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Opinion of the Court.


claimed, on behalf of the appellants, that the Cherokees became vested with the sole control over the lands ceded to them, the court observed (p. 484):

"By the treaty of New Echota, 1835, the United States covenanted and agreed that the lands ceded to the Cherokee Nation should at no future time, without their consent, be included within the territorial limits or jurisdiction of any State or Territory, and that the government would secure to that nation the right by their national councils to make and carry into effect all such laws as they may deem necessary for the government of the persons and property within their own country, belonging to their people or such persons as have connected themselves with them ;' and, by the treaties of Washington, 1846 and 1866, the United States guaranteed to the Cherokees the title and possession of their lands, and jurisdiction over their country. Revision of Indian Treaties, pp. 65, 79, 85. But neither these nor any previous treaties evinced any intention, upon the part of the government, to discharge them from their condition of pupilage or dependency, and constitute them a separate, independent, sovereign people, with no superior within its limits."

It results then from the doctrine of the decisions of this court that the demurrer was properly sustained, because of the fact that the matters named in the bill were matters of administration, to which the act of June 28 was applicable, and they were solely cognizable by the executive department of the government. The decision in Stephens v. Cherokee Nation, 174 U. S. 445, is particularly in point, as that case involved the validity of the very act under consideration, and the precedent correlative legislation, wherein the United States practically assumed the full control over the Cherokees as well as the other nations constituting the five civilized tribes, and took upon itself the determination of membership in the tribes for the purpose of adjusting their rights in the tribal property. The plenary power of control by Congress over the Indian tribes and its undoubted power to legislate, as it had done through the act of 1898, directly for the protection of the tribal property, was in that case reaffirmed. Thus, in the course of its opinion,

Opinion of the Court.

after alluding to the legislation concerning the Dawes Commission, the court said :

" It may be remarked that the legislation seems to recognize, especially the act of June 28, 1898, a distinction between admission to citizenship merely and the distribution of property to be subsequently made, as if there might be circumstances under which the right to a share in the latter would not necessarily follow from the concession of the former. But in any aspect, we are of opinion that the constitutionality of these acts in respect of the determination of citizenship cannot be successfully assailed on the ground of the impairment or destruction of vested rights. The lands and moneys of these tribes are public lands and public moneys, and are not held in individual ownership, and the assertion by any particular applicant that his right therein is so vested as to preclude inquiry into his status involves a contradiction in terms."

The holding that Congress had power to provide a method for determining membership in the five civilized tribes, and for ascertaining the citizenship thereof preliminary to a division of the property of the tribe among its members, necessarily involved the further holding that Congress was vested with authority to adopt measures to make the tribal property productive, and secure therefrom an income for the benefit of the tribe.

Whatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members. The Cherokee Trust Funds, 117 U. S. 288, 308. The manner in which this land is held is described in Cherokee Nation v. Journeycake, 155 U. S. 196, 207, where this court, referring to the treaties and the patent mentioned in the bill of complaint herein, said: “Under these treaties, and in December, 1838, a patent was issued to the Cherokees for these lands. By that patent, whatever of title was conveyed was conveyed to the Cherokees as a nation, and no title was vested in severalty in the Cherokees, or any of them."

There is no question involved in this case as to the taking of property ; the authority which it is proposed to exercise, by virtue of the act of 1898, has relation merely to the control and

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development of the tribal property, which still remains subject to the administrative control of the government, even though the members of the tribe have been invested with the status of citizenship under recent legislation.

We are not concerned in this case with the question whether the act of June 28, 1898, and the proposed action thereunder, which is complained of, is or is not wise, and calculated to operate beneficially to the interests of the Cherokees. The power existing in Congress to administer upon and guard the tribal property, and the power being political and administrative in its nature, the manner of its exercise is a question within the province of the legislative branch to determine, and is not one for the courts.




No. 320. Submitted October 20, 1902.-Decided December 1, 1902.

The jurisdiction to review judgments or decrees of the courts of the Ter

ritory of Hawaii is to be determined, not by the law governing as respects Territories generally, but by Rev. Stat. § 709, relating to the power

to review judgments and decrees of state courts. Although in cases coming within the purview of Rev. Stat. $ 709, a Fed

eral question—not inherently such-has been explicitly raised below, if such claim be frivolous or has been so absolutly foreclosed by previous rulings of this court as to leave no room for real controversy, a motion

to dismiss will prevail. A New York life insurance corporation did business in Hawaii and, under

statutory regulations, was there subject to suit. It delivered a policy in Hawaii to a person there domiciled, which was among the effects of such person in Hawaii of which possession was taken by an administrator appointed by the Hawaiian courts. Suit was brought in Hawaii upon the policy and judgment was recovered. Ield, that the assertion that the policy had its situs, for the purposes of suit, solely at the domicil of the corporation was unfounded, and that the claim was so completely foreclosed by prior rulings as to come within the principle stated in the preceding paragraph.

Opinion of the Court.

The case is stated in the opinion of the court.

Mr Alan McCulloh for plaintiff in error.

Mr. Cecil Brown, in propria persona, for defendant in error.

MR. JUSTICE WHite delivered the opinion of the court.

The questions for decision arise on a motion to dismiss or affirm this writ of error which is prosecuted to a judgment of the Supreme Court of the Territory of Hawaii. The act of April 30, 1900, providing a government for the Territory of Hawaii, c. 339, 31 Stat. 141, enacts (sec. 86) that “The laws of the United States relating to appeals, writs of error, removal of causes, and other matters and proceedings as between the courts of the United States and the courts of the several States shall govern in such matters and proceedings as between the courts of the United States and the courts of the Territory of Hawaii.” It follows that the jurisdiction of this court to review judgments of the courts of the Territory of Hawaii is more restricted than is the jurisdiction to review the judgments of the courts of other organized Territories, and is to be measured by the power conferred upon this court to review judgments of state courts. Rev. Stat. $ 709. In Ex parte Wilder's Steamboat Company, 183 U. S. 545, the distinction made by the law in question between Hawaii and other Territories was pointed out.

The case, as stated below, and as substantially admitted by both parties in their printed argument, is as follows:

David B. Smith died, intestate, on December 24, 1899, in the city of San Francisco. Long prior to and at the time of his death he was domiciled in Honolulu, in the Territory of Hawaii. He there applied to the plaintiff in error, a New York corporation, for a policy on his life payable to his estate. The policy was issued, was delivered to Smith in Honolulu, and was found among his effects in Honolulu after his death. At the instance

. of the daughter of the deceased, who was his legal heir, the defendant in error was appointed administrator of the estate of

Opinion of the Court.

Smith by a Hawaiian court having jurisdiction to that end, and the administrator took possession of the policy and made the requisite proof of death. After the appointment of the Hawaiian administrator and the making by him of the proof of death, a relative of the deceased made application to a court in the city of New York for letters of administration upon the estate of Smith, which were issued. Prior to any attempted action by the New York administrator to enforce the policy in question, in consequence of the refusal of the insurance company to pay the loss, the Hawaiian administrator brought suit in a court in Hawaii having jurisdiction, to recover the amount of the insurance. Service of process in this action was made on the general agent of the insurance company in Hawaii, which agent, the Supreme Court of the Territory declared in its opinion rendered in this cause, “we presume, is the person desig

, nated for such purpose by the defendant under the statute. Civ. L. ch. 130, since amended, Laws of 1898, act 45. At any rate, the defendant answered generally, and did not question the validity of the service.” Before the trial of the cause in the courts of Hawaii the administrator appointed in New York instituted an action upon the policy against the insurance company in the Circuit Court of the United States for the Southern District of New York. When the suit came to trial in the Hawaiian court, no judgment having been rendered in the suit brought in New York, the defendant corporation, to support its contention that the plaintiff was not entitled to recover, claimed the benefit of the due faith and credit clause of the Constitution of the United States, and to sustain this asserted right offered proof of the appointment of the New York administrator and tendered an exemplification of the record of the proceedings had in the action, brought by the New York administrator in the Federal court in that State. The trial court rejected the evidence and exceptions were duly taken. A verdict was returned in favor of the plaintiff for the full amount sued for. The case having been taken to the Supreme Court of the Territory the judgment was affirmed, the court expressly deciding that the right asserted under the due faith and credit clause of the Constitution of the United States was without merit. From

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