[Jurisdiction of U. S. Courts.] Provided further, 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 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,

[Jurisdiction of U. S. commissioners.] 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;

[Laws applicable, irrespective of race.] 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;

[Citizen of tribe may be juror.] 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.

[Authority of commission continued.] That said commission shall continue to exercise all authority heretofore conferred on it by law to negotiate with the Five Tribes, and any agreement made by it with any one of said tribes, when ratified, shall operate to suspend any provisions of this Act if in conflict therewith as to said nation:

[" Rolls of citizenship" defined investigation of names- appeal.] Provided, That the words "rolls of citizenship," as used in the Act of June tenth, eighteen hundred and ninety-six, making appropriations for current and contingent expenses of the Indian Department and fulfilling treaty stipulations with various Indian tribes for the fiscal year ending June thirtieth, eighteen hundred and ninety-seven, shall be construed to mean the last authenticated rolls of each tribe which have been approved by the council of the nation, and the descendants of those appearing on such rolls, and such additional names and their descendants as have been subsequently added, either by the council of such nation, the duly authorized courts thereof, or the commission under the Act of June tenth, eighteen hundred and ninety-six. And all other names appearing upon such rolls shall be open to investigation by such commission for a period of six months after the passage of this Act. And any name appearing on such rolls and not confirmed by the act of June tenth, eighteen hundred and ninetysix, as herein construed, may be stricken therefrom by such commission where the party affected shall have ten days previous notice that said commission will investigate and determine the right of such party to remain upon such roll as a citizen of such nation: Provided, also, That any one whose name shall be stricken from the roll by such commission shall have the right of appeal, as provided in the Act of June tenth, eighteen hundred and ninety-six.

[Approval of acts, etc., of Five Civilized Tribes — exceptions.] That on and after January first, eighteen hundred and ninety-eight, all acts, ordinances, and resolutions of the council of either of the aforesaid Five Tribes passed shall be certified immediately upon their passage to the President of the United States and shall not take effect, if disapproved by him, or until thirty days after their passage: Provided, That this Act shall not apply to resolutions for adjournment, or any acts, or resolutions, or ordinances in relation to negotiations with commissioners heretofore appointed to treat with said tribes.

[Additional judge for Territory.] That there shall be appointed by the President, by and with the advice and consent of the Senate, one additional judge for said Territory;

[Terms of court, etc.] and the appellate court of said Territory shall designate the places in the several judicial districts therein at which and the times when such judge shall hold court, and courts shall be held at the places now provided by law and at the town of Wagoner and at such other places as shall be designated by said appellate court;

[Member of appellate court when judge ineligible.] and said judge shall be a member of the appellate court, and shall have all authority, exercise all powers, perform like duties, and receive the same salary as other judges of said courts, and shall serve for a term of four years from the date of appointment: Provided, That no one of said judges shall sit in the hearing of any case in said appellate court which was decided by him.

The above paragraphs are part of section 1 of the Indian Appropriation Act of June 7, 1897, ch. 3, 30 Stat. L. 62.

Courts of Indian nations abolished. This Act unquestionably took from the courts of the different Indian nations in the Indian

Territory jurisdiction of all cases, civil and criminal, and conferred upon the United States courts in said territory full and exclusive original jurisdiction of all cases arising within the territory, and as, under the Act of May 2, 1890, section 31, the Indian courts had the sole and exclusive jurisdiction to order the sale of improvements on Indian lands owned by Indians by blood, and as this jurisdiction, by this Act, was transferred to the United States courts, it follows that these courts now have jurisdiction. Crowell . Young, (Indian Ter. 1902) 69 S. W. Rep. 829.

"Since Jan. 1, 1898, the laws enacted by Congress in reference to the Indian Territory and the laws of Arkansas put in force by Congress apply to all persons therein, without regard to race. Since that time the statute of frauds, which has been put in force, will apply to all contracts made in the Indian Territory by and between Indians of the same tribe as between other persons." Myers v. Mathis, (1898) 2 Indian Ter. 3.

Constitutionality. The legislation affecting the Indian tribes " seems to recognize, especially the Act of June 28, 1898, a dis

[30 Stat. L. 83, 84.]

tinction 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." Stephens v. Cherokee Nation, (1899) 174 U. S. 488. See also Ansley v. Ainsworth, (Indian Ter. 1902) 69 S. W. Rep. 884.

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, is 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.

[Boundary monuments.] That hereafter in the public-land surveys of the Indian Territory iron or stone posts shall be erected at each township corner, upon which shall be recorded the usual marks required to be placed on township corners by the laws and regulations governing public-land surveys. [30 Stat. L. 86.]

This is from the Indian Appropriation Act of June 7, 1897, ch. 3.

An Act Granting additional powers to railroad companies operating lines in the Indian Territory.

[Act of June 4, 1898, ch. 378, 30 Stat. L. 431.]

[Railroads may contract for use or lease of connecting lines.] That it shall and may be lawful for any company operating a line of railroad, either wholly or partially, in the Indian Territory to enter into contracts for the use or lease

of the railroad and other property of any railroad company whose line may now or hereafter connect with its line upon such terms as may be agreed upon by the respective companies, and to use and operate such road or roads in accordance with the terms of such contract or lease, but subject to the obligations imposed upon the respective companies by their charters or by the laws of the United States or of the State or Territory in which such leased road may be situate: Provided, That the terms of this Act shall not apply to parallel or competing lines. [30 Stat. L. 431.]

An Act For the protection of the people of the Indian Territory, and for other purposes.

[Act of June 28, 1898, ch. 517, 30 Stat. L. 495.]

[SEC. 1.] [ Officer" defined.] That in all criminal prosecutions in the Indian Territory against officials for embezzlement, bribery, and embracery the word "officer," when the same appears in the criminal laws heretofore extended over and put in force in said Territory, shall include all officers of the several tribes or nations of Indians in said Territory. [30 Stat. L. 495.]

SEC. 2. [Tribe to be made party in suits affecting tribal property—service.] That when in the progress of any civil suit, either in law or equity, pending in the United States court in any district in said Territory, it shall appear to the court that the property of any tribe is in any way affected by the issues being heard, said court is hereby authorized and required to make said tribe a party to said suit by service upon the chief or governor of the tribe, and the suit shall thereafter be conducted and determined as if said tribe had been an original party to said action. [30 Stat. L. 495.]

Interest of tribe in subject-matter. — From section 29 of this Act, and the provision of the agreement thereunder that whenever the tribe is in any way interested in the subjectmatter in controversy, the court shall have power to summon in said tribe and make it a party to the suit, it is plain that the tribe must in some way be interested in the subject-matter in controversy before the court has power to summon in said tribe and make it a party to the suit, and when the action of unlawful detainer can only be maintained when the relation of landlord and tenant exists, the court erred in making the tribes

parties to such a suit in the absence of an averment in the interplea and answer of the tribes that the relation of landlord and tenant exists by contract, either implied by law or expressed, between either the plaintiff or defendants and the tribes, and the demurrer of the plaintiffs and the motion to strike out the interplea and answer of the tribes should have been sustained. Thompson v. Morgan, (Indian Ter. 1902) 69 S. W. Rep. 920. See Sanders v. Thornton, (C. C. A. 1899) 97 Fed. Rep. 863; Casteel v. McNeeley, (Indian Ter. 1901) 64 S. W. Rep. 594.

SEC. 3. [Jurisdiction of U. S. courts over controverted claims to membership- judgment removing party, etc.] That said courts are hereby given jurisdiction in their respective districts to try cases against those who may claim to hold as members of a tribe and whose membership is denied by the tribe, but who continue to hold said lands and tenements notwithstanding the objection of the tribe; and if it be found upon trial that the same are held unlawfully against the tribe by those claiming to be members thereof, and the membership and right are disallowed by the commission to the Five Tribes, or the United States court, and the judgment has become final, then said court shall cause the parties charged with unlawfully holding said possessions to be removed from the same and cause the lands and tenements to be restored to the person or persons or nation or tribe of Indians entitled to the possession of the same:

[Defense of noncitizen holding under lease value of improvements, etc. extension of possession as compensation.] Provided always, That any person being a noncitizen in possession of lands, holding the possession thereof under

an agreement, lease, or improvement contract with either of said nations or tribes, or any citizen thereof, executed prior to January first, eighteen hundred and ninety-eight, may, as to lands not exceeding in amount one hundred and sixty acres, in defense of any action for the possession of said lands show that he is and has been in peaceable possession of such lands, and that he has while in such possession made lasting and valuable improvements thereon, and that he has not enjoyed the possession thereof a sufficient length of time to compensate him for such improvements. Thereupon the court or jury trying said cause shall determine the fair and reasonable value of such improvements and the fair and reasonable rental value of such lands for the time the same shall have been occupied by such person, and if the improvements exceed in value the amount of rents with which such persons should be charged the court, in its judgment, shall specify such time as will, in the opinion of the court, compensate such person for the balance due, and award him possession for such time unless the amount be paid by claimant within such reasonable time as the court shall specify. If the finding be that the amount of rents exceed the value of the improvements, judgment shall be rendered against the defendant for such sum, for which execution may issue. [30 Stat. L. 496.]

Judgment for rents for current year. - In a suit on an improvement contract, brought by an owner of land under this section, the court properly entered judgment for the rents for the year in which suit was brought notwithstanding suit had been begun before the rents were due for that year, when provision was made by the judgment that the defendant be allowed to retain possession of the prem

ises for that year. Barton v. Hulsey, (Indian Ter. 1902) 69 S. W. Rep. 868.

Notwithstanding it may have been a violation of the Choctaw laws, if a party can show that he has placed improvements upon the land he would be entitled to recover under this statute. Casteel v. McNeeley, (Indian Ter. 1901) 64 S. W. Rep. 594.

SEC. 4. [Possession by intruders denied citizenship -sale of improvements improvements appraised and paid.] That all persons who have heretofore made improvements on lands belonging to any one of the said tribes of Indians, claiming rights of citizenship, whose claims have been decided adversely under the Act of Congress approved June tenth, eighteen hundred and ninety-six, shall have possession thereof until and including December thirty-first, eighteen hundred and ninety-eight; and may, prior to that time, sell or dispose of the same to any member of the tribe owning the land who desires to take the same in his allotment: Provided, That this section shall not apply to improvements which have been appraised and paid for or payment tendered by the Cherokee Nation under the agreement with the United States approved by Congress March third, eighteen hundred and ninety-three. [30 Stat. L. 496.]

A complaint is good which alleges that a tender of money was made to the defendants and was refused by them, as the statute does not require that it should allege that the

Cherokee nation has kept its tender good, or facts from which it can be inferred. Brought v. Cherokee Nation, (Indian Ter. 1902) 69 S. W. Rep. 937.

SEC. 5. [Notice to quit method of service.] That before any action by any tribe or person shall be commenced under section three of this Act it shall be the duty of the parties bringing the same to notify the adverse party to leave the premises for the possession of which the action is about to be brought, which notice shall be served at least thirty days before commencing the action by leaving a written copy with the defendant, or, if he can not be found, by leaving the same at his last known place of residence or business with any person occupying the premises over the age of twelve years, or, if his residence or business address can not be ascertained, by leaving the same with any person over the age of twelve years upon the premises sought to be recovered and described in said

notice; and if there be no person with whom said notice can be left, then by posting same on the premises. [30 Stat. L. 496.]

SEC. 6. [Complaint to be filed by chief, etc. - by member of tribe.] That the summons shall not issue in such action until the chief or governor of the tribe, or person or persons bringing suit in his own behalf, shall have filed a sworn complaint, on behalf of the tribe or himself, with the court, which shall, as near as practicable, describe the premises so detained, and shall set forth a detention without the consent of the person bringing said suit or the tribe, by one whose membership is denied by it: Provided, That if the chief or governor refuse or fail to bring suit in behalf of the tribe then any member of the tribe may make complaint and bring said suit. [30 Stat. L. 497.]

That the chief or governor has refused or failed to bring suit must be alleged in a suit brought by another member of the tribe, and a failure to do so will be ground for sustaining a demurrer to the complaint. Daniels v. Miller, (Indian Ter. 1902) 69 S. W. Rep. 925. See also Hargrove v. Cherokee Nation, (1900) 3 Indian Ter. 478.

A complaint which alleges, in the words of

the statute, that the chief failed to bring suit, is not open to objection on demurrer, though a suit cannot be maintained by a private citizen in his own behalf until this has first been demanded or requested of the chief, and he has refused or failed to comply with the demand or request. Brought v. Cherokee Nation, (Indian Ter. 1902) 69 S. W. Rep. 937,

SEC. 7. [Bond on continuance.] That the court in granting a continuance of any case, particularly under section three, may, in its discretion, require the party applying therefor to give an undertaking to the adverse party, with good and sufficient securities, to be approved by the judge of the court, conditioned for the payment of all damages and costs and defraying the rent which may accrue if judgment be rendered against him. [30 Stat. L. 497.]

SEC. 8. [Judgment of restitution; execution; levy; costs.] That when a judgment for restitution shall be entered by the court the clerk shall, at the request of the plaintiff or his attorney, issue a writ of execution thereon, which shall command the proper officer of the court to cause the defendant or defendants to be forthwith removed and ejected from the premises and the plaintiff given complete and undisturbed possession of the same. The writ shall also

command the said officer to levy upon the property of the defendant or defendants subject to execution, and also collect therefrom the costs of the action and all accruing costs in the service of the writ. Said writ shall be executed within thirty days. [30 Stat. L. 497.]

SEC. 9. [Extension of police powers of Fort Smith-laws for preservation of peace and health no tax to be levied on tribe.] That the jurisdiction of the court and municipal authority of the city of Fort Smith for police purposes in the State of Arkansas is hereby extended over all that strip of land in the Indian Territory lying and being situate between the corporate limits of the said city of Fort Smith and the Arkansas and Poteau rivers, and extending up the said Poteau River to the mouth of Mill Creek; and all the laws and ordinances for the preservation of the peace and health of said city, as far as the same are applicable, are hereby put in force therein: Provided, That no charge or tax shall ever be made or levied by said city against said land or the tribe or nation to whom it belongs. [30 Stat. L. 497.]

SEC. 10. [Time within which to bring actions—for forcible entry, etc.] That all actions for restitution of possession of real property under this Act must be commenced by the service of a summons within two years after the passage of this Act, where the wrongful detention or possession began prior to the date of its