Scudder v. Coler, 175 U. S. 32, 44 L. ed. | 677; New York C. & H. R. R. Co. v. New 62, 20 Sup. Ct. Rep. 26. York, 186 U. S. 269, 46 L. ed. 1158, 22 Sup. Ct. Rep. 916. When first raised on petition for rehearing it is too late. Turner v. Richardson, 180 U. S. 87, 45 L. ed. 438, 21 Sup. Ct. Rep. 295; Boston Bldg. & L. Asso. v. Welling, 181 U. S. 47, 45 L. ed. 739, 21 Sup. Ct. Rep. 531; Meyer v. Richmond, 172 U. S. 82, 43 L. ed. 374, 19 Sup. Ct. Rep. 106. When raised on second appeal it is too late. Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 1, 45 L. ed. 395, 21 Sup. Ct. Rep. 240; Union Mut. L. Ins. Co. v. Kirchoff, 169 U. S. 103, 42 L. ed. 677, 18 Sup. Ct. Rep. 260. A definite issue as to the validity of the statute must be distinctly deducitle from the record, before it can be held that a Federal question was disposed of by the decision. Powell v. Brunswick County, 150 U. S. 433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166. To authorize the review of a state judgment it must appear that the decision of a Federal question was necessary to the determination of the case, and was actually decided. Endowment & Benev. Asso. v. Kansas, 120 U. S. 103, 30 L. ed. 593, 7 Sup. Ct. Rep. 499; Church v. Kelsey, 121 U. S. 282, 30 L. ed. 960, 7 Sup. Ct. Rep. 897; Clark v. Pennsylvania, 128 U. S. 395, 32 L. ed. 487, 9 Sup. Ct. Rep. 2, 113; New Orleans Water Works Co. v. Louisiana Sugar Ref. Co. 125 U. S. 18, 31 L. ed. 607, 8 Sup. Ct. Rep. 741. To give this court jurisdiction of a writ of error to a state court it must appear affirmatively, not only that a Federal question was presented for decision by the state court, but that its decision was necessary to the determination of the cause, or was decided, or that the judgment as rendered could not have been rendered without deciding it. Eustis v. Bolles, 150 U. S. 361, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131; Cook County v. Calumet &C. Canal & Dock Co. 138 U. S. 635, 34 L. ed. 1110, 11 Sup. Ct. Rep. 435; Klinger v. Missouri, 13 Wall. 257, 20 L. ed. 635; Jenkins v. Lowenthal, 110 U. S. 222, 28 L. ed. 129, 3 Sup. Ct. Rep. 638; Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300; Castillo v. McConnico, 168 U. S. 674, 42 L. ed. 622, 18 Sup. Ct. Rep. 229. Even though a Federal question was presented and decided, this court will not entertain jurisdiction of a state judgment if, besides the Federal question decided by the state court, there is another and distinct ground on which the judgment can be sustained. Kennebec & P. R. Co. v. Portland & K. R. Co. 14 Wall. 23, 20 L. ed. 850; Rector v. Ashley, 6 Wall. 142, 18 L. ed. 723; Gibson v. Chouteau, 8 Wall. 314, 19 L. ed. 317; Johnson v. Risk, 137 U. S. 300, 34 L. ed. 683, 11 Sup. Ct. Rep. 111; Hopkins v. McLure, 133 U. S. 380, 33 L. ed. 660, 10 Sup. Ct. Rep. 467: Hale v. Akers, 132 U. S. 554, 33 L. ed. 442, 10 Sup. Ct. Rep. 171; Hale v. Lewis, 181 U. S. 473, 45 L. ed. 959, 21 Sup. Ct. Rep. When the state court has rendered its decision on a local or state question or a general law, the logical course for this court is to dismiss the writ of error. St. Louis, C. G. & Ft. S. R. Co. v. Missouri, 156 U. S. 478, 39 L. ed. 502, 15 Sup. Ct. Rep. 443. A decision of a state court based on estoppel involves no Federal question. Weyerhaueser v. Minnesota, 176 U. S. 550, 44 L. ed. 583, 20 Sup. Ct. Rep. 485. Nor when based on laches. Pittsburgh & L. A. Iron Co. v. Cleveland Iron Min. Co. 178 U. S. 270, 44 L. ed. 1065, 20 Sup. Ct. Rep. 931; Moran v. Horsky, 178 U. S. 205, 44 L. ed. 1038, 20 Sup. Ct. Rep. 856. The decision of the state court having been upon the state statute and general law, and being sustained thereby, this court will not review the decision, even though there was an attempt to raise a Federal question. Eustis v. Bolles, 150 U. S. 361, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131; De Saussure v. Gaillard, 127 U. S. 216, 32 L. ed. 125, 8 Sup. Ct. Rep. 1053. Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: A motion has been made to dismiss the writ of error upon the ground that no Federal question is presented by the record, it being claimed that the decision and judgment of the supreme court of Kansas sought to be reviewed was based solely upon a consideration of local statutes and the determination of a question of general law, viz., the effect as res judicata of a judgment of a court of Kansas. But as the claim of the benefit of the Constitution of the United States was specially made in the motions, and was passed upon adversely to the moving party, it follows that a Federal question exists in this record, and the motion to dismiss is therefore overruled. Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 534, 46 L. ed. 676, 22 Sup. Ct. Rep. 446. The specifications of error now relied upon are thus stated in the brief of counsel for plaintiff in error: "First. Under the Constitution and laws of the state of Kansas, an executor, resident in the state of Kansas, could be sued in a district court of the state, but the property in his charge could not be attached, nor sold on execution. "Second. Under the Constitution and statutes of the state of Kansas, no authority exists for attaching the property in charge of a nonresident executor. "Third. Section 203 of the executors' and administrators' act (Kan. Gen. Stat. 1889, 2989), as construed and upheld in this case, is in violation of § 2, art. 4, of the Constitution of the United States, in that it does not accord to the plaintiff in error and his predecessor, citizens of the state of New Jersey, all the privileges and immunities of an executor resident in the state of Kansas. | Kansas to accord such privilege or immuU. S. Const. art. 4, § 2. nity to a nonresident executor, and the sub"Fourth. Section 203 of the executors'jecting him to the operation of attachand administrators' act (Kan. Gen. Stat. 1889, 2989), as construed and upheld in this case, is in violation of the 14th Amendment to the Constitution of the United [551]States, in that it abridges the privileges of the plaintiff in error and his predecessor, citizens of the United States, and their immunity from suit by attachment, and deprives them of their property without due process of law, and denies them the equal protection of the laws. "Fifth. The right of the plaintiff in error, and his predecessors, citizens of the state of New Jersey, to act as executors of the estate of George Manley, deceased, is a privilege, and the exemption of an executor, not a resident in the state of Kansas, from suits by attachment, is an immunity which is guaranteed by § 2, art. 4, Constitution of the United States, and the same were denied by the decision of the supreme court of Kan sas in this case." ment laws, deprived the foreign executor of his property without due process of law, and denied him the equal protection of the laws. But it is obvious, we think, under the circumstances disclosed in this record, that the protection of the Constitution of the United States could not be successfully invoked to annul the judgment here complained of on the theory that such judgment was absolutely void and of no effect under the Constitution of the United States. This results from the consideration that no claim to the protection of the Constitution of the United States was set up in any form in the proceedings had in the state court which resulted in the judgment complained of, and for such reason, if that judgment had been brought to this court for review, it would have been its duty-having in mind the provisions of § 709 of the Revised Statutes [U. S. Comp. Stat. 1901, p. 575]-to affirm the judgment and recognize its binding force, The first and second propositions, it is because no Federal question was raised. A manifest, simply invite a consideration of domestic judgment of a state court whose the Constitution and laws of the state of validity it would have been the duty of this Kansas; and, consequently, the construc- court to uphold, on direct proceedings to obtion adopted by the supreme court of Kan-tain a reversal of such judgment, manifestly sas of the pertinent provisions of such Constitution and laws, is binding upon this court as a decision upon a matter of purely local law, not presenting a Federal question. We must accept, then, as undeniable the ruling of the highest court of Kansas, that under the Constitution and statutes of Kansas real estate situated in that state, the title to which was vested in a nonresident executor, to whom letters testamentary had been issued by a court of another jurisdiction, might be attached and sold, in an action of debt against the nonresident executor. The remaining propositions assail the validity, under the Constitution of the United States, of the statute of Kansas (Kan. Gen. Stat. 1889, 2989; Kan. Gen. Stat. 1897, chap. 107, § 147), as thus construed by the supreme court of Kansas. The section in question upon which the judgment complained of was based is as follows: "An exccutor or administrator duly appointed in any other state or county may sue or be sued in any court in this state, in his capacity of executor or administrator, in like manner and under like restrictions as a nonresident may sue or be sued." should be treated by courts of the United LONE WOLF, Principal Chief of the Kio- v. This section was held to authorize an attachment of property in an action against a nonresident executor, precisely as in ordi- ETHAN A. HITCHCOCK, Secretary of the nary actions against nonresidents. [552] Now, the claimed nullity of the judgment assailed was based upon the alleged invalidity of the Kansas statute above quoted, as respected the Constitution of the United States, in this, that as an executor resident in Kansas possessed the privilege or immunity of not being subject to suit by attachment of property, a like privilege or im munity within the state of Kansas was vested by the Constitution of the United States in executors who were not residents of Kansas, and the refusal of the state of Interior, et al. (See S. C. Reporter's ed. 553-568.) Indians-power of Congress over tribal relations and lands-effect of prior treaty. The plenary power of Congress over the tribal relations and lands of the confedNOTE.-On Federal control over the Indians -see note to Worcester v. Georgia, 8 L. ed. U. S. 484. On the construction and operation of treaties --see note to United States v. The Amistad, 10 L. ed. U. S. 826. erated tribes of Kiowa, Comanche, and fifty-six male adults therefore constituted Congress of the act of June 6, 1900 (31 tribes. In form the agreement was a pro- [No. 275.] Argued October 23, 1902. Decided January apart for the benefit of the tribes of $2,000, A 5, 1903. PPEAL from the Court of Appeals of the District of Columbia to review a decree which affirmed a decree of the Supreme Court of the District in favor of defendants in a suit to enjoin the carrying into effect of the act of Congress of June 6, 1900 (31 Stat. at L. 677, chap. 813), dealing with the disposition of tribal property of the Kiowa, Comanche, and Apache Indians. Affirmed. See same case below, 19 App. D. C. 315. Statement by Mr. Justice White: 000 as the consideration for the surplus of land over and above the allotments which might be made to the Indians. It was provided that sundry named friends of the Indians (among such persons being the Indian agent and an army officer) "should each be entitled to all the benefits, in land only conferred under this agreement, the same as if members of said tribes." Elimthe quantity of surplus lands suitable for inating 350,000 acres of mountainous land, farming and grazing purposes was estimated at 2,150,000 acres. Concerning the In 1867 a treaty was concluded with the payment to be made for these surplus lands, Kiowa and Comanche tribes of Indians, and the commission, in their report to the Pressuch other friendly tribes as might be ident announcing the termination of the united with them, setting apart a reserva- negotiations, said (Senate Ex. Doc. No. 17, tion for the use of such Indians. By a sep-second session, 52d Congress): arate treaty the Apache tribe of Indians was incorporated with the two formernamed, and became entitled to share in the benefits of the reservation. 15 Stat. at L. 581, 589. The first-named treaty is usually called the Medicine Lodge treaty. By the sixth article thereof it was provided that heads of families might select a tract of land within the reservation, not exceeding 320 acres in extent, which should thereafter cease to be held in common, and should be for the exclusive possession of the Indian making the selection, so long as he or his family might continue to cultivate the land. The twelfth article of the treaty was as follows: "Article 12. No treaty for the cession of any portion or part of the reservation herein described, which may be held in common, shall be of any validity or force as against the said Indians, unless executed and signed by at least three fourths of all the adult niale Indians occupying the same, and no cession by the tribe shall be understood or construed in such manner as to deprive, without his consent, any individual member of the tribe of his rights to any tract of land selected by him as provided in article 3 [6] of this treaty." The three tribes settled under the treaties upon the described land. On October 6, 1892, 456 male adult members of the confederated tribes signed, with three commissioners representing the United States, an agreement concerning the reservation. The Indian agent, in a certificate appended to the agreement, represented that there were then 562 male adults in the three tribes. Senate Ex. Doc. No. 27, 52d Congress, sec[555]ond session, *page 17. Four hundred and "In this connection it is proper to add that the commission agreed with the Indians to incorporate the following in their report, which is now done: "The Indians upon this reservation seem to believe (but whether from an exercise of their own judgment or from the advice of others the commission cannot determine) that their surplus land is worth two and one-half million dollars, and Congress may be induced to give them that much for it. Therefore, in compliance with their request, we report that they desire to be heard through an attorney and a delegation to Washington upon that question, the agreement signed, however, to be effective upon ratification no matter what Congress may do with their appeal for the extra half mil lion dollars." In transmitting the agreement to the Secretary of the Interior, the Commissioner of Indian Affairs said: "The price paid, while considerably in excess of that paid to the Cheyennes and Ara-[556] pahoes, seems to be fair and reasonable, both to the government and the Indians, the land being doubtless of better quality than that in the Cheyenne and Arapahoe reservation." Attention was directed to the provision in the agreement in favor of the Indian agent and an army officer, and it was suggested that to permit them to avail thereof would establish a bad precedent. Soon after the signing of the foregoing agreement it was claimed by the Indians that their assent had been obtained by fraudulent misrepresentations of its terms by the interpreters, and it was asserted that the agreement should not be held binding upon the tribes because three fourths of the adult male members had not assented thereto, as was required by the twelfth article of the Medicine Lodge treaty. the legal age of those who were authorized to sign the agreement, the number of persons who actually signed was 87 less than three fourths of the adult male membership of the tribes; and if twenty-one years be held to be the minimum age, then 23 less than three fourths signed the agreement. In either event, less than three fourths of the male adults appear to have so signed." With this information before it the bill was favorably reported by the Committee on Indian Affairs of the Senate, but did not pass that body. Obviously, in consequence of the policy embodied in § 2079 of the Revised Statutes, departing from the former custom of dealing with Indian affairs by treaty and providing for legislative action on such subjects, various bills were introduced in both Houses of Congress designed to give legal effect to the agreement made by the Indians in 1892. These bills were referred to the proper committee, and before such committees the Indians presented their objecAt the first session of the following Contions to the propriety of giving effect to the gress (the Fifty-sixth) bills were introagreement. H. R. Doc. No. 431, 55th Con- duced in both the Senate and House of Repgress, second session. In 1898 the Com-resentatives substantially like that which inittee on Indian Affairs of the House of has just been noticed. Senate, 1352; H. R. Representatives unanimously reported bill for the execution of the agreement made with the Indians. The report of the committee recited that a favorable conclusion had been reached by the committee "after the fullest hearings from delegations of the Indian tribes and all parties at interest." H. R. Doc. No. 419, first session, 56th Congress, p. 5. a 905. The bill thus reported did not exactly conform to the agreement as signed by the Indians. It modified the agreement by changing the time for making the allotments, and it also provided that the proceeds of the surplus lands remaining after allotments to the Indians should be held to await the judicial decision of a claim as[557]serted by the Choctaw and Chickasaw *tribes of Indians to the surplus lands. This claim was based upon a treaty made in 1866, by which the two tribes ceded the reservation in question, it being contended that the lands were impressed with a trust in favor of the ceding tribes, and that whenever the reservation was abandoned, so much of it as was not allotted to the confederated Indians of the Comanche, Kiowa, and Apache tribes reverted to the Choctaws and Chicka saws. The bill just referred to passed the House of Representatives on May 16, 1898. 31st Cong. Rec. p. 4947. When the bill reached the Senate that body, on January 25, 1899, adopted a resolution calling upon the Secretary of the Interior for information as to whether the signatures attached to the agreement comprised three fourths of the male adults of the tribes. In response the Secretary of the Interior informed the Senate, under date of January 28, 1899, that the records of the department "failed to show a census of these Indians for the year 1892," but that "from a roll used in making a payment to them in January and February, 1893, it appeared that there were 725 males over eighteen years of age, of whom 639 were twenty-one years and over." The Secretary further called attention to the fact that by the agreement of 1892 a right of selection was conferred upon each member of the tribes over eighteen years of age, and observed: "If eighteen years and over be held to be *In the meanwhile, about October, 1899,[558] the Indians had, at a general council at which_571_male adults of the tribes purported to be present, protested against the execution of the provisions of the agreement of 1892, and adopted a memorial to Congress, praying that that body should not give effect to the agreement. This memorial was forwarded to the Secretary of the Interior by the Commissioner of Indian Affairs with lengthy comments, pointing out the fact that the Indians claimed that their signatures to the agreement had been procured by fraud, and that the legal number of Indians had not signed the agreement, and that the previous bills and bills then pending contemplated modification of the agreement in important particulars without the consent of the Indians. This communication from the Commissioner of Indian Affairs, together with the memorial of the Indians, were transmitted by the Secretary of the Interior to Congress. Senate Doc. No. 76; H. R. Doc. No. 333; first session, Fifty-sixth Congress. Attention was called to the fact that although by the agreement of October 6, 1892, one half of each allotment was contemplated to be agricultural land, there was only sufficient agricultural land in the entire reservation to average 30 acres per Indian. After setting out the charges of fraud and complaints respecting the proposed amendments designed to be made to the agreement, as above stated, particular complaint was made of the provision in the agreement of 1892 as to allotments in severalty among the Indians of lands for agricultural purposes. After reciting that the tribal lands were not adapted to such purposes, but were suitable for grazing, the memorial proceeded as follows: "We submit that the provision for lands to be allotted to us under this treaty are insufficient, because it is evident we cannot, on account of the climate of our section, which renders the maturity of crops uncertain, become a successful farming community; that we, or whoever else occupies these lands, will have to depend upon the cattle industry for revenue and support. And we therefore pray, if we cannot be granted the privilege of keeping our reservation under the treaty made with us in 1868, and known as the Medicine Lodge treaty, that authority [559]*be granted for the consideration of a new treaty that will make the allowance of land to be allotted to us sufficient for us to graze upon it enough stock cattle, the increase from which we can market for support of ourselves and families." With the papers just referred to before it, the House Committee on Indian Affairs, in February, 1900, favorably reported a bill to give effect to the agreement of 1892. for settlement, etc. The bill became a law by concurrence of the Senate in the amendments adopted by the House as just stated. Thereafter, by acts approved on January 4, 1901 (31 Stat. at L. 727, chap. 8), March 3, 1901 (31 Stat. at L. 1078, chap. 832), and March 3, 1901 (31 Stat. at L. 1093, chap. 846), authority was given to extend the time for making allotments and opening of the surplus land for settlement for a period not exceeding eight months from December 6, 1900; appropriations were made for surveys in connection with allotments and setting apart of grazing lands; and authority was conferred to establish counties and county seats, townsites, etc., and proclaim the surplus lands open for settlement by white people. On January 19, 1900, an act was passed by the Senate, entitled "An Act to Ratify an Agreement Made with the Indians of the Fort Hall Indian Reservation in Idaho, and Making an Appropriation to Carry the Same into Effect." In February, 1900, the House Committee on Indian Affairs, having On June 6, 1901, a bill was filed on the before it the memorial of the Indians trans- equity side of the supreme court of the Dismitted by the Secretary of the Interior, and trict of Columbia, wherein Lone Wolf (one also having for consideration the Senate of the appellants herein) was named as bill just alluded to, reported that bill back complainant, suing for himself as well as to the House favorably, with certain amend- for all other members of the confederated ments. H. R. Doc. No. 419, 56th Congress, tribes of the Kiowa, Comanche, and Apache first session. One of such amendments Indians, residing in the territory of Okla consisted in adding to the bill in question, homa. The present appellees (the Secreas § 6, a provision to execute the agreement tary of the Interior, the Commissioner of made with the Kiowa, Comanche, and Indian Affairs, and the Commissioner of the Apache Indians in 1892. Although the bill General Land Office) were made respondthus reported embodied the execution of the ents to the bill. Subsequently, by agreement last referred to, the title of the amendment to the bill, members of the Kibill was not changed, and consequently re- owa, Comanche, and Apache tribes were ferred only to the execution of the agree- joined with Lone Wolf as parties complainment made with the Indians of the Fortant. "That in addition to the allotment of lands to said Indians as provided for in this agreement, the Secretary of the Interior shall set aside for the use in common for said Indian tribes 480,000 acres of grazing (500) lands, to be selected by the Secretary of the Interior, either in one or more tracts as will best subserve the interest of said Indians." an Hall reservation in Idaho. The provisions The bill recited the establishing and occu- The provision of the agreement in favor of the Indian agent and army officer was also eliminated. that so much of said act of Congress of June 6, 1900, and so much of said acts sup |