Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-03-13
DEMURRER SUSTAINED
ISSUANCE OF LAND PATENT
MADE OBLIGATORY.
Mrs. Belle Frost's Application Had
Been Denied by Secretary Of
the Interior.


the District Of Columbia yesterday sus-
tanned a demurrer filed by Attorneys Kap-
pier & Merillat, representing Belle Frost, to
the answer fled by Ethan A. Hitchcock as
| Secretary Of the interior. to a petition filed
In the Supreme Court Of the District of Co
lumbia by Belle Frost to compel the Sec
rotary Of the Interior by mandamum to is
sue to her a patent for some forty acres of
land adjoining the townsite of Mill Creek
In the Indian Territory. The effect of the
judges action in sustaining the demurrer
of Mrs. Frost Is to compel the issuance of
the patent, the Secretarys answer having
been full and complete. The justice sus-
tains the contention of Mrs. Frosts coun-
sell that under the facts admitted the Sec
rotary had exhausted his discretion and
only ministerial act remained to be per-
formed.
The case, 1T Is understood, involves an i'm
portant question respecting the powers of
the Secretary of the Interior over allot-
ments in the Choctaw nation in the Indian
Territory. The petition filed by Mrs Frost
set forth that under the treaties between
the Choctaw and Chickasaw nations and
the United States there was conveyed to
the Indian nations in fee simple, in ex,
change for lands east Of the Mississippi
river, all Of the tract of country on which
they now reside, subject only to their con-
ttnued existence as q nation.
1t also sets forth that by reason of the
various acts of Congress relating to the
division in severalty of the land in the In
dian Territory among the Indians. the re-
versionary interest of the United States had
been parted with. The petition alleged that
Mrs. Frost was lawfully enrolled member
Of the Choctaw tribe, and that as such she
was entitled to an allotment in the nation.
1t declared that the only land reserved
from allotment was such land as might be
selected for townsite and certain charitable
purposes by the Secretary Of the Interior
pursuant to law.
Reservation Of Townsite.
The petition averred that the Secretary OF
the Interior had reserved the townsite of
Mill creek from allotment, and that there
after the commissioner Of the five civilized
tribes representing the United States had
recommended the reservation from allot-
ment Of certain other lands including the
forty acres in controversy, but that the
townsite act having been repealed in March
1903, Secretary Hitchcock refused to re-
serve from allotment for townsite purposes
as recommended the forty acres in contro-
versy, but threw the same open to allot-
ment.
After this land was lawfully thrown open
to allotment, Mrs. Frost declared by reason
of having improvements on the forty acres
she was entitled to, and did, select the
land as part of her allotment and the nine
months period in which contest might be
instituted having expired, an allotment GER
tif1cate was issued to her.
1t averred that by the issuance of this
allotment certificate the right to the land
became vested in her, and a patent was
duly signed to the land in question by the
principal chief of the Choctaw nation, and
the governor Of the Chickasaw nation, An
accordance with law, and would have been
delivered to her, but that the Secretary Of
the Interior claimed the right to have all
patents transmitted to him after signature
nv ho 10 ~ hn I~1s H~sL
refused to sign or to deliver to Mrs. Frost
patent to the forty acres, but claimed the
right to cancel the allotment
Secretary Hitchcock's Answer.
The answer of the Secretary of the In
terror admitted that Mrs. Frost was a men,
Der of the Choctaw nation and entitled to
an allotment, and that an allotment GER
tiffcate had been issued to her and patent
signed by the chiefs of the two Indian ma
lions. but alleged that prior to her, selection
of this land in allotment others had gone
upon the land and the same had been Sc
lected for urban occupancy, and that there
fore she really was not entitled to the al
lotment, and claimed that until a patent
actually was issued the entire matter was
within the administrative control of the Sec
rotary of the Interior, and that there was
no right in the court 70 interfere with what
1t was claimed, was in the discretion of
the Secretary of the Interior in the prem
ises. 1t was denied that any. rights had
vested in Mrs. Frost. 1t further alleged
that the Secretary had taken this action
because he had reconsidered his determina-
ton not to reserve this land for town.
site purposes, and had decided that it was
good policy for the protection of the In
dams to open the land to townsite entry
addition to the townsite of Mill
Creek.
To this answer Attorneys Happier &.
Merillat, in behalf Of Mrs. Frost, filed the
demurrer mentioned, alleging that the an
swer constituted defense, and after
argument and consideration for several
weeks Justice Wright yesterday sustained
the demurrer, the effect being to compel
the issuance of the patent, as the answer
heretofore put in, as stated, covered the
entire defense of the Secretary.