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Statistics Gathered
from the Records of the Commission of the Five Civilized Tribes
(a) Choctaw and Chickasaw cases (number of applicants shown) :
Number of granted Choctaw enrollment cases 5,320
Number of persons enrolled as Choctaws by blood and intermarriage 17,899
Number of cases refused 1,750
Number of persons refused as Choctaws by blood and intermarriage 5,201
Total number of cases 7,070
Total number of persons who were applicants for enrollment as Choctaws by blood
and Intermarriage 23,100
(This does not include minor and new-born Choctaws under acts of May. 3, 1905
and Apr. 26, 1906, and is estimated as nearly as may be without actual count.)
(a) Choctaw and Chickasaw cases-Continued.
Number of granted Chickasaw enrollment cases 1,800
Number of persons enrolled as Chickasaws by Blood and intermarriage 5, 707
Number of cases refused 500
Number of persons refused as Chickasaws by blood and intermarriage 1,793
Total number of cases 2,300
Total number of persons who were applicants
for enrollment as Chickasaws by blood and
intermarriage, 7,500
(This does not include new-born and minor
Chickasaws under acts of Mar. 3, 1905, and
Apr. 26, 1906, and is estimated as nearly as
may be without actual count as to number of
cases.)
(b) Total number of Choctaws and
Chickasaws by blood and intermarriage,
including minors and excluding Mississippi
Choctaws: Number of Choctaws by blood,
enrolled under acts of June 28. 1898, and
July 1, 1902, 10,227
Number of Choctaws by blood enrolled under
act of March 3, 1905, 1,583
Number of Choctaws by blood enrolled under
act of April 26, 1906, 956
Total number of Choctaws by blood of all
classes 18,706
Number of Choctaws by intermarriage 1,672
Total number of Choctaws 20,438
Number of Chickasaws by blood, enrolled
under acts of June 28, 1898, and July 1,
1902, 5,059
Number of Chickasaws by blood, enrolled
under act of March 3, 1905, 578
Number of Chickasaws by blood, enrolled
under act of April 26, 1906, 331
Total number of enrolled Chickasaws by blood
of all classes 5,968
Number of Chickasaws by intermarriage 648
Total number of Chickasaws 6,610
(c) Choctaw freedmen:
Number of Choctaw freedmen enrolled under
acts of June 28, 1898, and July 1, 1902,
5,546
Number of Choctaw freedmen enrolled under
act of April 26, 1906, 473
Total number of enrolled Choctaw freedmen
6,019
(d) Chickasaw freedmen:
Total number of enrolled Chickasaw freedmen
4,853
(e) Mississippi Choctaws:
Number of identified Mississippi Choctaws
2,534
Number of enrolled Mississippi Choctaws
1,445
Number of Mississippi Choctaws enrolled
under act of March 3,1905, 11
Number of Mississippi Choctaws enrolled
under act of April 26, 1906, 187
(f) Total number of cases of different
kinds (number of applicants not shown) :
Approximate number of cases of Choctaws by
blood and intermarriage, excluding newborns
and minors, 7,070
Approximate number of cases of Chickasaws by
blood and intermarriage, excluding newborns
and minors, 2,300
Approximate number of granted Choctaw
freedmen cases, 1,500
Approximate number of refused Choctaw
freedmen cases, 164
Approximate total number of Choctaw freedmen
cases, excluding minors 1,664
Approximate number of granted Chickasaw
freedmen cases, 1,446
Approximate number of refused Chickasaw
freedmen cases, 150
Total approximate number of Chickasaw
freedmen cases, 1,596
Approximate number of granted Mississippi
Choctaw cases, 916
Approximate number of refused Mississippi
Choctaw cases, 6,560
Total approximate number of Mississippi
Choctaw cases, 7,476
7. Percentage of rejected Choctaw cases
in which the heads of families claimed
one-quarter or more Choctaw Blood.
Inasmuch as the degree of Indian blood
alleged was noted upon the census cards for
each member of the family recorded thereon,
I thought it might prove of interest and
perhaps of value to ascertain what
percentage of the rejected cases embraced
persons who alleged an appreciable degree of
Choctaw blood. I adopted the fraction of
one-fourth as the standard, because persons
possessing that degree of blood are as a
general rule obviously and visibly Indians.
The quantum of blood alleged for heads of
families on 52 rejected cards, taken
consecutively, appears as follows:
Heads of families alleging one thirty-second
9
Heads of families alleging three
sixty-fourths 1
Heads of families alleging one-sixteenth 24
Heads of families alleging three
thirty-seconds 2
Heads of families alleging one-eighth 12
Heads of families alleging three-sixteenths
1
Heads of families alleging one-fourth 1
Heads of families alleging three-fourths 1
Heads of families alleging three-fourths 1
Recapitulating, out of a total of 52 there
are found to be only three heads of families
who allege one-fourth or more Indian blood.
The percentage of such rejected applicants
would be a little under 6 per cent.
8. Percentage of Mississippi Choctaw
cases involving persons of mixed blood.
Mississippi Choctaw cards sometimes show one
head of a family identified and the other
rejected, both alleging full blood.
Sometimes one head of a family was
identified as a full blood and the other
head and the children were denied. The card
of Calvin McMillan (M. C. E. 4215) shows an
instance where one parent was identified,
and one parent denied together with the
children. Here the wife (Mollie McMillan)
was the only member of the family
identified, notwithstanding there were 11
members, all of whom alleged that they were
full-blood Choctaw Indians. This statement
should be considered in connection with what
I have said in a previous connection
relative to the failure of the Commission to
the Five Civilized Tribes to enroll the
children of enrolled Mississippi Choctaws
under the act of April 26,1906. (34 Stat.,
137.)
In the adjudication of Mississippi Choctaw
claims, two classes of cases were presented.
The first class embraced those persons who
claimed descent from Indians who were
entitled to the benefits of article 14 of
the treaty of September 27, 1830. (7 Stat..
333.) There were many applicants of this
class, but very few who were capable of
establishing their claims, the character of
the proof required being such that only
people of education and means would be
likely to preserve the necessary family
records, or have sufficient knowledge of
history to build up complete cases.
The second class of Mississippi Choctaws
were full-blood Indians. These people were
identified as Mississippi Choctaws, by
virtue of the rule of evidence prescribed in
section 41 of the act of July 31,1902.
(32Stat..641.) By inspection of their census
cards. I found that as a general rule, these
Mississippi Choctaws were included in
families, all of whom were full-blood
Indians. Out of a total of 36 Mississippi
Choctaw cards, I found that where one of the
heads of the family was identified as a
full-blood Mississippi Choctaw all of the
children were so identified in 29 cases, and
that in the other seven cases the children
were mixed-blood Indians. The proportion of
full-blood cases would therefore be to the
whole number of cases as 29 to 36 or about
80 per cent. This would mean that, if the
mixed-blood children of enrolled Mississippi
Choctaws are to be accorded any rights
whatever, either at the expense of the
Choctaw Nation or of the United States, only
about 20 per cent of the enrolled
Mississippi Choctaw cases would have to be
taken up again; but it would not amount even
to 20 per cent, because a considerable
number of such cases were disposed of under
the act of April 26, 1906 (34 Stat.. 137).
as explained above. Stating the proposition
further, there were only about 1,445
Mississippi Choctaws who were finally
enrolled, who must have been included within
300 to 500 cases. Therefore, there would not
be more than 20 per cent of that number, or
from 60 to 100 cases, of mixed-blood
children. But there would not be even this
number, inasmuch as 187 newborn Mississippi
Choctaws, embraced, probably, in 30 to 35
families, have already been enrolled under
said act of April 26, 1906.
9. Practice of the Dawes Commission
respecting applications for enrollment.
From the outset applications have played a
very important part in enrollment work. I
have referred to this fact heretofore in
connection with the act of June 28, 1898, as
well as subsequent acts. In view of the fact
that the persons to be enrolled were wards
of the Government, some of whom were
burdened with minority. unsound mind, and
other legal disabilities, it would seem that
the burden of making application should
never have been placed upon the Indians,
either by act of Congress or by
administrative regulation. Provisions were
made in various statutes .which were
construed to require applications to be made
within a limited time. Strict construction
of the rule relating to applications
required personal appearance, at least of
the head of the family. In the course of the
enrollment work, however, people would
contend from time to time that they had
filed applications. Many such persons had,
in fact, written letters to the commission
and to the department and. not knowing
departmental procedure thoroughly, to other
persons-for example, to the Indian agent. I
have even been informed by the officials of
the United States court that people came
frequently to them to make application. The
question arose, therefore, as to what
constituted an application within the
meaning of the term as used in the law
relating to enrollment. The index prepared
by the Dawes Commission of persons who had
made applications was confined to those
persons who had made formal application,
either in person or through some member of
the family who appeared in person before
some representative of the commission.
I am informed that when persons claimed to
have made application by letter the
commission caused an examination to be made
of the index of letters received in order to
test the accuracy of the claim. During the
course of the enrollment work letters were
frequently received by the department in
which persons claimed to be entitled to
enrollment. Sometimes their claims were
clearly indicated as to what persons they
thought were entitled. At other times their
statements were vague and uncertain and
disclosed only that there was a member of
the family for whom enrollment was desired.
These letters were " referred to the
Commission to the Five Civilized Tribes for
appropriate action." Upon receipt of such
letters the commission examined its records
to ascertain whether or not there was an
existing application of record, but did not
treat such letters as applications unless
followed up by further communication or
evidence. During the years 1904, 1905, and
1906 several letters were written by the
department containing important instructions
to the Commission to the Five Civilized
Tribes designed to make the requirements
regarding applications as reasonable as
possible; but these instructions, as will be
noted, did not issue, until after the time
limits prescribed in the Choctaw and
Chickasaw agreement and the Cherokee
agreement for the respective applications. I
have references to these cases and will cite
them to you if desired.
In illustration of the commission's
attitude, however, I wish to bring to your
attention the Choctaw case of Isaac Laflore
et al. There the principal applicant and all
or nearly all the members of his family were
full-blood Indians. The commission rendered
a decision adverse to the applicant, on the
ground that the applications were not made
within the time prescribed by law, to wit,
prior to December 25, 1902. Upon reading the
evidence, the department found that, as a
matter of fact, the commission sent a deputy
sheriff to the home of the applicants a few
days prior to the expiration of the time
limit, and that he found the head of the
family unable to leave home and go before
the Dawes Commission because of sickness.
Under the circumstances the department held,
in substance, that the action of the
commission in sending the deputy sheriff to
the home of the applicants was in itself a
step looking to their enrollment, and that
inasmuch as proceedings to that end had thus
been instituted within the time allowed the
applicants should be enrolled, it being
considered immaterial whether such
proceedings were instituted by the
applicants or by the commission, so long as
the commission had knowledge of the case and
had actually taken some steps in connection
with it in due time. This action was taken
by the department August 5, 1905, more than
a year and a half after the expiration of
the time limit, during which time the
commission was evidently governed by the
narrow view of the law. A further question
arose at a late day in the enrollment work
as to what constituted an application. As
was shown in the early part of this report,
nearly 75,000 people, including many
recognized and enrolled citizens, made
application to the Commission to the Five
Civilized Tribes in 1896. These applications
remained in the custody of the Commission to
the Five Civilized Tribes. Did such
applications come within the purview of the
words as used in the agreements with the
various tribes? This question arose in
connection with the case of Joe and Dillard
Perry. Several opinions were written in this
case. In the first, dated February 21, 1905,
the Assistant Attorney General held that the
applicants were entitled to enrollment. At
that time their names were borne upon the
roll of Chickasaw freedmen, and the petition
was for transfer to the roll of citizens by
blood of the Chickasaw Nation. Subsequently,
upon motion for review, it was made to
appear that no application for the
enrollment of said persons as citizens by
blood had been made within the time fixed by
section 3-1 of the Choctaw and Chickasaw
agreement. Accordingly, under date of
November 11, 1905, the Assistant Attorney
General held that their names could not be
transferred from the freedmen roll to the
roll of Chickasaws by blood. In said opinion
the following language was used:
In the present ease it does not appear
that any application or assertion of right
of these applicants for enrollment as
citizens by blood was ever made until
August, 1903, after December 24, 1902. If
such was made under the act of 1896, or at
any time prior to and including December 24,
1902, the record before me is incomplete.
This opinion is based solely on the fact
that no right to enrollment of these
applications as citizens by blood was
asserted until after December 24, 1902.
(Underscoring supplied.)
It will be observed that this opinion was
based, in part, upon the assumption that
there was no application filed under the act
of June 10, 1890. As was subsequently shown,
there was such an application on file with
the Commission to the Five Civilized Tribes
at the time the opinion was written. Owing
to this fact, a motion for review was filed
June 2, 1906, on behalf of the applications.
This motion was referred to the Commissioner
to the Five Civilized Tribes for report. The
report called for was rendered June 26,
1906, and showed that as early as 1896 an
application was made to the Commissioner to
the Five Civilized Tribes for the enrollment
of Joe and Dillard Perry, as citizens by
blood of the Chickasaw Nation. Said report
was referred to the Assistant Attorney
General for the Interior Department for
opinion. The latter, on September 28, 1906,
held that the applicants were entitled to
enrollment, in view of the fact that their
application was made in 1896. Accordingly,
the former action adverse to them was
rescinded, and they were enrolled as
citizens by blood.
After the motion for review was filed in the
Perry case, the department directed the
Commissioner to the Five Civilized Tribes to
report in all cases whether application was
made under the act of June 10, 1896, where
the fact of such application, if material,
was in issue.
As you will observe, these important
instructions were issued about three years
and a half after the expiration of the time
limit for the receipt of applications under
the said act of July 1, 1902. It is needless
to say that all of the work performed during
that period should have been transacted
under a correct, rather than an imperfect,
construction of the law.
The practice of the Commissioner to the Five
Civilized Tribes is also shown by his action
in the Chickasaw case of J. W. F. Howard (I.
T. D. 5508-07). On May 29, 1905, the
chairman of the commission advised Mr.
Howard as follows:
In reply to your letter you are advised
that it appears from our records that you
were an applicant to this commission in 1896
for citizenship in the Chickasaw Nation, and
your application was denied by the
commission and that an appeal was taken to
the United States Court for the Southern
District of the Indian Territory at Ardmore.
but it does not appear from our records that
any action was taken in this case by said
court
You are further advised that it does not
appear from our records that you have since
that time made application to this
commission for enrollment under the act of
Congress of June 28. 1898, and under the
provision of the act of Congress approved
July 1, 1902, the commission is now without
authority to receive or consider such an
application in your behalf.
This letter constituted a very important
action in the case; in that it amounted to
an adjudication on the part of the
commission of a material question.
Notwithstanding this was true, the name of
the chairman of the commission was signed in
a handwriting entirely different from that
of the well-known writing of Mr. Tarns
Bixby; nor was there anything connected with
the letter to show that Mr. Bixby had
authorized or passed upon it in any way.
10. Field investigation in the 15
district Indian agencies in eastern Oklahoma.-My
examination of the records in the office of
the Commissioner to the Five Civilized
Tribes was made in order to obtain all the
information possible concerning the work of
enrollment and to ascertain what foundation
there would be to build on in case further
enrollment work should be deemed advisable;
but even at Muskogee I found that I was not
near enough to actual conditions and that I
was not coming in contact with the people I
desired to reach. In planning how best to
accomplish my purpose I decided to visit the
office of each of the district Indian
agencies in eastern Oklahoma. As there were
15 such offices I felt reasonably certain
that I would be able to secure information
from a sufficient number of the local agents
to be fairly well informed concerning the
situation as a whole. I arranged an
itinerary and requested the district agents
to send out word through their interpreters,
Indian policemen, etc., of my proposed
coming and to make arrangements to enable me
to come into contact with as many persons as
possible. I thought it well, however, to
instruct them not to give notice of my
itinerary to the press, for I knew that I
would be unable, in the one or two days at
my disposal at each office, to meet and
examine all of the person who might be thus
induced to try to see me. The most that I
could hope for was to get a general idea of
the situation.
At the various appointments I met and
examined all persons who desired to see me
concerning matters of enrollment, taking due
care to inform them beforehand that my visit
was not the result of any change in the law,
and that they were not to understand that
they were making application to me for
enrollment. I explained to them instead that
I came as the representative of the
Secretary of the Interior in order that he
might obtain information directly concerning
them. I encouraged the people to be frank in
their statements, but informed them that
whatever they said would be made a matter of
record and could be compared at any time
with former statements made by such of them
as had theretofore been heard by the
commission. A stenographer accompanied me
and made a report of all statements;
subsequently he furnished me with a
typewritten transcript of his notes, copy of
which is enclosed as Exhibit F. In order
that we might not be compelled to rely alone
upon the statements of the applicants, I
also carried with me a camera, furnished by
the Geological Survey, and secured pictures,
enclosed as Exhibit G. of many of the
persons who appeared before me. This was not
possible, however, in all places, for the
examinations were conducted upon several
occasions until late in the evening. Through
the investigation in this way my information
concerning a considerable number of
applicants came from the people themselves.
I was careful to have it understood
beforehand that no attorney nor agent would
be allowed to be present. I did this in
order that the claimants would be left free
to answer entirely according to their own
ideas and the promptings of their own minds.
I did not, however, wish to avoid meeting
attorneys and agents, and whenever possible
met and conversed with them, as with other
individuals, noting in fact that they were
able to throw a great deal of light upon the
situation. The district Indian agents proved
another source of much value. They have now
been in the field sufficiently long to be
acquainted with many Indians, through whom
they- have heard of deserving and equitable
cases of persons omitted from the rolls.
These men, with the aid of the assistant
agents, the Indian policemen, and the Indian
interpreters, brought to my attention a
considerable number of cases of people who.
for various reasons, were unable to meet me,
and whose enrollment would perhaps never be
accomplished under any circumstances if they
were left to take the initiative unaided by
the Government. Another source of
information which proved particularly
valuable was the tribal officials and public
men who are members of the Indian nations.
These men have a widespread acquaintance,
and when interviewed did not hesitate to
give me freely the information at their
disposal. I also conferred with a number of
men in public life, such as superintendents
of Indian schools, heads of public
institutions, and the like. From all of
these I gathered information relating to a
large number of persons. It will, of course,
l>e impossible for me to give a detailed
statement concerning each case: but.
instead. I will confine myself to a
statement of my impressions of the situation
taken as a whole and describe by classes the
persons whose cases deserve special
consideration.
I was strongly impressed with the fact that
as a general rule persons having the most
meritorious cases were the least able to
take the necessary steps to secure their
enrollment. I found that such persons were
frequently unable to undergo the expense of
traveling by rail, even a few miles, in
order to have their cases investigated.
Distance, though short, was an impassable
barrier between them and their rights, and
when it came to leaving their homes and
incurring hotel expenses, even for a short
time, the impossibility of their doing
anything for themselves was still more
certain. This condition of affairs can not
be readily appreciated from Washington, or
even from Muskogee. but when one is in the
field going from place to place he can fell
keenly that persons laboring under extreme
poverty, ignorance, ill health, or other
disabilities must be assisted by the
Government of the United States through
affirmative action on its part if their
cases are to be thoroughly investigated. To
many such persons a few dollars in the hand
means more than the vague and shadowy
prospect of an allotment worth thousands of
dollars to be received some time in the
indefinite future.
Another matter which I noted particularly
was the attitude of the Indian people toward
the question. While they take a conservative
view of the matter and are anxious to avoid
a promiscuous investigation as to all kinds
of claimants, they are very liberal in
spirit toward those persons in whose cases
real equities exist. I believe it may be
said without danger of successful
contradiction that the Indian people as a
whole are extremely anxious and willing that
the cases of real merit should be relieved.
In this connection I refer to the fact that
I conferred freely whenever possible with
Indian officials and with leading members of
the tribes and as a rule obtained from each
of them important information concerning a
few equitable cases.
This subject was touched upon by Gov.
McCurtain in his last message to the council
of the Choctaw Nation. Therein he brought to
the attention of the council the fact that
there were a number of equitable cases in
the nation. I have not a copy of the
governor's message before me, but as I
remember it he estimated the number to be
about 40. These cases, as I remember, were
brought to the attention of the council for
such action as it might think proper to
take. I believe, however, that it did not
act upon the matter.
I desire to explain the meaning of the term
"equitable cases" as used by me in making
inquiries of the Government and tribal
officers and other persons relative to
meritorious cases. The term was so used with
reference to people who were plainly
entitled to have their cases considered, but
who through a variety of causes, such as
accident, inadvertence, mistake, failure to
make application in due time, non-enrollment
upon the tribal rolls, lack of intelligence,
etc., failed to secure enrollment or whose
cases were disposed of solely upon technical
grounds.
While I was unable to visit several of the
district agencies in person, I made
arrangements with the Commissioner to the
Five Civilized Tribes to send men to such
places in my stead. These men, under my
instructions and pursuant with the general
policy of the investigation, kept the
appointments provided for in my itinerary
and made careful examination of all cases
coming within their knowledge. The
statements obtained by them were reduced to
typewriting, and copies are herewith as a
part of Exhibit F.
11. Classes of cases meriting further
consideration on equitable grounds.
(a) Persons stricken from the approved
rolls.
1. Solely because they failed to appeal to
the United States courts from adverse
decisions of the Dawes Commission rendered
under the act of June 10, 1896 (29 Stat,
321).
2. Solely because they were denied
enrollment upon appeal to the United States
courts under said act of June 10, 1896.
3. Solely because the favorable decisions
awarded them by the United States courts
were set aside and vacated in the blanket
decision rendered in the so called "test
suit" of J. T. Riddle et al. Some of the
persons embraced in this class relied for
their enrollment wholly upon favorable
decisions rendered by the United States
courts, while others were in the possession
of favorable judgments rendered both by the
Dawes Commission and by said courts. As to
the latter, there was no duty to transfer or
appeal their cases to the citizenship court.
See letter of March 4, 1907, copy of which
is enclosed a Exhibit H, from the Attorney
General to the President of the United
States, which was forwarded March 5, 1907,
to the Secretary of the Interior, with
instructions to treat it as an opinion, but
which was received by said Secretary two
days too late to be of any value in the
enrollment work.
4. Solely because denied enrollment by the
citizenship court in specific judgments.
In all cases coming within the four classes
enumerated above, the names of the
applicants were placed upon the final rolls
and approved by the Secretary of the
Interior, only after full hearings and
careful adjudication upon their merits, and.
with one or two exceptions, all were
stricken from the rolls merely upon
jurisdictional grounds.
(b) Persons who were denied enrollment for
jurisdictional reasons during the closing
weeks of the enrollment work.
The applications of these persons were
pending when the opinion of February 19,
1907, was rendered. Accordingly, their
rights were disposed of in compliance, or
supposed compliance, therewith. with the
result that they never attained the status
of enrolled citizens. Their cases were in
all other respects analogous to those of
members of the four classes enumerated
above, and their rights were substantially
the same. As to the former, some relief has
been afforded through the application of the
opinion of the Supreme Court of the United
States of November 30, 1908, in the case of
John E. Goldsby v. James Rudolph Garfield,
Secretary of the Interior; but as to the
latter, no relief is in sight, unless
Congress shall see fit to grant remedial
legislation.
(c) Persons who were in every respect
entitled to enrollment, but who, for
administrative reasons and for no other, for
example, delay, inadvertence, oversight,
etc., failed to secure enrollment.
Corning within this class are the 52 persons
referred to in the report of the
Commissioner to the Five Civilized Tribes of
November l5, 1907. Their right to
enrollment, according to the class of
citizens in which they claim membership, was
perfect, and they would undoubtedly have
been enrolled had there been a few days more
within which to consider their claims. The
records in their cases were complete; there
was no testimony to be taken or proof
educed. It simply remained for the Secretary
of the Interior to give formal assent to
their enrollment. Some of these people were
reported by telegram of the Commissioner to
the Five Civilized Tribes on March 4, 1907,
to the Secretary of the Interior, but said
telegram was not delivered by the telegraph
company until the following day. Unfortunate
as their plight may be, their situation is
no worse than that of the persons who were
stricken from the rolls and refused
enrollment contrary to the said letter of
March 4, 1907, from the Attorney General to
the President of the United States, which
letter, as I have said, reached the
Department of the Interior too late to be
applied to the enrollment work.
(d) Persons who are of undoubted right, but
who failed to make application within the
time set by law or who failed to furnish the
required proof.
My personal investigation brought to light a
considerable number of cases of this kind.
In fact, I believe that more persons fall
within this class than within any other.
General laws served well enough to
accomplish the enrollment of all straight
and regular cases, particularly where the
applicants were able to render themselves
substantial assistance, but as to the
persons falling within this class a broader
and more equitable jurisdiction should have
been vested in the Secretary of the
Interior. Some of the people to whom I refer
in this connection were orphans for whom no
one cured and in whom no one was interested.
Minors were also frequently among these
unfortunates, also the mentally incompetent,
likewise the illiterate and the ignorant.
Others lost their rights through sickness
and physical inability to meet the
requirements of the Dawes Commission. Still
others, being illegitimate children, were
compelled to rely upon their own resources.
There was another factor which had a
far-reaching influence in preventing the
enrollment of many persons who are
undoubtedly Indian citizens. There was a
faction known as "Snakes." composed not of
the members of one tribe alone, but of
several, which was opposed to the laws
looking to the enrollment in severally of
the tribal lands. This faction included many
full-blood Indians. Its members were the
least civilized of the Five Civilized Tribes
and least able to fight their own battles
and to cope with the many problems resulting
from rapidly changing political conditions.
They were taught by their leaders that the
laws and agreements providing for enrollment
and allotment were contrary to the ancient
treaties of the Five Civilized Tribes and
that it was only a question of time when the
old treaties would be restored and
everything that had been done under the new
system would pass away. This doctrine was
accepted eagerly by a considerable number of
persons, and they steadfastly refused for
some time to take any steps in line with the
proposed change of conditions. They adopted
this policy not only on the part of
themselves, but also on the part of their
children and others, and it is said that in
order to prevail in their opinions they even
resorted to threats. While hoping and
struggling for the impossible, many of these
people honestly believed that the old
treaties would be restored. Their position
was doubtless taken in good faith; and even
if the leaders were not all sincere, it
needs no argument to show that the children
of such persons should not be made to suffer
for the mistakes or the wrongdoing of their
parents.
(e) Persons who are entitled by undeniable
residence and tribal affiliation, but who
could not be heard upon the merits of their
cases because the Commission to the Five
Civilized Tribes failed to identify their
names on tribal rolls or records
In connection with these persons, there
happened that which, in my judgment, should
never be allowed to occur in connection with
an Indian case, to wit, final adverse
adjudication without respect to the merits
of the case, based solely upon
jurisdictional grounds. This was due to the
act of May 31, 1900 (31 Stat., 221). which
limited the jurisdiction of the Dawes
Commission to persons who had theretofore
been enrolled or admitted as members of the
Indian tribes.
(f) Offspring of Choctaw freedmen who were
prevented from making application under the
act of April 26, 1906 (34 Stat., 137).
because of the erroneous construction of the
Commissioner to the Five Civilized Tribes.
I have discussed the rights of these
freedmen in a prior connection in this
report, and need not. therefore, take up the
matter again.
(g) Persons born to enrolled Mississippi
Choctaws entitled as minors to enrollment
under the act of April 26, 1906.
The members of this class were not enrolled
by the Commissioner to the Five Civilized
Tribes, owing to the latter's
misinterpretation of the law.
Others similarly situated were subsequently
enrolled, after the question was brought to
the attention of the department. These
persons would have been enrolled had there
been time to go back and readjudication
their cases.
(h) Persons who, by reason of a defect in
the wording of the act of April 20, 1906,
although fully entitled, were not embraced
in its terms.
In this connection, I refer to the offspring
of enrolled and recognized Indian citizens
who died prior to the initial date set for
enrollment. Such parents would have been
enrolled had they survived such day, but
dying theretofore, their children could not
be enrolled under the act of April 26, 1906.
because not born to persons who were already
enrolled, or whose enrollment cases were
then pending.
(i) Persons who, by reason of a defect in
the act of March 3, 1905, (33 Stat., 1048),
were not enrolled thereunder, although fully
entitled to enrollment.
This defect was due to the fact that said
act provided only for the enrollment of
offspring of parents whose enrollment had
already been approved by the Secretary of
the Interior.
(j) Creek freedmen barred by the first
paragraph of section 3 of the said act of
April 26, 1906, although such freedmen would
have been entitled to enrollment under the
treaty of 1866, between the Creek Nation and
the United States.
(k) Cherokee freedmen who were barred by
paragraph 2 of section 3 of the act of April
26, 1906, although they would have been
entitled to enrollment prior to that act, in
accordance with the terms of article 9 of
the treaty of 1866, between the Cherokees
and the United States.
(l) Persons who, under technical
construction of the laws and agreements,
were denied enrollment by the department,
notwithstanding that other persons were
subsequently granted enrollment in parallel
cases under a more liberal construction.
(m) Persons of mixed Indian and negro blood
who were enrolled as freedmen. in the
Cherokee. Creek, and Seminole Nations, did
not suffer a property loss by reason
thereof, owing to the fact that such
freedmen became citizens of the respective
nations by adoption, acquiring thereby all
the property rights of citizens by blood in
respect to the final distribution of the
land and money of said tribes.
The Choctaw and Chickasaw. Nations, however,
the matter presents a different aspect in
that enrollment, as a freed man in said
nations carried with it the right to only 40
acres of land and no share in the proceeds
arising from the sale of the surplus,
whereas each citizen by blood is entitled to
320 acres of land and to share in the
distribution of the lands and moneys of his
tribe.
Thus it will be seen that in the Choctaw and
Chickasaw Nations it is a matter of much
importance to the persons of mixed Indian
and Negro blood whether they be enrolled as
citizens by blood or as freedmen. The
question is also of importance to the tribes
at large, inasmuch as any increase in favor
of such claimants will correspondingly
diminish the portion to be distributed among
the other citizens.
The question is also of importance to the
United States. The Government is materially
concerned in its proper solution. This
feature of the matter seemingly has been
overlooked and I found no trace of any
consideration of the subject from this
standpoint. The interest of the United
States is due to the fact that it must pay
the Choctaw and Chickasaw Nations for each
allotment received by a Chickasaw freedman.
To explain this situation I desire to refer
you to section 36 of the act of July 1, 1902
(32 Stat.. (541), which authorizes the Court
of Claims to determine the controversy
respecting the rolls of the Chickasaw
freedmen in the Chickasaw Nation and the
rights of such freedmen to the lands of the
Choctaw and Chickasaw Nations under and all
laws subsequently enacted by the Chickasaw
legislature or by Congress. The right of
appeal was also given to the Supreme Court
of the United States and it was provided
that, in the event it should be finally
determined that said freedmen were not
adopted by the Chickasaw Nation, the lands
to be allotted to them should be paid for by
the United States and the proceeds divided
between the Choctaw and Chickasaw Nations,
as their respective interests might appear.
Messrs. Mansfield, McMurray & Cornish
secured contracts from the Choctaw and
Chickasaw Nations. November 6, 1902, to
represent them in the necessary suits
concerning said freedmen. By the terms of
these contracts, the attorneys were to
receive from each nation 6 per cent of the
interest of said nation in whatever sum or
sums of money might be received from the
United States as compensation for the lands
to be allotted to the Chickasaw freedmen.
These contracts were approved by the
Secretary of the Interior and the Acting
Commissioner of Indian Affairs on
conditions, subsequently accepted, that in
no event should the maximum compensation to
be paid said attorneys exceed the sum of
$27,500. said compensation to be apportioned
between and paid to the Choctaw and
Chickasaw Nations in the proportion in which
they might be entitled to share in any
recovery obtained by them in the proposed
suits. Thus it will be seen (1) that an
increase in the number of Chickasaw freedmen
might or might not increase the fee of said
attorneys, a point, which could not be
settled in advance, and (2) that the larger
the number of Chickasaw freedmen the more
the United States would be required to pay
to satisfy their claims.
From my personal examination and observation
of a considerable number of persons claiming
to be of mixed Indian and Negro blood I
found that, as a general rule, such persons
were not obviously and visibly Indians.
There were, however, a number of marked
exceptions. My examination was generally
limited to the statements of the persons in
interest, which of course I did not look
upon as conclusive proof of their rights,
but, from their own statements, I was
convinced that a considerable number were
not entitled to enrollment. There were
others whose statements, if true, would
entitle them to enrollment, but, in such
cases, it sometimes seemed to me extremely
doubtful that they would ever be able to
produce satisfactory evidence in support of
their claims. There were still others who, I
am thoroughly persuaded, are related by
blood to recognized Indian citizens whose
enrollment has been approved by the
Secretary of the Interior. In fact, there
are specific instances which can be cited
where part of the members of a family have
been enrolled as freedmen while others of no
greater natural right have been enrolled as
Indians by blood.
After investigating a considerable number of
cases and comparing my information thus
obtained with what I had theretofore learned
in the adjudication of Choctaw and Chickasaw
cases. I am constrained to believe that the
practice of the Commission to the Five
Civilized Tribes and its successor was, as a
general rule, to place the names of all
persons of mixed Indian and negro blood upon
the freedmen rolls without paying particular
attention to the different classes of the
persons affected by such action, and without
an understanding of the laws and treaties
bearing upon the subject.
Pursuant to its general attitude the.
Commission to the Five Civilized Tribes
prepared schedules containing the names of
persons found by it to be entitled to
enrollment as freedmen. These schedules
frequently contained the names of persons of
mixed negro and Indian hood, but there was
nothing on the face of the schedule or the
letter of transmittal, so far as I have been
able to learn, disclosing the fact of Indian
blood. These schedules, in the absence of
protest upon the part of the nations in
interest, were approved by the Secretary of
the Interior or by his assistants. Thus, in
a sense, the department approved and
sanctioned the attitude of the commission,
but under the circumstances without any
intention of passing adversely upon a
question of legal "import a nee affecting a
large class of persons.
The first instance of which I have been able
to find any trace of where the matter
received the direct and conscious attention
of the department was in connection with the
application of Joe and Dillard Perry for the
transfer of their names from the freedmen
rolls to the rolls of citizens by blood of
the Chickasaw Nation. I hare referred to
this case before but in a different
connection. The facts are that Joe and
Dillard Perry were the minor children of a
free woman of mixed Negro and Indian blood
by a father who was unquestionably a
Chickasaw Indian, being enrolled and
recognized by the tribal authorities as a
citizen by blood. The Assistant Attorney
General for the department, to whom the case
was referred. considered the rights of the
applicants in connection with the laws and
treaties of the United States and found
that, as "descendants" of a Chickasaw, they
were entitled to enrollment as citizens by
blood. This opinion was rendered February
21, 1905.
Contrast this opinion with the practice of
the Commission to the Five Civilized Tribes
outlined above, and in connection with both
please reconsider what I have said
heretofore relative to that portion of the
act of April 26, 1906 (34 Stat.. 137). with
reference to the transfer of names from
freedmen rolls to rolls of citizens by
blood.
Prior to the treaty of 1830 there were a
number of persons of Negro blood who were
recognized citizens of the Choctaw Nation.
This is clearly shown by the records of the
Indian Office. These persons are citizens of
the nation when the treaty of 1830 was
entered into between the Choctaw Nation and
the United States and, pursuant to which the
territory known as the Choctaw-Chickasaw
country was conveyed to the Choctaw Nation
"in fee simple to them and their
descendants." Subsequently, when the
Chickasaws acquired an interest by purchase
in the country theretofore ceded to the
Choctaws. proper provision was made to
guarantee to the Chickasaws and their
descendants the interest so acquired.
Following these treaties and in the interval
preceding the emancipation of the Choctaw
and Chickasaw slaves by virtue of the treaty
of 1800, the general rule was that, under
the treaties and laws of the United States
all descendants of the Choctaws and
Chickasaws residing in the country were
entitled to citizenship therein if born to
free parents.
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.
Online Publication: The manuscript was scanned and then ocr'd. Minimal editing
has been done, and readers can and should expect some errors in the textual
output.
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