Office Of The Secretary
Washington, D. C., February 3, 1905
Commission To The Five Civilized Tribes
Muscogee, Ind. T.
GENTLEMEN: In accordance with the opinion of the Assistant Attorney-General of January 28, 1905 (copy enclosed), approved by the Department, the application of Emma McMenamin for enrollment as a citizen by intermarriage of the Choctaw Nation is hereby rejected.
The case was submitted with your letter of October 31 and Indian Office letter of November 11, 1904. A copy of the letter of November 11, 1904, is enclosed. Respectfully,
Thos Ryan, Acting Secretary.
Office Of The Assistant Attorney-General
Washington, D. C., January 28, 1905.
The Secretary Of The Interior
SIR : I received, by reference of December 27, 1904, with request for opinion thereon, the record in the application of Emma McMenamin for enrollment as a citizen, by intermarriage, of the Choctaw Nation.
The applicant claims enrollment because of a marriage to Michael McMenamin, a white man, whose enrollment as a citizen by intermarriage was finally approved September 12, 1903. At some time not shown by the record McMenamin, a white citizen of the United States, under forms of Indian law married Harriett Gardner, a citizen of the nation. He was granted a divorce from her April 24, 1871, by the Indian court. May 4, 1870, he married Emma Williams, the claimant, a white citizen of the United States, under forms of Indian law. She applied to the Commission, under the act of June 10, 1890 (29 Stat, 321, 339), for enrollment, which was denied December 8, 1890. She took no appeal. The present Commission, October 15, 1904, denied her enrollment. The Indian Office. November 11, 1904, advised affirmance of that decision.
The question presented is, whether rights of citizenship in the Choctaw Nation are acquired by one alien to its allegiance by intermarriage with another not of Indian blood, not born to such allegiance, who acquired citizenship in the nation by intermarriage with one of its native citizens.
The acquiring of an allegiance to which one is not born can be accomplished only by compliance with some law governing the state to which allegiance is so acquired. No law or custom of the Choctaw Nation is shown whereby citizenship therein can be acquired by intermarriage of this description. No such law of the nation has been found by me. Article XXXVIII of the treaty of April 28, 1866 (14 Stat., 709-779), which is a law of the United States and of the Choctaw Nation, provides:
Every white person who, having married a Choctaw or Chickasaw, resides in the said Choctaw or Chickasaw nation, or who has been adopted by the legislative authorities, is to be deemed a member of said nation, and shall be subject to the laws of the Choctaw and Chickasaw nations according to his domicile, and to prosecution and trial before their tribunals, and to “punishment according to their laws in all respects as though he was a native Choctaw. or Chickasaw.
This provision confers rights of citizenship upon white persons who marry a Choctaw or Chickasaw. These words in themselves imply a person of Indian blood, born to the Choctaw or Chickasaw allegiance. A reading of the treaty also shows that other classes of citizens of the nation exist, who are designated as ” persons of African descent heretofore held in slavery among said nations,” “Kansas Indians” (Article III). In Article XXVI the words “Choctaws and Chickasaws” are used in contradistinction to another general class of ” persons who have become citizens by adoption or intermarriage.” It is, in my opinion, clear from the context of the treaty that the words “Choctaw” or “Chickasaw,” as used in Article XXXVIII, were used to designate, not the citizenship generally, but such citizens as were of blood descent of those nations as well as citizens. I am therefore of the opinion that citizenship in the nation can not be acquired by one not born to its allegiance through intermarriage with one also alien born, whose citizenship was acquired by intermarriage, and that the Commission properly denied Mrs. McMenamin s enrollment.
Frank L. Campbell, Assistant Attorney-General
Approved January 28, 1905.
E. A. Hitchcock, Secretary.