The Daily Ardmoreite. [volume] (Ardmore, Okla.) 1893-current, 1907-12-05


that Mrs. Frost had complied with |
che procedure and the law. II said |
that It was not contended by the |
government that power had been ex.
pressly conferred by the statutes up. |
on the secretary to cancel an allot- |
ment after issuance, but that he had |
that power by implication and claim.
ed that as 1t was necessary for
him to construe the statutes, judg
mont and discretion was needed to
be exercised by him, and that the
courts would not control his eXer
else of discretion. The court Of ap.
poals in its opinion said it might be
true that to some extent the statutes
required construction, but that In
this case 1t was not TO such an eX-
beyond control of the court It said
that In Mrs Frosts case there was
no conflict between the statutes and
no confusion in their application
Whatever power of construction, su.
pervision and approval had been
conferred by the secretary had been
completely exhausted when he re
fused to add the land to the town.
site and Mrs. Frost was permitted
to select the same in allotment, and
after nine months received an allot.
ment certificate. Her rights TO the
land had become vested and the
execution and delivery of the patent
were mere ministerial acts. The pat.
cnt had in fact been executed by the
parties charged with that duty by
the express terms of the statute
when 1t was signed by the chief
and governor OF the Choctaw and
Chickasaw nations, and there was
not power conferred on the secre-
tary under the law to review these
acts or to set aside the patent. The
secretary, it held. prior to issuance
of an allotment certificate, might
have interposed but not thereafter.
The cases OF Goldsby and the Al.
lisons arose out of the fact that on
March 4. 1907. Secretary Hitchcock
struck from the rolls of the five
civilized tribes about 100 names of
persons who he held should not have
been put on the rolls. in view of an
/ npipinn rAnHnr.I hNy
cral February 10. in the case OF
William Thompson. Demand was
made upon him by Happier a. Mer
Hat and James X. Jones of Wash.
ington, ID. C., as attorneys for the
Indians. that he restore the names
OF John T.. Goldsby and the Allisone
to the rolls. Upon his refusal q
suit by way of mandamus was
brought To compel him to restore
their names to the rolls, the same
As they had been thereon before
Secretary liitchcock's act. and that
he he required to recognize them
as full members of the tribes. Jus
tlce Wright issued n writ of manda
mus from which the government ap
pealcd Full argument was had and
yesterday Chief Justice Shepard rcn
dered the opinion of tnc court OF
appeals. He said that the primary
purpose OF congress I'm the lcgisla
ton with relation to the five civil
lied tribes was. as claimed by tn,
attorneys for the Indians. the uti
! mate creation of a new state, and
that 70 that end 1t had provided
Tor distribution OF lands and funds
"a rapidly as lists of persons found
TO be members OF the tribes could
be approved. 1t said congress had
intended to have the lists approved
In sections for convenience and dis
patch. The court added:
We cannot conceive that either
Of the contracting parties 10 the
agreement with the five civilized
tribes or congress contemplated a
power in the secretary. after hay
ing approved the rolls In sections
to strike out the whole list OF en-
roilmcnts or any number of them
whom he had found entitled to cn
rollment, as he had done on the
last day given for completion Of the
rolls
1T is quite true that individual
members OF the Indian tribes had nc
vested rights in the lands by virtue
OF enrolment only. and that their
allotment OF land was entirely with.
In the unlimited powers of congress.
yet these powers had beer exercised
only after solemn agreement with
the tribes, And even II the individual,
II after his enrOllmpn, had haan m