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there can be no objection to the proposition that such persons should be citi
Cong. Globe, pt. 4, (1st Sess. 39th Cong.) pp. 2890-2893. Alluding to the phrase "Indians not taxed,” he remarked that the language of the proposed constitutional amendment was better than that of the act of 1866 passed at the same session. He observed: “There is a difficulty about the words • In. dians not taxed.' Perhaps one of the reasons why I think so is because of the persistency with which the senator from Indiana himself insisted that the phrase • Indians not taxed,' the very words which the senator from Wisconsin wishes to insert here, would exclude everybody that did not pay a tax; that that was the meaning of it; we must take it literally. The senator from Maryland did not agree to that, nor did I; but, if the senator from Indiana was right, it would receive a construction which, I am sure, the senator from Wisconsin would not be for, for if these Indians come within our limits and within our jurisdiction and are civilized, he would just as soon make a citizen of a poor Indian as of the rich Indian.” Id. 2894.
A careful examination of all that was said by senators and representatives, pending the consideration by congress of the fourteenth amendment, justifies us in saying that every one who participated in the debates, whether for or against the amendment, believed that, in the form in which it was approved by congress, it granted, and was intended to grant, national citizenship to every person of the Indian race in this country who was unconnected with any tribe, and who resided, in good faith, outside of Indian reservations and within one of the states or territories of the Union. This fact is, we think, entitled to great weight in determining the meaning and scope of the amendment. Lithographic Co. v. Sarony, 111 U. S. 57; S. C. 4 SUP. CT. REP. 279. In this connection we refer to an elaborate report made by Mr. Carpenter, to the senate of the United States, in behalf of its judiciary committee, on the fourteenth of Deceinber, 1870. The report was made in obedience to an instruction to inquire as to the effect of the fourteenth amendment upon the treaties which the United States had with various Indian tribes of the country. The report says: "For these reasons your committee do not hesitate to say that the Indian tribes within the limits of the United States, and the individuals, members of such tribes, while they adhere to and form a part of the tribes to which they belong, are not, within the meaning of the-fourteenth amendment, .subject to the jurisdiction of the United States, and therefore that such Indians have not become citizens of the United States by virtue of that amendment; and, if your committee are correct in this conclu. sion, it follows that the treaties heretofore made between the United States and the Indian tribes are not annulled by that amendment." The report closes with this significant language: “It is pertinent to say, in concluding this report, that treaty relations can properly exist with Indian tribes or nations only, and that, when the members of any Indian tribe are scattered, they are merged in the mass of our people, and become equally subject to the jurisdiction of the United States."
The question before us has been examined by a writer upon constitutional law whose views are entitled to great respect. Judge COOLEY, referring to the definition of national citizenship as contained in the fourteenth amendment, says: “By the express terms of the amendment, persons of foreign birth, who have never renounced the allegiance to which they were born, though they may have a residence in this country, more or less permanent, for business, instruction, or pleasure, are not citizens. Neither are the aboriginal inhabitants of the country citizens, so long as they preserve their tribal relations and recognize the headship of their chiefs, notwithstanding that, as against the action of our own people, they are under the protection of the laws, and may be said to owe a qualified allegiance to the government. When living within territory over which the laws, either state or territorial, are extended, they are protected by, and, at the same time, held amenable
to, those laws in all their intercourse with the body politic, and with the individuals composing it; but they are also, as a quasi foreign people, regarded as being under the direction and tutelage of the general government, and subjected to peculiar regulations as dependent communities. They are .subject to the jurisdiction of the United States only in a much qualitied sense; and it would be obviously inconsistent with the semi-independent character of such a tribe, and with the obedience they are expected to render to theiro tribal head, that they should be vested with the complete rights—or, on the other hand, subjected to the full responsibilities—of American citizens. It* would not for a moment be contended that such was the effect of this amendment. When, however, the tribal relations are dissolved, when the headship of the chief or the authority of the tribe is no longer recognized, and the individual Indian, turning his back upon his former mode of life, makes himself a member of the civilized coinmunity, the case is wholly altered. He then no longer acknowledges a divided allegiance; he joins himself to the body politic; he gives evidence of his purpose to adopt the habits and customs of civilized life; and, as his case is then within the terms of this amendment, it would seem that his right to protection, in person, property, and privilege, must be as complete as the allegiance to the government to which he must then be held; as complete, in short, as that of any other native-born inhabitant." 2 Story, Const. (Cooley's Ed.) § 1933, p. 654. To the same effect are Ex parte Kenyon, 5 Dilì. 390; Ex parte Reynolds, Id. 397; U. S. v. Crook, Id. 454; U. S. v. Elm, Dist. Ct. U. S., V. D. N. Y. 23 Int. Rev. Rec. 419.
It seems to us that the fourteenth amendment, in so far as it was intended to confer national citizenship upon persons of the Indian race, is robbed of its vital force by a construction which excludes from such citizenship those who, although born in tribal relations, are within the complete jurisdiction of the United States. There were, in some of our states and territories at the time the amendment was submitted by congress, many Indians who had finally left their tribes and come within the complete jurisdiction of the United States. They were as fully prepared for citizenship as were or are vast numbers of the white and colored races in the same localities. Is it conceivable that the statesmen who framed, the congress which submitted, and the people who adopted that amendment intended to confer citizenship, national and state, upon the entir population in this country of African descent, (thelarger part of which was shortly before held in slavery,) and, by the same constitutional provision, to exclude from such citizenship Indians who had* never been in slavery, and who, by becoming bona fide residents of states and territories within the complete jurisdiction of the United States, had evinced a purpose to abandon their former mode of life, and become a part of the people of the United States? If this question be answered in the negative, as we think it must be, then we are justified in withholding our assent to the doctrine which excludes the plaintiff from the body of citizens of the United States upon the ground that his parents were, when he was born, members of an Indian tribe; for, if he can be excluded upon any such ground, it must necessarily follow that the fourteenth amendment did not grant citizenship even to Indians who, although born in tribal relations, were, at its adoption, severed from their tribes, subject to the complete jurisdiction as well of the United States as of the state or territory in which they resided.
Our brethren, it seems to us, construe the fourteenth amendment as if it read: “All persons born subject to the jurisdiction of, or naturalized in, the United States, are citizens of the United States and of the state in which they reside;" whereas the amendment, as it is, implies in respect of persons born in this country that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States. This would not include the children born in this country of a foreign minister, for the reason that, under the fiction of extraterritoriality as recog
nized by international law, such minister, “though actually in a foreign country, is considered still to remain within the territory of his own state," and, consequently, he continues “subject to the laws of his own country, both with respect to his personal status and his rights of property; and his children, though born in a foreign country, aro considered as natives." Halleck, Int. Law, c. 10, § 12. Nor was plaintiff born without the jurisdiction of the United States in the same sense that the subject of a foreign state, born within the territory of that state, may be said to have been born without the jurisdiction of our government. For, according to the decision in Cherokee Nation v. Georgia, 5 Pet. 17, the tribe of which the parents of plaintiff were members was not "a foreign state, in the sense of the constitution," but a domestic dependent people, “in a state of pupilage,” and “so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered an invasion of our territory and an act of hostility.” They occupied territory which the court, in that case, said composed "a part of the United States," the title to which this nation asserted independent of their will. “In all our intercourse with foreign nations,” said Chief Justice MARSHALL in the same case, “in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our citizens. * They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.” And, again, in U.S. v. Rogers, 4 How. 572, this court, speaking by Chief Justice TANEY, said that it was "too firmly and clearly established to admit of dispute that the Indian tribes, residing within the territorial limits of the United States, are subject to their authority.” The Cherokee Tobacco, 11 Wall. 616. Born, therefore, in the territory, under the dominion and within the jurisdictional limits of the United States, plaintiff has acquired, as was his undoubted right, a residence in one of the states, with her consent, and is subject to taxation and to all other burdens imposed by her upon residents of every race. If he did not acquire national citizenship on abandoning his tribe and becoming, by residence in one of the states, subject to the complete jurisdiction of the United States, then the fourteenth amendment has wholly fai to accomo plish, in respect of the Indian race, what, we think, was intended by it; and there is still in this country a despised and rejected class of persons with no
nationality whatever, who, born in our territory, owing no allegiance to any of foreign power, and subject, as residents of the states, to all the burdens of
government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.
(112 U. S. 150)
CITY OF Fort SCOTT 0. HICKMAN.
(November 3, 1884.) 1. STATUTE OF LIMITATIONS-Gen. St. Kan. Ch. 80, ART. 3, & 24.
The statute of the state of Kansas, (Gen. St. Kan. c. 80, art. 3, & 24, p. 634,) providing that, in a case founded on contract, when an acknowledgment of an existing liability, debt, or claim" shall have been made, an action may be brought within the period prescribed for the same, after such acknowledgment, if such acknowl. edgnient was in writing, signed by the party to be charged thereby, requires, as interpreted by the supreme court of Kansas, that the acknowledgment, to be effective, be made, not to a stranger, but to the creditor, or to some one acting for or
representing hini. 2. SANE-ACKNOWLEDGMENT OF INDEBTEDNESS.
An acknowledgment cannot be regarded as an admission of indebtedness, where the accompanying circumstances are such as to repel that inference, or to leave it in doubt whether the party intended to prolong the time of legal
3. SAXE-COMPROMISE OF CIT DEBT.
A committee of a city council, appointed to consider the city indebtedness, made a report containing a statement of the assets and liabilities of the city, and including among the latter a certain issue of bonds called M. bonds. The report further proposed a plan of compromise to be made with the holders of city bonds, the proposal being made in the form of a circular, which the committee recommended " to be sent to each person holding city bonds, except M. bonds, as to which we make no report.” The circular, by its terms, purported to be addressed “to each person holding bonds of the city," and requested each bondholder to express his views fully." The city council adopted the report of the committee and ordered the circular to be sent to the holders of the city bonds; and it was so sent to holders of bonds other than M. bonds, but not to holders of the latter. Held, that neither the note nor the circular was an acknowledgment of the M. bonds as a debt of the city,
so as to take them out of the statute of limitations. 4. PRACTICE-TRIAL BY COURT_SPECIAL FINDINGS—REVERSAL OF JUDGMENT.
Where a circuit court of the United States, on the trial of an action at law before it, on the waiver of a jury, makes a special finding of facts on all the issues raised by the pleadings, and gives an erroneous judgment thereon, which this court reverses, it is proper for this court to direct such judgment to be entered by the cir.
cuit court as the special finding requires. In Error to the Circuit Court of the United States for the District of Kan. sas.
J. D. McCleverty, for plaintiff in error. 8. E. Brown, for defendaut in error.
BLATCIIFORD, J. This is an action brought by the defendant in error in the circuit court of the United States for the district of Kansas against the city of Fort Scott, in the state of Kansas, to recover the amount of principal and interest due on 27 bonds for $500 each, issued by that city, 12 of which became due on July 1, 1873, and 15 on July 1, 1874. The bonds are coupon bonds, with interest payable annually on the first of July at the rate of 10 per cent. per annum, and are dated July 1, 1871. Each bond contains the heading, “Special Improvement Bond of the City of Fort Scott, Kansas,” and this statement: “Issued in accordance with sections 16 and 17 of an act of the legislature of the state of Kansas, entitled •An act relating to the powers and government of cities of the second class, and to repeal certain sections of chapter 19 of the General Statutes of 1868, approved March 8, 1871,' and in pursuance of an ordinance of the city of Fort Scott, entitled •An ordinance ordering the grading and macadamizing, etc., of certain streets and parts of streets, approved May 19, 1871.' Countersigned by the city treasurer, this twentieth day of September, 1871." The suit was commenced July 1, 1880, and was tried by the circuit court without a jury. As to 11 of the 12 bonds that court found that all the coupons on them had been paid on and before July 1, 1873, but no payment of principal or interest had been made upon any of them since that date, except as stated in its fourth finding. As to the 15 bonds it found that all the coupons on them were paid on and before May 16, 1875, but no payment of principal or interest had been made upon any of them since that date, except as stated in its fourth finding. The remaining findings were as follows:
4. The court further finds, that, as to the remaining bond sued on herein, being bond number 78, it became due, by its terms, July 1, 1873, and on and prior to that date all the interest coupons thereon had been paid; that, on November 8, 1875, a payment was made on said bond number 78, of the sum of $290, and the balance of said bond remained due and unpaid at the time of the commencement of this action; that said payment upon bond 78 was made by Donnell, Lawson & Co., fiscal agents of the state of Kansas, upon the authority of certain letters sent them by J. H. Randolph, city treasurer of the defendant, written by him in the usual routine of his official duties, but without any special instruction or knowledge on the part of the city council of said city; which said letters are as follows, to-wlo.
*“FORT SCOTT, KANSAS, June 10, 1875. “Mess. Donnell, Lawson & Co., New York-DEAR SIRS: Yours of the second inst. at hand. The couporis of our special improvement bonds are all retired except bonds Nos. 97 and 107 to 113; the last coupon on these Nos. (all past due) is not yet in; will give you statement of am't and Nos. of these bonds due and unpaid by next mail. You may redeem any one of these bonds whenever this fund in your hands is sufficient to do so. My remittance of May 26th, of $245, was all to apply on coupons of bonds issued to the M., K. & T. R. R. Co., and not $70 of it for special im. fund, as you state you have credited, in your letter of June 1st. The Nos. of the bonds to which these coupons belong are 1 to 7, inclusive. You will please make the transfer of the $70 to your Fort Scott City coupon acc't. About what would our city funding bonds bring in your market, bonds running 10 years, int. payable s. a. at 10 per cent. p'r annum? “Resp'y, yours,
J. H. RANDOLPH, City Treasurer.
"FORT Scott, KANSAS, August 6, 1875. "Mess. Donnell, Lawson & Co., New York—GENTLEMEN: I give you below the Nos. of our special improvement bonds now unpaid. Nos. 6 to 15, 17 to 22, 24, 30 to 39, 53 to 58, 60 to 80, 83 to 85, 97, 98, 99, and 104 to 115, in all 70 bonds of $500 each, all past due. I will be in New York last of this month, and will call and explain to you the situation in regard to these bonds, so you may understand the reason why they are not paid, and that owners of the same may govern themselves accordingly. “Very resp'y yours,
J. H. RANDOLPH, City Treasurer.
"Fort SCOTT, KANSAS, August 11, 1875. “Mess. Donnell, Lawson & Co., New York—GENTLEMEN: I inclose you herewith d'ft for $500 to apply on interest, due on Fort Scott City special improvement bonds. "If not convenient to apply on interest use to pay on bonds. “Resp'y yours,
J. H. RANDOLPA." On November 8, 1875, said tiscal agents paid bond 77 of *this series, and said $290 on said bond 78, they being the only bonds presented to that date, which payments exhausted the funds in the hands of said fiscal agents. That the oficial accounts of the treasurer of said city contain the following entry of credit to himself: “August 11, 1875. By Donnell, Lawson & Co., to pay interest on special improvement bonds, $500,” which was the moneys remitted by said treasurer in the letter of August 11, 1875. Said payments were reported by the city treasurer in his annual report and approved by the city council.
(5) The court further finds that in July, 1878, the defendant, the city of Fort Scott, Kansas, by its city council, referred the matter of its financial condition to the finance committee of said council, which committee made a report in writing to said council on the twenty-first day of August, 1878, which report was duly adopted and spread in full on the records of the minutes of said council and is as follows, to-wit:
"COUNCIL PROCEEDINGS, AUGUST 21, 1878. “Adjourned regular meeting. Mayor Cohen in the chair. The report of the finance committee on the matter of the city indebtedness was read, and on motion adopted and ordered placed on file. It is as follows:
“ • To the Hon. Mayor and Councilmen of the City of Fort Scott, Kansas: We, your committee on city indebtedness, met with and consulted B. P. McDonald, D. P. Lowe, J. S. McCord, J. D. McCleverty, and also J. D. Hill, W. J. Bowden, W. A. Cormany, members of the board of education of this city, whom the committee thought should be invited; and, after careful consider