#### GRITTS *v.*FISHER.

Appeal and Ebrob; Restraining Obder Pending Appeal; Indians.

1. During the pendency in this court of an appeal from a decree sustaining a demurrer to and dismissing a bill in equity by certain Indians against the Secretary of the Interior, to enjoin him from distributing tribal funds, an order was made by this court on the application of the appellants, restraining the appellee from distributing the funds until the appeal should be determined.

2. Under the act of Congress of July 1, 1902 (32 Stat. at L. 716, chap. 1375) ; April 26, 1906 (34 Stat. at L. 137, chap. 1876); and June 21, 1906 (34 Stat. at L. 325, chap. 3504), relating to the lands and funds of the Cherokee tribe of Indians, the members of the tribe enrolled for allotment as of September 1, 1902, did not become the owners as tenants in common of the undivided community or tribal property to the exclusion of after-born members of the tribe; but control was retained by the Federal government in the property until such time as the enrolment of members should be complete,, and until final dissolution of the tribal government.

No. 2311.

This was an appeal by the complainants from a decree of the Supreme Court of the District of Columbia sustaining demurrers to and dismissing a bill in equity against the Secretary of the Interior and the Secretary of the Treasury for an injunction.

Pending the bearing on the merits, namely, on June 1, 1911,-tbis Court made the following order: “Upon application of' the appellants, it is tbis 1st day of June, 1911, ordered that a temporary injunction issue in this case enjoining and restraining the appellee, Walter L. Fisher, Secretary of the Interior, from issuing any certificate of allotment, deed, grant, or patent conveying or attempting to convey any of the lands remaining' unallotted, under the act of July 1st, 1902, being the lands described in the bill of complaint herein, and from distributing *474any of the funds now in, or hereafter to be received into, the possession of the Treasury of the United States as Cherokee funds, to any person or persons bom since September 1st, 1902. That said temporary injunction enjoining and restraining the said Secretary of the Interior shall be and continue in force until the 1st Monday of October, 1911, at which time, or as soon ■thereafter as counsel can be heard, the question whether said injunction shall be continued in force pending the final disposition of the case shall be considered and determined by the •court. Copy of this order, together with the writ of injunction, shall be forthwith served on the appellee, the said Walter L. Fisher, Secretary of the Interior.

On October 1, 1911, a motion to continue the temporary injunction until further order was made by *Mr. J. J. Henvphill,*•of counsel for the appellants; and *Mr. F. ~W. Glements*for the appellees appeared in opposition thereto. The Court granted the motion.

On October 9, 1911, the appeal was submitted on the merits,

.and it was decided November 6, 1911.

The Court in the opinion stated the facts as follows:

This is an appeal from a decree of the supreme court of the District of Columbia, sustaining demurrers and dismissing the bill, in equity cause No. 29,926.

The bill was filed by Levi R. Gritts, Bichard M. Wolfe, and Frank J. Boudinot, for themselves, and for and on behalf of all ■Cherokees enrolled for allotment as of September 1, 1902, under the act of Congress approved July 1, 1902 (32 Stat. at L. 716, chap. 1375).

The complainants are residents of Oklahoma, Cherokees by blood, and were enrolled for allotment as of September 1, 1902, under the said act.

The complainants aver that the said act was accepted and agreed to by the Cherokees by popular vote on August 7, 1902, *475and duly proclaimed on August 12, 1902; that the members of the Cherokee tribe living on September 1, 1902, became thereby, on that date, the equal owners, as individuals, of all the property real and personal, which had theretofore been owned by them as a community; that all the tribe living on said date, numbering about 36,000, were duly enrolled; and that thereupon each became entitled to an equal distributive share of all said property, to the exclusion of all other persons whatsoever.

They further aver that it was provided by said agreement that there should be given an allotment of land equal in value to 110 acres of average allottable lands, to each of said persons so enrolled as of September 1, 1902, to be selected by him or his legal representative; and provided that, if any individual so enrolled should die after September 1, 1902, before receiving his allotment, his said allotment, together with his proportionate part of all the other property of said tribe, should descend to his heirs.

They further aver that after the said allotment is made to the 36,000 persons enrolled, and entitled thereto, there will be about 440,000 acres of such average lands left as surplus, and about $2,500,000 in money in the Treasury, belonging to the said allottees.

The complainants aver that by sec. 16 of the act of April 26, 1906 (34 Stat. at L. 137, chap. 1876), it was provided that after allotments had been made in accordance with the said act of July 1, 1902, the residue of lands remaining unallotted should be sold by the Secretary of the Interior, and the proceeds added to the fund in the Treasury of the United States; and after paying all just charges, the remainder of such fund should be distributed *per capita*by the Secretary of the Interior to the members then living, and to the heirs of deceased members whose names appear upon the finally approved rolls.

They claim that by the said acts of July 1, 1902, and April 26, 1906, the persons enrolled as of September 1, 1902, became the exclusive and absolute owners of all the lands and all the funds formerly belonging to the Cherokee tribe; and that it was *476the duty of the defendant, the Secretary of the Interior, after-making allotments as provided by said act of July 1, 1902, to-convert, the remainder of the lands unallotted into money, and add the same to the said Oherokee fund, and to distribute it *per capita*to the complainants and those on whose behalf this-suit is brought, and their heirs, to the exclusion of all other persons.

Notwithstanding this, they aver that the said Secretary has-allotted and patented part of the said surplus lands to one or more persons bom since September 1, 1902, and that he is-about to allot and patent all the remaining surplus lands owned by the complainants and those they represent, to children born since September 1, 1902; and that he has decided to distribute-a large part of the funds owned by the complainants and held in the Treasury, to said minor children born since September 1,, 1902, all without the consent of the complainants, and in violation of their indefeasible property rights in the premises.

That he will, unless enjoined and restrained, order and direct the allotment of all the surplus lands owned by the complainants, to 5,610 children born after September 1, 1902, and will order the distribution of a large part of the funds in the-Treasury owned by complainants to said minor children, in violation of the rights of the complainants; and that the defendant, the Secretary of the Treasury, will, unless enjoined and restrained, pay out of the said funds in the Treasury a large sum of money to said children.

That the aggregate value of the lands and funds belonging to-the complainants and the other persons enrolled as of September 1, 1902, about to be so allotted and paid out to said children in violation of law, is about $1,000 to each of said children, making in all more than $5,500,000.

They aver that they became, by said act of July 1, 1902, vested with an absolute and indefeasible right and title to all lands and funds of the former Cherokee Nation, with individual estates of inheritance thereunder, and that by the said proposed action of the Secretary of the Interior and of the Secretary of' the Treasury, they will be deprived of such property as remains. *477unallotted, and undistributed under the terms of said act and Cherokee agreement of July 1, 1902, without due process of law.

They therefore pray for an injunction against the defendants, to prohibit them from disposing of the said property against the claims of the complainants, and to require the Secretary of the Interior to cancel the allotments and patents made to any children born since September 1, 1902; and to require Mm to proceed with the sale of the surplus lands, and the payment of the proceeds into the Treasury for the benefit of the complainants and those they represent; and that the defendants may both be required, after such sale and deposit, to pay out .and distribute all such moneys to the complainants and other Cherokees enrolled under the said act and agreement of July 1, 1902, *per*capita, in accordance with the provisions thereof.

The defendants filed separate demurrers to the bill, for want of equity, claiming that the complainants have no right or interest which entitles them to the relief sought.

These demurrers were sustained, and the bill was dismissed, and complainants have appealed to this court

*Mr. J. J. Hemphill, Mr. W. H.*Robeson, *Mr. D. R. Henderson,*and *Mr. C. G. Calhoun*for appellants.

*Mr. F. W.*Clement, *Mr. Q. R. Wilson, Mr. R. 8. Huidekoper, Mr. Ghas. W.*Gobb, *Mr. G. Edward*Wright, and *Mr. Wm. W. Hastings*for the appellee.

Mr. Justice Barnard,

of the Supreme Court of the District of Columbia, who sat with the Court in the place of Mr. Justice Van Orsdel, delivered the opinion of the Court:

Under the said act of July 1, 1902, the tribal government of the Cherokee Nation was to continue until March 1, 1906. All revenues belonging to the tribe were to be collected by an officer appointed by the Secretary of the Interior, and all moneys belonging to the tribe were to be paid out under the direction of *478the Secretary of the Interior, and he was to cause to be paid out all just indebtedness of the tribe existing at the date of the ratification of the said act, before any *pro rata*distribution could be made.

The act does not expressly declare what the Secretary shall do with the remaining land, after making the allotments of 110 acres to each member of the tribe properly enrolled; but we think it may be assumed that so long as the tribal government was to continue, Congress intended that the community property not allotted should remain community property, and that the common charges and expenses should be paid therefrom before such surplus would be distributable to the individuals.

The said act of April 26, 1906, however, provides for the partition of the remaining land by sale, and for the payment of the proceeds into the Treasury. If this had been the only provision of the new legislation, we think the contention of the complainants would be correct, and that they would be entitled to receive all the net proceeds of sales and the balance of funds remaining in the Treasury; but the same act extends the time for completing the rolls, and authorizes the enrolment of additional members of the tribe, to wit, all minor children living on March 4, 1906, whose parents had been enrolled, or whose applications for enrolment were pending on April 26, 1906; and directs that allotments shall be made to such children, illegitimate children taking the status of the mother; and it provides for equality, by payments in cash, if the lands are not sufficient for making such allotments.

This act of April 26, 1906, was amended by the act of June 21, 1906 (34 Stat. at L. 325, chap. 3504), and, in the last-named act (34 Stat. at L. 340, chap. 3504), some other names were added to the roll of the Cherokees entitled to shares of said tribal property.

This legislation clearly indicates in our opinion, that Congress intended to retain control of the surplus lands and funds of the Cherokee tribe until such time as the enrolment of members should be complete, and until the final dissolution of the tribal government. We think it had the undoubted right to so retain control, not only of the Indians themselves (as is provided *479by the said acts, which limit their right to dispose of or lease-their several parcels of land after allotment to them), but of the tribal government, the roll of members, and of the undivided property of the community or tribe; and that Congress did not,, by said act of July 1, 1902, intend to constitute the complainants and those they represent, the exclusive owners, as tenants in common, of the undivided community or tribal property.

Being of that opinion, from a careful consideration of the statutes and authorities, we find that the decree of the learned justice of the Supreme Court of the District of Columbia, sustaining the demurrers and dismissing the bill, was correct, and the same will therefore be affirmed. *Affirmed.*

Thereafter, on motion of the appellees the decree of this court, was amended so as to dissolve the preliminary injunction granted before the hearing on the merits.

On November *17,*1911, oh application of the appellants, an appeal to the Supreme Court of the United States was allowed..