, in response, concedes that the court rendered such judgment, and thus, for purposes of this motion, cures the lack of its authentication, but contends that the bar of the judgment rendered by the court upon appeal, under the act of June 10, 1896 (supra), is raised by the later legislation of Congress, citing and relying upon the acts of June 28, 1898 (30 Stat, 495, 502), of May 31, 1900 (31 Stat, 221, 236), and July 1, 1902 (32 Stat, 716-720). But for the concession of the rendition of the judgment the applicants would be entitled to a rehearing as of course. The facts that formed the basis of the Commission s action being altogether untrue and nonexistent, the decision would necessarily be set aside, as the applicants are entitled to an adjudication of their right upon a true finding of fact. As, however, they con cede the rendition of the judgment against them, a rehearing should not be granted merely because of error as to the grounds for the action, if upon the conceded fact their claim is clearly barred, and the same action adverse to them must be taken, though for another reason. The real question presented, there fore, is not whether the action of the Commission and of the Department adverse to applicants was erroneous it clearly was but the question becomes, by these admissions, whether the judgment of the court in their cases under the act of June 10, 1896 (supra), is now final and a bar to their claim of right. The act of 1898, after confirming the roll of 1880 and directing enrollment.
- (1) of all persons thereon and
- (2) their later born descendants, directed the Commission further to enroll
- (3) all persons enrolled by tribal authority who there tofore permanently settled in the nation, descended from persons lawfully admitted to citizenship by reason of Cherokee blood, and who were minors when their parents were admitted; and
- (4) “they shall investigate the right of all other persons whose names are found on any other rolls and omit such as may have been placed thereon by fraud or without authority of law.”
This provision, in terms, required the Commission to consider and to investigate all cases of claims made by anyone borne on any other than the roll of 1880, and to proceed as to persons on other rolls to make a new roll by exclusion therefrom of those found to be entered thereon by fraud or without authority of law. That this, in terms, would include the applicants can not admit of doubt, for those then living were on the roll of 1886. This construction is not only the natural one, but is borne out by the history of the case of Stephens and others against the Cherokee Nation.
Stephens in 1896 applied to the Commission for enrollment of himself, his children, and grandchildren. Stephens was one-quarter Cherokee, grandson of Capt Shoe Boots, of the old Cherokee Nation. Stephens was born in Ohio, of Shoe Boots s daughter, Sarah, born in Kentucky. Stephens went to the Cherokee Nation in 1873 and sought readmission, but it was never granted, and his name was on no roll. The Commission refused his enrollment on this ground, and on his appeal the court affirmed that action December 23, 1898. The case was appealed and affirmed by the Supreme Court May 15, 1899 (174 U. S., 445, 471). It was pending when the act of 1898 was adopted, as were many other appeals, and in directing investigation of the right of “all other persons whose names are found on any other rolls” Congress directly approved the ruling principle that when citizenship in the nation was lost it could only be regained by consent of the nation, but saved the right of all persons on any roll, subject to investigation by the Commission and proof of the fraudulent or illegal admission of such person. This was merely reaffirmed by the act of May 31, 1900, which provided:
That said Commission shall continue to exercise all authority heretofore conferred on it by law; but it shall not receive, consider, or make any record of any application of any person for enrollment as a member of any tribe in Indian Territory who has not been a recognized citizen thereof and duly and lawfully enrolled or admitted as such.
The act of July 1, 1902 (sec. 25), again reaffirmed the rules for procedure fixed by the acts of 1898 and 1900, supra, with limitations and changes not material to the question here.
I am therefore of opinion that the bar of final adverse judgments upon appeals taken under the act of 189(5 is removed as to all Cherokee claimants whose names appear on any of the tribal rolls, and that such persons are entitled to have their cases decided upon the merits. It follows that the application for rehearing should be allowed and the Commission be directed to hear and decide the case upon its merits, hearing any other testimony and considering any other competent evidence that the parties may offer necessary fully to present their contentions.
Very respectfully,
Frank L. Campbell, Assistant Attorney-General
Approved February 10, 1905.
E. A. Hitchcock, Secretary