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gressional legislation relied on by the claimants.

The act of Congress of July 1, 1902 (32 Stat. at L. 716, chap. 1375), ratified by the Cherokee Nation, August 7, 1902, and often called the Cherokee agreement, contained these sections:

"Sec. 25. The roll of citizens of the Cherokee Nation shall be made as of September first, nineteen hundred and two, and the names of all persons then living and entitled to enrolment on that date shall be placed on said roll by the Commission to the Five Civilized Tribes.

"Sec. 26. The names of all persons living on the first day of September, nineteen hun dred and two, entitled to be enrolled as provided in section twenty-five hereof, shall be placed upon the roll made by said Commission, and no child born thereafter to a citizen, and no white person who has intermarried with a Cherokee citizen since the sixteenth day of December, eighteen hundred and ninety-five, shall be entitled to enrolment or to participate in the distribution of the tribal property of the Cherokee Nation. "Sec. 27. Such rolls shall, in all other respects, be made in strict compliance with the provisions of section twenty-one of the act of Congress approved June twenty-eighth, eighteen hundred and ninety-eight (30 Stat. at L. 495, chap. 517), and the act of Congress approved May thirty-first, nineteen hundred (31 Stat. at L. 221, chap. 598).

"Sec. 28. No person whose name appears upon the roll made by the Dawes Commission as a citizen or freedman of any other tribe shall be enrolled as a citizen of the Cherokee Nation.

"Sec. 29. For the purpose of expediting the enrolment of the Cherokee citizens and the allotment of lands as herein provided, the said Commission shall, from time to time, and as soon as practicable, forward to the Secretary of the Interior lists upon which shall be placed the names of those persons found by the Commission to be entitled to enrolment. The lists thus prepared, when approved by the Secretary of the Interior, shall constitute a part and parcel of the final roll of citizens of the Cherokee tribe, upon which allotment of land and distribution of other tribal property shall be made. When there shall have been submitted to and approved by the Secretary of the Interior lists embracing the names of all those lawfully entitled to enrolment, the roll shall be deemed complete. The roll so prepared shall be made in quadruplicate, one to be deposited with the Secretary of the Interior, one with the Commissioner of Indian Affairs, one with the principal chief of the Cherokee Nation, and one to remain with the Commission to the Five Civilized Tribes.

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"Sec. 30. During the months of September and October, in the year nineteen hundred and two, the Commission to the Five Civilized Tribes may receive applications for enrolment of such infant children as may have been born to recognized and enrolled citizens of the Cherokee Nation on or before the first day of September, nineteen hundred and two, but the application of no person whomsoever for enrolment shall be received after the thirty-first day of October, nineteen hundred and two.

"Sec. 31. No person whose name does not appear upon the roll prepared as herein provided shall be entitled to in any manner participate in the distribution of the common property of the Cherokee tribe, and those whose names appear thereon shall participate in the manner set forth in this act: Provided, That no allotment of land or other tribal property shall be made to any person, or to the heirs of any person, whose name is on said roll and who died prior to the first day of September, nineteen hundred and two. The right of such person to any interest in the lands or other tribal property shall be deemed to have become extinguished and to have passed to the tribe in general upon his death before said date, and any person or persons who may conceal the death of any one on said roll as aforesaid for the purpose of profiting by said concealment, and who shall knowingly receive any portion of any land or other tribal property or of the proceeds so arising from any allotment prohibited by this section, shall be deemed guilty of a felony, and shall be proceeded against as may be provided in other cases of felony, and the penalty for this offense shall be confinement at hard labor for a period of not less than one year nor more than five years, and in addition thereto a forfeiture to the Cherokee Nation of the lands, other tribal property, and proceeds so obtained."

It thus appears that the roll of citizens of the Cherokee Nation was to be made up as of September 1, 1902, of the persons then living and entitled to enrolment on that date; that all such persons should be placed upon the roll, and that (§ 29) on the lists to be finally approved by the Secretary of the Interior there should be placed only the names of those persons found to be entitled to enrolment. In all other respects the roll was to be made in compliance with § 21 of the Act of Congress of June 28, 1898, and of the Act of Congress of May 31, 1900.

Section 21 provided: "That in making rolls of citizenship of the several tribes, as required by law, the Commission to the Five Civilized Tribes is authorized and directed to take the roll of Cherokee citizens of eighteen hundred and eighty (not including freed

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 have any interest in the property of the Nation, and to hold that because the act of 1902 declares that white persons intermarrying after 1895 should acquire no property rights the Indians, in accepting the act, conceded property rights to all who intermarried prior thereto, would put a construction on the act utterly inconsistent with the settled rule that, as between the whites and the Indians, the laws are to be construed most favorably to the latter.

The act of May 31, 1900 (31 Stat. at L. 221, 236, chap. 598), 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 enrolment 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, and its refusal of such application shall be final when approved by the Secretary of the interior." Section 31 of the act of July 1, 1902, says that no person whose name does not appear on the roll made by the Commission to the Five Civilized Tribes "shall be entitled to in any manner participate in the distribution of the common property of the Cherokee tribe, and those whose names appear thereon shall participate in the manner set forth in this act." In other words, the roll must be made up of citizens who, under the laws of the Cherokee Nation, were entitled to participation in the distribution of the common property of the Cherokee tribes.

The concluding words of § 21, "with such intermarried white persons as may be entitled to citizenship under Cherokee laws," emphatically indicate that Congress had the Indian citizen in mind in all that went before and limited enrolment of white persons to such as might be entitled to citizenship under Cherokee laws.

Counsel for claimants speak of the act of 1902 as a "treaty," but it is only an act of Congress, and can have no greater effect. It is a singular commentary on the situation that the majority of the native Cherokees voted against its acceptance, which was carried by the vote of the whites. The suggestion is wholly inadmissible that they could vote themselves an interest in the property of the Cherokee people, including a share in the money paid in by the Delawares and the Shawnees, and become thereby wards of this government.

Referring to § 26 of the act of 1902, which declares that no white person intermarried

After the decision in Journeycake's Case, 155 U. S. 196, 39 L. ed. 120, 15 Sup. Ct. Rep. 55, and in that of Whitmore v. Cherokee Nation, 30 Ct. Cl. 138, 180, the Cherokee National Council passed the act of December 16, 1895, amending certain sections of the compiled laws, from which the provisions of the act of November, 1877, which denied intermarrying whites any right in Cherokee property, had been erroneously omitted, by re-enacting the same, but this only evidenced the determination to prevent the encroachment of the whites upon the property rights of the Cherokee people. The act was clearly passed out of abundant caution, and was quite unnecessary in view of the fact that the act of 1877 remained in force, as was found by the court of claims.

We are dealing with the right of enrolment so as to entitle the persons enrolled to participate in the distribution of the lands and vested funds of the Cherokee Nation, and not with questions arising in respect of improvements on the public domain. As to improvements, they seem to have been treated as those of a tenant who had made them under an agreement that they should remain his. Any citizen of the Nation could use the public domain, and it is not asserted that the intermarried whites failed to obtain their share of such use, but because they have enjoyed that benefit, free from tax or burden, is no reason for giving them a share in the lands and vested funds, which has never been granted to them, and for which they have never paid.

We concur in the conclusions of the court

of claims, including the disposition of the, precisely like the common-law procedure of particular contention presented in appeal

No. 128.

This involved certain claimants, before the court, known as "married out and abandoned whites," who alleged that they became citizens of the Cherokee Nation by intermarriage, but conceded that they had since married persons having no rights of Cherokee citizenship by blood, or had abandoned

office found, and exists for the same reason,
-that the government may exercise a right
dependent upon only the alienage of a
person living within its territory, pre-
sumably a citizen.”
Decree affirmed.

Plffs. in Err.,

V.

their Cherokee wives. They contended that ALFRED H. BURT and Joseph J. Sindele, they could not be deprived of the rights and privileges acquired by intermarriage save by proceedings in the nature of office found. As to this the court of claims said:

not

WILLIAM W. SMITH.

Error to state court-necessity of raising
Federal question.

1. A decision of a state court that there

was probable cause for beginning a trademark infringement suit in the Federal courts in which a final decree was entered dismissing the bill on the merits after a temporary injunction had been dissolved is not reviewable in the Supreme Court of the United States, where the record does not show that any claim of right under the Federal Constitution or laws was made in the state court, on the theory that such court, by its reasoning, implies that it finds probable cause, in its own opinion, that the decree of the Federal court was wrong, whereas not to assume it to be correct is to fail to give it the full faith and credit which U. S. Rev. Stat. § 905, U. S. Comp. Stat. 1901, p. 677, requires.

"These intermarried whites are grantees or devisees seised and in possession of land, occupying the position of defendants. They occupy the contrary position of plaintiffs seeking to recover money-and it is obligatory upon them to establish their right to it. To say that a white man can share in the property of the Cherokees for the reason that at one time in his life he was the husband of a Cherokee woman, and to say that this court or the Secretary of the Interior must hold that he is still the husband of a Cherokee woman because the contrary has not been established in another proceeding, is an appeal to technicality which the court cannot uphold. claimants, like other plaintiffs, must prove their case; asserting a present right, they must establish present conditions. The laws and usages of the Cherokees, their earliest history, the fundamental principles of their national policy, their Constitution and statutes, all show that citizenship rested on blood or marriage; that the man who would assert citizenship must establish marriage; that when marriage ceased (with a special reservation in favor of widows or widowers), Argued October 29, 1906. Decided Novemcitizenship ceased; that when an intermarried white married a person having no rights of Cherokee citizenship by blood, it

These

Error to state court-Federal question.

2. Whether or not a state court exceeded its functions under the state Constitution cannot give rise to a question respecting due process of law which will sustain the appellate jurisdiction of the Supreme Court of the United States. *

[No. 67.]

ber 12, 1906.

was conclusive evidence that the tie which IN ERROR 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 say, where an intermarried white man has forfeited his rights of citizenship in the Nation by acts which declare such forfeiture 'and the Nation requires his removal beyond the limits of its territory,' this proceeding must be resorted to, to be followed by a call on the United States Indian agent to remove such a white man.' It is in principle

The facts are stated in the opinion. Messrs. Norris Morey and Joseph H. Morey for plaintiffs in error.

Mr. Milton A. Fowler for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

This is an action for malicious prosecu

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

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. Y. 1, 73 N. E. 495. The suit complained of was a bill brought by the defendant in error in the United States circuit court to restrain the infringement of a registered trademark. A preliminary injunction was granted in that suit. An appeal was taken to the circuit court of appeals where the injunction was dissolved, and, the plaintiff making default at the final hearing, a decree was entered by the circuit court, expressed to be upon the merits, and dismissing the bill. The special damage alleged in the present action is the interruption of the plaintiffs' business by the injunction while it was in force.

In the case at bar the trial court ordered a nonsuit on the ground that the granting of the injunction by the circuit court established probable cause. The principle of the decision in Crescent City L. S. L. & S. H. Co. v. Butchers' Union S. H. & L. S. L. Co. 120 U. S. 141, 30 L. ed. 614, 7 Sup. Ct. Rep. 472, that a final decree of the circuit court has that effect, even if subsequently reversed, was thought to extend to a preliminary decree. See also Deposit Bank v. Frankfort, 191 U. S. 499, 511, 48 L. ed. 276, 280, 24 Sup. Ct. Rep. 154. The decision of the trial court was reversed by the appellate division. The defendant then took the case to the court of appeals, assenting, as required, that, if the order should be affirmed, affirmed, judgment absolute should be rendered against him. As we have said, the order was reversed. The ground on which a review is asked here is that the court of appeals by its reasoning implies that it finds probable cause in its own opinion that the decree in the former case was wrong, whereas not to assume it to be correct is to fail to give it the faith and credit required by Rev. Stat. § 905, U. S. Comp. Stat. 1901, p. 677.

It is unnecessary to consider whether a court bound by a previous judgment would not be warranted in saying that if the question had come before it in the first instance it would have decided the case the other way, and therefore that there was probable cause for a mi take of law into which it would have fallen itself. A mistaken view of the law may constitute probable cause in some instances, as is shown by the case cited above. Probable cause does not mean sufficient cause. But this last proposition shows that the former decree could not have decided the question now before the court, and therefore that the case is not properly here. The former decree was conclusive on the merits of the suit in which it was rendered, of course (Lyon v. Perin & G. Mfg.

suit was brought without sufficient cause. It decided nothing as to whether the plaintiff had probable cause for expecting to prevail. If the court of appeals had affirmed the judgment of the trial court for the reason that a preliminary injunction fairly obtained from any court conclusively established probable cause, or that there was no evidence of a want of it, there would have been nothing to bring here, whether that reason was right or wrong. The only ground on which our jurisdiction is maintained is that the opinion of the court of appeals shows that it gave a different and inadmissible reason for the result to which it came.

No doubt an opinion may be resorted to for the purpose of showing that a court actually dealt with a question presented by the record, or that a right asserted in general terms was maintained and dealt with on Federal grounds. Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 530, 534, 46 L. ed. 673, 22 Sup. Ct. Rep. 446; San José Land & Water Co. v. San José Ranch Co. 189 U. S. 177, 179, 180, 47 L. ed. 765, 766, 768, 23 Sup. Ct. Rep. 487; German Sav. & L. Soc. v. Dormitzer, 192 U. S. 125, 48 L. ed. 373, 24 Sup. Ct. Rep. 221. But it would be going further than we are prepared to go if we took jurisdiction upon the ground stated in this case. Howard v. Fleming, 191 U. S. 126, 137, 48 L. ed. 121, 125, 24 Sup. Ct. Rep. 49. The record discloses no question under the Constitution or laws of the United States until we come to the assignment of errors in this court. Then it was too late. Hulbert v. Chicago, 202 U. S. 275, 280, 50 L. ed. 1026, 1028, 26 Sup. Ct. Rep. 617. It is true that the complainants allege the decree, but that was merely to show that the litigation complained of was ended, as was required by the law of New York (Marks v. Townsend, 97 N. Y. 590, 595), not to suggest a Federal question, which at that moment probably was not dreamed of. Even the opinion of the court of appeals, which is not part of the record in New York, does not disclose that there had been presented to it any argument or claim of right based upon the effect due to the previous final decree under the Revised Statutes, or indeed, in a specific way, upon the effect of the decree in any light. Furthermore, notwithstanding a few broad words relied upon by the plaintiffs in error, we doubt if the court of appeals meant to lay down the proposition which we have said that we would not discuss, or to go further than to decide that the whole evidence was not sufficient to entitle the plaintiffs to go to the jury in an action for

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 plaintiffs due process of law. We see no reason to think so, but with that question we have nothing to do. French v. Taylor, 199 U. S. 274, 50 L. ed. 189, 26 Sup. Ct. Rep. 76; Rawlins v. Georgia, 201 U. S. 638, 50 L. ed. 899, 26 Sup. Ct. Rep. 560. Writ dismissed.

UNITED STATES, Petitioner,

V.

GEORGE RIGGS & CO.

Duties-on figured cotton cloth.

12, and 122 cents per square yard, to the ad valorem tax imposed by paragraphs 306 and 307 upon similar plain cloth above those values. The circuit court of appeals, while admitting its belief that Congress intended to place an extra duty on figured cloth, felt bound to decide, upon the language of paragraph 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.

To explain: By paragraph 306 cotton cloth not bleached, etc., exceeding 100 and not exceeding 150 threads to the square inch, etc., and not exceeding 4 square Figured cotton cloth valued at over yards to the pound, pays 12 cents per 11, 12, and 122 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 square yard, 30 per centum ad valorem; if over 11, 35, etc. Paragraph 307 is similar in form for cloths with between 150 and 200 threads.

[No. 167.]

Argued October 23, 1906. Decided November 12, 1906.

ON
N WRIT of Certiorari to the United
States Circuit Court of Appeals for the
Second Circuit to review a decree which af-

firmed a decree of the Circuit Court for the

Southern District of New York, reversing a decision of a board of United States general appraisers as to the duty chargeable on figured cotton cloth. Reversed.

See same case below, 69 C. C. A. 357, 136

Fed. 583.

The facts are stated in the opinion. Assistant Attorney General McReynolds and Solicitor General Hoyt for petitioner.

Messrs. W. Wickham Smith and John K. Maxwell for respondents.

By paragraph 313 figured cloth "shall pay, in addition to the duty herein provided for other cotton cloth of the same description, or condition, weight, and count of threads to the square inch, one cent per square yard if valued at not more than seven cents per square yard, and two cents per square yard if valued at more than seven cents per square yard." In the judgment appealed from it is assumed that the cloth in question, as figured cloth, is liable to this duty, and that, in deciding what such cloth shall pay, the collector must start from this paragraph. This paragraph levied shall be added. If it stopped with must decide to what other duty the one here the words "other cotton cloth of the same description, or condition," no doubt the tax

Mr. Justice Holmes delivered the opinion might be added to an ad valorem tax when

of the court:

This case comes here on a certiorari granted to bring up a decision of the circuit court of appeals affirming the decision of the circuit court and reversing that of a board of United States general appraisers. The respondents imported "cotton cloth in which other than the ordinary warp and filling threads have been introduced in the process of weaving to form a figure," to quote the words of paragraph 313 of the tariff act of July 24, 1897 (chap. 11, 30 Stat. at L. 175, 178, U. S. Comp. Stat. 1901, pp. 1656, 1659). The collector and

that would be required by paragraph 306 or 307. Those words might be taken to indicate cloth of similar value in cases within the provisos as well as goods of similar weight taxed under the first part of paragraphs 306 and 307. But, as general words, they would include weight as readily as value; and the mention of weight and count shows that they are used in a narrower sense; for instance, to indicate quality, as bleached or otherwise. Hence the criteria for the duty to which that under 313 is to be added all point to a specific duty

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