Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1898-02-24

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er any sertificate was ever issued
to him; IN fact, there is an entire
abseHce of proof of any certificate
ever having been issued admitting
the applicants to citizenship by
Judge Vann when he was author
lied to admit North Carolina
Cherokees. As against the un-
supported affidavits of the claim
ant w. J. Watts, the record dis
closes the proceedings of the Cher
okee senate, and the testimony Of
Houston Benge, who was a senator
and well known and reputable
citizen of the Cherokee nation, who
states in corroboration OF the sem
ate minutes, as they are set forth
in the record, that the report in
the Watts case by Judge Vann was
made to the council for its action
and not as a final report admitting
them to citizenship.
From these considerations, and
in view of this condition of the
record, this court is OF the opinion
that the finding of the special mas
ter that the applicants were ad-
mitted TO citizenship on the 18th
day of November, 1871, or at
any time before December I, 1871,
is not supported by the evidence
in the case. The court bas called
the attention of the Special Master,
Mr.. Gibson, TO the foregoing evil
dence which appears in the record,
and he admits that the statement
as to the evidence as above set
forth is correct. and he is further
of the opinion that the aflidavlts
submitted by Mr.. Watts, and ia
ken before the clerk of the supreme
court, Mr.. Turner, at times subse-
quent to the 10Th day of Novem-
ber, show conclusively that The
case had not been concluded at
that time, but that they corrobor-
ate the senate minutes to the effect
that the evidence was unfinished
at the time. He further author
iZeS the court to say that his finding
as to admission on the 18th day OF
November, 1871, does not seem to
be supported,ln view of these facts
to which his attention has recently
been called.
The sixth ground for a rehearing
is to the effect that this court con-
mitted an error prejudicial to TIE
rights of the applicants by the
adoption of rules governing and
controlling the manner in which
cases should be brought into this
court, and that these rules com
PEELED these claimants TO bring
the case into this court on a peti-
ton in the nature of writ of
error, therefore depriving the ap-
plicants of trial de novo in this
court and denying to them their
constitutional right of a trial by
jury.
The applicants in this case have
never made any objection or taken
any exception to the rules which
were adopted by the court to gov
ern the proceedings in citizenship
cases. At no place in the pro-
ceedings have the applicants asked
the court to be permitted to have
a trial of their case by jury. The
court has granted to the applicants
in this case, and to all other APP
plicants the right to a trial de
novo. All requests to take ad-
ditional testimony have been
granted, and there has been in this
case no application for additional
testimony. The record is very
full, and the only question of fact
that could be submitted to a jury
in this case is the question as to
whether the parties are Cherokee
Indians by blood. The right of
claimants so far as this court is
concerned does not depend upon
the question of Cherokee blood,
but questions purely legal, and
upon which trial by jury could
not have been had under any cir
cumstances. The question upon
which this case turns is, were the
claimants admitted to citizenship
by Judge Vann? Second, were
they North Carolina Cherokees? a
fact which they have never assert
ed, and which all the evidence
shows to the contrary, and it
was a jurisdiciional fact solely for
the consideration of this court
in determining whether Judge
Nann could have had jurisdiction
to try this case under the law un-
der which it was acting. The
claimants have not been denied a
trial de novo in this court, or have
they been denied the right of trial
by jury, a right which they never
demanded, and which If they had
demanded would have been upon
a fact not material to the case. if
the claimants had demanded and
secured a jury, on the question of
Cherokee blood, there is not a par
ticle of testimony in the record in
their behalf that could have gone
to a jury on this question. 1t is
mostly contained in ex parte affi-
davits, and most OF this testimony
is hearsay.
Further, it Is stated in the mo-
ton for new trial that Judge |
Naan must have found in order TO |
have given decision in the case
that the applicants were North
Carolina Cherokees. There is no
in the record of the
claimants which was submitted to
Judge Vann. There is no judg-
ment of his in the record admitting
them to citizenship SO there is
upon which council can