United States Supreme Court
U S EX REL LOWE v. FISHER, (1912)
No. 445
Argued: November 14, 1911 Decided: January 29, 1912

[223 U.S. 95, 96] Messrs. Charles H. Merillat, Charles J. Kappler, James K. Jones, and Frank E. Duncan for plaintiffs in error.

Assistant Attorney General Harr for defendant in error.

Mr. Justice McKenna delivered the opinion of the court:

The case involves the question whether the Secretary of the Interior, after due hearing, and after having made up a roll of citizens of the Five Civilized Tribes of Indians, and after having issued certificates of allotment to the enrolled Indians, may strike their names from the roll after [223 U.S. 95, 97] giving due notice of his intended action and an opportunity to be heard.

The case arose upon the exercise of such power by the Secretary and an action of mandamus to require him to cancel his action. To the answer of the Secretary, the supreme court of the District of Columbia sustained a demurrer and entered a judgment in accordance with the prayer of the petition. The court of appeals reversed the judgment. On return of the case to the supreme court, the relators elected to stand on their demurrer and the court dismissed their petition. This action was affirmed by the court of appeals and the case was then brought here.

It was decided in Garfield v. United States ex rel. Goldsby, 211 U.S. 249, 53 L. ed. 168, 29 Sup. Ct. Rep. 62, that the Secretary had no such power without notice to the parties concerned and an opportunity to be heard. These conditions were performed in the present case, and, so far, the case is distinguished from the Goldsby Case. The power of the Secretary upon the rehearing under the applicable statutes is now to be considered.

The relators base their right of enrolment on article 9 of the Cherokee treaty of August 11, 1866 [14 Stat. at L. 801], the material part of which is as follows: They [Cherokee Nation] further agree that all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the Rebellion and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees. It was found by the Secretary of the Interior that relators were descendants of liberated slaves, but he also found that their ancestors had not returned to the Cherokee Nation within six months of the date of the treaty, August 11, 1866. This must be assumed to be the fact, for it is alleged in the answer and admitted by the demurrer. Two propositions of law are however, urged [223 U.S. 95, 98] by relators: (1) That the requirement of a return within the time designated applies only to free colored persons; and (2) that the Secretary, having, on November 16, 1904, approved a list of Cherokee freedmen, containing the names of relators, on the ground that their ancestors had complied with the provisions for return to the Nation, had no power to cancel their names.

(1)

Article 9 of the treaty is undoubtedly ambiguous, and to support their construction of it relators trace its genesis to the compulsion exercised on the Cherokee Nation by the United States for its espousal of the cause of the Confederacy during the Civil War. The Indians, it is said, were regarded as having forfeited their treaty rights, but the United States were willing to renew relations with them, stipulating, among other things, that the institution of slavery, which has existed among several of the tribes, must be forthwith abolished, and measures taken for the unconditional emancipation of all persons held in bondage, and for their incorporation into the tribes on an equal footing with the original members, or suitably provided for.

The Indians resisted the conditions, and replied that it would not be for the benefit of the emancipated negro, nor for the Indians, to incorporate the former into the several tribes on an

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