The United States of America is no longer a Nation
This definition appears in Black's Law Dictionary, Sixth Edition.
Nation: a people, or aggregation of men, existing in the form of an organized jural society, usually inhabiting a
distinct portion of the earth, speaking the same language, using the same customs, possessing historic continuity,
and distinguished from other like groups by their racial origin and characteristics, and generally, but not
necessarily, living under the same government and sovereignty. Montoya v. U.S., 180 U.S. 261
(Curiously, one finds that the term “Nation” is not defined in the 7th or 8th editions.)
Let’s take a look at the basis for the definition as found in Black’s:
Argued December 14, 17, 1901
Decided February 11, 1901
APPEAL FROM THE COURT OF CLAIMS
The object of the Indian Depredation Act is to enable citizens whose property has been taken or destroyed
by Indians belonging to any band, tribe or nation in amity with the United States to recover a judgment for their
value both against the United States and the tribe to which the Indians belong, and which by the act is made
responsible for the acts of marauders whom it has failed to hold in check. If the depredations have been
committed by the tribe or band itself, acting in hostility to the United States, it is an act of war for which there can
be no recovery under the act.
Where a company of Apache Indians who were dissatisfied with their surroundings left their reservation
under the leadership of Victoria, to the number of two or three hundred, became hostile, and roamed about in Old
and New Mexico for about two years, committing depredations and killing citizens, it was held that they
constituted a "band" within the meaning of the act, that they were not in amity with the United States, and that
neither the government nor the tribe to which they originally belonged were responsible for their depredations.
This was a petition by the surviving partner of the firm of E. Montoya & Sons against the United States and
the Mescalero Apache Indians for the value of certain livestock taken in March, 1880, by certain of these Indians,
known as Victoria's Band.
The Court of Claims made the finding of facts set forth in the margin. [180 U.S. 262]
Upon these findings of fact, the court decided as a conclusion of law that the petition be dismissed. 32
Ct.Cl. 349. Claimant appealed. [180 U.S. 263]
MR. JUSTICE BROWN delivered the opinion of the Court.
The first section of the Act of March 3, 1891, 26 Stat. 851, c. 538, vests the Court of Claims with jurisdiction
to inquire into [180 U.S. 264] and finally adjudicate:
First. All claims for property of citizens of the United States taken or destroyed by Indians belonging to any
band, tribe, or nation in amity with the United States, without just cause or provocation on the part of the owner or
agent in charge, and not returned or paid for.
To sustain a claim under this section, it is incumbent upon the claimant to prove that the Indians taking or
destroying the property belonged to a band, tribe, or nation in amity with the United States. The object of the act is
evidently to compensate settlers for depredations committed by individual marauders belonging to a body which is
then at peace with the government. [180 U.S. 265] If the depredation be committed by an organized company of
man constituting a band in itself, acting independently of any other band or tribe, and carrying on hostilities
against the United States, such acts may amount to a war for the consequences of which the government is not
responsible under this act or upon general principles of law. [See,] United States v. Pacific Railroad, 120 U.S. 227,
The North American Indians do not, and never have, constituted "nations" as that word is used by writers
upon international law, although in a great number of treaties they are designated as "nations" as well as tribes.
Indeed, in negotiating with the Indians, the terms "nation," "tribe" and "band" are used almost interchangeably.
The word "nation" as ordinarily used presupposes or implies an independence of any other sovereign power more
or less absolute, an organized government, recognized officials, a system of laws, definite boundaries, and the
power to enter into negotiations with other nations. These characteristics the Indians have possessed only in a
limited degree, and when used in connection with the Indians, especially in their original state, we must apply to
the word "nation" a definition which indicates little more than a large tribe or a group of affiliated tribes possessing
a common government, language, or racial origin, and acting, for the time being, in concert. Owing to the natural
infirmities of the Indian character, their fiery tempers, impatience of restraint, their mutual jealousies and
animosities, their nomadic habits, and lack of mental training, they have as a rule shown a total want of that
cohesive force necessary to the making up of a nation in the ordinary sense of the word. As they had no
established laws, no recognized method of choosing their sovereigns by inheritance or election, no officers with
defined powers, their governments in their original state were nothing more than a temporary submission to an
intellectual or physical superior, who in some cases ruled with absolute authority and in others was recognized
only so long as he was able to dominate the tribe by the qualities which originally enabled him to secure their
leadership. In short, the word "nation" as applied to the uncivilized indians is so much of a misnomer as to be little
more than a compliment. [180 U.S. 266]
We are more concerned in this case with the meaning of the words "tribe" and "band." By a "tribe" we
understand a body of Indians of the same or a similar race, united in a community under one leadership or
government and inhabiting a particular though sometimes ill defined territory; by a "band," a company of Indians
not necessarily, though often, of the same race or tribe, but united under the same leadership in a common
design. While a "band" does not imply the separate racial origin characteristic of a tribe, of which it is usually an
offshoot, it does imply a leadership and a concert of action. How large the company must be to constitute a
"band" within the meaning of the act it is unnecessary to decide. It may be doubtful whether it requires more than
independence of action, continuity of existence, a common leadership, and concert of action.
Whether a collection of marauders shall be treated as a "band" whose depredations are not covered by the
act may depend not so much upon the numbers of those engaged in the raid as upon the fact whether their
depredations are part of a hostile demonstration against the government or settlers in general or are for the
purpose of individual plunder. If their hostile acts are directed against the government or against all settlers with
whom they come in contact, it is evidence of an act of war.
Somewhat the same distinction is applicable here which is noticed by Hawkins in his Pleas of the Crown,
and other ancient writers upon criminal law, as distinguishing a riot from a treasonable act of war. Thus, it is said
in Wharton on Criminal Law, section 1796, summing up the early authorities (though never accepted as a
definition of treason in this country):
That constructive levying of war, by the old English common law, is where war is levied for the purpose of
producing changes of a public and general nature by an armed force, as where the object is by force to obtain the
repeal of a statute; to obtain the redress of any public grievance, real or pretended; to throw down all enclosures,
pull down all bawdy houses, open all prisons, or attempt any general work of destruction; to expel all strangers, or
to enhance the price of wages generally; but if these acts were directed against a particular individual, they would
amount to nothing more than an assault or riot. [180 U.S. 267]
While, as between the United States and other civilized nations, an act of Congress is necessary to a
formal declaration of war, no such act is necessary to constitute a state of war with an Indian tribe. In his
concurring opinion in Bas v. Tingy, 4 Dall. 37, recognizing France as a public enemy, Mr. Justice Washington
recognized war as of two kinds:
If it be declared in form, it is called solemn, and is one of the perfect kind; because one whole nation is at
war with another whole nation, and all the members of the nation declaring war are authorized to commit
hostilities against all the members of the other, in every place and under every circumstance. In such a war, all
the members act under a general authority, and all the rights and consequences of war attach to their condition.
But hostilities may subsist between two nations more confined in its nature and extent, being limited as to places,
persons, and things, and this is more properly termed imperfect war, because not solemn and because those who
are authorized to commit hostilities act under special authority, and can go no farther than to the extent of their
commission. Still, however, it is public war, because it is an external contention by force between some of the
members of the two nations, authorized by the legitimate powers.
Indian wars are of the latter class. We recall no instance where Congress has made a formal declaration of
war against an Indian nation or tribe; but the fact that Indians are engaged in acts of general hostility to settlers,
especially if the government has deemed it necessary to dispatch a military force for their subjugation, is sufficient
to constitute a state of war. Marks v. United States, 161 U.S. 297.
In determining the liability of the United States for the acts of Indian marauders, the fifth and sixth sections
of the Indian Depredation Act should be considered as well as the first. By the fifth section, the court shall
determine in each case the value of the property taken or destroyed at the time and place of the loss or
destruction, and, if possible, the tribe of Indians or other persons by whom the wrong was committed, and shall
render judgment in favor of the claimant ant or claimants against the United States, and against the tribe of
Indians committing the wrong, when such can be identified.
Of course, if the [180 U.S. 268] tribe to whom the Indians belong cannot be ascertained, this will not
prevent a judgment against the United States, but if their connection with a particular tribe can be established,
judgment shall also go against the tribe. By section six, the amount of any judgment so rendered against any
tribe of Indians shall be charged against the tribe by which, or by members of which, the court shall find the
depredation was committed, and shall be deducted and paid from annuities or other funds due the tribe from the
United States, or from any appropriation for the benefit of the tribe.
It is not altogether easy to reconcile the language of these sections, which seem to contemplate that the
government may be liable for depredations committed by a tribe, with that of section 1 under which the jurisdiction
of the Court of Claims is limited to the acts of "Indians belonging to any band, tribe, or nation, in amity with the
United States," but the main objects of sections 5 and 6 would seem to be to impose upon the tribes the duty of
holding their members in check or under control, and for a failure so to do to fix upon the tribe the responsibility
for the acts of individual members acting in defiance of the authority of their tribe or band, upon the same principle
that, by sundry statutes in England and in several of the United States, the hundred or the municipality is made
responsible in damages for the acts of rioters. Like the English statutes too, many of the Indian treaties provide
that if the property be restored or the guilty members be delivered up for punishment, no pecuniary indemnity
shall be required. On the other hand, if the marauders are so numerous and well organized as to be able to defy
the efforts of the tribe to detain them, in other words, to make them a separate and independent band, carrying on
hostilities against the United States, it would be obviously unjust to hold the tribe responsible for their acts. It can
hardly be supposed that Congress would impose a liability upon tribes in amity with the United States for the acts
of an independent band, strong enough to defy the authority of the tribe, although it would not be inequitable to
hold the tribe liable for individual members whom it was able, but had failed, to control.
Gauged by these considerations, it is clear that the Court of [180 U.S. 269] Claims was justified in its
ultimate finding that Victoria's band was, at and long before the occurrence complained of, known and recognized
as a band separate and distinct in its organization and action from the several tribes, then at peace, to which its
members had formerly belonged, and that the band as thus constituted was not in amity with the United States.
Conceding that the accuracy of this ultimate finding may be reviewed by this Court by a reference to the special
facts found as a basis for such finding United States v. Pugh, 99 U.S. 265), in our opinion, those facts amply
support the finding.
It appears that, prior to 1876, the Chiricahua Apache Indians, who numbered from three to five hundred
warriors of a particularly savage type, were living on a reservation of their own in Arizona, and that during that
year, the department determined to remove these Indians and locate them upon another reservation, where they
could be more easily restrained from hostile acts. A part of them resisted, and about four hundred, under the
leadership of Victoria, began roaming about Old and New Mexico, committing depredations and killing citizens.
These hostile demonstrations continued until December, 1878, soon after which Victoria made an offer of
surrender on a condition that was not performed, and in the following spring he again took the field, pursued by
the military forces into Arizona, and subsequently escaped into Mexico. Soon thereafter he was indicted in New
Mexico for murder and horse stealing, when he went west and began marauding, destroying property, and killing
citizens, and so continued during the latter part of the winter and early spring of 1880. The operations against
them continued until they were driven by the troops across the Rio Grande River, where a severe engagement
ensued and a number of Indians, including a son of Victoria, were killed. The band appears to have been of
sufficient strength and consequence to have been made the object of a military expedition, which operated upon
both sides of the Mexican line, and finally resulted in a battle in Mexico in the autumn of 1880, where Victoria and
most of his followers were killed. The Indians constituting this band seem to have belonged to different tribes of
Apaches, and were about two [180 U.S. 270] hundred in number at the time this depredation was committed.
They were evidently carrying on hostile acts against the settlers and military authorities of the United States, and
the court expressly finds that such acts were "without the consent of the several tribes from which the members of
the band came and to which they had previously belonged;" that they were denominated in various reports of
military officers to the Secretary of War as "Victoria's band," and under that name were pursued for two years or
more by the military authorities for their acts of war and hostility against the United States, until driven out of the
country and destroyed. The property in question was stolen and driven away or destroyed by certain Mescalero
Apache Indians, who were at that time allied with Victoria's band for the purpose of hostility and was as aforesaid,
and the band so constituted was not in amity with the United States, although the Mescalero tribe, which was then
upon its reservation about one hundred miles distant from the scene of the depredation, and to which the
Mescaleros who committed the depredation had belonged before they joined Victoria's band, was in amity with
the United States.
As it appears that the Mescaleros who committed the depredation were a part of Victoria's band, operating
with them, and that such band was carrying on a war against the government as an independent organization, we
think they were the band -- the unit -- contemplated by the act, and not the Mescalero tribe then living in peace
upon their reservation near Fort Stanton, although the particular marauders in question had belonged to that tribe
before they joined Victoria's band. If the Mescalero tribe were held responsible for their acts, it would follow that
every tribe members of which allied themselves with Victoria and shared in his acts of hostility would be
pecuniarily liable for all damages inflicted by a band over whom they could have no control. Such consequences
would be so inequitable we cannot suppose them to have been contemplated by Congress.
The judgment of the Court of Claims is:
BROWN, J., lead opinion (Footnotes)
1. At the time of the depredation hereinafter found, Estanislao Montoya, Desiderio Montoya, and Eutimio
Montoya were partners, doing business in Socorro County, New Mexico, under the name and style of E. Montoya
& Sons, and were at the time, and long prior thereto, citizens of the United States, residing at San Antonio, in said
county and territory.
Thereafter, and long prior to the passage of the Act of March 3, 1891, 26 Stat. 851, the said Estanislao and
Desiderio Montoya died, leaving the claimant herein surviving.
2. On the 12th of March, 1880, the said firm of E. Montoya & Sons were the owners of the horses, mules,
and other livestock described in the petition, then being herded and cared for by their agents at a place called
Nogal, about 8 miles west of San Antonio, which were stolen by Indians in the manner set forth in finding 3. Said
stock was at the time and place reasonably worth more than three thousand dollars ($3,000).
3. Prior to 1876, the Chiricahua Apache Indians were living on what was known as the Chiricahua
reservation, in southeastern Arizona, and numbered from 300 to 500 warriors. They had been a terror to the
community and surroundings, and had met with success in their engagements with the troops of the United States
Army. Report Commissioner Indian Affairs, 1876, p. 10.
In 1876, an effort was made by the authorities having charge of Indian affairs to remove said Indians and
locate them on the San Carlos reservation, where they could be more certainly restrained from hostile acts, but
they resisted, and the result was that only 322 Indians, of whom 42 were men under Chief Taza, were removed
thither. Of those remaining, 140 went to the Warm Springs agency in New Mexico, and about 400, including
Victoria, became hostile, and roamed about in Old and New Mexico, committing depredations and killing citizens.
Report Secretary Interior, 1875, p. 711, and ib., 1876, p. 4.
Later, these Indians were aided in their acts of hostility by Apache Indians from the Warm Springs agency
(Report Secretary Interior, 1877, p. 416), and from this time until December, 1878, they continued their hostile
In February, 1879, Victoria, a Chiricahua, who had previously rebelled against being placed on the San
Carlos reservation, came near the military post of Ojo Caliente with 22 followers and agreed to surrender on
condition that Nama's band, then at Mescalero, be allowed to join him, but only a few of that band surrendered,
and in April following, Victoria, with his followers, escaped and went to the San Mateo Mountains. Report
Secretary Interior, 1879, p. 100.
The military forces pursued him into Arizona, where he recruited his forces from the members of his tribe
then being held as prisoners of war at the San Carlos reservation, and he subsequently escaped into Old Mexico.
Record of Engagements with Hostile Indians, by General Sheridan, p. 84.
On the 30th June following, Victoria, with 13 men, came into the Mescalero reservation, where there were
at the time a few Gila, Mimbres, and Mogollen Apaches, known as Southern Apaches, and at his request the
families of those Indians (Chiricahuas) who had been kept on the San Carlos reservation were sent for.
Victoria was soon thereafter indicted in New Mexico for murder and horse stealing, and he became fearful
of arrest and conviction therefor and suddenly left the reservation (in July), taking with him those he had brought
and also all the Southern Apaches on that reservation. Report Secretary Interior, 1879, p. 100.
They went west and began marauding, destroying property, and killing citizens, and so continued during the
latter part of winter and early spring of 1880 within 40 miles of the Mescalero reservation, Victoria in the meantime
using his influence to induce the Mescaleros to join his forces, and by April, 1880, some 200 to 250, of whom 50
or 60 were men, left their reservation and joined him. Report Secretary of Interior, 1880, p. 251. They continued
their warfare until driven by the troops under Colonel Hatch, United States Army, across the Rio Grande River into
the San Andres Mountains in April, 1880, where he had a severe fight with them, and several of his men were
wounded and a number of Indians, including a son of Victoria, were killed. They finally retreated into Mexico.
Under the leadership of Victoria, they again crossed and recrossed the line to and from the United States,
but were driven out twice by the forces under Colonel Grierson, United States Army, and their forces diminished,
until finally the few remaining were driven by General Buell some time after October 1, 1880, into Mexico, where
Victoria and nearly all of his followers were killed. Report Secretary of War, 1880, pp. 86 and 118.
During all the period of hostilities as aforesaid, Victoria had under him a minority of the Chiricahua tribe of
Apache Indians. At his solicitation, he was reenforced from time to time during said period by a minority or the
Indians from the Mescalero and Southern Apache tribes; besides he had under him a number of unknown Indians
from Mexico, making in all about 200 Indians in his band at the time of the depredation hereinafter found.
These Indians were allied together under the name of Victoria's band for the purpose of aiding Victoria and
his followers in their hostile and warlike acts against the citizens and the military authorities of the United States.
The alliance thus formed, as well as the hostile acts committed by the band, were without the consent of the
several tribes from which the members of the band came and to which they had previously belonged.
From the reports referred to in the foregoing findings, and also in the various reports of military officers and
the Secretary of War, embodied in the report of the latter officer for 1879 and 1880, it appears that the Indians
under Victoria, from whatever tribes, were recognized or referred to under the name of Victoria's band, and under
that name were operated against for two years or more by the military authorities for their acts of war and hostility
against the United States, until driven out of the country and destroyed as aforesaid.
On the 12th of March, 1880, the property set forth in finding 2 was stolen and driven away or destroyed by
the Mescalero Apache Indians, who were at the time allied with Victoria's band for the purpose of hostility and war
as aforesaid, and that said band so constituted was not at the time of said depredation in amity with the United
But the Mescalero tribe, then on their reservation near Fort Stanton, about 100 miles distant from the scene
of the depredation, and to which the Mescaleros who committed the depredation had belonged before they joined
Victoria's band, was in amity with the United States.
Said property was taken without any just cause or provocation on the part of the owners or their agents in
charge, and has never been returned or paid for in whole or in part.
4. Upon the foregoing findings of fact, the court finds the ultimate fact, so far as it is a question of fact, that the
depredation set forth in finding 3 was committed by Indians belonging to a war party or hostile band, known as
Victoria's band, of Apache Indians, which was at and long before that time known and recognized as a band,
separate and distinct in its organization and action from the several tribes, then at peace, to which its members
had formerly belonged, and that the band as thus constituted was not in amity with the United States at the date
of said depredation.
5. The claim which is the subject of this suit was presented to the defendant Indians in council on or before June
8, 1880, by S. A. Russell, agent for the Mescalero Apache Indians, under the direction of the Commissioner of
Cases citing this case . . .
The following 3 case(s) in the USSC+ database cite this case:
South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986)
United States v. Chavez, 290 U.S. 357 (1933)
United States v. Candelaria, 271 U.S. 432 (1926)
Ansley v. Ainsworth, 180 U.S. 253 (1901)
And for your reading pleasure another de jure law native American case below:
Submitted December 20, 1900
APPEAL FROM THE UNITED STATES
COURT IN THE INDIAN TERRITORY
The legislation in respect of the United States court in the Indian Territory considered, it is held that an
appeal does not lie directly to this Court from a decree of the trial court in the Indian Territory, although the suit in
which the decree is rendered may have involved the constitutionality of an act of Congress. Whether an appeal
lies to this Court from the Court of Appeals of the Indian Territory in such cases is a question which does not arise
on this record.
This was a bill filed in the United States Court in and for the Central District of the Indian Territory by W. H.
Ansley, M. H. Gleason, and R. O. Edmonds against N. B. Ainsworth, [180 U.S. 254] L. C. Burriss, O. E. Woods,
James Elliott, and the Ola Coal & Mining Company, alleging; that Ansley was by blood a member and citizen of
the Choctaw Nation of Indians; that Gleason and Edmonds were citizens of the United States by birth, who by
intermarriage with members of the Choctaw Nation had become citizens of that nation; that Ainsworth was a
citizen of the Choctaw Nation and Burriss a citizen of the Chickasaw Nation; that Woods and Elliott were citizens
of the United States, and that the mining company was a corporation organized under the laws of Kansas,
engaged in operating a mine in the Choctaw Nation, Elliott being president and Woods general manager thereof.
The bill averred that in November, 1890, Gleason and Edmonds and one Riddle, a citizen by blood of the
Choctaw Nation, discovered coal, and acquired an exclusive and perpetual right to a coal claim to themselves and
their assigns under section 18 of art. 7 of the Choctaw Constitution; the laws, usages, and customs of that nation,
and acts of the Choctaw Council, and that in February, 1898, Riddle conveyed his undivided one-third interest in
the coal claim to Ansley.
That Gleason, Edmonds, and Riddle, in 1896, contracted with Woods to work the mine, and that Woods
contracted with the mining company for the working of the same, and that, under the agreements, Gleason,
Edmonds, and Riddle were to receive a royalty.
That Ainsworth and Burriss were coal trustees designated by the governors of the Choctaw and Chickasaw
Nations, respectively, and appointed by the President under the Act of Congress of June 28, 1898, 30 Stat. 510, c.
517, which act ratified an agreement with the Choctaw and Chickasaw Nations known as the "Atoka Agreement,"
also afterwards ratified by the people of said nations, and operated to annul all individual leases and to prohibit
the payment to or receipt by individuals of any royalty on coal, and provided that all royalties should be paid into
the Treasury of the United States for the benefit of the tribes, to be drawn therefrom under such rules and
regulations as should be prescribed by the Secretary of the Interior, and that all leases for the working of coal
lands entered into by and [180 U.S. 255] between persons or corporations desiring to mine coal and the mining
trustees of the Choctaw and Chickasaw Nations should be approved by the Secretary of the Interior.
The bill was filed to enjoin Woods, Elliott, and the mining company from entering into a lease with Ainsworth
and Burriss, mining trustees of the Choctaw and Chickasaw Nations, and denied on various grounds the
constitutionality and validity of the provisions of the act of Congress.
The United States Court for the Central District of the Indian Territory, Clayton, J., presiding, held that there
was no equity in the bill, and sustained a demurrer thereto, and, complainants declining to plead further,
dismissed the bill with costs, whereupon an appeal was allowed to this Court.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The objection of want of jurisdiction over this appeal meets us on the threshold.
By the Act of March 1, 1889, entitled "An Act to Establish a United States Court in the Indian Territory, and
for Other Purposes," 25 Stat. 783, c. 333, a court was established with a single judge, whose jurisdiction extended
over the Indian Territory, and it was provided that two terms of said court should be held each year at Muscogee in
that territory, and such special sessions as might be necessary for the dispatch of business in said court at such
time as the judge might deem expedient.
May 2, 1890, an act was passed to Provide a Temporary government for the Territory of Oklahoma, to
Enlarge the Jurisdiction of the United States Court in the Indian Territory, and for Other Purposes, 26 Stat. 81, 93,
94, c. 182, sections 29, 30, and 31, which defined the Indian Territory, gave additional jurisdiction to the court in
that territory as therein set forth, and, for the purpose of holding terms of the court, divided the territory into three
specified divisions. [180 U.S. 256]
By section 5 of the Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826, as amended, appeals or writs of
error might be taken from the district and circuit courts directly to this Court in cases in which the jurisdiction of the
court was in issue; of conviction of a capital crime; involving the construction or application of the Constitution of
the United States, and in which the constitutionality of any law of the United States or the validity or construction
of any treaty made under its authority was drawn in question.
By section 6, the circuit courts of appeals established by the act were invested with appellate jurisdiction in
all other cases.
The thirteenth section read:
Appeals and writs of error may be taken and prosecuted from the decisions of the United States Court in
the Indian Territory to the Supreme Court of the United States, or to the Circuit Court of Appeals in the Eighth
Circuit, in the same manner and under the same regulations as from the circuit or district courts of the United
States, under this act.
March 1, 1895, an act was approved entitled "An Act to Provide for the Appointment of Additional Judges of
the United States Court in the Indian Territory," 28 Stat. 693, c. 145. This act divided the Indian Territory into three
judicial districts, to be known as the Northern, Central, and Southern Districts, and provided for two additional
judges for the court, one of whom should be judge of the northern district and the other judge of the southern
district, and that the judge then in office should be judge of the Central District. The judges were clothed with all
the authority, both in term time and in vacation, as to all matters and causes, both criminal and civil, that might be
brought in said districts, and the same superintending control over commissioners' courts therein, the same
authority in the judicial districts to issue writs of habeas corpus, etc., as by law vested in the judge of the United
States Court in the Indian Territory, or in the circuit and district courts of the United States. The judge of each
district was authorized and empowered to hold court in any other district for the trial of any case which the judge
of such other district was disqualified from [180 U.S. 257] trying, and whenever, on account of sickness or for any
other reason, the judge of any district was unable to perform the duties of his office, it was provided that either of
the other judges might act in his stead in term time or vacation. All laws theretofore enacted conferring jurisdiction
upon the United States courts held in Arkansas, Kansas, and Texas, outside of the limits of the Indian Territory, as
defined by law, as to offenses committed within the territory, were repealed, and their jurisdiction conferred after
September 1, 1896, on the "United States Court in the Indian Territory."
Section 11 of this act read as follows:
SEC. 11. That the judges of said court shall constitute a court of appeals, to be presided over by the judge
oldest in commission as chief justice of said court, and said court shall have such jurisdiction and powers in said
Indian Territory, and such general superintending control over the courts thereof as is conferred upon the
Supreme Court of Arkansas over the courts thereof by the laws of said state, as provided by chapter forty of
Mansfield's Digest of the Laws of Arkansas, and the provisions of said chapter, so far as they relate to the
jurisdiction and powers of said Supreme Court of Arkansas as to appeals and writs of error, and as to the trial and
decision of causes, so far as they are applicable, shall be, and they are hereby, extended over and put in force in
the Indian Territory, and appeals and writs of error from said court in said districts to said appellate court in
criminal cases shall be prosecuted under the provisions of chapter forty-six of said Mansfield's Digest, by this act
put in force in the Indian Territory. But no one of said judges shall sit in said appellate court in the determination of
any cause in which an appeal is prosecuted from the decision of any court over which he presided. In case of
said presiding judge's being absent, the judge next oldest in commission shall preside over said appellate court,
and in such case two of said judges shall constitute a quorum. In all cases where the court is equally divided in
opinion, the judgment of the court below shall stand affirmed.
Writs of error and appeals from the final decisions of said appellate court shall be allowed, and may be
taken to the Circuit [180 U.S. 258] Court of Appeals for the Eighth Judicial Circuit in the same manner and under
the same regulations as appeals are taken from the circuit courts of the United States. Said appellate court shall
appoint its own clerk, who shall hold his office at the pleasure of said court, and who shall receive a salary of one
thousand two hundred dollars per annum. The marshal of the district wherein such appellate court shall be held
shall be marshal of such court. Said appellate court shall be held at South McAlester, in the Choctaw Nation, and
it shall hold two terms in each year at such times and for such periods as may be fixed by the court.
The Indian appropriation Act of June 10, 1896, 29 Stat. 321, 339, c. 398, in respect of the proceedings
therein referred to, provided that if the tribe, or any person, be aggrieved with the decision of the tribal authorities
or the commission provided for in this act, it or he may appeal from such decision to the United States district
court: Provided, however, that the appeal shall be taken within sixty days, and the judgment of the court shall be
It has been ruled that the court thus described as the "United States district court" was the United States
Court in the Indian Territory. Stephens v. Cherokee Nation, 174 U.S. 477.
By the Indian appropriation Act of June 7, 1897, c. 3, 30 Stat. 84, provision was made for the appointment
of an additional judge for the United States Court in the Indian Territory, who was to hold court at such places in
the several judicial districts therein and at such times, as the appellate court of the territory might designate. This
judge was to be a member of the appellate court and have all the authority, exercise all the powers, and perform
the like duties as the other judges of the court, and it was "Provided, That no one of said judges shall sit in the
hearing of any case in said appellate court which was decided by him."
By this act it was also provided:
That on and after January first, eighteen hundred and ninety-eight, the United States courts in said territory
shall have original and exclusive jurisdiction and authority to try and determine all civil causes in law and equity
thereafter instituted, [180 U.S. 259] and all criminal causes for the punishment of any offense committed after
January first, eighteen hundred and ninety-eight, by any person in said territory, and the United States
commissioners in said territory shall have and exercise the powers and jurisdiction already conferred upon them
by existing laws of the United States as respects all persons and property in said territory, and the laws of the
United States and the State of Arkansas in force in the territory shall apply to all persons therein, irrespective of
race, said courts exercising jurisdiction thereof as now conferred upon them in the trial of like causes, and any
citizen of any one of said tribes otherwise qualified who can speak and understand the English language may
serve as a juror in any of said courts.
The Indian Appropriation Act of July 1, 1898, 30 Stat. 591, c. 545, contained the following:
Appeals shall be allowed from the United States courts in the Indian Territory direct to the Supreme Court of
the United States to either party, in all citizenship cases, and in all cases between either of the Five Civilized
Tribes and the United States involving the constitutionality or validity of any legislation affecting citizenship, or the
allotment of lands, in the Indian Territory, under the rules and regulations governing appeals to said court in other
cases: Provided, That appeals in cases decided prior to this act must be perfected in one hundred and twenty
days from its passage, and in cases decided subsequent thereto, within sixty days from final judgment; but in no
such case shall the work of the commission to the Five Civilized Tribes be enjoined or suspended by any
proceeding in, or order of, any court, or of any judge, until after final judgment in the Supreme Court of the United
States. In case of appeals, as aforesaid, it shall be the duty of the Supreme Court to advance such cases on the
docket and dispose of the same as early as possible.
In Stephens v. Cherokee Nation, 174 U.S. 445, it was held that the appeal thus granted was intended to
extend only to the constitutionality or validity of the legislation affecting citizenship or allotment of land in the
Thus, it is seen that the Act of March 1, 1895, created a court [180 U.S. 260] of appeals in the Indian
Territory, with such superintending control over the courts in that territory as the Supreme Court of Arkansas
possessed over the courts of that state by the laws thereof, and the act also provided that writs of error and
appeals from the final decision of said appellate court shall be allowed, and may be taken to the Circuit Court of
Appeals for the eighth judicial circuit in the same manner and under the same regulations as appeals are taken
from the circuit courts of the United States, which necessarily deprived that court of jurisdiction of appeals from
the Indian Territory trial court under section 13 of the act of 1891.
Prior to the act of 1895, the United States court in the Indian Territory had no jurisdiction over capital cases,
but by that act its jurisdiction was extended to embrace them, and we held, in [See,] Brown v. United States, 171
U.S. 631, that this Court had no jurisdiction over capital cases in that court, the appellate jurisdiction in such
cases being vested in the Appellate Court of the Indian Territory.
In Stephens v. Cherokee Nation, we thought it unnecessary to determine whether the effect of the act of
1895 was to render the thirteenth section of the act of 1891 wholly inapplicable, as the judgments of the United
States courts in the Indian Territory in the cases there considered were made final below by the act of 1896, and
the appeals were regarded as having been in terms granted from those judgments by the act of 1898.
But this case is not affected by the act of 1898, and we are of opinion that it does not come within the
thirteenth section of the act of 1891. In accordance with the legislation subsequent to 1891, the appeal should
have been prosecuted to the Court of Appeals in the Indian Territory. The question whether or not an appeal
would lie to this Court from that court does not arise on this record.
Cases citing this case . . .
The following 1 case(s) in the USSC+ database cite this case:
United States v. Seminole Nation, 299 U.S. 417 (1937)