(174 U. S. 600)

COLUMBUS CONST. CO. v. CRANE CO.
(May 22, 1899.)
No. 462.

APPEAL AND ERROR-SEPARATE PROCEEDINGS
PENDING AT SAME TIME.

The act of March 3, 1891 (26 Stat. 826), does not contemplate separate appeals or writs of error on the merits in the same case, and at the same time, to two different appellate courts; and a writ of error obtained from the supreme court to review a judgment of a circuit court, while the case was pending in the circuit court of appeals, will be dismissed.

In Error to the Circuit Court of the United States for the Northern District of Illinois.

In May, 1891, the Columbus Construction Company, a corporation of the state of New Jersey, brought in the circuit court of the United States for the Northern district of Illinois an action at law against the Crane Company, a corporation of the state of Illinois. The case was put at issue, and the trial resulted in a verdict and judgment in favor of the plaintiff in the sum of $48,000. This judgment was reversed by the circuit court of appeals upon a writ of error sued out by the defendant. 46 U. S. App. 52, 20 C. C. A. 233, and 73 Fed. 984. Thereafter the case was again tried, and resulted in a verdict and judgment in favor of the defendant, upon a plea of set-off, in the sum of $98,085.94, as of the date of March 2, 1898.

On the 25th day of August, 1898, a writ of error to reverse this judgment was sued out by the plaintiff from the circuit court of appeals of the Seventh circuit, where the case is now pending.

On the 27th day of September, 1898, the plaintiff also sued out a writ of error from this court. On April 17, 1899, the defendant in error filed a motion to dismiss this writ of error; and on the same day the plaintiff in error filed a petition for a writ of certiorari to the circuit court of appeals of the Seventh circuit.

J. R. Custer and S. S. Gregory, for Columbus Construction Co. Charles S. Holt, for Crane Co.

*Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

This record discloses that there are pending two writs of error to the judgment of the circuit court,-one in the United States circuit court of appeals for the Seventh circuit, sued out on the 25th day of August, 1898, and one in this court, sued out on the 27th day of September of the same year. It also appears that the jurisdiction of the circuit court is not in question, but the contention is that that court erred in the exercise of its jurisdiction.

We are of the opinion that the act of 1891 (26 Stat. 826), under which these writs of error were sued out, does not contemplate several separate appeals or writs of error, on the merits, in the same case, and at the same 19 S.C.-46

time, to two appellate courts, and that, therefore, the writ in this court, which was taken while the case was pending in the circuit court of appeals, ought to be dismissed.

Such a question was considered by this court in McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118.

That was a case of a writ of error from this court to the United States court for the Indian Territory, where a suit was pending and undecided, and the object of the writ was to get the opinion of this court on the question whether the lower court had jurisdiction of the suit. This court held that it was not competent for a party denying the jurisdiction of the trial court to bring that question here on a writ of error sued out before final judgment, and the writ was accordingly dismissed.

In the opinion, read by Mr. Justice Lamar, it was said:

"It is further argued, in support of the contention of the plaintiff in error, that, if it should be held that a writ of error would not lie upon a question of jurisdiction until after final judgment, such ruling would lead to confusion and absurd consequences; that the question of jurisdiction would be certified to, this court, while the case on its merits would be certified to the circuit court of appeals; that the case would be before two separate appellate courts at one and the same time; and that the supreme court might dismiss the suit upon the question of jurisdiction, while the circuit court of appeals might properly affirm the judgment of the lower court upon the merits.

"The fallacy which underlies this argument is the assumption that the act of 1891 contemplates several separate appeals in the same case, and at the same time, to two appellate courts. No such provision can be found in the act, either in express terms or by implication. The true purpose of the act, as gathered from its context, is that the writ of error or the appeal may be taken only after final judgment, except in the cases specified in section 7 of the act.

"When that judgment is rendered, the party against whom it is rendered must elect whether he will take his writ of error, or appeal to the supreme court upon the question of jurisdiction alone, or to the circuit court of appeals upon the whole case. If the latter, then the circuit court of appeals may, if it deem proper, certify the question of jurisdiction to this court."

We think the main purpose of the act of 1891, which was to relieve this court of an enormous overburden of cases, by creating a new and distinct court of appeals, would be defeated, if a party, after resorting to the circuit court of appeals, and while his case was there pending, could be permitted, of his own motion, and without procuring a writ of certiorari, to bring the cause into this court.

Moreover, it is evident that such a movement is premature, for the controversy may

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be decided by the circuit court of appeals in favor of the plaintiff in error, and thus his resort to this court be shown to have been unnecessary.

Pullman's Palace-Car Co. v. Central Transp. Co., 171 U. S. 138, 18 Sup. Ct. 808, is referred to as a case in which there was pending at the same time an appeal from a decree of the circuit court to the circuit court of appeals and to this court. An obvious distinction between that case and this is that there the appeal was first taken to this court. Accordingly the circuit court of appeals declined either to decide the case on its merits or to dismiss the appeal while the case was pending on a prior appeal to this court, and continued the cause, to await the result of the appeal to the supreme court. 39 U. S. App. 307, 22 C. C. A. 246, and 76 Fed. 401.

Without, therefore, considering other grounds urged in the brief of the defendant in error on its motion to dismiss, we think a due regard for orderly procedure calls for a dismissal of the writ of error, and it is so or dered.

CITIZENSHIP IN INDIAN TRIBES-PROCEEDINGS TO DETERMINE-LEGISLATION PROVIDING FOR APPEALS-VALIDITY AND CONSTRUCTION-JURISDICTION OF SUPREME COURT-POWERS OF CONGRESS IN RELATION TO INDIAN GOVERNMENT.

1. In that portion of the Indian appropriation act of June 10, 1896 (29 Stat. 321 et seq., c. 398 et seq.), which relates to proceedings to determine rights of citizenship in any of the Five Tribes, the provision that, "if the tribe or any person be aggrieved with the decision of the tribal authorities or the commission provided for in this act, it or he may appeal from such decision to the United States district court,' must be construed as ing the United States court in the Indian Territory, and the word "district" be rejected, as there was at the time no district court having jurisdiction within the territory.

mean

2. The provision of the Indian appropriation act of July 1, 1898 (30 Stat. c. 545), giving a right of appeal from the United States courts in the Indian Territory direct to the supreme court by either party in all citizenship cases, including in express terms cases in which judgments had previously been rendered, was within the powers of congress, which had constituted the territorial courts, as appellate tribunals, a part of the machinery by means of which it discharged its own duties with reference to the Indian tribes, although the legislation under which such judgments were rendered made them final. It cannot be said that the rendition of such judgments gave the successful parties any vested right that they should not be subjected to review by subsequent legislation, nor that they vested such litigants with absolute property rights which precluded a re-examination of the original cause of action, which was in all cases the right of citizenship in a tribe.

3. Such provision reads in part as follows:

"Appeals shall be allowed from the United States courts in the Indian territory direct to the supreme court of the United States to either party, in all citizenship cases, and in all cases between either of the Five Civilized Tribes and the United States involving the constitutionality or validity of any legislation affecting citizenship, or the allotment of lands in the Indian Territory, under the rules and regulations governing appeals to said court in other cases. Held, that the limiting clause, "involving the constitutionality or validity of any legislation," etc., should be read as though preceded by a comma, and as applying to both classes of cases previously enumerated, and that in cases to which the act applies the jurisdiction of the supreme court is limited to a determination of the constitutionality or validity of the legislation involved, the decision of the territorial courts remaining, as before the passage of the act, final as to all other questions in issue.

4. An act of congress may supersede a prior treaty, and the validity of an act cannot be questioned by the courts on the ground that it is in conflict with a treaty between the govern ment and an Indian tribe.

5. The Indian tribes have always been_rec ognized as distinct communities, and have been permitted to a large extent to make and enforce the laws for their own government; but they are in no sense sovereign nations, and are, like all other communities within the territory of the United States, subject to the paramount authority of congress, which may, in its discretion, assume such part of the control and governinent of any tribe as, in its judgment, is necessary, or for the best interest of the members.

6. Neither the provisions of the Indian appropriation acts of 1896 and 1897, which authorized the Dawes commission to determine claims to citizenship in any of the Five Civilized Tribes of the Indian Territory, nor the Curtis act of June 28, 1898, authorizing the completion of the rolls of citizens in such tribes, and making them final when so completed and approved by the secretary of the interior, and by which the tribal laws and courts were abolished and superseded by those of the United States, and other comprehensive changes made in the government of the territory, is in excess of the powers of congress, or unconstitutional as an impairment of vested rights.

Mr. Justice White and Mr. Justice McKenna, dissenting.

Appeals from the United States Court in the Indian Territory.

By the sixteenth section of the Indian ap propriation act of March 3, 1893 (27 Stat. 612, 645, c. 209), the president was authorized to appoint, by and with the advice and consent of the senate, three commissioners "to enter into negotiations with the Cherokee Nation, Choctaw Nation, Chickasaw Nation, the Muscogee (or Creek) Nation, the Seminole Nation, for the purpose of the extinguishment of the national or tribal title to any lands within that territory now held by any and all of such nations or tribes, either by cession of the same or some part thereof to the United States, or by the allotment and division of the same in severalty among the Indians of such nations or tribes, respectively, as may be entitled to the same, or by such other method as may be agreed upon between the several nations and tribes aforesaid, or each of them, with the United States, with a view to such an adjustment, upon the basis of justice and equity, as may, with the consent of

such nations or tribes of Indians, so far as may be necessary, be requisite and suitable to enable the ultimate creation of a state or states of the Union which shall embrace the lands within said Indian Territory."

The commission was appointed, and entered on the discharge of its duties, and under the sundry civil appropriation act of March 2, 1895 (28 Stat. 939, c. 189), two additional members were appointed. It is commonly styled the "Dawes Commission."

The senate, on March 29, 1894, adopted the following resolution:

"Resolved, that the committee on the Five Civilized Tribes of Indians, or any subcommittee thereof appointed by its chairman, is hereby instructed to inquire into the present condition of the Five Civilized Tribes of Indians, and of the white citizens dwelling among them, and the legislation required and appropriate to meet the needs and welfare of such Indians; and for that purpose to visit Indian Territory, to take testimony, have power to send for persons and papers, to administer oaths, and examine witnesses under oaths; and shall report the result of such inquiry, with recommendations for legislation; the actual expenses of such inquiry to be paid on approval of the chairman out of the contingent fund of the senate."

The committee visited the Indian Territory accordingly, and made a report May 7, 1894. Sen. Rep. No. 377, 53d Cong., 2d Sess. In this report it was stated: "The Indian Territory contains an area of 19,785,781 acres, and is occupied by the Five Civilized Tribes of Indians, consisting of the Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles. Each tribe occupies a separate and distinct part, except that the Choctaws and Chickasaws, though occupying separately, have a common ownership of that part known as the 'Choctaw and Chickasaw Territory,' with rights and interests as recognized in their treaties as follows: the Choctaws, three-fourths, and the Chickasaws, one-fourth. The character of their title, the area of each tribe, together with the population and an epitome of the legislation concerning these Indians during the last sixty-five years, is shown by the report of the committee on Indian affairs submitted to the senate on the 26th day of July, 1892" (Sen. Rep. No. 1079, 52d Cong., 1st Sess.), and so much of that report as touched on those points was set forth.

The committee then gave the population from the census of 1890 as follows: Indians, 50,055; colored Indians, colored claimants to Indian citizenship, freedmen and colored, wholly or in part, 18,636; Chinese, 13; whites, 109,393; whites and colored on military reservation, 804; population of Quapaw Agency, 1,281,-or a total of 180,182; and said: "Since the taking of the census of 1890, there has been a large accession to the population of whites who make no claim to Indian citizenship, and who are residing in the Indian Territory with the approval of the Indian au

thorities. It is difficult to say what the number of this class is, but it cannot be less than 250,000, and it is estimated by many wellinformed men as much larger than that number, and as high as 300,000." After describing the towns and settlements peopled by whites, and the character of the Indian Territory, its climate, soil, and natural wealth, the report continued:

"This section of country was set apart to the Indian with the avowed purpose of maintaining an Indian community beyond and away from the influence of white people. We stipulated that they should have unrestricted self-government, and full jurisdiction over persons and property within their respective limits, and that we would protect them against intrusion of white people, and that we would not incorporate them in a political organization without their consent. Every treaty, from 1828 to and including the treaty of 1866, was based on this idea of exclusion of the Indians from the whites, and nonparticipation by the whites in their political and industrial affairs. We made it possible for the Indians of that section of country to maintain their tribal relations, and their Indian polity, laws, and civilization if they wished so to do. And, if now, the isolation and exclusivenesssought to be given to them by our solemn treaties is destroyed, and they are overrun by a population of strangers five times in number to their own, it is not the fault of the government of the United States, but comes from their own acts in admitting whites to citizenship under their laws, and by inviting white people to come within their jurisdiction, to become traders, farmers, and to follow professional pursuits.

"It must be assumed, in considering this question, that the Indians themselves have determined to abandon the policy of exclu- * siveness, and to freely admit white people within the Indian Territory, for it cannot be possible that they can intend to demand the removal of the white people either by the government of the United States or their own. They must have realized that when their policy of maintaining an Indian community isolated from the whites was abandoned for a time it was abandoned forever."

The committee next referred to the class of white people denominated by the Indians as intruders, in respect of whom there had been but little complaint in other sections of the Indian Territory than that of the Cherokee Nation; and went on to say:

"The Indians of the Indian Territory maintain an Indian government, have legislative bodies, and executive and judicial officers. All controversies between Indian citizens are disposed of in these local courts. Controversies between white people and Indians cannot be settled in these courts, but must be taken into the court of the territory established by the United States. This court was established in accordance with the provision of the treaties with the Choctaws, Chickasaws, Creeks, and

Seminoles, but no such provision seems to have been made in the treaty with the Cherokees. We think it must be admitted that there is just cause of complaint among the Indians as to the character of their own courts, and a good deal of dissatisfaction has been expressed as to the course of procedure and final determination of matters submitted to these courts. The determinations of these courts are final, and so far the government of the United States has not directly interfered with their determinations. Perhaps we should except the recent case where the secretary of the interior thought it his duty to intervene to prevent the execution of a number of Choctaw citizens."

The report then recapitulated the legislation conferring certain jurisdiction over parts of the Indian Territory on the district courts of the United States for the Western district of Arkansas, the Eastern district of Texas, and the district of Kansas; the establishment of the United States court in the Indian Territory; the inclusion of a portion of the Indian Territory within the boundaries of the territory of Oklahoma, and the creation of a new Indian Territory, over parts of which the jurisdiction of the district courts of Arkansas and Texas remained; and, for reasons assigned, recommended the appointment of two additional judges for the United States court in the Indian Territory, and of additional commissioners, and that the jurisdiction of the district courts should be withdrawn.

The matter of schools was considered, and finally the question of title to the lands in the Indian Territory; and the committee stated:

"As we have said, the title to these lands is held by the tribe in trust for the people. We have shown that this trust is not being properly executed, nor will it be if left to the Indians, and the question arises, what is the duty of the government of the United States with reference to this trust? While we have recognized these tribes as dependent nations, the government has likewise recognized its guardianship over the Indians, and its obligations to protect them in their property and personal rights.

"In the treaty with the Cherokees, made in 1846, we stipulated that they should pass laws for equal protection, and for the security of life, liberty, and property. If the tribe fails to administer its trust properly by securing to all the people of the tribe equitable participation in the common property of the tribe, there appears to be no redress for the Indian so deprived of his rights, unless the government does interfere to administer such trust.

"Is it possible, because the government has lodged the title in the tribe in trust, that it is without power to compel the execution of the trust in accordance with the plain provisions of the treaty concerning such trust? Whatever power congress possessed over the Indians as semidependent nations, or as persons within its jurisdiction, it still possesses, notwithstanding the several treaties may have stipu

lated that the government would not exercise such power; and therefore congress may deal with this question as if there had been no legislation save that which provided for the exe-cution of the patent to the tribes.

"If the determination of the question whether the trust is or is not being properly executed is one for the courts, and not for the legislative department of the government, then congress can provide by law how such questions shall be determined, and how such trust shall be administered, if it is determined that it is not now being properly administered.

"It is apparent to all who are conversant with the present condition in the Indian Territory that their system of government cannot continue. It is not only non-American, but it is radically wrong, and a change is imperatively demanded in the interest of the Indian and whites alike, and such change cannot be much longer delayed. The situation grows worse, and will continue to grow worse. There can be no modification of the system. It cannot be reformed. It must be abandoned, and a better one substituted. That it will be difficult to do your committee freely admit, but because it is a difficult task is no reason why congress should not at the earliest possible moment address itself to this question."

On November 20, 1894, and November 18, 1895, the Dawes commission made reports to congress of the condition of affairs in the Indian Territory in respect of the manner in which lands were held by the members of the tribes, and of the manner in which the citizenship of said tribes was dealt with, finding a deplorable state of affairs, and the general prevalence of misrule.

In the report of November 18, 1895, the commission, among other things, said: "It cannot be possible that in any portion of this country, government, no matter what its origin, can remain peaceably for any length of time in the hands of one-fifth of the people subject to its laws. Sooner or later violence, if nothing else, will put an end to a state of affairs so abhorrent to the spirit of our institutions. But these governments are of our own creation, and rest for their very being on authority granted by the United States, who are therefore responsible for their character. It is bound by constitutional obligations to see to it that government everywhere within its jurisdiction rests on the consent of the gov-, erned. There is already painful evidence that in some parts of the territory this attempt of a fraction to dictate terms to the whole has already reached its limit, and, if left without interference, will break up in revolution."

And the commission, after referring to tribal legislation in the Choctaw and Cherokee tribes bearing on citizenship, the manipulation of the rolls, and proceedings in Indian tribunals, stated: "The commission is of the opinion that, if citizenship is left, without control or supervision, to the absolute determination of the tribal authorities, with power to decitizenize at will, the greatest injustice

will be perpetrated, and many good and lawabiding citizens reduced to beggary."

And further:

"The commission is compelled to report that, so long as power in these nations remains in the hands of those now exercising it, further effort to induce them by negotiation to voluntarily agree upon a change that will restore to the people the benefit of the tribal property, and that security and order in gov-ernment enjoyed by the people of the United States, will be in vain.

"The commission is therefore brought to the consideration of the question: What is the -duty of the United States government toward the people, Indian citizens and United States -citizens, residing in this territory under governments which it has itself erected within its own borders?

"No one conversant with the situation can -doubt that it is impossible of continuance. It is of a nature that inevitably grows worse, and has in itself no power of regeneration. Its own history bears testimony to this truth. The condition is every day becoming more acute and serious. It has as little power as disposition for self-reform.

"Nothing has been made more clear to the commission than that change, if it comes at all, must be wrought out by the authority of the United States. This people have been wisely given every opportunity and tendered every possible assistance to make this change for themselves, but they have persistently refused, and insist upon being left to continue present conditions.

"There is no alternative left to the United States but to assume the responsibility for future conditions in this territory. It has created the forms of government which have 'brought about these results, and the continuance rests on its authority. Knowledge of how the power granted to govern themselves has been perverted takes away from the United States all justification for further delay. Insecurity of life and person and property increasing every day makes immediate action imperative.

"The pretense that the government is debarred by treaty obligations from interference in the present condition of affairs in this territory is without foundation. The present conditions are not 'treaty conditions.' There is not only no treaty obligation on the part of the United States to maintain, or even to permit, the present condition of affairs in the Indian Territory, but, on the contrary, the whole structure and tenor of the treaties forbid it. If our government is obligated to maintain the treaties according to their original intent and purpose, it is obligated to blot out at once present conditions. It has been most clearly shown that a restoration of the treaty status is not only an impossibility, but, if a possibility, would be disastrous to this people, and against the wishes of all, people and governments alike. The cry, therefore, of those who have brought about this condi

tion of affairs, to be let alone, not only finds no shelter in treaty obligations, but is a plea for permission to further violate those provisions.

"The commission is compelled by the evidence forced upon them during their examination into the administration of the so-called 'governments' in this territory to report that these governments in all their branches are wholly corrupt, irresponsible, and unworthy to be longer trusted with the care and control of the money and other property of Indian citizens, much less their lives, which they scarcely pretend to protect."

By the Indian appropriation act of June 10, 1896 (29 Stat. 321, 339, c. 398), the commission was "directed to continue the exercise of the authority already conferred upon them by law, and endeavor to accomplish the objects heretofore prescribed to them, and report from time to time to congress"; and it, was further provided as follows:

"That said commission is further author-* ized and directed to proceed at once to hear and determine the application of all persons who may apply to them for citizenship in any of said nations, and after such hearing they shall determine the right of such applicant to be so admitted and enrolled: provided, however, that such application shall be made to such commissioners within three months after the passage of this act.

"The said commission shall decide all such applications within ninety days after the same shall be made.

"That in determining all such applications said commission shall respect all laws of the several nations or tribes, not inconsistent with the laws of the United States, and all treaties with either of said nations or tribes, and shall give due force and effect to the rolls, usages, and customs of each of said nations or tribes: and provided, further, that the rolls of citizenship of the several tribes as now existing are hereby confirmed, and any person who shall claim to be entitled to be added to said rolls as a citizen of either of said tribes and whose right thereto has either been denied or not acted upon, or any citizen who may within three months from and after the passage of this act desire such citizenship. may apply to the legally constituted court or committee designated by the several tribes for such citizenship, and such court or committee shall determine such application within thirty days from the date thereof.

"In the performance of such duties said commission shall have power and authority to administer oaths, to issue process for and compel the attendance of witnesses, and to send for persons and papers, and all depositions and affidavits and other evidence in any form whatsoever heretofore taken where the witnesses giving said testimony are dead or now residing beyond the limits of said territory, and to use every fair and reasonable means within their reach for the purpose of determining the rights of persons claiming