Office Of The Assistant Attorney-General
Washington, D. C., March 25, 1905
The Secretary Of The Interior
SIR: I received by reference of October 17 , 1904, with request for my opinion thereon, the papers in the application of Clara A. Ward to be enrolled as a citizen of the Cherokee Nation.
The applicant was born in the nation, to its allegiance, of Cherokee parents, in 1859, and lived there until September 2, 1862, when her father, a Moravian missionary, was killed. The widow and five children went to Illinois, where she died in 1864. The orphaned children were educated by the Moravian Missionary Society Clara at New Hope, Ind. When of age she entered Bellevue Hospital, New York, served two years, and was admitted by diploma to the profession of trained nurse. She has practiced this calling ever since in different States, making her headquarters in New York City, where she has a furnished room. She was never again in the nation until September 7, 1900, and remained a little over a year, when she returned to New York, and does not intend to return to the nation if denied enrollment. She is identified, under the name of C. E. Ward, on the 1883 Cherokee payment roll. She has not retained property or effects in the nation, and has never applied to the Cherokee authorities for readmission, and has not been readmitted. November 20, 1902, the Commission denied her enrollment, under paragraph 9, section 21, of the act of June 28, 1898 (30 Stat., 495), and May 1, 1903, the Department reopened and remanded the case for further proceedings and readjudication. March 10, 1904, the Commission, referring to section 2 of the Cherokee constitution, held that the applicant is not entitled to enrollment, and denied her application.
The provision of the Cherokee constitution referred to is:
That whenever any citizen shall remove with his effects out of the limits of this nation and becomes a citizen of any other government, all his rights and privileged as a citizen of this nation shall cease; provided, nevertheless, that the national council shall have power to readmit by law, to all the rights of citizenship, any such person or persons who may at any time desire to return to the nation on memorializing the national council for such readmission.
The brief of applicant rests her right to enrollment upon two grounds, viz, section of the act of February 8, 1887 (24 Stat, 388, 390), and upon the impossibility of her being expatriated by the provision of the Cherokee constitution above quoted, as there was no law permitting her naturalization, as decided by the court in Elk v. Wilkins (112 IT. S., 94).
The act of February 8, 1887, generally known as the Indian allotment act, by its eighth section expressly excepted from its operation the territory occupied by the Cherokees and that of other specified tribes. The tribes whose lands were thus excepted included all those who had as tribes advanced to constitutional government, with organized courts for protection of rights of persons and property. It is a settled policy of the United States in dealing with the Indian tribes to recognize their right to regulate their own internal policy and government. Some tribes had fallen far behind others in development toward civilized government, and individual members of such backward tribes were advanced beyond the social development of their tribe. In view of such fact the Indian Department, in construction of the allotment act, has regarded it as applying to the members of those tribes only whose tribal lands were not excepted by the eighth section. Section 6, however, reads:
And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property.
The first sentence quoted can not possibly have any operation as to members of tribes whose territories are excepted from operation of the eighth section. The members of tribes whose lands are not subject to allotment would not have allotments. After the subject of protection of Indian allottees follows the grant of citizenship, which is given:
- (1) to Indians who have taken up allotments, and
- (2) to every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property.
The construction by the Department has been that this provision had reference to members of tribes subject to the general allotment provisions of the act, so that the taking of an allotment was not made an essential condition to American citizenship. This construction harmonizes with the expressed purpose of the eighth section not to interfere with the tribal organization or self-government of such tribes, thus restraining the unlimited words of the act to operate accord ing to its general purpose. The Department adheres to such construction, and it follows that the applicant is not within the benefit of section G of the act of 1887, and this part of her contention must be denied.
In Elk v. Wilkins, supra, the court held that:
But the question whether any Indian tribes, or any members thereof, have become so far advanced in civilization that they should be let out of the state of pupilage and admitted to the privileges and responsibilities of citizenship is a question to be decided by the nation whose wards they are and whose citizens they seek to become, and not by each Indian for himself.
The court also held that the general naturalization acts do not apply to Indians, and that members of an existing Indian tribe which has not as a tribe “totally extinguished their national fire and submitted themselves to the laws of the United States” can never become or be deemed citizens of the United States, “except under explicit provisions of treaty or statute to that effect.”
Based on this decision, the applicant’s contention is that she has never become expatriated from the Cherokee Nation under the provision of section 2 of its constitution, which makes the becoming “a citizen of any other nation” one of the essential conditions. Her reasoning, in brief, is that as she did not and could not become a citizen of the United States (unless under the act of 1887, supra, which saved her rights), therefore her rights of Cherokee citizenship could not be lost.
The argument is specious, but, in my opinion, not sound. In administration of the Cherokee tribal property for distribution to the members of the nation the United States acts as trustee, with no interest in itself or otherwise than to effect a faithful discharge of its trust. The property is communal and belongs to the community. The title was granted to the nation by the United States. Those only have interests in it who are citizens of the nation, and their interest is a mere incident to such citizenship. Who are Cherokee citizens is peculiarly a question of Cherokee law, when such law is not overborne by any act of Congress. The words or provisions of Cherokee law must be interpreted for this purpose as the Cherokee authorities interpret and understand them. Measured this provision of the Cherokee constitution is not obscure.
The Cherokee constitution was adopted in 1839, long prior to the decision in Elk v. Wilkins, and without reference to the doctrine there announced. The evil that was aimed at appears to have been the withdrawal of the more civilized and progressed element of the people, retarding the general progress and development, without contributing by their efforts to that end, or bearing any inconveniences of a rude condition of society of any of the nation s burdens. In respect to the Eastern Cherokees, who never migrated to the Nation, this evil was commented upon in the case of the Cherokee Trust Funds. (117 U. S., 288, 311.)
The practice of the Cherokee Nation shows this to be the construction given this provision. That practice has been that withdrawal by a citizen of his person and effects worked his loss of citizenship, which only the national council had power to restore by readinission. The council was at times free to pass acts of readmission and in many cases the persons obtaining such favor neglected to return. The evil became so great that, December, 1804, the council, by general act, required return of readmitted citizens within six months. I am therefore of opinion that a proper construction of this provision is that withdrawal of the person and effects of a citizen from the nation without intention to return and identification with another and alien community work loss of citizenship, whether actual citizenship is elsewhere acquired or not. This construction accords with the practice of the Cherokee authorities and their understanding and construction of it.
Under this construction there can be no doubt that the applicant lost all right of citizenship. After she was of full age, from 1880 until September 7, 1900, a period of about twenty years, she was to all intents and purposes voluntarily identifying herself with a community alien to the Cherokee Nation, contributing in her useful calling to its life and development, but neither by her personal activities, thought, or means aiding in the progress or contributing by her means and effects to the upbuilding of the Cherokee Nation. She, in my opinion, thereby became, if not a citizen of the United States, at least a non- tribal Indian of Cherokee descent, but not longer a member of the Cherokee Nation, until readmitted in accordance with Cherokee laws and usages.
This is in harmony with the decisions of the United States courts for the central and southern districts of the Indian Territory in citizenship cases appealed from the Commission to the Five Civilized Tribes under the act of 1890, in the cases of Caleb W. Hubbard et al. v. Cherokee Nation; and Application of certain persons v. Cherokee Nation. The courts held that the provision of the Cherokee constitution, above referred to, and Cherokee law and usage control, no act of Congress existing to the contrary.
I am therefore of opinion that the application of Clara A. Ward was properly denied by the Commission.
Frank L. Campbell, Assistant Attorney-General.
Approved March 25, 1905.
E. A. Hitchcock, Secretary