But we express no opinion on that point, because the matter must be decided by Spanish law, which prevailed during the time when the laches is supposed to have been shown. The case is a hard one, no doubt, if the plaintiffs ultimately should prevail on the strength of the old law of prescription for mortgages and subsequent recognitions. It should be scrutinized with care, not only with reference to the property covered by the lien, but the nature of the recognitions during the time when the bond could not be denied, and the law. As we have intimated, the record leaves some doubt as to material facts, no argument was presented to us on behalf of the appellees, and upon the whole we think it will be more conducive to justice if the case be remitted to the district court for further consideration. To that end the decree will be reversed. Decree reversed without prejudice. (223 U. S. 67.) UNITED STATES, Petitioner, V. WONG YOU, Wong Cheen, et al. ALIENS (§ 21*)-Deportation OF CHINESE LABORERS. Chinese laborers are not tacitly exempted from the general provisions of the immigration act of February 20, 1907 (34 Stat. at L. 898, 908, chap. 1134, U. S. Comp. Stat. Supp. 1909, pp. 447, 466), for the deportation of any alien unlawfully entering the United States, because of the Chinese exclusion acts of earlier date, which make it unlawful for any Chinese laborer to come from any foreign place into the United States, or, having so come, to remain there, and provide a different procedure for removing him, although by § 43 of the later act its provisions shall not be construed to repeal, alter, or amend the laws relating Mr. Justice Holmes delivered the opinion of the court: This is a writ of habeas corpus. It was dismissed by the district court (176 Fed 933), but was sustained by the circuit court of appeals, which ordered the parties concerned to be discharged from custody. 104 C. C. A. 535, 181 Fed. 313. The parties are Chinamen who entered the United States surreptitiously, in a manner prohibited by the immigration act of February 20, 1907, chap. 1134, § 36, 34 Stat. at L. 898, 908, U. S. Comp. Stat. Supp. 1909, pp. 447, 466, and the rules made in pursuance of the same, if applicable to Chinese. They were arrested in transitu and ordered by the Secretary of Commerce and Labor to be deported. §§ 20, 21. But as it transpired in the evidence that they were laborers, the circuit court of appeals held that they could be dealt with only under the Chinese exclusion acts of earlier date. Those acts make it unlawful for any Chinese laborer to come from any foreign place into the United States, or, having so come, to remain there, and provide a different procedure for removing them. Hence it was concluded that such persons were tacitly excepted from the general provisions of the immigration act, although broad enough to include them, and although of later date. We are of opinion that the circuit court of appeals made a mistaken use of its prin ciples of interpretation. By the language of the act any alien that enters the country unlawfully may be summarily deported by order of the Secretary of Commerce and Labor at any time within three years. It seems to us unwarranted to except the Chinese from this liability because there is an earlier more cumbrous proceeding which this partially overlaps. The existence of the earlier laws only indicates the special solicitude of the government to limit the entrance of Chinese. It is the very reverse of a reason for denying to the gov. ernment a better remedy against them Decided Janu- alone of all the world, now that one has been created in general terms. To allow N WRIT of Certiorari to the United the immigration act its literal effect does to the Chinese. [Ed. Note.-For other cases, see Aliens, Dec. Dig. § 21.] [No. 597.] Argued January 12, 1912. ary 22, 1912. * ON MRT of United not repeal, alter, or amend the laws relat ing to the Chinese, as it is provided that it shall not, in § 43. The present act does not contain the clause found in the previous immigration act of March 3, 1893 [27 Stat. at L. 569, chap. 206, U. S. Comp. Stat. 1901, p. 1300], that it shall not apply to Chinese persons, and, on the other the Second Circuit, to review a judgment which reversed a judgment of the District Court for the Northern District of New York, refusing relief by habeas corpus to Chinese laborers whose deportation from the United States had been ordered. Reversed. See same case below, 104 C. C. A. 535, hand, as it requires deportation to the 181 Fed. 313. trans-Pacific ports from which such aliens embarked for the United States (§ 35), it The facts are stated in the opinion. Assistant Attorney General Harr for pe- is rather hard to say that it has not the titioner. No appearance for respondents. Adv. Ops. Oct. Term, 1911. Chinese specially in mind. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes (223 U. 8. 95.) UNITED STATES OF AMERICA EX REL. LILLIE LOWE, Ransom Lowe, Bertha V. WALTER L. FISHER, Secretary of the Interior. COURTS (§ 468*)-COURT OF CLAIMS. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 468.*] INDIANS (5*)-CHEROKEE ENROLMENT CONFIRMATION. Nhe District of Columbia to review a ERROR to the Court of Appeals for judgment which, on a second writ of error, affirmed the judgment of the Supreme Court of the District, dismissing a petition for mandamus to compel the Secretary of the Interior to cancel his action in striking the names of certain Cherokee freedmen from the approved roll of citizenship. Affirmed. See same case below on first appeal, 34 App. D. C. 70; on second appeal, 35 App. D. C. 524. The facts are stated in the opinion. Messrs. Charles H. Merillat, Charles J. Kappler, James K. Jones, and Frank E. Duncan for plaintiffs in error. Assistant Attorney General Harr for defendant in error. *Mr. Justice McKenna delivered the opinion of the court: The case involves the question whether hearing, and after having made up a roll the Secretary of the Interior, after due 2. The enrolment of Cherokee freedmen on of citizens of the Five Civilized Tribes of the tribal rolls is not to be taken as ab- Indians, and after having issued certifisolutely confirmed by the confirmatory pro- cates of allotment to the enrolled Indians, vision of the act of June 10, 1896 (29 Stat. may strike their names from the roll after at L. 321, chap. 398), in view of the re-giving due notice of his intended action quirements of the subsequent acts of June and an opportunity to be heard. 28, 1898 (30 Stat. at L. 495, chap. 517), § 1, July 1, 1902 (32 Stat. at L. 716, chap. 1375), § 27, and April 26, 1906 (34 Stat. at L. 137, chap. 1876), § 3, that a roll of Cherokee freedmen be made in strict compliance with a decree of the court of claims, Bo as to exclude freedmen and their descendants who had not returned to the Cherokee Nation within the time designated by a treaty stipulation. [Ed. Note.-For other cases, see Indians, Dec. Dig. 5.*] INDIANS (8 13*)-CHEROKEE ALLOTMENT REVISION BY SECRETARY OF INTERIOR. 3. The revisory and corrective power of the Secretary of the Interior over Indian allotments under the acts of March 3, 1905 (33 Stat. at L. 1060, chap. 1479), and April 26, 1906, includes the right, upon notice and hearing, to strike from the approved roll of the citizens of the Five Civilized Tribes the names of Cherokee freedmen allottees because their ancestors had not returned to the Cherokee Nation within the time designated by a treaty stipulation, although, by the act of July 1, 1902, § 29, "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 enrolment, the roll shall be deemed complete." [Ed. Note.-For other cases, see Indians, Dec. Dig. 13.] [No. 445.] Argued November 14, 1911. Decided January 29, 1912. The case arose upon the exercise of such power by the Secretary and an action of mandamus to require him to cancel his ac tion. To the answer of the Secretary, the supreme court of the District of Columbia sustained a demurrer and entered a judg ment in accordance with the prayer of the petition. The court of appeals reversed the judgment. On return of the case to the supreme court, the relators elected to stand on their demurrer and the court dismissed their petition. This action was affirmed by the court of appeals and the case was then brought here. It was decided in Garfield v. United States ex rel. Goldsby, 211 U. S. 249, 53 L. ed. 168, 29 Sup. Ct. Rep. 62, that the Secretary had no such power without notice to the parties concerned and an oppor. tunity to be heard. These conditions were performed in the present case, and, so far, the case is distinguished from the Goldsby Case. The power of the Secretary upon the rehearing under the applicable statutes is now to be considered. The relators base their right of enrolment on article 9 of the Cherokee treaty of August 11, 1866 [14 Stat. at L. 801], the material part of which is as follows: "They [Cherokee Nation] further agree that all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the com "For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes mencement of the Rebellion and are now | Rebellion, to a residence among them, and residents therein, or who may return with- adoption in the Seminole tribe upon some in six months, and their descendants, shall plan to be agreed upon by them and aphave all the rights of native Cherokees." proved by the government. "We are willIt was found by the Secretary of the In- ing," they said, "to provide for the colored terior that relators were descendants of people of our own Nation, but do not desire liberated slaves, but he also found that our lands to become colonization grounds their ancestors had not returned to the for the negroes of other states and terriCherokee Nation within six months of the tories." The Creeks expressed this in the date of the treaty, August 11, 1866. This same way, and the relators further adduce, must be assumed to be the fact, for it is as supporting their construction of article alleged in the answer and admitted by the 9, that the commission which negotiated demurrer. Two propositions of law are, the treaty, reporting on it officially, said: however, urged by relators: (1) That the "Slavery is abolished and the full rights of requirement of a return within the time the freedmen are acknowledged.” designated applies only to free colored persons; and (2) that the Secretary, having, on November 16, 1904, approved a list of Cherokee freedmen, containing the names of relators, on the ground that their ancestors had complied with the provisions for return to the Nation, had no power to cancel their names. (1) Article 9 of the treaty is undoubtedly ambiguous, and to support their construction of it relators trace its genesis to the compulsion exercised on the Cherokee Nation by the United States for its espousal of the cause of the Confederacy during the Civil War. The Indians, it is said, were regarded as having forfeited their treaty rights, but the United States were willing to renew relations with them, stipulating, among other things, that "the institution of slavery, which has existed among several of the tribes, must be forth with abolished, and measures taken for the unconditional emancipation of all persons held in bondage, and for their incorporation into the tribes on an equal footing with the original members, or suitably provided for." The history of article 9, therefore, it is insisted, shows that the article consummated the purpose. In other words, when the Indians realized that they must provide for negroes, they limited their concession "to former slaves and then to any other negroes who had been in the Indian country at the outbreak of the War, and might return within a short time after peace to make their home in the Indian territory, thereby preventing a general influx of negroes who might seek free land." And the right to land, it is pointed out, was the consequence to be apprehended, as “lawful residence in the Indian territory meant the right to occupy land." It is further contended that the Cherokees acted upon the treaty practically in accordance with this construction of it, and that it was not until many years after that they "sought to refine it away and abrogate it in effect." They accepted it reluctantly, it is said, and subsequently contended that it conferred civil, not property, rights, and passed what was known as the "blood bill," by which they sought to exclude all but native Cherokees by blood from participation in a large payment of funds which was about to be made. This gave rise to controversy, and Congress passed an act conferring jurisdiction on the court of claims to settle the matter. The act is entitled, "An Act to Refer to the Court of Claims Certain Claims of the Shawnee and Delaware Indians and the Freedmen of the Cherokee Nation, and for Other Purposes." It was * The Indians resisted the conditions, and replied that it would not be for the benefit of the emancipated negro, nor for the Indians, to incorporate the former into the several tribes on an equal footing with the original members. They conceded, however, that the emancipated negro must be suitably provided for, and subsequently the Choctaws suggested that white persons should be excluded from their territory, and that "no person of African descent, ex-approved October 1, 1890. [26 Stat. at L. cept our former slaves, or free persons of color who are now, or have been, residents of the territory, will be permitted to reside in the territory, unless formerly incorporated with some tribe, according to the usage of the band." 636, chap. 1249.] The Cherokee freedmen whose rights were to be determined under the act were those who "settled and located in the Cherokee Nation under the provisions and stipulations of article 11" of the treaty. The Seminoles answered to the same ef- The court decided that under the Cherofect, and asked that article 3 be changed kee constitution of 1866 the freedmen beto admit only colored persons*lately held came citizens equally with the Cherokees, in bondage by them and free persons of and equally interested in the common propcolor residing in the Nation previous to theerty, and equally entitled to share in its 86. 101 The object of the contention, no doubt, is to clear the way for the ultimate contention upon which their case must rest,the want of power of the Secretary of the Interior over rolls which he had once approved, and after having issued certificates of allotment to the enrolled Indians. In other words, relators would push aside the proceeds per capita. But the court did not, ticular persons composed such class, or who attempt an analysis of § 5 of the consti- were freedmen, and that therefore "the tution nor of article 9 of the treaty (they point now involved has not had judicial are alike), but defined the rights of the determination." freedmen and the free negroes in the language of the constitution and the article. 31 Ct. Cl. 148. The opinion in the case, therefore, as delivered, had the same ambiguity as the constitution and treaty, and was not understood by the Commissioner of Indian Affairs, who was charged by the Secretary of the Interior with the duty of determining who were the resident freed-adjudication of their disqualification to be men entitled to share in the disposition of the fund as decreed, and who desired the further opinion of the court. In reply, the court said: "The court is of the opinion that the clauses in that article in these words, 'And are now residents therein, or who may return within six months, and their descendants,' were intended, for the protection of the Cherokee Nation, as a limitation upon the number of persons who might avail themselves of the provisions of the treaty; and consequently that they refer to both the freedmen and the free colored persons previously named in the article. That is to say, freedmen and the descendants of freedmen who did not return within six months are excluded from the benefits of the treaty and of the decree." Subsequently the court was called upon to add to its opinion, which it did, as follows: "The court is also of the opinion that the act 2d March, 1895 (28 Stat. at L. p. 910, § 11, chap. 188), prescribes the manner in which payments per capita shall be made, and that the matter of payment is exclusively within the jurisdiction of the Secretary of the Interior. The court, after further consideration, adheres to the opinion communicated to the Commissioner of Indian Affairs February 18, 1896. enrolled, they not having returned to the Cherokee Nation within the time desig | nated by the treaty. They, however, make an alternative contention, and urge that they were adjudged to be within the provisions of the treaty by their enrolment upon the Kern-Clifton roll, which they insist was adjudged to be legal evidence of the rights of the freedmen; in other words, that the enrolment identified the individual freedmen who were entitled to participate in the tribal property. It is admitted in the answer that relators are on the Kern-Clifton roll, and it does not seem to be contested that the roll was made under instructions from the court of claims. A plausible argument, therefore, is presented that it partakes of the conclusive effect to be attributed to a judicial decree. And it is further urged by relators that the Kern-Clifton roll was confirmed by the act of June 10, 1896 (29 Stat. at L. 321, 329, chap. 398), which declared "that the rolls of citizenship of the several tribes, as now existing, are hereby confirmed." What effect we should have to give to the decree, assuming it to go as far as contended, we are not called upon to say. It was certainly competent for Congress further to deal with the subject. Stephens v. "The within motion for instructions is Cherokee Nation, 174 U. S. 445, 43 L. ed. overruled." 31 Ct. Cl. 140, 148. The relators contend that the reply of the court to the Commissioner was not part of its decision. This, however, is a mistake. The court had kept control of the case, and at the time of its reply to the Commissioner the case was pending upon certain motions made by the parties. And, as we have seen, the court had been given special jurisdiction of the question and all others which were involved in the controversy. But it is contended that the only issue submitted to the court was whether "the Cherokee freedmen, as a class, were entitled to share in the proceeds of the Cherokee outlet or strip lands west of the 90th meridian." It is, hence, further contended that the jurisdictional act did not extend to the determination of what par 1041, 19 Sup. Ct. Rep. 722; Wallace v. Adams, 204 U. S. 415, 51 L. ed. 547, 27 Sup. Ct. Rep. 363. We pass, therefore, to a consideration of the act of June 10, 1896, upon which relators rely. It was one of a number of acts which exhibit a connected scheme for the enrolment of the members of the Five Civilized Tribes and the division of their tribal property, although their provisions are somewhat varying. By the act of March 3, 1893 (27 Stat. at L. 645, chap. 209), the Dawes Commission was created, with powers to negotiate with the tribes. In 1896, by the act of June 10th of that year (29 Stat. at L 321, chap. 398), the Commission was directed to make up a roll of the citizens of the tribes, which included the Cherokees, *104 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. who should apply within three months from, roll intended to be confirmed by this and the passage of the act, and to decide all preceding acts of Congress. such applications within ninety days after the same should*be made. Due force and effect was directed to be given to tribal rolls, usages, customs, and laws, if not inconsistent with Federal laws. The act contained the provision which we have already quoted, that is, "that the rolls of citizenship of the several tribes as now existing are hereby confirmed." There were powers of review given to those aggrieved by the decision either of the Commission or the tribal authorities. The relators, however, say that "the Dawes Commission, as is matter of official history, did not adopt the tribal rolls as confirmed, but proceeded to It does not appear that relators were try the rights of persons to be on the tribal on any roll prior to the passage of the rolls, and the controversy which ensued act of June 10, 1896, upon which they so continued, and the rolls were not closed much rely, and therefore within its confirmuntil March 4, 1907, Congress refusing to atory provision, giving it all the force conheed administrative appeals for more time." tended for. They were on the Kern-Clifton But before that final date arrived Con- roll, it is said, but when that roll was made gress passed several acts, the provisions of does not appear. The allegation of the pewhich are relied on by relators as estab- tition is that prior to November 16, 1904, lishing their right. The acts would seem the Secretary of the Interior affirmed a deto demonstrate the contrary, and that the cision by the Commissioner of the Five conditions which arose demanded changes Civilized Tribes, which held that relators in legislation. It is true that it is pro- were entitled to enrolment as citizens, and vided that the rolls of the tribes which were that prior to that date they were regularly directed to be made, when approved by the ordered to be placed upon the final roll of Secretary of the Interior, should be final, freedmen citizens, and that such roll was and should constitute the several tribes duly and regularly approved by the Secrewhich they represented; and it is there-tary of the Interior on the 16th of Novem fore contended that those provisions be- ber, 1906. came legislative confirmations which the Secretary was without power to disregard, and that every partial list forwarded to him which he approved he could not afterwards change, whatever the proof of mistake. imposition, or fraud. A few citations will prove the unsoundness of the contention. The act of June 10, 1896, supra, which is so much relied on, was largely superseded by 1 of the act of June 28, 1898, commonly known as the Curtis act. 30 Stat. at L. 495, 502, chap. 517. The section gave the Commission the power to investigate the right of persons whose names were on the rolls, and to "omit all such as may have been placed there by fraud or without authority of law, enrolling only such as may have lawful rights thereto," etc. And it was provided that the Commission "should make a roll of Cherokee freedmen in strict compliance with the decree of the court of claims, rendered the 3d 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 But the act of July 1, 1902 (32 Stat. at L. 716, § 27, chap. 1375), emphasized the requirement that the enrolment 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. at L. 137, chap. 1876). 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 11, 1866, or who actually returned and established such residence in the Cherokee Nation on or before February 11, 1867." Relators nevertheless insist that notwith standing 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 enrolment, with the view to the distribution of the tribal property and the preparation of the Indian territory for statehood. *105 |