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Conditions which Arose During the Course of the Enrollment Work
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Obtained At Its Close
If the plain truth he stilted it must be said that the condition of the enrollment work on March 4, 1907, was far from finished: because of this fact the department was compelled to cope with a situation most confusing. It was plunged into litigation, the end of which has not been reached. Doubtless Congress was convinced that time enough had been given to the enrollment work, but perhaps the legislators overlooked the fact that the Commission to the Five Civilized Tribes and the Secretary of the Interior could not give their whole attention to the work of enrollment. In fact, there were so many other important things to be done that it may be said conservatively that the time at the disposal of the department for enrollment work was probably not more than one-third of the whole period through which that work continued.
(1) Other duties devolving upon the Commission to the Five Civilized Tribes and the Department of the Interior in addition to enrollment work. In addition to the enrollment of citizens and freedmen of the Five Civilized Tribes, the Department of the Interior was required to allot the lands of said tribes among the persons entitled to share therein. The work of allotment involved
(1) the appraisement and classification of1 the lands.
(2) the selection or assignment of allotments, and
(3) the decision of contests.
There were a great many of these contests, and questions of fact and law were complicated. The people concerned, it must be remembered. were not ‘ blanket Indians,” living in rude simplicity, but many of them were persons of education and means, while others were intermarried whites who were as able to protect their own interests as people of the same standing but lived elsewhere. Consequently many of these contests were bitterly fought and required the taking of much evidence and deliberate consideration. In the disposition of such contests appeals were allowed from the Commission or Commissioner to the Five Civilized Tribes to the Commissioner of Indian Affairs and from the decision of the latter to the Secretary of the Interior. Thus it will be seen that at the outset there was an important branch of the work following on the heels of the enrollment work which also demanded the attention of the same officials.
The segregation and laying out of the town sites also required much attention and involved many difficult questions. Surveys had to be made, lots were scheduled to persons who were entitled to purchase the same, and many contests were adjudicated. Even to this day the town-site troubles seem far from settled.
The Department of the Interior was also charged with important duties concerning railroads in the Indian Territory. The power was vested for a time in the Secretary to grant rights of way over Indian lands and to collect compensation for the benefit of the tribes collectively and individual members thereof. The amounts paid for such purposes were received by the Department of the Interior, to be distributed among the persons and tribes of interest.
The granting of rights of way for telephone and telegraph lines also devolved upon the department, and there was a time during which this branch of the work required considerable attention. In granting these rights of way damages were assessed under authority of the department and collected in the interest of individuals of the tribes as well as of the tribes themselves. It was the duty also of the department to collect taxes on the telephone and telegraph lines for the benefit of the various tribes. Another branch of the service embraced the sale of timber of the tribal lands. This line of work required much attention. To carry it out it was necessary for the department to prescribe regulations and to enforce the same.
Prior to the allotment of the tribal lands it devolved upon the department to lease the same for coal and oil. This was a new field of endeavor and required considerable investigation and study. Regulations were adopted for the purpose, and the problems arising in connection therewith, along with other questions, continually arose for solution.
Besides discharging these duties on behalf of the Indians, there were certain functions of a governmental nature which also fell upon the department. In this connection it should be remembered that the Indians with whom the department was dealing were not segregated upon a reservation, as in the case of the less civilized tribes, out were intermingled with many communities of white persons. Owing to this condition, the Secretary of the Interior had many matters to consider in the Indian Territory which were not in fact Indian matters and yet so closely allied with them and with the affairs of the Five Civilized Tribes that the two necessarily found their way to the same office for solution.
If the work of enrollment could have proceeded equally as to all persons and to all tribes and have been accomplished prior to the allotment, leasing, and sale of lands, many persons would not have been set aside and delayed in order that the property interests of others might be advanced. While the enrollment cases of one class, for example, were pending others had already received their allotments and were calling upon the department to hasten the sale and leasing of their lands. Along with the work of enrollment came the removal of restrictions. This demanded much attention on the part of the department. In this condition of affairs it was possible to find that one man’s enrollment case would be pending while another’s was granted, allotment made, restrictions removed, and land disposed of.
The acts relating to Indian Territory were, as a rule, to be administered under rule and regulations prescribed by the Secretary of the Interior. Those rules and regulations were of course more lengthy than (he statutes to which they related and required no small amount of time for their preparation as well as for their application to the business in hand.
As the work progressed along these different lines it became necessary time and again for new laws to be enacted. Much of the time and attention of the department were required in the preparation of reports, memoranda, and recommendations concerning such proposed acts, and as the rights of the Indians were embodied in treaties and general statutes stretching over a long term of years, great difficulty was experienced in making the new laws harmonize with existing rights.
Throughout the work many novel questions arose for which no precedents could be found. It was inevitable that mistakes should be made in construction and that work could not be completed upon the first attempt. Moreover, no one could anticipate the amount of work which was likely to arise, and new men could not be trained to be of value in less than a year. Coupled with all the other difficulties was the unceasing pressure which was brought upon the department, not only from Congress, but from other sources, to hurry the work along.
I have mentioned these difficulties in order that it may be realized fully that the arbitrary closing of the rolls on March 4, 1907, was unreasonable, in view of all the circumstances, and necessarily worked great injustice to many persons.
(2) How the work was apportioned and the law administered by the Department of the Interior. In view of the fact that the law placed upon the Secretary of the Interior many duties which could not be delegated to others, it was inevitable that a state of congestion should result in the work at headquarters. The department was represented in the field work by. three distinct branches of the service; first, the Commission to the Five Civilized Tribes; second, the United States Indian inspector for the Indian Territory; and, third, United States Indian agent for the Union Agency, at Muskogee. While the duties of these respective officers varied greatly, it was necessary for them to cooperate in many respects. As a general rule, however, they worked independently and were able to cope successfully with the administrative problems devolving upon them, but in the course of their work they met with many complicated legal problems involving great property interests, which necessarily had to be referred to the Secretary of the Interior for final disposition.
All of the work coming from these three branches of the service centered in the Land Division of the Indian Office. There the congestion began, and men who were required to pass judgment upon all of the questions corning within the jurisdiction of the Dawes Commission were also required to familiarize themselves with the work of the inspector and the Indian agent and to acquaint themselves with the laws and rulings relating to Indian business generally. As a rule the work of the Indian Office came to the. Secretary of the Interior in the form of reports or recommendations, with which were transmitted the papers relating to the various matters. Allotment contest cases were an exception to this general rule. As to such, the decision of the Commissioner of Indian Affairs was final in the absence of appeal. I might add that there has probably never been a time during the course of the Indian Territory work when the Indian Office was supplied with a large enough force to handle that work with the rapidity which Congress has demanded.
Practically all the work relating to Indian Territory was required, after leaving the Indian Office, to pass through the office of the Secretary of the Interior. There it was handled in a branch of that office known as the Indian Territory Division. In that division a great bulk of the work falling upon the head of the department was performed, but at no time was there a force sufficient to handle all of the work as speedily as should have been clone in view of the early closing of the roll. While this division was organized primarily for administrative purposes, it was called upon to decide many questions of law and to perform functions off times of a largely judicial nature. The questions encountered in this division were occasionally referred to the Assistant Attorney General for opinion. Here, as in the Land
Division of the Indian Office, was further congestion. I can speak from experience in saying that the examiners were required daily to cope with problems affecting all the different branches of the service in Indian Territory. At this point it is possible to explain the causes for a considerable portion of the delay which occurred in the different lines of work. When a particular case would be referred to the Assistant Attorney General for opinion all other cases would necessarily be held up until that opinion was rendered. In like manner there were several important cases referred to the courts for solution; for example, the case of the intermarried whites, which was submitted to the Court of Claims February 24, 1903, and which was not finally disposed of by the Supreme Court of the United States until November. 1906. As the cases involving the intermarried whites also embraced other members of the same family who claimed Indian blood, it was necessary (1) to read the testimony in such cases and to adjudicate the some from the standpoint of the Indian members of the family, and (2) after the decision of the Supreme Court, to reexamine the same records to ascertain whether the intermarried member of the family was entitled to enrollment.
After the opinions by the Assistant Attorney General and the decisions of the courts it was frequently necessary to readjudicate a considerable number of cases, and much time was consumed in so doing. Prolific of delay were the numerous requests made by attorneys for the Choctaw and Chickasaw Nations for delay on the part of the department in respect to specific cases until decisions should be rendered by the Choctaw-Chickasaw Citizenship Court in other cases, ‘which said attorneys claimed were analogous. For “one time the department heeded these requests, but found eventually that when the decisions of said court were rendered it could not. as a general rule, acquiesce therein.
Although important decisions were rendered by the Secretary of the Interior affecting many cases, there vas no provision for the general publication and distribution of such decisions or of the opinions of the Assistant Attorney General relating to the affairs of the Five Civilized Tribes. As a result, the attorneys practicing before the department were ofttimes in no position to advise their clients, and applicants whose cases were rejected under one construction of the law had no means of knowing that a motion for review would in all probability have been entertained under a later construction.
There is an exception of minor importance to the statement that no provision was made for the publication of opinions and decisions. A small book was compiled by the Commissioner to the Five Civilized Tribes and published during the latter part of 1906 containing a few opinions of the Assistant Attorney General. In rare cases opinions were published in the annual reports of the Dawes Commission, but all of these publications put together foil far short of covering the whole problem involved in the enrollment work, and the majority of them, when published, came too late to be of any real service.
(3) Condition of the tribal rolls used by the Commission and Commissioner to the Five Civilized Tribes in preparing the final roll.– Many of the decisions of the department and the Commission to the Five Civilized Tribes were based upon the act of May 31. 1900 (31 Stat., 221). to which reference has been made hereinbefore. The decisions as rendered were not based upon the merits of the case, but simply upon jurisdictional grounds. That the basis of jurisdiction, viz, the tribal rolls, was far from perfect will be seen from what follows herein in connection with specific rolls.
(a) Census roll of 1896.-This roll was obtained by the Dawes Commission in 1897 or 1898, and hence was of no use in rendering decisions under the act of June 10, 1896. It was not indexed until March 25, 1899. and therefore of no practical use until then. There are frequent notations upon the roll, such as “don’t enroll.” ”dead,” “doubtful.” written in pencil. These notations were not signed and show no authority by which they were made. In indexing the rolls the indexers omitted such names. This roll is a big book made up of county rolls. Much of the data entered upon the enumerators’ rolls were not noted upon the index used by the Dawes Commission. Names were lined out upon county rolls, but no explanation given. Sometimes the word “dead” was noted upon the page, but no authority was shown. Whole pages were entered without numbers and stricken off without explanation. The book for Red County contains 25 loose sheets, with names in pencil hardly discernible. The book for Skullyville County is in poor condition: the handwriting is not uniform, the leaves are torn, and the pages look as if school children might have had access to the book and used it to practice their lessons in penmanship.
(b) “0” roll.-On this roll names are occasionally lined out and part of these pages have been removed. Like numerous other rolls, this book was doubtless kept in private custody, for the blank portions of it were used for the keeping of accounts, the recording of household recipes, and the like. For example, I find on one page a running account between individuals covering a period of nearly three years. On another page I find directions in regard to painting and paint brushes. On page 236 are cooking recipes for making buns and French rolls, for preparing brine to preserve butter, pickling tomatoes, and preparing chopped pickle, Chile sauce, and tomato catsup. Despite the condition of the book, it contained the names of many persons, but it was not indexed by the Dawes Commission as a book of reference in the making of the rolls.
(c) The census roll of 1896 (No. 2).-This book was not indexed or regularly used by the commission. It contained some irregularities, but it was thought by Mr. Tell and Mr. Lewis, who were leading Choctaws. to be better in some respects than roll No. 1. Reference was made to this book in extreme cases. It was alphabetically arranged, but. inasmuch as the census was taken by counties, a thorough search in regard to any particular name would have required much painstaking labor, for the writing was not always the plainest.
(d) Leased district payment roll of 1803.-In the year 1893 a per capita payment of $103 was made to the Choctaws. This roll is intended to show the persons entitled to payments as well as those to whom payment was actually made. I find that the handwriting was not always the same, and that names were occasionally entered in pencil. Now and then a name was erased. This roll does not show intermarried whites or freedmen because they did not share in the payment.
(e) Census roll of 1885.-This roll was made up of books by counties. It was probably the best preserved and most complete roll of the Choctaw Nation in possession of the commission. According to the report of the commission of January ’24. 1903. it was discovered and delivered to the commission during the latter part of the year 1902. It was indexed sometime between January and April. 1903. Looking back for a moment it will be remembered that the. act of June 10, 1896, requiring the Commission to the Five Civilized Tribes, in adjudicating cases thereunder, to give due force and effect to the rolls of the said tribes. It is, therefore, very much in point to note that, notwithstanding the requirements of the law, the commission never saw or used this roll for more than six years after said act of June 10, 1890. These facts bring to mind the said act of May 31, 1900, and in connection therewith it should also be noted that, notwithstanding the limitations therein restricting the jurisdiction of the commission to enrolled or admitted citizens, this roll of 1885, constituting a part of the very foundation of the commission’s work, was not received until more than two years after its date.
The census book for Atoka County contained an unsigned slip bearing the words ‘”Atoka County, omitted to record in the book. James Gibson’s family. 3 children; Harris Botosh. 3 children.” Nothing is shown on this slip to identify the children further. Elsewhere in the book are other detached slips showing ” names omitted.” One of the books contains a note showing that it was retained in the possession of the census maker for several months. In it is a note by the national secretary reading as follows:
The Recently Discovered Rolls Of 1874
It has always been supposed by the department and by the officials of the commission and the Commissioner to the Five Civilized Tribes that the 1885 roll was the earliest roll in the Choctaw Nation. Time and again the commission endeavored to find all of the rolls. Its painstaking efforts in this direction are set forth fully in report of January 24, 1903, in the Bettie Lewis case, copy of which is enclosed as Exhibit J, as well as the imperfect condition of the rolls and the careless methods followed in caring for and preserving them. During the course of my recent investigation in Oklahoma I discovered, however, that there was another roll in excellent condition which was never delivered by the tribal authorities to the Commission to the Five Civilized Tribes. This roll was not found in the archives of the Choctaw Nation when the 1885 roll was discovered during the latter part of 1902. In the course of the search then made a careful examination was conducted among the archives of the Choctaw Nation. It now appears that some time during the enrollment work this roll, with numerous other papers and records relating to citizenship, was removed from the vaults of the Choctaw capitol building to the office of Messrs Mansfield, McMurray & Cornish, at South McAlester, Ind. T. This fact came to my knowledge through an affidavit, enclosed as Exhibit A½, dated November 21, 1008, executed by William J. Thompson, of Pauls Valley, Okla., which affidavit was made at my request following his oral statement to the same effect. It reads in part as follows:
While my case was pending I went to Tishomingo, and I talked with Mr. Cornish, attorney for the Choctaw and Chickasaw Nations. I asked him where I could find the records pertaining to my citizenship, and he said at Tuskahoma; I went and got the national secretary. Mr. Wilson, and he showed me through the vault: and I examined the records there, which were very few, but was told that Mr. Cornish had them with him at South McAlester. I left Tuskahoma and went to South McAlester to the office of Mansfield, McMurray & Cornish and told the man in charge of the office that Mr. Cornish had sent we to look through the records of the Choctaw Nation. He looked surprised at first, and I told him who I was, and he then took me to a room at one side of the office which was partly filled with boxes, and I went through a great many of those records and opened box after box and found records pertaining to national affairs some of them pertaining to the net proceed money. I looked further and found that some records entitled an act of the Choctaw Council, together with the date, all in writing. In searching through those papers I found a roll made in 1874 by Sheriff S. Gardner, of Blue County, and also rolls of other counties: and in this roll of Blue County of 1874 I found the name of my father, Giles Thompson, and all our family except myself, as I was not born at that time, as heretofore stated. I also found in searching over those records a large book about 8 or 10 inches wide and about 18 to 20 inches in length: and it had a list of names, among which I found a list of persons entitled as heirs of Giles Thompson, to receive money from the Choctaw Nation. I also saw the name of Samuel C. Wall as the heir of Noah Wall in the same book. I brought the census roll of 1874 and those books with me to Kiowa, where my nephew, Mr. Ward, was, then Senator, and told him what I had done, and he said it would be all right.
On my way home on the train taking the records with me I met Mr. Cornish and I told him that I went to Tuskahoma but found no records there pertaining to citizenship, and that I went to his office and told his help there that he had sent me over and that I had found the records there, and Mr. Cornish was very angry, turned very white, and said to me that he was surprised that the man in his office had permitted me to go through the records and that I was the only person who had ever gone through those records regarding citizenship. I told him I didn’t think that I had done anything wrong, but that I thought I was entitled to see the records pertaining to my father’s citizenship in this county: that that was all I wanted, and that if I was not entitled to citizenship I did not want it: all I wanted was a fair trial and I thought that he should allow me that. So we talked for some time and I told him that I didn’t think that he should be mad at me, and he said that he was not so mad at me as he was at his help in his office. Mr. Johnston was on the train with me and Mr. Cornish got up and went over and sat down with him and I went on to Tishmoningo to see my attorney. Mr. O. W. Patchell, and I showed him the rolls and books and told him what I had done. Mr. Cornish was very angry upon learning what I had done and he remarked that this put him in a very embarrassing position. Afterwards Mr Patcholl and I had a talk with Mr. Cornish in Tishomingo and he made the same statement about the books that he had to me, that is, that it put him in a very embarrassing position for me to go to Tuskahoma and then for me to go to his office at South McAlester and find the records there in place of Tuskahoma. Mr. Patchell and I told Mr. Cornish that all we cared about the books and records was for the information in them concerning my father and that we thought they should be made a part of the record, and he then agreed to have the national secretary to certify to those records, and, accordingly, we turned them over to him. I don’t think that Mr. Cornish ever carried out his promise. This occurred in September or October of 1904, as nearly as I can remember.
At the time this affidavit was made I was pursuing my investigation at Pauls Valley, Okla. It occurred to me, however, that inasmuch as section 13 of the act of May 27, 1908 (35 Stat., 312), required all persons having the custody of tribal property, including papers, documents, records, etc., to deliver the same to the Secretary of the Interior prior to July 31, 1908, it might prove possible to check up the statement of Mr. Thompson by reference to the records of the Commission to the Five Civilized Tribes received by virtue of said act. Accordingly, upon my return to Muskogee I requested Commissioner Wright to permit me to see the papers which were delivered to him by Messrs. Mansfield, McMurray & Cornish. With little difficulty we found the rolls referred to in the affidavit of Mr. Thompson, and I made a minute description of the same. I found that the roll in question was made in 1874. Upon the roll for Blue County I found the name of Miles Thompson, father of William J. Thompson, which confirmed the statement made in the hitter’s affidavit. There were rolls for several other counties besides. The papers upon which the names were recorded constituted rolls in fact as well as in name, being made up of sheets of paper pasted together so as to form long strips which when completed were rolled up like maps or wall paper. When unrolled these strips would reach across a good-sized room. Besides these rolls there were other important documents and records relating to citizenship which were delivered by Mansfield, McMurray & Cornish pursuant to said act of May 27, 1908. For my field notes on the recently discovered Choctaw roll of 1874, see Exhibit B.
It needs no argument to show that the rolls and records retained by said attorneys constituted material evidence which should have been considered in connection with many cases. That this was true no one knew better than they. In view of the said act of May 31, 1900, the effect, because of jurisdictional reasons, can not be overestimated. There is another aspect of the matter which should be determined: Was there, by reason of the withholding of said records, a fraud worked upon the Government and upon individual applicants?
(a) Census roll of 1890.-This roll was delivered to the Dawes Commission in 1857 or 1898. It was therefore of no assistance in making up the rolls required by the act of June 10, 1896. The copy obtained by the commission being typewritten, was evidently a transcript from some former roll. On it are notations such as I have referred to heretofore in connection with the Choctaw rolls. These notations are unsigned. I was unable to discover when the index to this roll was prepared.
(b) Pay roll of 1803 (No. 1). The commission found it necessary to rebind this roll. Extra pages were pasted in it. On one is found the following:
These leaves that are inclosed was a mistake, and I have copied it over. Scotland Hawkins
From this I gather that Mr. Hawkins prepared the roll. The first 106 pages are in a very bad condition. Names were stricken off without explanation, and the amounts paid to various persons are not shown. Beginning on page 107 there seems to be a reproduction of the rolls and some attempt to arrange the names in alphabetical order. A characteristic of this roll is that the column designed to show to whom payments were made discloses that the money was rarely paid to the citizens of the tribe. I understand that it was the custom in making this payment for the members of the tribe to assign their “head money,” as it was called. This was often done at a considerable discount. On this roll I find the name of Watt Marhardy, which is a matter of considerable importance because of the fact that his son. Sam Marhardy, who is an Indian by blood, was erroneously enrolled on the Seminole freedman roll. Book No. 1 of this roll was not indexed. Concerning it my field notes contain the following entry: “Taken as a whole, this is a rather disreputable looking affair.”
(c) Pay roll of 1893 (No. 2).-The condition of this book is even worse than that of book No. 1. It contains numerous defects, such as have been described with respect to other rolls. My opinion of these books at the time of my investigation, as noted in my field notes, is as follows:
In conclusion, books 1 and 2 of the 1893 payment rolls In the Chickasaw Nation were poorly kept and reflected very much upon the ability of the Chickasaw authorities to transact business in a systematic manner. I am inclined to think that the entry of a name, upon this roll should not count particularly in favor of an individual. I am also inclined to think that the omission of a name from the roll might have resulted from corrupt causes.
(d) May Tubby roll (No. 1).-This roll is supposed to be a part of the 1898 payment roll. It is made up of sheets of legal-cap paper fastened together. The writing is excellent, but the paper is in poor condition. Here, as elsewhere, I found names which were lined out without explanation.
(e) May Tubby roll (No. 2).-This roll is also in a poor condition, being made up of loose sheets of paper badly broken. Some of the pages contain the letterheads of various persons. One such sheet is in a precarious condition. This roll was received by the commission in September or October 1898. The parts were not arranged in alphabetical order and were never indexed. When reference was made to them by the Dawes Commission the whole list had to be examined. This must have required much painstaking and conscientious effort. Never in any case have I found a notation on this or any other roll initialed or signed, and in but two cases thus far have I found any explanation of the lining out of a name.
(f) Ieshatubby roll.-This roll consists of two sheets of legal-cap paper. On it are names which were lined out. and the writing was sometimes done with pen and sometimes with pencil. This roll was not indexed.
(g) Annuity roll of 1878.-This roll was delivered to the Dawes Commission late in 1902 or early in 1903. It is incomplete. See said report of January 24, 1903, in the Betty Lewis case. It is made up partly of legal-cap paper, and partly of other large sheets. When received by the commission it was not bound. Subsequently, paper covers were attached to it. The roll is made up by counties, and in some cases the names appear in alphabetical order. There arc several facts which tended greatly to render this roll less valuable for enrollment purposes than should have been the case: (1) It was not indexed, and the names for some of the counties were not even arranged in alphabetical order: (2) it showed only the names of the heads of families, omitting the names of women, when not heads of families, and minors; and (3) parts of the roll were lacking.
By reason of the jurisdictional limitations contained in the act of May 31, 1900, it was-very unfortunate that the names of women and children were omitted. This was unfortunate for another reason. No roll of the Chickasaw Nation was obtained by the commission covering the interval of fifteen years between the 1878 and 1893 Chickasaw rolls.
Decrees of courts and acts of tribal councils.-The commission was not furnished by the tribal authorities with lists of persons admitted by decrees of tribal courts and by acts of tribal councils; and no index was made of the names of such persons appearing in the Choctaw and Chickasaw law books. Doubtless names of some of such persons were entered upon the census or other tribal rolls, but not necessarily so. There were other methods of recognition of citizenship, such as the granting of permits to employ noncitizens. permitting men to vote at the national elections, and the reception of persons in Indian schools and other public institutions; but there was no index prepared, and perhaps none would have been possible of such persons.
Bearing in mind what I have shown above, after careful personal examination of the rolls of the Choctaw and Chickasaw Nations, as well as the extensive report of the commission to the five civilized tribes in the Betty Lewis case, I desire to bring to your attention a statement contained in a memorandum of argument prepared by Messrs. Mansfield, Murray & Cornish, which was printed as Senate Document 298, Fifty-ninth Congress, second session. This statement reads as follows:
A proper and natural inquiry is. What are the rolls of the tribes made under their own laws, customs and usages, to which the laws refer, and to which the jurisdiction of the commission and the Secretary of the Interior is limited?
The tribes have made rolls at various times, and for various purposes, and these rolls are in perfect physical condition, and are now in the possession of the commission and the Secretary of the Interior, having been turned over to them by the tribal authorities for use by the Government officers under existing law. Those roils are the “net proceeds'” rolls of 1855, the “leased district” payment rolls of 1893, and the census rolls of 1896. These rolls include all former rolls and census lists, and upon them appear the names of all persons to whom the tribes have ever accorded recognition.(Underscoring supplied.)
The sweeping assertions contained in the above statement were intended to influence the minds of members of Congress and to prejudice them against remedial legislation in citizenship matters, and doubtless were not without effect in accomplishing that result: but note the statement that said rolls are “in perfect physical condition,” and compare that statement with the description I have given of those rolls. Note also the statement that said rolls are now “in the possession of the commission and the Secretary of the Interior,” and compare the assertion with the statement of Mr. William J. Thompson, in his affidavit of November 21, 1908, which is corroborated by the enclosed schedule, marked Exhibit C. furnished by Commissioner Wright, showing the records and other papers relating to citizenship matters surrendered by said attorneys July 25, 1908, long after they could be of any service in enrollment work, but in time to avoid the fine and imprisonment provided for by section 13 of the act of May 27, 1908 (35 Stat., 316). For my field notes relating to the original Choctaw and Chickasaw rolls, see Exhibit D.
My information concerning these rolls was obtained, as in the case of the Choctaw and Chickasaw rolls, from officials of the Dawes Commission, who have had long service in connection with said records, and have, perhaps, better information concerning them than any other persons. In taking up these rolls, I will begin with those of the most recent date.
(a) Census roll of 1900.-This was a census roll prepared by the Government of the United States in the making of the Twelfth Census. It included, in part, citizens of the Cherokee Nation, but was not indexed.
(b) Census roll of 1896.-This roll was made by the Cherokee authorities. It is not in as good condition as the 1880 roll of that Nation, its appearance from page to page being more like that of the Choctaw and Chickasaw Nations; that is to say, there are occasional defects in it, and names are lined out from time to time without explanation. This roll was indexed by the Dawes Commission, and used in the course of the enrollment work.
(c) Shawnee pay roll of 1896.-This roll was prepared or revised by the business committee representing the Shawnees appointed by the Secretary of the Interior. The names are arranged on it in alphabetical order.
(d) Delaware pay roll made under art of national council, approved March 30, 1896.-This was a roll of Delaware Indians made by D. W. Lipe. It was not indexed.
(e) Pay roll of 1894.-This was a roll of Cherokees by blood. It was indexed by the Dawes Commission and used in the enrollment work. The citizens by blood received a per capita payment of $265.70, known as the “strip payment.” This roll is arranged in alphabetical order. I find that some of the names have been erased or scraped off with a knife. and that other names have been lined out.
I find that the 1880 and 1894 and 1890 rolls were used from the beginning of the work, but that the rolls made prior to 1894 were used by the commission on and after the adjudication of cases commenced.
(f) Census roll of 1893.-This roll was indexed as to freedmen only.
(g) Census roll of 1890.-This roll was not indexed.
(h) Pay roll of 1890.-The citizens by blood of the Cherokee Nation were paid $13.70 per capita under this roll. It consists of four volumes. It was not indexed.
(i) Pay roll of 1886.-This roll consists of 15 volumes, made up of the stubs of certificates showing payments made under the 1880 roll. It was not indexed. Under it $15.95 per capita was paid to the citizens by blood.
(j) Hester roll of 1884.-This was prepared by Joseph G. Hester and not by the tribal authorities. It is understood that it related merely to the band of Eastern Cherokees who never removed west of the Mississippi. The Dawes Commission never had this roll.
(k) Census and pay roll of 1883.-This roll was not indexed. Under it a payment of $15.50 per capita was made to the citizens by blood of the Cherokee Nation.
(l) Pay roll of 1880.-This was a pay roll and should not be confused with the roll of 1880 referred to in section 21 of the act of June 21, 1898 (30 Stat. 495). It was not indexed.
(m) Census roll of 1880.-This was the roll confirmed by section 21 of the said act of June 21, 1898. It was a very important roll and was well made. I am unable to state positively whether it was indexed or not, but suppose that it was. It bore a very important part in connection with the enrollment of Cherokee freedmen.
(n) Roll made under act of December 3. 1879.-This roll was made up of receipts for payments made by D. W. Lipe for breadstuffs. It was not indexed. Under it $16.55 per capita was paid to the citizens by blood of the Cherokee Nation.
(o) Roll of 1875 or 1876.-For a time there was considerable doubt as to the existence of this roll. It was claimed by various parties that such a roll was made in accordance with the act of November or December 19, 1874, of the Cherokee Nation. Efforts were made to find the roll, but it was never possible to locate it. It was, of course, never indexed. Information concerning this roll may be found in the papers in the Cherokee enrollment case of William C. Smith. There was certainly a payment made under this act, although the record of payments may not have taken the form of a roll. Possibly the record was made in the form of receipts in a stub book.
(p) Roll of 1867.-I desire to call particular attention to this roll, because of its age and the neatness of its appearance. It is, no doubt, a document of great value, and the entries thereon are in all probability authentic. The roll was made up by districts, but the names on it are not arranged in alphabetical order. Most of the persons enrolled thereon had Indian names. I am inclined to think that the value of this roll was not understood or appreciated by the commission and that it did not receive the attention to which if was entitled.
(q) Chapman roll of 1852.-The roll in the possession of the commission is a copy of the roll on which a per capita payment was made to the Cherokee Indians residing east of the Mississippi River. This payment was made by Albert Chapman, special agent, in compliance with the acts of September 30, 1850, and February 27, 1851. Note what is said below in connection with the Siler and Mullay rolls and the roll of 1835. This roll was not indexed by the Dawes Commission and was not used in the preparation of the final citizenship rolls.
(r) Siler roll of 1851.-This was a census roll of the Cherokee Indians residing east of the Mississippi River. It was taken by Special Agent D. W. Siler. This was not indexed by the commission and was not used in the making of the final citizenship rolls.
(s) Mullay roll of 1848.-This roll was made by Special Agent J. C. Mullay, under the act of Congress of July 29, 1848 (9 Stat.. 264). It was a roll of Eastern Cherokee Indians. My notes do not show whether or not it was indexed, but I understand that it was not.
(t) Census roll of 1835.-This was a census roll of Cherokees residing within the limits of Tennessee. Alabama, North Carolina, and Georgia in the year 1835. It was probably made before the removal of any portion of the tribe to Indian Territory. It was not an indexed roll.
I desire to call particular attention to the rolls made in 1835, 1848, 1851, and 1852, mentioned above. They were entitled to careful consideration and should have been used freely by the commission. Their importance is due to the fact that the Cherokee Nation, by section 3 of an act approved December 8, 1886 (Cherokee Law Book of 1884-1886, pp. 49. 52), impliedly confirmed said rolls by providing that persons applying for citizenship in the Cherokee Nation before a commission which was created by said act should show themselves to be descendants of persons whose names appeared thereon. My field notes relating to the original Cherokee rolls are enclosed as Exhibit E.
(u) Dockets.-There were a number of court dockets in the possession of the commission. Nearly all of these were indexed.
I did not have an opportunity to examine the Creek rolls in the possession of the commission. I do know, however, from the adjudication of many cases that applicants for enrollment as citizens of the Creek Nation were denied, on jurisdictional grounds, by reason of said act of May 31, 1900 (31 Stat., 221), the restrictive features of which have been referred to in a previous connection.
4. Unproved decrees and judgments of the United States court upon which the Commission to the Fire Civilized Tribes based its decisions and reports in Cherokee and in Creek Citizenship cases.-Under the act of June 10, 1896 (29 Stat., 321), the right to appeal was given from the decisions of the Commission to the Five Civilized Tribes to the United States courts and the decisions of the latter were to be final. All. or nearly all, of such decisions were rendered by the United States courts prior to 1899. Subsequent to such decisions and throughout the remainder of the enrollment work the Commission to the Five Civilized Tribes, in forwarding Cherokee and Creek citizenship cases, would report as to whether the applicants were granted or denied enrollment by said courts, and whenever court action had been taken in any particular case the decision of the commission would be predicated thereon. During all of this time the department supposed that the reports and decisions of the com- mission. as well as its own adjudication of such cases, were based upon authentic records, but such was not always the fact. Late in the enrollment work it was discovered by the department that many of the original decrees and judgments rendered by the United States court for the Northern District of Indian Territory had been lost and that no official record of such decrees and judgments had ever been kept. This state of affairs was brought to the attention of the department in the case of Allen W. Ralston et al. (I. T. D, 12,880-1906). In that case it was reported by the Commission to the Five Civilized Tribes that an application was made to the Commission to the Five Civilized Tribes, under the act of June 10, 1896 (29 Stat, 321), for the admission to citizenship of the applicants; that said commission granted the application, but that upon appeal from the decision of the commission to the United States court in the Indian Territory the decision of the commission was reversed by said court and the application denied. In another report it was shown that the decree of the court was lost and that there was no official record or proof of such decree, except a press copy of a paper supposed to be the decree of the court, which copy was kept in a large book in the custody of the Dawes Commission. This supposed decree was unsigned and not of such a character as to be properly admissible in evidence. The reason for this condition of affairs is found in the testimony of Mr. Philip B. Hopkins, formerly an officer of the Dawes Commission. Mr. Hopkins’s testimony, as set forth in the record in the Ralston case concerning the decrees and judgments of the United States courts, is as follows:
Under the act of June 10, 1896, authorizing an appeal from the decision of the Commission to the Five Civilized Tribes to the United States court in the Indian Territory, no provisions were made for certified copies of the decrees of the court to said commission. During the fall or early winter of 1S97. [ had numerous conversations with Hon. William N. Springer, judge of the United States court for the Northern District of Indian Territory, as then constituted, looking to some arrangement whereby the Commission to the Five Civilized Tribes could bo supplied with copies of his decisions and decrees. There being no funds available for use by the clerk of said court for the making of such copies, it was suggested by Judge Springer that he, personally, or his secretary and stenographer, under his direction, should turn over to me all decisions and decrees in citizenship cases as soon as rendered. In order that I might make for tho Commission to the Five Civilized Tribes, as their clerk and representative, letter-press copies of such decisions and decrees. This suggestion of Judge Springer’s was agreed to by the members of said commission, and I. personally, received from Judge Springer or his clerk. Will S. Fears, the original decisions and decrees, a letter-press copy of which appears in this book. I personally copied such decisions and decrees in this book and indexed all of them in my own handwriting, with the exception, possibly, of the last half dozen decisions.
Q. Mr. Hopkins, do you know if it was the custom or practice of the court at that time to enter decrees in the citizenship cases in n book or record such as decrees are usually entered In?
A. No; the decrees and decisions of the court were not recorded either at that time or for several years afterwards. The reason given by the clerk being that he had no funds out of which lie could pay for doing such work, and I doubt very much if they ever were copied. For two or three years I know personally that the papers, including the Judgments and decrees in such cases, were piled upon an open desk in the main office of the clerk of the court. The only docket of any kind relating to the cases in the office of the clerk of the court for two or three years following the decision in the case, to my personal knowledge, was the judge’s bench docket.
Q. Was it the custom to keep the decrees with these flies, or was it the custom to keep the decrees separate from the other flies?
A. At the time I copied these decrees the Dawes Commission was not in possession of the court files. Some year or two later, perhaps longer, when it was found that no record had been made by the United States court, and that it was the source of a great deal of annoyance to obtain papers In any particular case from the clerk of the court, for the reason that they had not been kept in good condition, the clerk of the court permitting the Dawes Commission to removed all the papers relating to citizenship cases on appeal to the vaults of the Dawes Commission, and they were arranged to the case of the docket and filed away in the Dawes Commission. It was found at that time that in a great many instances the decrees of the court were missing from their places.
Being familiar with the record of the Ralston case, I determined to ascertain for myself whether the reports and decisions of the Dawes Commission were based upon unsigned decrees and judgments of the court. I was taken to one of the vaults of the Commissioner to the Five Civilized Tribes where the press copy book containing the copies of the supposed decrees of the United States court was kept. Upon inspection of this book I found a number of copies of papers, which were evidently drawn up for the signature of the judge, but which were unsigned. Although I made a careful examination of the book. I was unable to find any copy bearing the signature of the judge.
The record in the Ralston case was forwarded by the Commissioner to the Five Civilized Tribes October 4, 1905, to the Indian Office. From there it was sent, July 24, 1906, with the recommendation that the commissioner’s decision be reversed and the applicants enrolled. The case was not reached by the department in the course of regular examination until February, 1907. On the 15th of that month the department rendered a decision concurring in the recommendation of the Indian Office and enrolling the applicants.
Thus a serious defect was discovered in the proceedings affecting this class of enrollment cases, but the discovery came too late to be of any value in the enrollment, work. Nor is this all. A few days later, “to wit February 19, 1907, the decision of the Attorney General of February 19, 1907, was rendered. In the haste which was made to apply said opinion, it was construed to affect not only the specific Choctaw and Chickasaw cases mentioned therein, but also numerous cases in the Cherokee and Creek Nations. The result was that certain persons who had theretofore been enrolled were stricken off hurriedly, upon the supposition that an adverse decision was rendered as to them by the United States court for the Northern District of Indian Territory. Others having analogous cases, but who had not as yet been placed upon the final rolls, were denied enrollment in the original decisions based on the same grounds.
5. Census cord records in the office of the Commissioner to the Fire Civilized Tribes.-The Commissioner to the Five Civilized Tribes prepared a card index of citizenship cases. The information appearing upon these cards was obtained from various sources. Sometimes it was noted upon the card directly from the statements of the applicants, while in other cases it was gleaned from the typewritten records. Ordinarily there will be found upon a card the names of the persons comprising a family. The cards consist of three classes:
1. “Straight cards“, upon which were listed those persons having tribal enrollment, and having a prima facie right to enrollment, and against whom no protest was made by the representative of the tribes.
2. “Doubtful cards“, on which were placed the names of persona whose cases were protested by the representatives of the tribe, or where deemed doubtful because of some defect or defects in the show- ins:, for example, nonresidence, failure to prove Indian blood, etc.
3. “R cards“, upon which were listed the names of persons who either made no claim to tribal enrollment, or could make no showing to tribal recognition and right to enrollment. Generally speaking, the people who were listed on these cards were prima facie not entitled to enrollment.
The letter “R” stood primarily for “rejected”; but in the course of a very short time this list was made to include cards where rejections had not occurred. Probably this series, in its inception, was based upon the field decision of Commissioner McKennon, who, after a brief examination, immediately rendered a decision which was a mere memorandum of action, being as follows:” Enrollment refused’
Some of the persons whose names were listed upon “D” (doubtful) and “R”‘ (rejected) cards were afterwards found entitled to enrollment, and when decisions were rendered in their favor, their names were transferred to straight cards. Proper notation was placed upon such “D” and “R” cards, showing what disposition was made of the cases, and the number of the straight card to which their names were then transferred. Thus, it may occur in a number of cases that there were two cards for one name, but not in the same series.
As the cards are arranged today, it will be found that there are separate boxes for .straight cards, the “D” cards, and the”R” cards. To represent the Choctaw cases there are approximately 6,084 straight cards. 1,009 “D” cards, and 756 “R” cards.
A system of cards was also used to represent the Mississippi Choctaw cases. I think that there were two series of these cards, one for admitted cases and one for rejected cases.
There was a class of cases known as “memorandum cases.” I understand that these cases were kept separate in the Cherokee and Creek Nations. They were so classified because, while under the act of May 31, 1900. the commission was forbidden to receive or make application for the enrollment of any person whose name was not upon the tribal rolls, or who had not been admitted to enrollment by the tribal authorities; the department required a memorandum to be made in order that its approval of the action of the commission might be based upon some definite information.
From the foregoing it will be readily seen that the records of the Dawes Commission are in such a condition that it can be immediately ascertained what action was taken in any particular case, and the pertinent facts connected therewith.
In addition such cards show where the records in the case can be found, as well as all action taken thereon both by the commission and by the department.
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