Action Which Should be taken to Complete Unfinished Work

To Correct Obvious Errors, And To Adjust Inequalities

Time has demonstrated that the work of enrollment was in an unfinished condition on March 4, 1907; that eases were inadvertently overlooked in the course of adjudication; that a considerable number of people failed to secure their citizenship rights through administrative causes; that mistakes in names and classification were made; that there was inequality of opportunity, and that various other unintentional wrongs were committed, with the result that persons similarly situated have not been accorded equal rights under the law.

The laws mentioned hereinbefore, governing the work of enrollment, were of a general nature well calculated to secure quick results in the disposition of ordinary cases which did not involve complicated or unusual questions, but those laws were not of such a nature as to render it possible to make proper disposition of special cases involving unforeseen circumstances, unexpected questions, and great hardship.

It is now apparent that these general laws should have been followed by laws of broader scope and of a less technical nature, increasing the supervisory authority of the Secretary of the Interior to such a degree as to enable him to dispense justice untrammeled by jurisdictional limitations.

Substantial justice may be done without further opening of the rolls. As originally and properly used, this expression related to the admission of new classes of people, for example, persons who died prior to or were born after a given date, but it is obvious that it has no proper reference to the completion of unfinished business or to the correction of mistakes. It was to be presumed as a matter of course that a given class having been granted the privilege of making application, submitting testimony, and making up records, would be entitled to have the work relating to their class completed rather than abandoned when in an unfinished condition. Nor is it to be presumed that the United States ever intended this condition of affairs to come to pass. Otherwise, the Government would be guilty of exercising bad faith in the treatment of its wards.

Even the time allowed might have proved sufficient for the disposition of the work then on hand, but the very act which provided for the termination of the enrollment work at a given date also imposed another year's work upon the department in the enrollment of minor children. This fact, taken in connection with the many other duties devolving upon the Secretary of the Interior, had much to do in bringing about the present situation.

The Secretary of the Interior should now be vested with a jurisdiction which will enable him to apply equitable remedies to the situation. A court of equity, in the performance of its regular functions, would not hesitate to correct a deed by changing the name of a party or modifying a description of land, or otherwise to reform an instrument in order to make it conform to the intention of the parties. In like manner, the jurisdiction which should now be conferred upon the Department of the Interior would enable it to correct mistakes due to obvious error, thereby securing an early settlement of mooted questions and reducing the probability of prolonged litigation.

Experience has also shown that' sufficient provision was not made for localizing the enrollment work. Permanent land offices were established and maintained in different districts for years, but there was no place outside of the general office at Muskogee maintained for any continuous period of time for the transaction of-enrollment business. Occasionally field parties were sent through the country and their coining was announced by notices in the public press and by posters displayed in public places. This method lacked certainty and permanence, however, and was not adapted to the needs of the poorer and more ignorant classes, particularly as it did not afford the members of the field parties an opportunity to do efficient service for persons living in out-of-the-way places.

It often proved that applicants, at the time of their first appearance before the commission, were totally ignorant of what was expected of them and, in many cases, it was found necessary for them to produce additional proof/ This was natural, for many of them had but little knowledge of what would constitute legal evidence of their rights. Subsequently rehearing's were ordered and, in numerous cases, the parties, although living far from Muskogee, were required to be present with their witnesses at that place on a given date. Frequently it occurred that the remanding of cases bore no fruit whatever notwithstanding extensive departmental correspondence had taken place in connection therewith.

The failure to localize the work properly, considered in connection with the burden thrown upon the Indian of making application for his enrollment, must be regarded as of much importance in explaining the failure to complete the enrollment work fully and satisfactorily in the time allowed.

Referring further to the character of the work which should now be performed, it is entirely clear, without any argument whatever, that the disposition of the cases which I have in mind bears no comparison to the controversies which arose concerning the rights of certain large families and groups of families who were parties to original applications. For example, consolidated cases of such a character are entirely different, from one where all the members of a family were enrolled as citizens by blood except the mother, whose status was precisely the same as that of the other but who was prevented from making application on account of sickness, although she spent two days at the place of making application without being able to secure the attention of the commission and was finally compelled to depart for her home because of physical exhaustion. Consider likewise the case of the child whose two brothers were enrolled and who, equally with them, was entitled to enrollment, but for whom no application was made because his property interests were in the hands of a demented father. Similar to these cases is that of the six children, now in an orphan asylum, five of whom are full-blood Indians and all of whom are undoubtedly Indian citizens, but, for whom there was no one under obligation to make application. The parents of these children have been enrolled. Their names and family history are well known to the officers of the department, and there is scarcely a stroke of work to be done except the mere clerical action of inscribing their names upon the rolls. These cases and many others are to be found throughout the Five Civilized Tribes, and relief could be given and justice done in a very short period of time if the department were vested with jurisdiction to act.

Moreover, action should be taken at the present time. Every month and every year will render it more difficult to deal justly by these people. The department now has men who are trained in the enrollment work. They are familiar with the questions of citizenship in said tribes and are able to handle the work at a minimum of expense and effort. In a great majority of these cases records have been made which are now accessible but which have never been considered fully upon their merits.' It is needless to say that in a few years, perhaps in less time, the men who are now capable of taking up this work will not be in the service of the Government or at its disposal, and that to others the citizenship records will be unintelligible. In addition, it should be borne in mind that the department has an organized field force familiar with the Indian people and with the situation, capable of acting directly and effectively. The work could be prosecuted more rapidly at this time than heretofore, owing to the fact that many vexatious problems have been solved and that a large proportion of the duties relating to Indian Territory have been disposed of. As I have explained before, a congestion of work resulted in the Indian Office and the department by reason of the convergence into the land division of the Indian Office and into the Indian Territory division of the Secretary's office of many streams of work coming from widely separated sources. It is to be remembered also that the bulk of citizenship cases has been disposed of; that the citizens and members have secured their allotments in a large measure, and that, as to them, there will be no enrollment work; the records in their cases are stored away; for them there will be no rehearing's or reviews. Their cases will not further occupy the attention of the department. Thus the way is clear for concentrating effort upon the few remaining cases.

Nor is there sufficient reason to believe that the proposed action will be detrimental to the people of the State at large; at least not in any appreciable degree. There was a time when the work of enrollment was a necessary obstruction in the path of development in that it stayed temporarily the advent of Statehood and the diffusion of land among people of all races, but now the situation is changed. Oklahoma has been admitted into the Union; the real estate market, by the removal of restrictions by the act of May 27, 1908 (35 Stat., 311), is probably loaded with all the land that it can possibly absorb at fair prices for several years to come.

Moreover, the number of persons who will be the beneficiaries of new legislation can not possibly exceed 5,000 and, in my judgment, not one-half of them will be found entitled to enrollment. But supposing 5,000 to be the number and the total population of the State to be 2,000,000, the ratio will be at most only 1 to 400, or one-fourth of 1 per cent. But not all of this number by any means will have to be investigated, for, as I shall show hereinafter, the majority of claims will be disposed of on existing records. As to the claimants themselves, it may be thought possible that they will be made the victims of extortionate contracts. This, however, is not a necessary objection. Practically all of them have nothing at present. They have everything to win and nothing to lose, and consequently their only means of raising money will be to enter into contingent contracts; but contracts can be regulated by the laws governing allotments to be made hereinafter by providing in such laws that the land to be allotted thereunder shall not be subject to any prior lien or encumbrances unless founded upon a contract approved by the Secretary of the Interior. Besides, the allotment of the land would prove an easy and quick method of disposing of the surplus, and might possibly hasten rather than retard the final disposition of the land problem.

As I have above suggested, a portion of the work can be done in connection with existing records, but some of it will necessarily have to be, prosecuted through field investigations. I will point out a little later the classes of cases which can be disposed of by the respective methods. The field work could be localized successfully by increasing temporarily the force in each of the offices of the district agents, or by placing additional men in those offices charged solely with duties relating to enrollment work. These men would be required to spend a portion of their time in the office of the district agent, but to devote the greater part of it and their energies to field work, to the end that no one should be overlooked. This force could be supplied wholly or in part through original appointments or by detail from the Secretary's office or from certain bureaus of the Interior Department. From my personal experience in the field, I am convinced that a competent examiner, with the assistance of a stenographer, could complete all the investigations that could possibly be needed in the most populous of the districts within six months.

To secure quick action and to avoid circumlocution these field men should be under the control and direction of some officer or officers specially designed for the purpose located at Muskogee, so as to have easy access to all existing citizenship records. Under this arrangement it would be unnecessary for the major portion of the work to be sent to Washington. Recommendations could be made by the field agents and decisions rendered by the central officer or board, and the latter's decision should be made final unless, perhaps, there was a failure to concur in the recommendation of the field examiner, and then only upon appeal.

In the handling of such a force of field men the central officer or board should have elastic powers, so as to make it possible to shift the examiners from one district to another as the needs of the service might require. .

1 have made these suggestions in tentative form, of course, and doubtless the plan outlined could be improved in various respects.

The task to be performed will be rendered much simpler and easier of accomplishment than might otherwise be supposed by reason of the fact that the rights of a large portion of all possible claimants can be determined by the examination of records which are already made up but which, if disposed of at all, were denied upon jurisdictional and technical grounds. It will perhaps be difficult for one to appreciate this who is not familiar with the hurry and confusion connected with the enrollment work after January 1, 1907. I have referred to this phase of the-matter before and will not go into details at this time us to what occurred then, but I desire to suggest that, if any verification of my statement is deemed necessary, the men who were formerly members of the Indian Territory Division be called upon to state the facts as known to them, and that an examination be made of the decisions in the press-copy books covering that period as well as the entries upon the record book showing the last cases received and acted upon by the Secretary's office subsequent to said date. It is sufficient to say at this time that there were received in the Indian Territory division after January 1, 1907, somewhere between 2,500 and 3.000 separate cases, each of which involved one or more individuals. The consideration given these cases was, to say the least, far less than they were entitled to receive. Some of the cases did not reach the department until after March 4, 1907, and as to those that were already here, the confusion and excitement were too great to render anything except a superficial examination possible as to the majority of the applications. Misunderstanding of a serious nature arose concerning the opinion of the Attorney General of February 19, 1907, and, in supposed but mistaken compliance therewith, it was erroneously applied to many cases with the result, as I have shown before, that a large number of persons were stricken from the approved rolls while others having parallel cases were simply denied enrollment in original decisions. Still others were stricken from the rolls or denied enrollment merely because of the jurisdictional and technical grounds upon which said opinion was rendered.

To rectify wrongs unintentionally done subsequent to January 1, 1907, I firmly believe that the department should be vested with jurisdiction to review all cases which were denied enrollment by the Secretary, or otherwise passed upon adversely by him or his office, subsequent to that date, with power in the Secretary of the Interior to correct obvious errors wherever found. If this be done, provision will be made to cover a large percentage of the meritorious cases.

Legislation of the character suggested will go far toward minimizing the amount of field work which would be required. In actual practice it would be found necessary, with but few exceptions, to confine actual investigation (1) to equitable cases which escaped attention because of their irregular nature and the general character of enrollment laws, and (2) to cases involving the transfer of names from freedmen rolls to citizens by blood.

In fact there would be but little call for investigation and examination in a large number of the equitable cases, for the reason that the records in existing "memorandum" and Mississippi Choctaw cases already contain much information concerning them, while other records embracing the applications of near relatives furnish practically all of the additional testimony that may be needed in their cases.

I would not recommend, as a general proposition, that applications be allowed or even invited. Of course none would be required or necessary in all cases embraced within the class which I have recommended for reconsideration. And again I take occasion in this connection to call attention to the fact that said class includes a largo portion of all cases which would require attention. Perhaps, however, it would expedite matters to permit applications in specific, well-defined classes of cases. By so doing the attention of the department would be called directly to such cases and it might perhaps be possible to act more quickly and with more certainty than otherwise concerning them. These classes are as follows:

1. Persons under legal disability prior to March 4, 1907, some minors and orphans, the mentally unsound, etc.

As to such persons, it is not to be presumed that there are applications pending.

2. New-born citizens who are the children of regularly enrolled citizens and freedmen but for whom no application was made within the time allowed by law.

Doubtless it will expedite matters to permit applications on behalf of such persons.

3. Transfer cases.

By this class I refer to persons seeking transfer from the freedmen rolls to the rolls of citizens by blood.

Owing to inequality of opportunity and for other reasons stated hereinbefore which need not be repeated, the only way to act speedily and definitely concerning these people will be to permit them to make application.

As the last two classes can be definitely ascertained by reference to existing rolls and records, very little confusion could possibly arise by permitting them to make application, and much advantage might be derived there from. But in no case should the power of the Secretary of the Interior be so limited as to prevent him from taking up, of his own motion, any case needing investigation, irrespective of whether or not application was made by the party interested.

Here I might add that the census cards of the commission to the Five Civilized Tribes and the records in the " memorandum cases " will show the names of rejected applicants, the quantum of Indian blood alleged by them, and their places of residence, thereby enabling the Secretary of the Interior to proceed with but little delay with such investigation whenever it may be deemed advisable.

For the purpose of showing approximately the part of the work which can be disposed of on existing records and the part which will require further investigation and testimony, I will refer again to the classes of cases mentioned in paragraph 11 of Part IV hereof as "meriting further consideration on equitable grounds," and point out in connection with each to what extent, if at all, further evidence will probably be needed. I will refer to these classes in groups wherever the same statement as to evidence will apply to more than one. The first three classes, briefly stated, are as follows:

(a) Persons stricken from the rolls on jurisdictional grounds in supposed compliance with the opinion of the Attorney General of February 19, 1907.

(b) Persons denied enrollment, on jurisdictional grounds in supposed compliance with the opinion of the Attorney General of February 19, 1907.

(c) Persons whose cases were not reached prior to March 4, 1907, because of administrative delay or other causes chargeable to the officers of the Government.

If jurisdiction should be given to the department, as suggested above, to review the work on citizenship cases, which was done or attempted to be done subsequent to January 1, 1907. practically all the cases embraced in the three classes would be covered, and the evidence now included in existing records would, with a few possible exceptions, be sufficient.

(d) Persons not enrolled because of failure to make application or to submit proof, but prima facie entitled.

Some evidence would necessarily have to be obtained and investigation made as to this class, but much of the needed evidence is already of record because many of the people of this class are members of families whose rights have been fully determined and in whose cases voluminous records have been made up. If here and there a single member of the family has been overlooked it would be a simple matter to ascertain his name, establish his relationship to the family, and prove that he was living at the time required by law. As an illustration of how simple the investigation might be in some instances, take the case of the child whose brothers were enrolled, but for whom no application was made because he had no one to represent him except a demented father.

(e) Persons who were denied enrollment under the act of May 31, 1900, upon jurisdictional grounds, but who are prima facie entitled.

The Commission to the Five Civilized Tribes was forbidden under said act of May 31, 1900, to receive or consider the application of any person who had not been enrolled or admitted as a citizen and duly recognized as such by the tribal authorities, and by reason of this provision there would have been no records in such cases had it not been for the further provision in the law that the refusal of the commission to receive applications should be final when approved by the Secretary of the Interior. The latter, in order that his action might be based upon some specific showing, required memoranda to be prepared in these cases for his inspection; consequently this class of cases is referred to as "memorandum cases." These memoranda were, as a rule, fully as extensive as the regular records and frequently show Indian blood and residence in the Indian Territory. Notwithstanding the showing thus made, the decisions in such cases ultimately were based upon lack of jurisdiction. The census cards of the commission and the memorandum records will supply in a large measure all the evidence needed as to this class.

(f) The offspring of Choctaw freedmen who were prevented from making application under the act of April 20, 1906, because of the erroneous construction of the commissioner to the Five Civilized Tribes.

A limited amount of investigation will be necessary as to the persons of this class, but it will not be necessary to make an extensive examination of their cases, for if entitled to enrollment at all, all that will need to be established will be their relationship to persons who are already regularly enrolled, and to show that they were living at the date required by law. Manifestly the proof in their cases will be much simpler than that originally required for the enrollment of their parents.

(g) Persons born to enrolled Mississippi Choctaws entitled, under the act of April 26, 1906, to enrollment as minors.

As existing records show the source of right of the patents of these minor children, but little proof will be required as to them. Practically all that will be needed will be to show their relationship to the head of the family and that they were living at the time required by law.

(h) Persons who, by reason of a defect In the wording of the act of April 26, 1906, although fully entitled, were not embraced in its terms,

(i) Persons who, by reason of a defect in the act of March 3, 1905, were not finally enrolled thereunder although fully entitled to enrollment.

(j) Creek freedmen barred by the first paragraph of section 3 of the act of April 26, 1906, who were entitled to enrollment under the treaty of 1866 between the Creek Nation and the United States.

(k) Cherokee freedmen who were barred by the second paragraph of section 3 of the act of April 26, 1906, who were entitled to enrollment under Article IX of the treaty of 1866 between the Cherokees and the United States.

(l) Persons who, under technical constructions of the laws and agreements, were denied enrollment notwithstanding that other persons were subsequently granted enrollment in parallel cases under more liberal constructions.

In these five classes practically all the evidence that will be needed is already included in existing records.

(m) Persons of mixed Indian and Negro blood who were enrolled ns freedmen but who are entitled to enrollment as citizens by blood.

Necessarily investigation will have to be made as to the persons of this class. The fact that they failed to secure enrollment was, undoubtedly due in a large measure to lack of opportunity. It is my belief that they were not accorded all of the privileges to which they were entitled in the submission of proof of their rights.

(n) Adopted and intermarried whites and their offspring claiming citizenship in the Choctaw and Chickasaw Nations.

(o) Identified Mississippi Choctaws who were not finally enrolled because they failed to furnish proof of removal to and settlement in the Choctaw-Chickasaw country.

Existing records will supply practically all of the proof needed as to persons of this class. Some of them failed to remove to the Indian Territory because they were not identified until shortly before March 4, 1907. Owing to this fact they were not allowed the full period of six months for removal nor the additional period allowed for proof of settlement. Others removed to the country but, for lack of resources, were unable to remain therein long enough to obtain any benefits from their identification.

(p) Children whose parents, although identified as Mississippi Choctaws, were not finally enrolled as citizens because they failed to establish proof of their removal to and settlement in the Choctaw-Chickasaw country within the time required by law.

If it should be deemed advisable on the part of the Government to do anything for this class of persons, but little additional testimony would be required to identify the beneficiaries. This is true because existing records already show the pertinent facts relating to the families of which they are members.

Summarizing, it will be seen that, of the cases meriting further consideration upon equitable grounds, there are 10 classes as to which practically all the testimony that will be needed is included in existing records; that there is one class as to which original investigations will have to be made; and that there are five classes which will require a little additional testimony and investigation to supplement the evidence already on file in existing records.

I have attempted in this report to state all material facts fully and1 fairly, as the same are known to Inc. and it is my conclusion that there are many persons, some of whom are full-blood Indians, who are entitled to enrollment as citizens or freedmen of the Five Civilized Tribes, who have failed to secure the right to share in the lands and moneys which are justly theirs, and that such failure is chargeable in a large measure to the laws and to the administration of the- laws relating to the subject. I am also convinced that there is at simple and feasible plan which, with the consent of Congress, would work justice in many worthy cases in a practical way and! within a reasonable time.

Very respectfully. Joseph W. Howell,
Assistant Attorney

Notes About the Book:

Source: Five Civilized Tribes In Oklahoma, Reports of the Department of the Interior and Evidentiary Papers in support of S. 7625, a Bill for the Relief of Certain Members of the Five Civilized Tribes in Oklahoma, Sixty-second Congress, Third Session, Published 1913, by the Department of the Interior, United States.

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