Nation by treaty or otherwise, nor have they | essarily follow from the concession of the (excepting the two individuals heretofore former." referred to) paid any sum into the Nation's treasury for a pro rata share of its money and lands.

The Delawares, the Shawnees, and the freedmen acquired their property rights by the express words of treaties, but the intermarried whites cannot point out any such in their favor. Doubtless because of this they have heretofore asserted no claim, although the Cherokee courts were open to them to do so, and have allowed repeated payments of money to be made to every other citizen without question.

Referring to this, the court of claims said in its opinion in the present case, 40 Ct. Cl. 411, 442:

"It cannot be supposed for a moment that Congress intended by this legislation to take away from some of the Cherokee people propcrty which was constitutionally theirs, or to confer upon white citizens property which they were not legally entitled to have. The term 'citizens' in these statutes of the United States must be construed to mean those citizens who were constitutionally or legally entitled to share in the allotment of the lands."

The doctrine is familiar that the language of a statute is to be interpreted in the light of the particular matter in hand and the object sought to be accomplished, as mani

The distinction between different classes of citizens was recognized by the Cherokees in the differences in their intermarriage law, as applicable to the whites and to the Indians of other tribes; by the provision in the intermarriage law that a white man in-fested by other parts of the act, and the termarried with an Indian by blood acquires words used may be qualified by their surcertain rights as a citizen, but no provision roundings and connections. that if he marries a Cherokee citizen not of In accepting the conclusion of the court of Indian blood he shall be regarded as a citi- claims in this regard we, nevertheless, deem zen at all; and by the provision that if, once it proper to somewhat consider the conhaving married an Indian by blood, he mar-gressional legislation relied on by the claimries the second time a citizen not by blood, he loses all of his rights as a citizen. And the same distinction between citizens as such and citizens with property rights has also been recognized by Congress in enactments relating to other Indians than the Five Civilized Tribes. Act August 9, 1888, 25 Stat. at L. 392, chap. 818; act May 2, 1890, 26 Stat. at L. 96, chap. 182; act June 7, 1897, 30 Stat. at L. 90, chap. 3.

In Whitmire v. Cherokee Nation, 30 Ct. Cl. 138, 152, the court of claims said: "Here it should be noted that when the treaty was made there had long been a peculiar class of citizens in the Cherokee country,[89] white men who became *citizens by intermarriage." And, after quoting the proviso to § 75, art. 15, of the Cherokee Code of 1874, the court added: "The idea, therefore, existed both in the mind and in the laws of the Cherokee people, that citizenship did not necessarily extend to or invest in the citizen a personal or individual interest in what the Constitution termed the 'common prop erty,'-'the lands of the Cherokee Nation.'" In Stephens v. Cherokee Nation, 174 U. S. 445, 488, 43 L. ed. 1041, 1056, 19 Sup. Ct. Rep. 722, 738, this court, in respect of certain acts of Congress, observed:

"It may be remarked that the legislation seems to recognize, especially the act of June 28, 1898 [30 Stat. at L. 495, chap. 517], 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 nec

ants.

The act of Congress of July 1, 1902 (32 Stat. at L. 716, chap. 1375), ratified by the Cherokee Nation, August 7, 1902, and often called the Cherokee agreement, contained these sections:

*"Sec. 25. The roll of citizens of the Cher-[90] okee Nation shall be made as of September first, nineteen hundred and two, and the names of all persons then living and entitled to enrolment on that date shall be placed on said roll by the Commission to the Five Civilized Tribes.

"Sec. 26. The names of all persons living on the first day of September, nineteen hundred and two, entitled to be enrolled as provided in section twenty-five hereof, shall be placed upon the roll made by said Commission, and no child born there after to a citizen, and no white person who has intermarried with a Cherokee citizen since the sixteenth day of December, eighteen hundred and ninety-five, shall be entitled to enrolment or to participate in the distribution of the tribal property of the Cherokee Nation.

"Sec. 27. Such rolls shall, in all other respects, be made in strict compliance with the provisions of section twenty-one of the act of Congress approved June twenty-eighth, eighteen hundred and ninety-eight (30 Stat. at L. 495, chap. 517), and the act of Congress approved May thirty-first, nineteen hundred (31 Stat. at L. 221, chap. 598).

"Sec. 28. No person whose name appears upon the roll made by the Dawes Commis sion as a citizen or freedman of any other

tribe shall be enrolled as a citizen of the against as may be provided in other cases Cherokee Nation.

"Sec. 29. For the purpose of expediting the enrolment of the Cherokee citizens and the allotment of lands as herein provided, the said Commission shall, from time to time, and as soon as practicable, forward to the Secretary of the Interior lists upon which shall be placed the names of those persons found by the Commission to be entitled to enrolment. The lists thus prepared, when approved by the Secretary of the Interior, shall constitute a part and parcel of the final | roll of citizens of the Cherokee tribe, upon which allotment of land and distribution of other tribal property shall be made. When there shall have been submitted to and ap[91]proved by the *Secretary of the Interior lists embracing the names of all those lawfully entitled to enrolment, the roll shall be deemed complete. The roll so prepared shall be made in quadruplicate, one to be deposited with the Secretary of the Interior, one with the Commissioner of Indian Affairs, one with the principal chief of the Cherokee Nation, and one to remain with the Commission to the Five Civilized Tribes.

of felony, and the penalty for this offense
shall be confinement at hard labor for a [92]
period of not less than one year nor more
than five years, and in addition thereto a
forfeiture to the Cherokee Nation of the
lands, other tribal property, and proceeds
so obtained."

It thus appears that the roll of citizens of the Cherokee Nation was to be made up as of September 1, 1902, of the persons then living and entitled to enrolment on that date; that all such persons should be placed upon the roll, and that (§ 29) on the lists to be finally approved by the Secretary of the Interior there should be placed only the names of those persons found to be entitled to enrolment. In all other respects the roll was to be made in compliance with § 21 of the Act of Congress of June 28, 1898, and of the Act of Congress of May 31, 1900.

Section 21 provided: "That in making rolls of citizenship of the several tribes, as required by law, the Commission to the Five Civilized Tribes is authorized and directed to take the roll of Cherokee citizens of eighteen hundred and eighty (not including freedmen) as the only roll intended to be confirmed by this and preceding acts of Congress, and to enroll all persons now living whose names are found on said roll, with such intermarried white persons as may be entitled to citizenship under Cherokee laws." The roll of 1880, made by the Cherokees, was a census roll, and its confir

"Sec. 30. During the months of September and October, in the year nineteen hundred and two, the Commission to the Five Civilized Tribes may receive applications for enrolment of such infant children as may have been born to recognized and enrolled citi zens of the Cherokee Nation on or before the first day of September, nineteen hundred and two, but the application of no person whemmation was not intended to create any Boever for enrolment shall be received after the thirty-first day of October, mneteen hun dred and two.

rights which citizens of the Cherokee Nation had not before enjoyed, but merely to furnish the basis for making up the roll of citizens. Section 21 was in reality a statement that no previous act of Congress was intended to confirm any other roll of the Cherokee Nation.

"Sec. 31. No person whose name does not appear upon the roll preparea as herein provided shall be entitled to in any manner participate in the distribution of the common property of the Cherokee tribe, and The act of May 31, 1900 (31 Stat. at L. those whose names appear thereon shall par- 221, 236, chap. 598), provided: "That said ticipate in the manner set forth in this act: Commission shall continue to exercise all Provided, That no allotment of land or other authority heretofore conferred on it by law. tribal property shall be made to any person, But it shall not receive, consider, or make or to the heirs of any person, whose name any record of any application of any person is on said roll and who died prior to the first for enrolment as a member of any tribe in day of September, nineteen hundred and two. Indian territory who has not been a recogThe right of such person to any interest in nized citizen thereof, and duly and lawfully the lands or other tribal property shall be enrolled or admitted as such, and its refusal deemed to have become extinguished and to *of such application shall be final when ap-[93] have passed to the tribe in general upon his proved by the Secretary of the Interior." death before said date, and any person or Section 31 of the act of July 1, 1902, says persons who may conceal the death of any that no person whose name does not appear one on said roll as aforesaid for the pur- on the roll made by the Commission to the pose of profiting by said concealment, and Five Civilized Tribes "shall be entitled to who shall knowingly receive any portion of in any manner participate in the distribuany land or other tribal property or of the tion of the common property of the Cheroproceeds so arising from any allotment pro-kee tribe, and those whose names appear hibited by this section, shall be deemed thereon shall participate in the manner set guilty of a felony, and shall be proceeded forth in this act." In other words, the roll

must be made up of citizens who, under the, laws of the Cherokee Nation, were entitled to participation in the distribution of the common property of the Cherokee tribes.

The concluding words of § 21, "with such intermarried white persons as may be entitled to citizenship under Cherokee laws," emphatically indicate that Congress had the Indian citizen in mind in all that went before and limited enrolment of white persons to such as might be entitled to citizenship under Cherokee laws.

Counsel for claimants speak of the act of 1902 as a "treaty," but it is only an act of Congress, and can have no greater effect. It is a singular commentary on the situation that the majority of the native Cherokees voted against its acceptance, which was carried by the vote of the whites. The suggestion is wholly inadmissible that they could vote themselves an interest in the property of the Cherokee people, including a share in the money paid in by the Delawares and the Shawnees, and become thereby wards of this government.

omitted, by re-enacting the same, but this only evidenced the determination to prevent the encroachment of the whites upon the property rights of the Cherokee people. The act was clearly passed out of abundant caution, and was quite unnecessary in view of the fact that the act of 1877 remained in force, as was found by the court of claims.

We are dealing with the right of enrolment so as to entitle the persons enrolled to participate in the distribution of the lands and vested funds of the Cherokee Nation, and not with questions arising in respect of improvements on the public domain. As to improvements, they seem to have been treated as those of a tenant who had made them under an agreement that they should remain his. Any citizen of the Nation could use the public domain, and it is not asserted that the intermarried whites failed to obtain their share of such use, but because they have enjoyed that benefit, free from tax or burden, is no reason for giving them a share in the lands and vested funds, which has never been granted to them, and for which they have never paid.

Referring to § 26 of the act of 1902, which declares that no white person intermarried *We concur in the conclusions of the court [95] since December 16, 1895, shall be entitled to of claims, including the disposition of the enrolment or to participate in the distribu- particular contention presented in appeal tion of the tribal property of the Cherokee | No. 128.

kee citizenship by blood, or had abandoned their Cherokee wives. They contended that they could not be deprived of the rights and privileges acquired by intermarriage save by proceedings in the nature of office found. As to this the court of claims said:

not

Nation, and to an act of the Cherokee Coun- This involved certain claimants, before cil to the same effect, approved December 16, the court, known as "married out and aban1895, counsel contend that the act of Con-doned whites," who alleged that they became gress shows that there was a class of persons citizens of the Cherokee Nation by interwho, having married prior to December 16, marriage, but conceded that they had since 1895, were to be enrolled, embracing all law-married persons having no rights of Cherofully married according to the law of the Nation, and were to participate in the dis[94]tribution of the tribal property. The doctrine that the denial of a right is the grant of a right is a poor basis for a grant of land. Not a single word of the act intimates that these intermarried persons have or are to "These intermarried whites are have any interest in the property of the Na- grantees or devisees seised and in possession tion, and to hold that because the act of of land, occupying the position of defend 1902 declares that white persons intermar- ants. They occupy the contrary positionrying after 1895 should acquire no property of plaintiffs seeking to recover money-and rights the Indians, in accepting the act, it is obligatory upon them to establish their conceded property rights to all who inter-right to it. To say that a white man can married prior thereto, would put a construc- share in the property of the Cherokees for tion on the act utterly inconsistent with the the reason that at one time in his life he settled rule that, as between the whites and was the husband of a Cherokee woman, and the Indians, the laws are to be construed to say that this court or the Secretary of most favorably to the latter. the Interior must hold that he is still the After the decision in Journeycake's Case, husband of a Cherokee woman because the 155 U. S. 196, 39 L. ed. 120, 15 Sup. Ct. contrary has not been established in another Rep. 55, and in that of Whitmore v. Chero-proceeding, is an appeal to technicality kee Nation, 30 Ct. Cl. 138, 180, the Chero- which the court cannot uphold. These kee National Council passed the act of December 16, 1895, amending certain sections of the compiled laws, from which the provisions of the act of November, 1877. which denied intermarrying whites any right in Cherokee property, had been erroneously

claimants, like other plaintiffs, must prove their case; asserting a present right, they must establish present conditions. The laws and usages of the Cherokees, their earliest history, the fundamental principles of their national policy, their Constitution and stat

States v. Hamilton, 1 L. ed. U. S. 490; Re Argued October 15, 1906. Decided November

Carll, 27 L. ed. U. S. 288; Oteiza y Cortes v. Jacobus, 34 L. ed. U. S. 464; Pearce v.

Texas, 39 L. ed. U. S. 164; and Glass V. The OR

Betsey, 1 L. ed. U. S. 489.

On collateral attack by habeas corpus on decison against constitutional rights-see note to Hovey v. Elliott, 39 L.R.A. 450.

Mr. Finis E. Riddle argued the cause, and. with Mr. William I. Cruce, filed a brief for petitioner:

A court created by the legislature can only be organized in the manner and as provided by the law creating it, and if it is not organized as provided by the law creating it, then it has no power or authority to try cases and to render a valid judgment.

511, 10 L. ed. 270; Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897; Knowles v. Logansport Gaslight & Coke Co. 19 Wall. 58, 22 L. ed. 70; Bron, Jurisdiction of Courts, 2a ed. §§ 101-103, pp. 377-379.

The failure of the court to substantially follow the provisions of the statute, and in purposely disregarding the statute in the manner of organizing a grand jury, renders that body and its proceedings void.

Crowley v. United States, 194 U. S. 461, 48 L. ed. 1075, 24 Sup. Ct. Rep. 731.

The pretended indictment upon which the petitioner was convicted, under all the authorities was no indictment at all. It is the same as though he had been convicted without an indictment. It was wholly insufficient to give the court jurisdiction over the person of the defendant.

8 Am. & Eng. Enc. Law, 2d ed. p. 284; Hobart v. Hobart, 45 Iowa, 503; Columbus v. Hydraulic Woollen Mills Co. 33 Ind. 436; Greenwood v. Bradford, 128 Mass. 296; King v. King, 1 Penr. & W. 19; Re Allison, 13 Colo. 535, 10 L.R.A. 790, 16 Am. St. Rep. 224, 22 Pac. 820; 21 Enc. Pl. & Pr. p. 608; Northrup v. People, 37 N. Y. 203; Ex parte Branch, 63 Ala. 383; Boynton v. Nelson, 46 Ala. 510; Garlick v. Dunn, 63 Ala. 404; Wightman v. Karsner, 20 Ala. 446; Napper v. Noland, 9 Port. (Ala.) 218; Nabors V. State, 6 Ala. 200; Neal V. Shinn, 49 Ark. 227, 4 S. W. 771; State ex rel. Butler v. Williams, 48 Ark. 227, 2 S. W. 843; Grimmett v. Askew, 48 Ark. 151, 2 S. W. 707; Chaplin v. Holmes, 27 Ark. 414; Hellems v. State, 22 Ark. 207; Brumley v. State, 20 Ark. 77; Ex parte Jones, 27 Ark. 349; Ex parte Osborn, 24 Ark. 479; Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54; Bates v. Gage, 40 Cal. 183; Clelland v. People, 4 Colo. 244; American F. Ins. Co. v. Pappe, 4 Okla. 110, 43 Pac. 1085; Irwin v. Irwin, 224 Cal. 230; McNeese v. State, 19 Tex. App. Okla. 180, 37 Pac. 548.

While it is a case of error, yet it is such error that renders the judgment of the court void.

Re Nielsen, 131 U. S. 176, 182, 33 L. ed. 118, 120, 9 Sup. Ct. Rep. 672; Ex parte Lange, 18 Wall. 163, 21 L. ed. 872; Ex parte Siebold, 100 U. S. 371, 25 L. ed. 717; | Re Mayfield, 141 U. S. 107-116, 35 L. ed. 635-638, 11 Sup. Ct. Rep. 939; Ex parte Yerger, 8 Wall. 85, 19 L. ed. 332; Virginia v. Rives (Ex parte Virginia) 100 U. S. 333, 25 L. ed. 675; Ex parte Carll, 106 U. S. 521, 27 L. ed. 288, 1 Sup. Ct. Rep. 535; Ex parte Yarbrough, 110 U. S. 651, 28 L. ed. 274, 4 Sup. Ct. Rep. 152; Ex parte Bigelow, 113 U. S. 328, 28 L. ed. 1005, 5 Sup. Ct. Rep. 542; Re Cuddy, 131 U. S. 280, 33 L. ed. 154, 9 Sup. Ct. Rep. 703; Ex parte Bain, 121 U. S. 1, 30 L. ed. 849, 7 Sup. Ct. Rep. 781; Re Swan, 150 U. S. 648, 37 L. ed. 1209, 14 Sup. Ct. Rep. 225; Mueller v. Nugent, 184 U. S. 1, 46 L. ed. 405, 22 Sup. Ct. Rep. 269; Re Elmira Steel Co. 5 Am. Bankr. Rep. 505, 109 Fed. 456; Adams v. Terrell, 4 Woods, 337, 4 Fed. 796; Williamson v. Berry, 8 How. 540, 8 L. ed. 1189; Elliott v. Peirsol, 1 Pet. 328, 7 L. ed. 164; United States v. Arredondo, 6 Pet. 691, 8 L ed. 547; Voorhees v. Jackson, 10 Pet. 475, 9 L. ed. 500; Wilcox v. Jackson, 13 Pet.

Re Bonner, 151 U. S. 254, 38 L. ed. 150, 14 Sup. Ct. Rep. 323; Levy v. Wilson, 69 Cal. 105, 10 Pac. 272; People v. Thurston, 5 Cal. 69; Bruner v. Superior Court, 92 Cal. 239, 28 Pac. 341; State v. Babcock, 1 Conn. 401; 2 Hawk. P. C. chap. 25, §§ 2628; Nicholls v. State, 5 N. J. L. 543; Couch v. Alabama, 63 Ala. 163; Doyle v. State, 17 Ohio, 224; Vattier v. State, 4 Blackf. 73; McQuillen v. State, 8 Smedes & M. 587; Stokes v. State, 24 Miss. 621; State v. Williams, 5 Port. (Ala.) 130; Lott V. State, 18 Tex. App. 627; People v. Coffman,

48; Portis v. State, 23 Miss. 578; 9 Am. & Eng. Enc. Law, p. 6; Thompson & M. Juries, §§ 492-494, 500, 520; United States v. Antz, 4 Woods, 174, 16 Fed. 119; United States v. Gale, 109 U. S. 71, 27 L. ed. 859, 3 Sup. Ct. Rep. 1; State v. McNamara, 3 Nev. 75; Brown v. State, 9 Neb. 163, 2 N. W. 378; Rainey v. State, 19 Tex. App. 481; Finley v. State, 61 Ala. 201; Nordan v. State, 143 Ala. 13, 39 So. 406; State v. Feazell, 114 La. 533, 38 So. 444; State v. Mercer, 101 Md. 535, 61 Atl. 220; United States v. Reynolds, 1 Utah, 226; Burley v. State, 1 Neb. 390; Dutell v. State, 4 G. Greene, 125; Thorp v. People, 3 Utah, 441 Appx., 24 Pac. 908; State v. rarks, 21 La. Ann. 251.

The petitioner was compelled by the court to furnish evidence against himself.

16 Am. & Eng. Enc. Law, 2d ed. p. 818; Agnew v. Jobson, 133 Cox, C. C. 625; Blackwell v. State, 67 Ga. 76, 44 Am. Rep. 717; People v. McCoy, 45 How. Pr. 216; State v. Jacobs, 50 N. C. (5 Jones, L.) 259; Day v. State, 63 Ga. 667; People v. Mead, 50 Mich. 228, 15 N. W. 95; Stokes v. State, 5 Baxt. 619, 30 Am. Rep. 72; 30 Am. & Eng. Enc. Law, 2d ed. p. 1160; Cooper v. State, 86 Ala. 610, 4 L.R.A. 766, 11 Am. St. Rep. 84, 6 So. 110; Davis v. State, 131 Ala. 10, 31 So. 569; State v. Garrett, 71 N. C. 85, 17 Am. Rep. 1; State v. Graham, 74 N. C.