Evening star., 1901-08-27
RULE DISCHARGED
Justice Barnard's Decision in the
Oklahoma Land Cases.
DENIAL OF PETITION OF CLAIMANTS
Authority to Determine Question
Reposed in Secretary of interior.
AN APPEAL PROBABLE E

Justice Barnard of the Supreme Court OF
| the District of Columbia today announced
| his decision in the Indian land cases re-
| Gently instituted by Willis C. West and a
| number of other petitioners. The court
discharged the rule requiring the Secretary
! of the Interior to show cause why he
! should not be commanded to approve the
| selection and taking of certain lands in
| Oklahoma territory and to allot the same
| to the petitioners. An appeal from the
ruling to the Court Of Appeals was noted
| The points involved in all the cases were
| the same, and therefore the argument and
ruling were based on but one cause-that
filed by Willis c. West. The proceeding
| was commenced by petition filed by West
in which he said. among other things,
that he is "a white citizen of the United
States and resident on the Wichita reser-
| vation in the territory of Oklahoma" He
| further stated that long before 1891 he
was married to an Indian woman of the
! Wichita tribe, by which marriage he was
| adopted into the tribe, according to the
| custom, usage and law of the tribe, and
| that he has since been recognized as such
| member by the tribe and by the United
States authorities.
| Agreement Entered Into.
An agreement was made June A, 1891. by
| the tribe and the United States wherein 1t
| was provided that the lands Of the tribe
| should be ceded to the United States, and
| that each member Of the tribe, native and
| adopted, should have allotted to him 1GO
acres of land, which agreement was recog-
nized by act of Congress of March 2 1898.
The act ratified the agreement and pre-
| scribed what lands might be SO allotted.
and vested in the Secretary of the Interior
! the power and duty of approving the al
lotmentS made.
me petitioner selected certain tract of
160 acres, embracing his improvements, he
| says In accordance with the agreement
| and act OF Congress, but the Secretary re-
| fused to a1lot the same to him or any other
tract, and refuses to recognize his right to
any allotment. The respondent has caused
the allotments to be made to the Indians
except the petitioner and certain other
members-and the schedules of allotment,
! emitting the petitioner, have been finally
approved and the work of allotment finally
closed, and he has been finally excluded
from the benefit of the act.
Pointing out that he has no adequate
remedy except by the aid of this court, the
petitioner asked for a writ of mandamus,
commanding the respondent to approve the
selection and taking of the lands and to
allot the same to the petitioner.
On the presentation of the petition the
respondent was ordered to show cause why
such writ of mandamus should not issue,
and In response to the rule he filed a de-
murrer to the petition.
The questions raised were argued at some
length by counsel for the respective par
ties, and the court was called upon to de-
ternine from the language of the act and
the averments Of the petition whether a
case was presented which entitled the petit
toner to the relief he asked.
Claims of the Petitioner.
Counsel for the petitioner claimed the act
Of the respondent in approving the allot-
ments YVES necessary to complete the title
to the petitioner, but that such approval
involved no exercise of Judgment and must
necessarily follow If the lands selected by
the members of the tribe are such as the
law preScribeS.
At most it was contended it is merely
ministerial duty, and allows no discretion
to the Secretary, and can in no sense be
called a judicial duty such as is necessary
in order to be beyond the power Of the
courts by writ Of mandamus
While 1t Is now considered settled that
this court has the power to direct by man
damus an executive officer OF the govern
ment to perform an act commanded by the
law. and which he declines to perform,
said Judge Barnard, in rendering his de-
cision, it seems equally well settled that
such writ will not be granted unless the
act is mechanical one, plain. purely
ministerial act, involving no consideration
of testimony or exercise of judgment or
discretion on the part of such executive
officers.
According to Justice Barnard. there can
be no doubt that the law imposes upon
the Secretary of the Interior the RESPONSE
bilty, duty and authority to decide the
question which the petitioner stated "has
been decided in this case
IF the court should say to the Secre-
tary by it's writ, You must approve this
allotment such approval. If made, would
not be the approval of the Secretary, but
Barnard. 1.-The respondent in that case
would have no supervision over the mat
ter as he Is required to have by the law,
and his judgment would be wholly set
aside"
Duty Incumbent Upon Respondent.
The granting of the writ as prayed. so
said Justice Barnard, would be assuming
decision and duty that Congress has
clearly imposed upon the respondent. Con-
tinuing. the court stated:
'If Congress, however. had passed the
act Of March 2, 1895, and had imposed the
duty Of the approval of the allotment on
this court, instead Of on the Secretary,
and the facts shown by the petition were
presented to me for my official action OF
approval, I should hesitate to entertain
the petition, for the reason that the Pc
titioner is not an Indian. and it is doubt
full at least whether Congress intended to
benefit any other persons by the legisla-
ton.
1.-The act Is one pertaining to Indians,
and an Indian has q well-defined meaning
In our language anu law, anu WneTc QOeS-
tions arise between the government and a
white citizen the fact Of his adoption into
tribe with tribal rights does not take
away his citizenship and make him an In
dian and ward of the nation. The gov
ernment deals with him citizen, and
as to the government he has all the rights
and duties of a citizen. The tribe of In
dians adopting or admitting such citizen
to ownership in common with them of tri-
bal possessions would no doubt be estopped
by their acts; the status of such white men
In their courts and as relating to one of
their own number might be that of an In
dian because of his agreement to be one
of them, but such contract would not be
binding on the United States. The words
native and adopted In the statute, taken
as a whole. may be construed, think, to
refer only to Indians.
IF not natives of the Wichita and af-
filiated bands OF Indians they should be
shown to have been natives of other tribes
and adopted by the Wichitas. before COM
ing properly within the provisions of the
act. At any rate. before receiving an al
lotment under this law, the claimant
should, according to the general policy of
the government, satisfy the authorities
that he had some Indian blood In his veins,
and was a member of this particular tribe,
by nativity or adoption"