[Report on leases, etc.] And said commission is further authorized and directed to make a full report to Congress of leases, tribal and individual, with the area, amount and value of the property leased and the amount received therefor, and by whom and from whom said property is leased, and is further directed to make a full and detailed report as to the excessive holdings of members of said tribes and others. [Government to be established in Indian Territory.] It is hereby declared to be the duty of the United States to establish a government in the Indian Territory which will rectify the many inequalities and discriminations now existing in said Territory and afford needful protection to the lives and property of all citizens and residents thereof. [29 Stat. L. 339, 340.] * * The above paragraphs constitute part of section 1 of the Indian Appropriation Act of June 10, 1896, ch. 398, 29 Stat. L. 321. The acts here referred to, March 3, 1893, ch. 209, §§ 15, 16, 27 Stat. L. 645, and March 2, 1895, ch. 189, 28 Stat. L. 939, conferred upon the commission no powers beyond those of negotiation and report. The Act in the text for the first time confers upon the commission powers of an executive character, besides declaring a policy in regard to the government of the Indian Territory. Those parts of the Act of 1893 originally constituting the Commission, and of the Act of 1895 authorizing the continuance of its work, are as follows: "SEC. 15. The consent of the United States is hereby given to the allotment of lands in severalty not exceeding one hundred and sixty acres to any one individual within the limits of the country occupied by the Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles; and upon such allotments the individuals to whom the same may be allotted shall be deemed to be in all respects citizens of the United States. And the sum of twenty-five thousand dollars, or so much thereof as may be necessary, is hereby appropriated to pay for the survey of any such lands as may be allotted by any of said tribes of Indians to individual members of said tribes; and upon the allotment of the lands held by said tribes respectively the reversionary interest of the United States therein shall be relinquished and shall cease. "SEC. 16. The President shall nominate and, by and with the advice and consent of the Senate, shall appoint three commissioners to enter into negotiations with the Cherokee Nation, the Choctaw Nation, the Chickasaw Nation, the Muscogee (or Creek) Nation; the Seminole Nation, for the purpose of the extinguishment of the national or tribal title to any lands within that Territory now held by any and all of such nations or tribes, either by cession of the same or some part thereof to the United States, or by the allotment and division of the same in severalty among the Indians of such nations or tribes, respectively, as may be entitled to the same, or by such other method as may be agreed upon between the several nations and tribes aforesaid, or each of them, with the United States, with a view to such and [an?] adjustment, upon the basis of justice and equity, as may, with the consent of such nations or tribes of Indians, so far as may be necessary, be requi * site and suitable to enable the ultimate creation of a State or States of the Union which shall embrace the lands within said India [n] Territory. The commissioners so appointed shall each receive a salary, to be paid during such time as they may be actually employed, under direction of the President, in the duties enjoined by this act, at the rate of five thousand dollars per annum, and shall also be paid their reasonable and proper expenses incurred in prosecution of the objects of this act, upon accounts therefor to be rendered to and allowed by the Secretary of the Interior from time to time. That such commissioners shall have power to employ a secretary, a stenographer, and such interpreter or interpreters as may be found necessary to the performance of their duties, and by order to fix their compensation, which shall be paid, upon the approval of the Secretary of the Interior, from time to time, with their reasonable and necessary expenses, upon accounts to be rendered as aforesaid; and may also employ, in like manner and with the like approval, a surveyor or other assistant or agent, which they shall certify in writing to be necessary to the performance of any part of their duties. Such commissioners shall, under such regulations and directions as shall be prescribed by the President, through the Secretary of the Interior, enter upon negotiation with the several nations, of Indians as aforesaid in the Indian Territory, and shall endeavor to procure, first, such allotment of lands in severalty to the Indians belonging to each such nation, tribe, or band, respectively, as may be agreed upon as just and proper to provide for each such Indian a sufficient quantity of land for his or her needs, in such equal distribution and apportionment as may be found just and suited to the circumstances; for which purpose, after the terms of such an agreement shall have been arrived at, the said commissioners shall cause the lands of any such nation or tribe or band to be surveyed and the proper allotment to be designated; and, secondly, to procure the cession, for such price and upon such terms as shall be agreed upon, of any lands not found necessary to be so allotted or divided, to the United States; and to make proper agreements for the investment or holding by the United States of such moneys as may be paid or agreed to be paid to such nation or tribes or bands, or to any of the Indians thereof, for the extinguishment of their [title?] therein. But said commissioners shall, however, have power to negotiate any and all such agreements as, in view of all the circumstances affecting the subject, shall be found requisite and suitable to such an arrangement of the rights and interests and affairs of such nations, tribes, bands, or Indians, or any of them, to enable the ultimate creation of a Territory of the United States with a view to the admission of the same as a State in the Union. The commissioners shall at any time, or from time to time, report to the Secretary of the Interior their transactions and the progress of their negotiations, and shall at any time, or from time to time, if separate agreements shall be made by them with any nation, tribe, or band, in pursuance of the authority hereby conferred, report the same to the Secretary of the Interior for submission to Congress for its consideration and ratification. For the purposes aforesaid there is hereby appropriated, out of any money in the Treasury of the United States, the sum of fifty thousand dollars, to be immediately available. Neither the provisions of this section nor the negotiations or agreements which may be had or made thereunder shall be held in any way to waive or impair any right of sovereignty which the Government of the United States has over or respecting said Indian Territory or the people thereof, or any other right of the Government relating to said Territory, its lands, or the people thereof." Act of March 3, 1893, ch. 209, 27 Stat. L. 645. "For continuing the work of the Commission appointed under section sixteen of the Act entitled An Act making appropriations for current and contingent expenses, and fulfilling treaty stipulations with Indian tribes for fiscal year ending June thirtieth, eighteen hundred and ninety-four,' approved March third, eighteen hundred and ninety-three, including the unexpended balance of the present appropriation, thirty thousand dollars, to be immediately available; and the President is hereby authorized to appoint two additional members of said Commission, who shall receive the compensation and expenses provided in said Act for members of said Commission: Provided, That so much of said Act as authorizes the employment of a stenographer and a surveyor, or other assistant or agent, is hereby repealed." Act of March 2, 1895, ch. 189, 28 Stat. L. 939. Constitutionality of provision granting appeals. The provision granting an appeal from the decision of the tribal authorities or the commission is not unconstitutional, as Congress may provide for the review of the action of the commissioners and boards created by it, exercising only quasi-judicial powers, by the transfer of their proceedings and decisions, denominated appeals for want of a better term, to judicial tribunals for examination and determination de novo, and may do so in respect of the action of the tribal authorities. Stephens v. Cherokee Nation, (1899) 174 U. S. 477. In the clause providing that a person aggrieved with the decision of the tribal authorities or the commission might appeal from such decision to the "United States District Court," these words were not accurately used, as the United States court in the Indian Territory was not a district or circuit court of the United States (as held in In re Mills, (1890) 135 U. S. 263, 268) and no such court had, at the date of the Act, jurisdiction therein. Stephens v. Cherokee Nation, (1899) 174 U. S. 476. Mandamus to commission. The commission to the five civilized tribes, in the determination of the citizenship of the parties who apply to them for membership in the five nations, are vested by the statutes with judicial powers, and it is not the province of the courts to control the decisions or correct the errors of the commission by the use of the writ of mandamus. Kimberlin v. Five Civilized Tribes Commission, (C. C. A. 1900) 104 Fed. Rep. 653, affirming (1899) 3 Indian Ter. 16. An Act To validate the appointments, acts, and services of certain deputy United States marshals in the Indian Territory, and for other purposes. [Act of Jan. 20, 1897, ch. 70, 29 Stat. L. 493.] [SEC. 1.] [Deputy marshals; appointments, oaths, and services validated.] That the appointments of deputy United States marshals in the Indian Territory made by the marshal in either district of said Territory since the first day of March, eighteen hundred and ninety-five, and prior to April fifteenth, eighteen hundred and ninety-six, and all oaths taken by such deputy United States marshals in good faith, and all acts and services rendered by such deputy United States marshals in pursuance of law and in good faith, are hereby ratified and validated. [Accounts, how approved.] All accounts for the payment of such deputy United States marshals shall be subject to the approval of the Attorney-General. [29 Stat. L. 498.] SEC. 2. [Marshal's bond $20.000-not exceeding $50,000 may be required.] That hereafter United States marshals in said Territory shall give 8 F. S. A.-28 433 Volume III. bond, with two or more sureties to be approved by the judge of said district, in the sum of twenty thousand dollars, conditioned as by law required in regard to the bond of other United States marshals: Provided, That whenever the business of the courts in said Territory shall make it necessary, in the opinion of the Attorney-General, for the United States marshal of any district therein to furnish greater security than the official bond herein required, a bond in the sum not exceeding fifty thousand dollars shall be given by said marshal when required by the Attorney-General, who shall fix the amount thereof. [29 Stat. L. 493.] An Act Relating to mortgages in the Indian Territory. [Act of Feb. 3, 1897, ch. 136, 29 Stat. L. 510.] [Mortgage of nonresident, where recorded-existing mortgages of personalty validated.] That section forty-seven hundred and forty-two of Mansfield's Digest of the Laws of Arkansas, heretofore put in force in the Indian Territory, is hereby amended by adding to said section the following: "Provided, That if the mortgagor is a nonresident of the Indian Territory the mortgage shall be recorded in the judicial district in which the property is situated at the time the mortgage is executed. All mortgages of personal property in the Indian Territory heretofore executed and recorded in the judicial district thereof in which the property was situated at the time they were executed are hereby validated." [29 Stat. L. 510.] Certain general laws of the state of Arkansas, as published in Mansfield's Digest of the Statutes of Arkansas, which are not locally inapplicable or in conflict with the laws of Congress, are extended over and put in force in the Indian Territory by virtue of 1890, May 2, ch. 182, § 31 (1 Supp. R. S. 733). Mansfield's Digest, sec. 4742, provides that "all mortgages, whether for real or personal estate, shall be proved or acknowledged in the same manner that deeds for the conveyance of real estate are now required by law to be proved or acknowledged; and when so proved or acknowledged shall be recorded, if for lands, in the county or counties in which the lands lie, and if for personal property, in the county in which the mortgagor resides." Compilers' note, 2 Supp. R. S. 546. The purpose of the second clause of this statute was to give effect to mortgages of non-residents which had been, before the passage of the Act, recorded in the judicial district in which the property was situated at the time the mortgages were executed. The validity of this curative provision cannot be impugned as depriving an attaching creditor of property within the meaning of the Constitution, though the attachment was levied prior to the passage of this Act. McFaddin v. Evans-Snider-Buel Co., (1902) 185 U. S. 505. See Shapard v. Hynes, (C. C. A. 1900) 104 Fed. Rep. 449. * * * That [SEC. 1.] [U. S. attorney and marshal to receive a salary.] section twenty-four of the Act of May twenty-eighth, eighteen hundred and ninety-six, making appropriations for the Legislative, Executive, and Judicial expenses of the Government, for the fiscal year ending June thirtieth, eighteen hundred and ninety-seven, and for other purposes, be and is hereby amended by striking out the words "Indian Territory or," so that said Act shall apply to the Indian Territory except as herein otherwise provided: [U. S. commissioners, duties, etc.] Provided further, that the provisions of Sections nineteen, twenty-one, and twenty-two of said Act shall not apply to the Indian Territory: [Salary of attorneys and marshals.] Provided further, that each of the District Attorneys in the Indian Territory shall receive a salary of four thousand dollars per annum, and each of the Marshals shall receive a salary of four thousand dollars per annum. * [29 Stat. L. 577.] * The above paragraphs are part of section 1 of the Legislative, Executive, and Judicial Appropriation Act of Feb. 19, 1897, ch. 265, 29 Stat. L. 538. The Act of May 28, 1896, ch. 252, secs. 6-24, 29 Stat. L. 140, abolishes the fee system of compensating United States attorneys and marshals and provides fixed salaries. The Indian Territory is expressly excluded from the operation of the Act by section 24, and this Act repeals the excepting clause, thereby bringing the Indian Territory under the new system. Of the three sections not applicable to the Indian Territory (19, 21, and 22), 19 and 21 provide for United States commissioners, and 22 for the investigation of United States clerks by the attorney-general. United States commissioners in the Indian Territory are provided for in Act of May 2, 1890, supra, p. 414, and Act of March 1, 1895, supra, p. 421. The sections of the Act of May 28, 1896, made applicable are as follows: SEC. 6. That on and after the first day of July, eighteen hundred and ninety-six, all fees and emoluments authorized by law to be paid to United States district attorneys and United States marshals shall be charged as heretofore, and shall be collected, as far as possible, and paid to the clerk of the court having jurisdiction, and by him covered into the Treasury of the United States; and said officers shall be paid for their official services, which, in the case of district attorneys, shall include services in the circuit courts of appeals of their respective circuits wherever sitting, salaries and compensation hereinafter provided and not otherwise: Provided, That this section shall not be construed to require or authorize fees to be charged against or collected from the United States, except as provided by sections eleven and thirteen of this Act relating to field deputies and their payments. SEC. 8. That whenever, in the opinion of the district judge of any district or the chief justice of any territory and the district attorney, evidenced by writing, the public interest requires it, one or more assistant district attorneys may be appointed, by the Attorney-General; but such opinion shall state to the Attorney-General the facts as distinguished from conclusions, showing the necessity therefor. Such assistant district attorneys shall be paid such salary as the Attorney-General may from time to time determine as to each, which shall in no case exceed two thousand five hundred dollars per annum: Prorided, That the necessary expenses for lodging and subsistence actually paid, not exceeding four dollars per day and actual and necessary traveling expenses of the district attorney and his assistants, while absent from their respective official residences and necessarily employed in going to, returning from, and attending before any United States court, commissioner, or other committing magistrate, and while otherwise necessarily absent from their respective official residences on official business shall be SEC. 10. That when in the opinion of the Attorney-General the public interest requires it, he may, on the recommendation of the marshal, which recommendation shall state the facts as distinguished from conclusions, showing necessity for the same. allow the marshals to employ necessary office deputies and clerical assistance, upon salaries to be fixed by the Attorney-General, from time to time, and paid as hereinafter provided. When any of such office deputies is engaged in the service or attempted service of any writ, process, subporna, or other order of the court, or when necessarily absent from the place of his regular employment, on official business, he shall be allowed his actual traveling expenses only, and his necessary and actual expenses for lodging and subsistence, not to exceed two dollars per day, and the necessary actual expenses in transporting prisoners, including necessary guard hire; and he shali make and render accounts thereof as hereinafter provided. SEC. 11. That at any time when, in the opinion of the marshal of any district, the public interest will thereby be promoted, he may appoint one or more deputy marshals for such district, who shall be known as field deputies, and, who, unless sooner removed by the district court as now provided by law shall hold office during the pleasure of the marshal, except as hereinafter provided, and who shall each, as his compensation, receive threefourths of the gross fees, including mileage, as provided by law, earned by him, not to exceed one thousand five hundred dollars per fiscal year, or at that rate for any part of a fiscal year; and in addition shall be allowed his actual necessary expenses, not exceeding two dollars a day, while endeavoring to arrest, under process, a person charged with or convicted of crime: Provided, That a field deputy may elect to receive actual expenses on any trip in lieu of mileage: Provided, That in special cases, where in his judgment justice requires, the Attorney-General may make an additional allowance, not, however, in any case to make the aggregate annual compensation of any field deputy in excess of twenty-five hundred dollars nor more than three-fourths of the gross fees earned by such field deputy. The marshal, immediately after making any appointment or appointments under this section, shall report the same to the Attorney-General, stating the facts as distinguished from conclusions constituting the reason for such appointment, and the Attorney-General may at any time cancel any such appointment as the public interest may require. The field deputies herein provided for of the districts of California, Colorado, Washington, Montana, North Dakota, South Dakota, Nevada, Oregon, Wyoming, and Idaho shall, for the services they may perform during the fiscal year eighteen hundred and ninety-seven, receive double the fees allowed by law to like officers in other States for performing similar duties, but neither of them shall be allowed to receive of such fees any sum exceeding the aggregate compensation of such officer as provided herein. SEC. 12. That the marshal, when attending court at any place other than his official residence, and when engaged in the service or attempted service of any process, writ, or subpœna, and when otherwise necessarily absent from his official residence on official business, shall be allowed his necessary expenses for lodging and subsistence, not exceeding four dollars per day and his actual necessary traveling expenses. He shall also be allowed the actual necessary expenses in transporting prisoners, including necessary guard hire. An account of such expenses shall be made out and paid as hereinafter provided. The marshal's official residence shall be deemed to be at one of the places of holding court in the district, and the Attorney-General shall be authorized to fix and declare the place of such official residence. SEC. 13. That whenever in this Act an officer is allowed actual expenses the account therefor shall be made out quarterly, in accordance with rules and regulations prescribed by the Attorney-General. When made out the account shall be verified on oath before an officer authorized to administer oaths. The expense accounts of the marshals and their office deputies and the accounts of the field deputies shall be paid by the marshals; said accounts and the expense accounts of the district attorneys and their assistants when made out in accordance with this Act shall be submitted to and examined by the circuit court or district court of the district, and when approved by the court shall be audited and allowed as now provided by law. Each marshal shall make such returns of the earnings and expenses of his office as shall be required under rules and regulations prescribed by the Attorney-General: Provided, That no office or field deputy shall receive compensation as bailiff, and no field deputy shall receive fees for representing the marshal in court. SEC. 14. That the necessary office expenses of the district attorneys and marshals shall be allowed when authorized by the AttorneyGeneral. SEC. 15. That the district attorney of any judicial district, when the facts showing the necessity therefor are certified by the district judge to the Attorney-General, may, with the approval of the Attorney-General, and no longer than such approval lasts, employ necessary clerical assistance at such salary or salaries as shall be from time to time fixed by the Attorney-General. SEC. 16. That all salaries provided by sections six to fifteen, inclusive, of this Act shall be paid monthly by the Department of Justice. SEC. 17. That sections six to fifteen, inclusive, of this Act shall not be so construed as to prevent or affect the amount or taxation of costs against the unsuccessful party in civil proceedings or against defendants convicted of crimes or misdemeanors. SEC. 18. That any officer whose compensation is fixed by sections six to fifteen, inclusive, of this Act who shall directly or indirectly demand, receive, or accept any fee or compensation for the performance of any official service other than is herein provided, or shall willfully fail or neglect to account for or pay over to the proper officer any fee received or collected by him shall, upon conviction thereof, be punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment, at the discretion of the court, not exceeding five years, or by both such fine and imprisonment. SEC. 20. That no marshal or deputy marshal, attorney or assistant attorney of any district, jury commissioner, clerk of marshal, no bailiff, crier, juror, janitor of any Government building, nor any civil or military employee of the Government, except as in this Act provided, and no clerk or employee of any United States justice or judge shall have, hold, or exercise the duties of the United States commissioner. And it shall not be lawful to appoint any of the officers named in this section receiver, or receivers in any case or cases now pending or that may be hereafter brought in the courts of the United States. SEC. 23. The Attorney-General shall, in his annual report to Congress each year, include a statement in detail showing for the preceding fiscal year the number of assistant district attorneys employed, the salaries of each; the number of clerical assistants employed for each district attorney, the salaries of each; the amount expended for necessary subsistence, and actual and necessary traveling expenses of each district attorney and his assistants; the number of office deputies and clerical assistants employed for each marshal, the salaries paid to each; the amount expended for necessary subsistence and actual and necessary traveling expenses of each marshal and his office deputies, and the number of field deputy marshals employed by each marshal and the amount of fees earned by and the compensation paid to each of them out of such fees. [Examination and report concerning rights of Mississippi Choctaws.] That the commission appointed to negotiate with the Five Civilized Tribes in the Indian Territory shall examine and report to Congress whether the Mississippi Choctaws under their treaties are not entitled to all the rights of Choctaw citizenship except an interest in the Choctaw annuities: |