Kimberlin v. Commission to Five Civilized Tribes , 3 Indian Terr. 16 ( 1899 )

Clayton, J.

U. S. Court can issue writ oí mandamus. Dawes Commission subject to mandamus. Mandamus nob allowed to require particular decision.

Springer, C. J. and Thomas, J. concur.

The error assigned is “that the court erred in sustaining the demurrer, dismissing the petition, and denying the writ of mandamus. ” It is claimed by the learned counsel for appellee in his brief that this court has no jurisdiction in any case, or under any conditions or circumstances, to issue the writ of mandamus against the commission to the Five Civilized Tribes. This position cannot be maintained. The power of the circuit courts of Arkansas to issue the writ of mandamus was conferred on the United States courts in the Indian Territory by Act Cong. May 2, 1890 (Supp. Rev. St. U. S. p. 731), which put in force in this jurisdiction chapter 100 of Mansfield’s Digest of the Laws of Arkansas (chapter 46, Ind. T. Ann. St. 1899). The first section of that chapter is section 4568 of the Digest (section 2974, Ind. T. Ann. St, 1899), which reads as follows: “The circuit courts shall have power to issue writs of mandamus to the courts of probate, county courts, justices of the peace, and all other inferior officers in their respective circuits. ’ ’ Section 4569 (section 2975, Ind. T. Ann. St. 1899) reads as follows: “The writ of mandamus, as treated of in this chapter, is an order of a court of competent and original jurisdiction, commanding an executive and ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law, and is granted on the motion of the party aggrieved, or of the state, when the public interest is affected. ” While this commission, in the performance of its duties as defined by law in certain matters, acts quasi judicially, yet it belongs to the executive branch of the government, and its members are ministerial officers thereof, and as such are amenable to all appropriate process of the courts in proper cases. But, while this is true, in all matters of duty imposed on it by law, requiring the exercise of judgment or discretion, it cannot, as to such duties, be controlled by mandamus. High, Extr. Rem. 46. When an officer is given power to hear evidence and render judgment, the writ of mandamus will not be awarded, further than to require him to act and proceed to judgment. U. S. vs Seaman, 17 How. 225. ‘ ‘When an official duty in question involves the necessity upon the part of the officer of making some investigation, or of examining evidence and forming his judgment thereon, the writ of mandamus is improper.” High. Extr. Rem. 43. Before the writ can issue, it must be shown that the duty to be performed by the officer is clear and certain, involving no discretionary power or judicial determination. Does the petition of the applicant show this? It sets out, among other things, that the petitioner is a white woman by blood; that her husband is a white man by blood, but that she is entitled to be enrolled as a Chickasaw citizen by virtue of her marriage to her white husband, he having acquired his right to Chickasaw citizenship by virtue of a former marriage to a Chickasaw woman by blood, who, prior to his last marriage, had died. Conceding that these facts, if true, would entitle the petitioner to be enrolled, how are they to be established, except by the production of proof and a judicial determination of the fact? A white woman, married to a white man, presents herself before the commission, demanding to be enrolled as an Indian citizen. In such a case, is the fact that she is an Indian citizen a certain one? Is it so plain that it becomes the duty of the commission, without investigation and the taking of proof, to at once enroll her? Certainly not. The very fact that she produced her proof in the shape of affidavits, certificates, and oral proof before the commission, all of which were examined and heard, disproves the fact. Under the law, it was specifically made the duty of the commission to take proof, and judicially determine her rights. The act of congress of June 10, 1896 (29 Stat. 339), provides as follows: ‘ ‘That said commission is further authorized and directed to proceed at once to hear and determine the application of all persons who may apply to them for citizenship in any of said nations, and after such hearing they shall determine the right of such applicant to be so admitted and enrolled: provided, however, that such application shall be made to such commissioners within three months after the passage of this act. The. said commission shall decide all such applications within ninety days after the same shall be made; that in determining all such applications said commission shall respect all laws of the several nations or tribes, not inconsistent with the laws of the United States, and all treaties with either of said nations or tribes, and shall give due force and effect to the rolls, usages and customs of each of said nations or tribes: and provided, further, that the rolls of citizenship of the several tribes as now existing are hereby confirmed, and any person who shall claim to be entitled to be added to said rolls as a citizen of either of said tribes and whose right hitherto has either been denied or not acted upon, or any citizen who may within three months from and after the passage of this act desire such citizenship, may apply to the legally constituted court or committee designated by the several tribes for such citizenship, and such court or committee shall -determine such application within thirty days from the date thereof. In the performance of such duties, said commission shall have power and authority to administer oaths, to issue process for and compel the attendance of witnesses, and to send for persons and papers, and all depositions and affidavits and other evidence in any form whatsoever heretofore taken where the witnesses giving said testimony are dead or now residing beyond the limits of said territory, and.to use every fair and reasonable means within their reach for the purpose of determining the rights of persons claiming such citizenship, or to protect any of said nations from fraud or wrong, and the rolls so prepared by them shall be hereafter held and considered to be true and correct rolls of persons entitled to the rights of citizenship in the several tribes. ” Whether, under more recent legislation, this commission had, at the time of this application, any power to add to the rolls the name of any person who was not a descendant of some person already enrolled, or ‘ ‘such additional names and their descendants as have been subsequently added either by the council of the Chickasaw Nation, the duly-authorized courts thereof, or the commissioners, under the act of June 10, 1896,” is at least doubtful. If it had not, then this applicant was without any right to be enrolled. We do not, however, in this case, deem it necessary to decide this question; because the act of June 10, 1896, supra, is so plain that the commission, on the question before it, was required to judicially determine the rights of the petitioner to be enrolled, that the determination of the question cannot be reviewed by this proceeding. The judgment of the-court below is affirmed.