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gressional legislation relied on by the claim- “Sec. 30. During the months of September ants,

and October, in the year nineteen hundred The act of Congress of July 1, 1902 (32 and two, the Commission to the Five Civil. Stat. at L. 716, chap. 1375), ratified by the ized Tribes may receive applications for enCherokee Nation, August 7, 1902, and often rolment of such infant children as may have called the Cherokee agreement, contained been born to recognized and enrolled citithese sections:

zens of the Cherokee Nation on or before the "Sec. 25. The roll of citizens of the Cher- first day of September, nineteen hundred and okee Nation shall be made as of September two, but the application of no person whomfirst, nineteen hundred and two, and the soever for enrolment shall be received after names of all persons then living and enti- the thirty-first day of October, nineteen hun. tled to enrolment on that date shall be dred and two. placed on said roll by · the Commission to "Sec. 31. No person whose name does not the Five Civilized Tribes.

appear upon the roll prepared as herein “Sec. 26. The names of all persons living provided shall be entitled to in any manner on the first day of September, nineteen hun participate in the distribution of the comdred and two, entitled to be enrolled as pro- mon property of the Cherokee tribe, and vided in section twenty-five hereof, shall be those whose names appear thereon shall par. placed upon the roll made by said Commis- ticipate in the manner set forth in this act: sion, and no child born thereafter to a citi. Provided, That no allotment of land or other zen, and no white person who has intermar- tribal property shall be made to any person, ried with a Cherokee citizen since the six or to the heirs of any person, whose name teenth day of December, eighteen hundred is on said roll and who died prior to the first and ninety-five, shall be entitled to enrol- day of September, nineteen hundred and two. ment or to participate in the distribution of The right of such person to any interest in the tribal property of the Cherokee Nation. the lands or other tribal property shall be

"Sec. 27. Such rolls shall, in all other re- deemed to have become extinguished and to spects, be made in strict compliance with the have passed to the tribe in general upon his provisions of section twenty-one of the act death before said date, and any person or of Congress approved June twenty-eighth, persons who may conceal the death of any eighteen hundred and ninety-eight (30 Stat. one on said roll as aforesaid for the purat L. 495, chap. 517), and the act of Con- pose of profiting by said concealment, and gress approved May thirty-first, nineteen who shall knowingly receive any portion of hundred (31 Stat. at L. 221, chap. 598). any land or other tribal property or of the

“Sec. 28. No person whose name appears proceeds so arising from any allotment proupon the roll made by the Dawes Commis- hibited by this section, shall be deemed sion as a citizen or freedman of any other guilty of a felony, and shall be proceeded tribe shall be enrolled as a citizen of the against as may be provided in other cases Cherokee Nation.

of felony, and the penalty for this offense “Sec. 29. For the purpose of expediting shall be confinement at hard labor for a the enrolment of the Cherokee citizens and period of not less than one year nor more the allotment of lands as herein provided, than five years, and in addition thereto a the said Commission shall, from time to forfeiture to the Cherokee Nation of the time, and as soon as practicable, forward to lands, other tribal property, and proceeds the Secretary of the Interior lists upon which so obtained.” shall be placed the names of those persons It thus appears that the roll of citizens found by the Commission to be entitled to of the Cherokee Nation was to be made up enrolment. The lists thus prepared, when as of September 1, 1902, of the persons then approved by the Secretary of the Interior, living and entitled to enrolment on that shall constitute a part and parcel of the final date; that all such persons should be placed roll of citizens of the Cherokee tribe, upon upon the roll, and that ($ 29) on the lists which allotment of land and distribution of to be finally approved by the Secretary of other tribal property shall be made. When the Interior there should be placed only the there shall have been submitted to and ap- names of those persons found to be entitled proved by the Secretary of the Interior lists to enrolment. In all other respects the roll embracing the names of all those lawfully was to be made in compliance with $ 21 of entitled to enrolment, the roll shall be the Act of Congress of June 28, 1898, and of deemed complete. The roll so prepared shall the Act of Congress of May 31, 1900. be made in quadruplicate, one to be deposit- Section 21 provided: “That in making ed with the Secretary of the Interior, one rolls of citizenship of the several tribes, as with the Commissioner of Indian Affairs, required by law, the Commission to the Five one with the principal chief of the Cherokee Civilized Tribes is authorized and directed Nation, and one to remain with the Com- to take the roll of Cherokee citizens of eightmission to the Five Civilized Tribes.

een hundred and eighty (not including freeu

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men) as the only roll intended to be con- , since December 16, 1895, shall be entitled to firmed by this and preceding acts of Con- enrolment or to participate in the distribugress, and to enroll all persons now living tion of the tribal property of the Cherokee whose names are found on said roll, .. Nation, and to an act of the Cherokee Counwith such intermarried white persons as cil to the same effect, approved December 16, may be entitled to citizenship under Cher 1895, counsel contend that the act of Conokee laws." The roll of 1880, made by the gress shows that there was a class of persons Cherokees, was a census roll, and its confir- who, having married prior to December 16, mation was not intended to create any 1895, were to be enrolled, embracing all lawrights which citizens of the Cherokee fully married according to the law of the Nation had not before enjoyed, but merely Nation, and were to participate in the disto furnish the basis for making up the roll tribution of the tribal property. The docof citizens. Section 21 was in reality a trine that the denial of a right is the grant statement that no previous act of Congress of a right is a poor basis for a grant of land. was intended to confirm any other roll of Not a single word of the act intimates that the Cherokee Nation.

these intermarried persons have or are to The act of May 31, 1900 (31 Stat. at L. have any interest in the property of the Na221, 236, chap. 598), provided: “That said tion, and to hold that because the act of Commission shall continue to exercise all 1902 declares that white persons intermarauthority heretofore conferred on it by law. rying after 1895 should acquire no property But it shall not receive, consider, or make rights the Indians, in accepting the act, any record of any application of any person conceded property rights to all who interfor enrolment as a member of any tribe in married prior thereto, would put a construcIndian territory who has not been a recog- tion on the act utterly inconsistent with the nized citizen thereof, and duly and lawfully settled rule that, as between the whites and enrolled or admitted as such, and its refusal the Indians, the laws are to be construed of such application shall be final when ap- most favorably to the latter. proved by the Secretary of the interior.” After the decision in Journeycake's Case, Section 31 of the act of July 1, 1902, says 155 U. S. 196, 39 L. ed. 120, 15 Sup. Ct. that no person whose name does not appear Rep. 55, and in that of Whitmore v. Cheroon the roll made by the Commission to the kee Nation, 30 Ct. Cl. 138, 180, the CheroFive Civilized Tribes “shall be entitled to kee National Council passed the act of in any manner participate in the distribu- December 16, 1895, amending certain section of the common property of the Chero- tions of the compiled laws, from which the kee tribe, and those whose names appear provisions of the act of November, 1877, thereon shall participate in the manner set which denied intermarrying whites any right forth in this act.” In other words, the roll in Cherokee property, had been erroneously must be made up of citizens who, under the omitted, by re-enacting the same, but this laws of the Cherokee Nation, were entitled only evidenced the determination to prevent to participation in the distribution of the the encroachment of the whites upon the common property of the Cherokee tribes. property rights of the Cherokee people. The

The concluding words of $ 21, "with such act was clearly passed out of abundant cauintermarried white persons as may be en- tion, and was quite unnecessary in view of titled to citizenship under Cherokee laws," the fact that the act of 1877 remained in emphatically indicate that Congress had the force, as was found by the court of claims. Indian citizen in mind in all that went be- We are dealing with the right of enrolfore and limited enrolment of white persons ment so as to entitle the persons enrolled to such as might be entitled to citizenship to participate in the distribution of the under Cherokee laws.

lands and vested funds of the Cherokee NaCounsel for claimants speak of the act of tion, and not with questions arising in re1902 as a "treaty,” but it is only an act of spect of improvements on the public domain. Congress, and can have no greater effect. As to improvements, they seem to have been It is a singular commentary on the situation treated as those of a tenant who had made that the majority of the native Cherokees them under an agreement that they should voted against its acceptance, which was car- remain his. Any citizen of the Nation could ried by the vote of the whites. The sugges- use the public domain, and it is not asserttion is wholly inadmissible that they could ed that the intermarried whites failed to obvote themselves an interest in the property tain their share of such use, but because of the Cherokee people, including a share they have enjoyed that benefit, free from tax in the money paid in by the Delawares and or burden, is no reason for giving them a the Shawnees, and become thereby wards of share in the lands and vested funds, which this government.

has never been granted to them, and for Referring to $ 26 of the act of 1902, which which they have never paid. declares that no white person intermarried We concur in the conclusions of the court

V.

of claims, including the disposition of the precisely like the common-law procedure of particular contention presented in appeal office found, and exists for the same reason, No. 128.

—that the government may exercise a right This involved certain claimants, before dependent upon only the alienage of a the court, known as “married out and aban- person living within its territory, predoned whites,” who alleged that they became sumably a citizen." citizens of the Cherokee Nation by inter- Decree affirmed. marriage, but conceded that they had since married persons having no rights of Cherokee citizenship by blood, or had abandoned their Cherokee wives. They contended that ALFRED H. BURT and Joseph J. Sindele,

Plffs. in Err., they could not be deprived of the rights and privileges acquired by intermarriage save

WILLIAM W. SMITH. by proceedings in the nature of office found. As to this the court of claims said:

Error to state court-necessity of raising “These intermarried whites are

not

Federal question. grantees or devisees seised and in possession

1. A decision of a state court that there of land, occupying the position of defend was probable cause for beginning a tradeants. They occupy the contrary position-mark infringement suit in the Federal of plaintiffs seeking to recover money-and courts in which a final decree was entered it is obligatory upon them to establish their dismissing the bill on the merits after a right to it. To say that a white man can temporary injunction had been dissolved is share in the property of the Cherokees for not reviewable in the Supreme Court of the the reason that at one time in his life he show that any claim of right under the

United States, where the record does not was the husband of a Cherokee woman, and Federal Constitution or laws was made in to say that this court or the Secretary of the state court, on the theory that such the Interior must hold that he is still the court, by its reasoning, implies that it finds husband of a Cherokee woman because the probable cause, in its own opinion, that the contrary has not been established in another decree of the Federal court was wrong, proceeding, is an appeal to technicality whereas not to assume it to be correct is to which the court cannot uphold.

These

fail to give it the full faith and credit which claimants, like other plaintiffs, must prove 1901, p. 677, requires.

U. S. Rev. Stat. § 905, U. S. Comp. Stat. their case; asserting a present right, they Error to state court-Federal question. must establish present conditions. The laws

2. Whether or not a state court exand usages of the Cherokees, their earliest ceeded its functions under the state Constihistory, the fundamental principles of their tution cannot give rise to a question respectnational policy, their Constitution and stating due process of law which will sustain utes, all show that citizenship rested on the appellate jurisdiction of the Supreme blood or marriage; that the man who would Court of the United States. * assert citizenship must establish marriage;

[No. 67.] that when marriage ceased (with a special reservation in favor of widows or widowers), Argued October 29, 1906. Decided Novem. citizenship ceased; that when an intermar

ber 12, 1906. ried white married a person having no rights of Cherokee citizenship by blood, it was conclusive evidence that the tie which I NERROR to the Court of Appeals of the

State of New York to review a judgment bound him to the Cherokee people was sev- which, reversing a judgment of the Appelered and the very basis of his citizenship late Division of the Supreme Court of that obliterated.

state, Fourth Department, affirmed a judg“The Cherokee statute which has been ment of a Trial Term of the Supreme Court cited (Laws of 1892, § 669) gives a proceed held in and for the County of Erie granting ing in the nature of office found, but, never- a nonsuit in an action for malicious prosecutheless, is confirmatory of the views herein- tion. Dismissed for want of jurisdiction. before expressed. It relates to cases where

See same case below, 181 N. Y. 1, 73 N. the Cherokee government takes the initi. E. 495. ative to accomplish a purpose. That is to The facts are stated in the opinion. say, where an intermarried white man has Messrs. Norris Morey and Joseph H. forfeited his rights of citizenship in the Morey for plaintiffs in error. Nation by acts which declare such forfeiture

Mr. Milton A. Fowler for defendant in ‘and the Nation requires his removal beyond error. the limits of its territory,' this proceeding must be resorted to, to be followed by a call Mr. Justice Holmes delivered the opinion on the United States Indian agent 'to re- of the court: move such a white man.' It is in principle This is an action for malicious prosecu

*Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, $ 1056.

reason

tion, brought by the plaintiffs in error, in Co. 125 U. S. 698, 31 L. ed. 839, 8 Sup. Ct. which the New York court of appeals ordered Rep. 1024), but it only decided that that judgment for the defendent in error. 181 N. suit was brought without sufficient cause. Y. 1, 73 N. E. 495. The suit complained of It decided nothing as to whether the plainwas a bill brought by the defendant in error tiff had probable cause for expecting to prein the United States circuit court to re-vail. If the court of appeals had affirmed strain the infringement of a registered the judgment of the trial court for the trademark. A preliminary injunction was reason that a preliminary injunction fairly granted in that suit. An appeal was taken obtained from any court conclusively estabto the circuit court of appeals where the in- lished probable cause, or that there was no junction was dissolved, and, the plaintiff evidence of a want of it, there would have making default at the final hearing, a de- been nothing to bring here, whether that cree was entered by the circuit court, ex

was right or wrong.

The only pressed to be upon the merits, and dismiss- ground on which our jurisdiction is maining the bill. The special damage alleged in tained is that the opinion of the court of the present action is the interruption of the appeals shows that it gave a different and plaintiffs' business by the injunction while inadmissible reason for the result to which it was in force.

it came. In the case at bar the trial court ordered No doubt an opinion may be resorted to a nonsuit on the ground that the granting for the purpose of showing that a court of the injunction by the circuit court estab- actually dealt with a question presented by lished probable cause. The principle of the the record, or that a right asserted in gendecision in Crescent City L. S. L. & S. H. eral terms was maintained and dealt with Co. v. Butchers' Union S. H. & L. S. L. on Federal grounds. Missouri, K. & T. R. Co. 120 U. S. 141, 30 L. ed. 614, 7 Sup. Co. v. Elliott, 184 U. S. 530, 534, 46 L. ed. Ct. Rep. 472, that a final decree of the cir- 673, 22 Sup. Ct. Rep. 446; San José Land & cuit court has that effect, even if subse- Water Co. v. San José Ranch Co. 189 U. S. quently reversed, was thought to extend to 177, 179, 180, 47 L. ed. 765, 766, 768, 23 Sup. a preliminary decree. See also Deposit Ct. Rep. 487; German Sav. & L. Soc. v. Bank v. Frankfort, 191 U. S. 499, 511, 48 Dormitzer, 192 U. S. 125, 48 L. ed. 373, 24 L. ed. 276, 280, 24 Sup. Ct. Rep. 154. The Sup. Ct. Rep. 221. But it would be going decision of the trial court was reversed by further than we are prepared to go if we the appellate division. The defendant then took jurisdiction upon the ground stated in took the case to the court of appeals, as- this case. Howard v. Fleming, 191 U. S. senting, as required, that, if the order 126, 137, 48 L. ed. 121, 125, 24 Sup. Ct. Rep. should be affirmed,

affirmed, judgment absolute 49. The record discloses no question under should be rendered against him. As we the Constitution or laws of the United have said, the order was reversed. The States until we come to the assignment of ground on which a review is asked here is errors in this court. Then it was too late. that the court of appeals by its reasoning Hulbert v. Chicago, 202 U. S. 275, 280, 50 L. implies that it finds probable cause in its ed. 1026, 1028, 26 Sup. Ct. Rep. 617. It is own opinion that the decree in the former true that the complainants allege the decase was wrong, whereas not to assume it cree, but that was merely to show that the to be correct is to fail to give it the faith litigation complained of was ended, as was and credit required by Rev. Stat. § 905, U. required by the law of New York (Marks v. S. Comp. Stat. 1901, p. 677.

Townsend, 97 N. Y. 590, 595), not to sugIt is unnecessary to consider whether a gest a Federal question, which at that court bound by a previous judgment would moment probably was not dreamed of. n:ot be warranted in saying that if the ques. Even the opinion of the court of appeals, tion had come before it in the first instance which is not part of the record in New it would have decided the case the other York, does not disclose that there had been way, and therefore that there was probable presented to it any argument or claim of cause for a mi-take of law into which it right based upon the effect due to the would have fallen itself. A mistaken view previous final decree under the Revised of the law may constitute probable cause in Statutes, or indeed, in a specific way, upon some instances, as is shown by the case the effect of the decree in any light. cited above. Probable cause does not mean Furthermore, notwithstanding a few broad sufficient cause. But this last proposition words relied upon by the plaintiffs in error, shows that the former decree could not have we doubt if the court of appeals meant to decided the question now before the court, lay down the proposition which we have and therefore that the case is not properly said that we would not discuss, or to go here. The former decree was conclusive on further than to decide that the whole evi. the merits of the suit in which it was rendence was not sufficient to entitle the dered, of course (Lyon v. Perin & G. Mfg.'plaintiffs to go to the jury in an action for

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malicious prosecution, as that action is, board of general appraisers decided that this limited in New York.

cloth was liable to a duty of 2 cents per It is argued that the court of appeals ex square yard, under that paragraph and also, ceeded its functions under the Constitution the different items being valued at over 11, of the state, and in that way denied the 12, and 1242 cents per square yard, to the ad plaintiffs due process of law. We see no valorem tax imposed by paragraphs 306 and reason to think so, but with that question 307 upon similar plain cloth above those we have nothing to do. French v. Taylor, values. The circuit court of appeals, while 199 U. S. 274, 50 L. ed. 189, 26 Sup. Ct. admitting its belief that Congress intended Rep. 76; Rawlins v. Georgia, 201 U. S. 638, to place an extra duty on figured cloth, felt 50 L. ed. 899, 26 Sup. Ct. Rep. 560.

bound to decide, upon the language of para Writ dismissed.

graph 313, that the tax placed by it upon figured cloth was to be added only to specific taxes imposed on less valuable

cloths by paragraphs 306 and 307. UNITED STATES, Petitioner,

To explain: By paragraph 306 cotton

cloth not bleached, etc., exceeding 100 and GEORGE RIGGS & CO.

not exceeding 150 threads to the square Duties--on figured cotton cloth.

inch, etc., and not exceeding 4 square Figured cotton cloth valued at over yards to the pound, pays 112 cents per 11, 12, and 121/2 cents per square yard is square yard, with an increasing rate as the liable, in addition to the specific duty im- number of yards to the pound increases. posed by the act of July 24, 1897 (chap. 11, But a proviso substitutes for the foregoing 30 Stat. at L. 175, 178, U. S. Comp. Stat. a different set of duties on all cotton cloth 1901, pp. 1656, 1659), | 313, to the ad valo

with the same count of threads, not rem tax imposed by 11 306, 307, upon similar bleached, etc., if valued above a certain plain cotton cloth above those values.

sum; for instance, if over 9 cents per [No. 167.]

square yard, 30 per centum ad valorem; if over 11, 35, etc. Paragraph 307 is similar

in form for cloths with between 150 and Argued October 23, 1906. Decided Novem

200 threads. ber 12, 1906.

By paragraph 313 figured cloth “shall ON N WRIT of Certiorari to the United pay, in addition to the duty herein provided

for other cotton cloth of the same descripStates Circuit Court of Appeals for the Second Circuit to review a decree which af- tion, or condition, weight, and count of firmed a decree of the Circuit Court for the threads to the square inch, one cent per Southern District of New York, reversing a square yard if valued at not more than decision of a board of United States general seven cents per square yard, and two cents appraisers as to the duty chargeable on

per square yard if valued at more than figured cotton cloth. Reversed.

seven cents per square yard.” In the judg. See same case below, 69 C. C. A. 357, 136 cloth in question, as figured cloth, is liable

ment appealed from it is assumed that the Fed. 583. The facts are stated in the opinion.

to this duty, and that, in deciding what Assistant Attorney General McReynolds

such cloth shall pay, the collector must and Solicitor General Hoyt for petitioner.

start from this paragraph. This paragraph Messrs. W. Wickham Smith and John K. levied shall be added. If it stopped with

must decide to what other duty the one here Maxwell for respondents.

the words “other cotton cloth of the same Mr. Justice Holmes delivered the opinion description, or condition,” no doubt the tax of the court:

might be added to an ad valorem tax when This case comes here on a certiorari

that would be required by paragraph 306 granted to bring up a decision of the

decision of the or 307. Those words might be taken to circuit court of appeals affirming the de- indicate cloth of similar value in cases cision of the circuit court and reversing within the provisos as well as goods of that of a board of United States general ap- similar weight taxed under the first part praisers. The respondents imported “cotton of paragraphs 306 and 307. But, as general cloth in which other than the ordinary words, they would include weight as readily warp and filling threads have been intro as value; and the mention of weight and duced in the process of weaving to form a count shows that they are used in a narrowfigure,” to quote the words of paragraph 313 er sense; for instance, to indicate quality, of the tariff act of July 24, 1897 (chap. 11, as bleached or otherwise. Hence the cri. 30 Stat. at L. 175, 178, U. S. Comp. Stat. teria for the duty to which that under 313 1901, pp. 1656, 1659). The collector and is to be added all point to a specific duty

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