Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-07-20
COURT SUSTAINS DEMURRER |
JOHN E. GoLDSBY RESTORED TO
INDIAN ROLLS.
litigation Over Action of Secretary of
the Interior in Striking Names
From Tribe Lists.

wright OF the supreme court OF
the District of Columbia today sent to the
clerk an order sustaining the demurrer filed
by Messrs Happier & Merillat of this
CITY, as attorneys for John E. Goldsby, a
Chickasaw Indian. who was placed on the
final rolls Of the tribe a blood member
and whose name, it Is alleged. was stricken
therefrom March last, without notice or
opportunity to be heard by Secretary Hitch
cock. The Secretary took his action, It is
stated on the ground that under an opin-
ion rendered in another case by Attorney
General Bonaparte the original enrolment
Of Goldsby was an error. AS the govern
ment has elected to stand on It's answer
the result is stated to be that a writ Of
mandamus will issue compelling Secretary
Garfield to restore Goldsby to the rolls.
There are also pending before Justice
Wright at this time the cases Of Clay Nc
Coy, white man, who married the daugh-
ter of former head chief Of the Chicka-
saws, whose case is alleged to be identical
with that of Goldsby, and the cases of Ida
Allison, frankie Allison, George A. ALI
son, John Allison and Johnnie s. Allison,
the latter all being blood members Of the
Cherokee tribe, who were represented by
Messrs Happier & Merillat and ]. X.
Jones of this city. 1t is understood that
orders will be entered up in these cases
similar to that in the Goldsby case, and
that the government will note appeals in
the Goldsby case, and also in two of the AL
lison cases with the view of making test
suits that will settle the principles involved.
In passing on the cases Justice Wright
made the following notation as expressive
of his opinion:
II am unable to escape the conclusion
that even were it conceded that the Secre-
tary had authority to strike names from
the rolls, nevertheless notice and oppor-
tunity to be heard were preliminaries es-
sential to the exercise of the power. The
demurrer to the answer Is therefore sus-
tanned"
Thousand Names Omitted.
Secretary Hitchcock in the last few days
of his administration struck from the rolls
Of the five civilized tribes more than a
thousand names. In many of the cases
patents to lands in fee simple had been
issued and the persons had been on the
rolls for two years or more. The Secre
tary based his action an opinion rem
dered February 49, 1907, by Attorney Cen
eral Bonaparte in what are known as the
Thompson and Coleman cases. He gave no
notice to the parties affected on the ground
that the rolls under the law had to be
finally closed March 4 and that there was
no time remaining within which to give no
tice. He held that II the opinion of the
Attorney General was correct that judy
ments of the Dawes commission under the
act of 1896 or of the Choctaw and Chick
asaw citizenship court under the act of
1902 were conclusive where they denied
enrolment to applicants that then he had
wrongfully placed on the rolls the names
he ordered stricken therefrom.
John E. Goldsby through his attorneys
Happier & Merilat, filed the original suit
in the cause asking the Supreme Court of
the District of Columbia to issue a writ of
mandamus to compel the Secretary OF the
Interior to restore his name to the rolls
In their petition filed in the cause, the at
tOrneys for the Indian claimed first that
the Secretary having once placed him
the final approved roll, had no authority
even In a proper case to strike his name
from the rolls without notice or oppOrtun-
ity to defend; second that the Secretary,
having placed his name on the rolls, had
exhausted his jurisdiction and could not,
even. with notice, strike a name from
the rolls. inasmuch as enrolment carried
with it a vested interest in 800 acres of
land in fee simple and right to from
$4,000 to $1,000 In tribal funds to each
person enrolled; that. matter of fact,
Secretary Hitchcock had misconstrued the
opinion of the Attorney General and had
applied 1T to the cases of Goldsby and
others whose rights were wholly dis
tingushable from those of Thompson and
Coleman.
The ground on which Justice Wright
placed his opinion, want of notice, renders
unnecessary consideration of the other
points.