as may have lawful right thereto," etc. And it was provided that the Commission "shall make a roll of Cherokee freedmen in strict compliance with the decree of the Court of Claims rendered the third day of February, eighteen hundred and ninety-six." It was further provided that the Commission should "take the roll of Cherokee citizens of eighteen hundred and eighty (not including freedmen) as the only roll intended to be confirmed by this and preceding acts of Congress.

It is manifest from this act that the contention of relators that the tribal rolls were to be treated or accepted as absolutely confirmed is unsound. One roll only was confirmed. The other rolls were to be corrected, not confirmed; and a roll of the Cherokee freedmen was to be made in conformity with the decree of the Court of Claims-a roll not confirmed, but to be made, so as to exclude the relators because they were excluded by the decree; that is, because they were not residents of the Cherokee Nation at the time of the promulgation of the treaty.

It does not appear that relators were on any roll prior to the passage of the act of June 10, 1896, upon which they so much rely, and therefore within its confirmatory provision, giving it all the force contended for. They were on the Kern-Clifton roll, it is said, but when that roll was made does not appear. The allegation of the petition is that prior to November 16, 1904, the Secretary of the Interior affirmed a decision by the Commissioner of the Five Civilized Tribes which held that relators were entitled to enrollment as citizens, and that prior to that date they were regularly ordered to be placed upon the final roll of freedmen citizens, and that such roll was duly and regularly approved by the Secretary of the Interior on the sixteenth of November, 1906.

But the act of July 1, 1902 (32 Stat. 716, 720, § 27), emphasized the requirement that the enrollment of freedmen

must be made in strict conformity with the decree of the Court of Claims. Congress was even more particular in the act of April 26, 1906 (34 Stat. 137). Section 3 of the act explicitly provided that "The roll of Cherokee freedmen shall include only such persons of African descent, either free colored or the slaves of Cherokee citizens and their descendants, who were actual personal bona fide residents of the Cherokee Nation August eleventh, eighteen hundred and sixty-six, or who actually returned and established such residence in the Cherokee Nation on or before February eleventh, eighteen hundred and sixtyseven."

Relators nevertheless insist that notwithstanding they were not entitled to be placed upon the rolls, yet, having been placed there, they cannot be taken off by the Secretary of the Interior; citing in support of the contention certain provisions of the acts of Congress and the congressional policy expressed in them. The policy of the Government, it is said, was to expedite enrollment, with the view to the distribution of the tribal property and the preparation of the Indian Territory for statehood. To these ends the acts of May 31, 1900, 31 Stat. 221, c. 598, and March 3, 1901 (31 Stat. 1073, c. 832), endeavored to speed enrollment matters by directing the Secretary of the Interior to fix a time for closing the rolls, after which no name should be added thereto. Then came the act of July 1, 1902 (32 Stat. 716, c. 1375), which, it is insisted, practically repealed prior acts so far as they concerned enrollments. Such prior acts, it is said, "made approval of enrollments depend upon the completion of the rolls of an entire tribe, and the Secretary's approval under it would await the finishing of enrollments of an entire tribe." And until such time "there would be no allotment to any tribal member." The Secretary's control, hence, continued "until the last," and the congressional policy was likewise postponed. But, it is argued, contrasting the

Opinion of the Court.

223 U.S.

new measures with the old, under the act of 1902 "enrollment and allotment went hand in hand." This contention is rested on § 29 of the act, which directs lists to be prepared of those found by the Commission to be entitled to enrollment; and, it is provided, that "the lists thus prepared, when approved by the Secretary of the Interior, shall constitute a part and parcel of the final roll of citizens of the Cherokee tribe, upon which allotment of land and distribution of their property shall be made;" and, further, that "when there shall have been submitted to and approved by the Secretary of the Interior lists embracing the names of all those lawfully entitled to enrollment, the roll shall be deemed complete.'

A roll made complete, it is argued, by legislation excludes the idea of correction by an executive officer; and, besides, it is urged that the certificates of allotment carry with them the sanction of the law's declaration that they shall be "conclusive evidence" of the rights of the allottee. Physical possession of the lands described in them is to be given, it is pointed out, and, describing the conditions which were created and which would be disturbed by an exercise of power to recall them, it is said that "from the date of selection of their allotments under the law, allottees did lease their allotments for grazing, oil and gas, mineral, and other purposes." And, further, that "allottees also, from the same date, created town sites where practicable, and sold town lots, with their title resting in their allotment selections or certificates," and that such transactions have been declared valid by the Supreme Court of Oklahoma, citing McWilliams Investment Co. v. Livingston, 98 Pac. Rep. 914; Godfrey v. Iowa L. & T. Co., 95 Pac. Rep. 792.

We recognize the strength of the considerations urged, but it certainly did not militate against the congressional policy of the allotment of lands to retain in the Secretary of the Interior the power of revision and correction until

223 U.S.

Opinion of the Court.

the final moment when jurisdiction was expressly taken from him, as provided in § 2 of the act of April 26, 1906 (34 Stat. 137, c. 1876), that is, the fourth day of March, 1907. That Congress could give such power to the Secretary of the Interior is settled. Stephens v. Cherokee Nation and Wallace v. Adams, supra. In all the legislation providing for the making of the rolls care is observed to prevent or correct mistakes and to defeat attempts at fraud. We have seen what power the Dawes Commission was given to investigate the rights of persons whose names were on the rolls, and, as to freedmen, strict compliance with the decree of the Court of Claims was enjoined. By the act of March 3, 1905, 33 Stat. 1048, 1060, c. 1479, the work of completing the unfinished business of the Commission was devolved upon the Secretary of the Interior and all of the powers theretofore granted to the Commission were conferred upon the Secretary. It was subsequent to this act that action was taken as to relators and their names stricken from the rolls. This revisory and corrective power of the Secretary over the allotment of land is similar to that exercised by the Land Department respecting the entries upon public lands, which this court has stated to be correct and annul entries of land which were made upon false testimony and without authority of law. Cornelius v. Kessel, 128 U. S. 456, 461; Hawley v. Diller, 178 U. S. 476, 490.

Judgment affirmed.

CHEROKEE NATION AND UNITED STATES v. WHITMIRE, TRUSTEE FOR FREEDMEN OF THE CHEROKEE NATION.

APPEAL FROM THE COURT OF CLAIMS.

No. 735. Argued January 9, 10, 1912.-Decided January 29, 1912.

As after a decree of the Court of Claims in favor of the petitioner an act of Congress was passed, and the court made another decree granting the same relief, the second decree was a decision upon the effect of the subsequent legislation, and an appeal lies therefrom if taken within the time prescribed by law.

Held, that under the circumstances of this case, and the proceedings taken thereon, appellants' appeal was taken in time. Lowe v. Fisher, ante, p. 95, followed as to the construction of the Cherokee Treaty of August 11, 1866, and as to the freedmen of the Cherokees and their descendants entitled to be enrolled as citizens and the power of Congress thereover, and that the Secretary of the Interior had the power, after notice and opportunity to be heard, to strike from the rolls names which had been improperly placed thereon through mistake or fraud.

44 Ct. Cl. 453, reversed.

THE facts, which involve the construction of the various treaties, acts of Congress and decisions of the Court of Claims in regard to the rights of Cherokee freedmen and their descendants to share in the distribution of tribal property, are stated in the opinion.

Mr. William W. Hastings for appellant, the Cherokee Nation.

Mr. Assistant Attorney General John Q. Thompson and Mr. George M. Anderson, filed a brief for appellant, the United States.

Mr. Samuel A. Putman and Mr. Charles Poe, with whom Mr. Robert H. Kern was on the brief, for appellee.