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Decision Rendered James S. Long et al
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Office Of The Secretary
Washington, D. C., February 23, 1906.
Commissioner To The Five Civilized Tribes
Muscogee, Ind. T.
SIR: On January 19, 1905, the Commission to the Five Civilized Tribes transmitted the record in the matter of the application for the enrollment of Lula F. Long, James S. Long, Joseph Long, and Forbis Long as citizens by blood of the Choctaw Nation, with its decision of January 19, 1905. dismissing the application of Lula F. Long and denying the application of James S., Joseph, and Forbis Long.
The papers in the matter were forwarded by the Indian Office March 6, 1905, with the recommendation that the decision of the Commission, adverse to the applicants, be approved.
Following the approved opinion of the Assistant Attorney-General of February 19, 1906, the decision of the Commission to the Five Civilized Tribes is hereby reversed as to all of the applicants except Lula F. Long. Inasmuch as she died prior to September 25, 1902, she is, according to the act of July 1, 1902 (32 Stat, 641), ineligible to enrollment. Accordingly the action of the Commission dismissing her application is hereby approved.
You are directed to place the names of James S. Long, Joseph Long, and Forbis Long upon the final rolls of the citizens by blood of the Choctaw Nation. Copies of the Indian Office letter and of said opinion are enclosed herewith.
Thos. Ryan, First Assistant Secretary.
Washington, D. C., February 19, 1906
The Secretary Of The Interior
SIR: I am in receipt, by reference of May 10, 1905, with request for opinion thereon, of the record in the case of James S., Joseph, Forbis, and Lula P. Long for enrollment as citizens by blood of the Choctaw Nation.
The case involves the right of Mississippi Choctaws (other than those claiming under Article XIV of the treaty of September 27, 1830, 7 Stat, 333, 335) and their descendants to reunite with the nation up to the inhibition by the act of June 28, 1898 (30 Stat, 495, 503), when it was provided that
No person shall be enrolled who has not heretofore removed to and in good faith settled in the nation in which he claims citizenship: Provided, however, That nothing contained in this act shall he so construed as to militate against any rights or privileges which the Mississippi Choctaws may have under the laws of or the treaties with the United States.
The applicants are children of Jacob Long, son of Mrs. Sam Long, who was nearly a full-blood Choctaw, sister of Greenwood Le Flore, the old Choctaw chief. They are thus about one-quarter Choctaw blood. They were born in Mississippi. James S., aged 26 years, went to the Choctaw Nation in 1883 and stayed two years; returned to Mississippi and stayed a year and a half; returned to the nation in 1888 with his brother Sam, now deceased, and stayed a year or two; returned to Mississippi for “six months or a year,” and in 1894, with the other applicants, returned to the Choctaw Nation, where they have ever since resided. Sam Long was on the leased district payment roll of 1893. The applicants applied to the council for admission to citizenship in August, 1895, and understood that his right to citizenship was recognized, as James was called back to give the names of his family. The application was not acted on by the council otherwise than to refer it and all similar matters to a committee constituted by an act of September 18, 1896. Their names were put on the 1896 census roll in January, 1897, by order of Green McCurtain, governor of the Choctaw Nation. All of applicants ancestors continued to live in Mississippi to their death, and no evidence tends to show that they claimed benefits of Article XIV of the treaty of September 27, 1830 (7 Stat., 333, 335). There is thus presented the rights of decendents in the third generation seeking restoration to political relation with the tribe from which their ancestors became by voluntary act or by operation of law dissevered.
It is a matter of history that the migration of the Choctaw people from their ancient to their present western seats was not at one time by all the tribe, nor yet at one time by those elements of it whose decedents now constitute the Choctaw Nation. Only about one-half of the tribe left their old seats in the first general movement in 1831 and 1832. The United States transported various bands, and some parties migrated at their own expense. The records of the Indian Office show that in 1845 and 1856 the Choctaw Nation as now constituted presented claims against the United States arising out of these migrations. That the present Choctaw Nation did not, at the time of the migration, nor for a long time thereafter, regard those who failed to emigrate as unentitled to possess and share the tribal lands and property equally with themselves, when ever they should immigrate, is evident from the legislation of the nation. As early as October 9, 1837 (Choctaw laws, 1869, p. 73), the council prohibited settlement or purchase of improvements on the tribal lands from its citizens by any Indian “not a descendant of the Choctaws.” Descendants from Choctaws were not regarded as intruders, but as having right, without special act of council, to appropriate tribal lands and to purchase improvements thereon. October 14, 1847, the “late and new emigrants” (ib., p. 96) were declared to have equal rights with the old settlers in the schools of the nation. This was not a grant of concession, but a mere declaration of right; not of right as residents or as Indians, but as Choctaws, for by the resolution of October 11, 1858 (ib., 177), other Indians (Creeks) were regarded as intruders and were asked to be speedily removed.
The Choctaw Nation and government as now existing was organized under a constitution drafted by a convention assembled January 11, 1860, pursuant to the act of October 24, 1859, by the Choctaw council. The preamble to that instrument declares that:
We, the representatives of the people inhabiting the Choctaw Nation, contained within the following limits, to wit, do ordain and establish the following constitution and form of government, and do mutually agree with each other to form ourselves into a free and independent nation, not inconsistent with the Constitution, treaties, and laws of the United States, by the name of the Choctaw Nation.
The first section of the bill of rights declared that “all free men, when they form a social compact, are equal in rights,” and all free male citizens of 18 years and upward, who had been citizens six months and resident in their election district at least one month, were declared qualified electors by section 7, Article VII. There was nothing in this instrument defining citizenship in the Choctaw Nation, how it might be acquired or lost, or limiting the operation of it to such residents of its territory as were then members of the Choctaw tribe. If it was so intended, and is to be so limited by construction, it must be so done from consideration of matters outside the instrument itself. Upon its face it embraced all “inhabiting” the territory within its defined boundaries, and by the same word excluded all persons, Choctaw or not, not “inhabiting” those defined limits.
The Choctaw Nation, however, continued to solicit a reintegration of the absentees of the tribe into the nation. When allotment of the Choctaw-Chickasaw lands was contemplated by the treaty of 1866 (14 Stat, 769), Article XIII provided for newspaper publications of notice in six States of the Union to the end that such Choctaws and Chickasaws as yet remain outside of the Choctaw and Chickasaw nations may be informed and have opportunity to exercise the rights hereby given to resident Choctaws and Chickasaws.
This was conditioned upon the absentee taking up actual residence in the nation within five years after selection of his allotment. By Article XV ” every Choctaw and Chickasaw (not citizens or residents merely) was given a ninety days preference right to select a quarter section of land.
No restriction or condition was imposed upon anyone claiming Choctaw descent establishing residence in the nation and thereby acquiring full rights of citizenship. October 1(5, 1876 (Laws, 1887, p. 172), a tribunal for citizenship was established, and the act provided that:
Any person who is not now recognized as a citizen of this nation, or of Choctaw descent, and claiming to be a citizen, or of Choctaw descent, shall petition to the general council, during the regular session thereof, for the rights and privileges of citizenship of the Choctaw Nation. Such petitioner shall prove his or her blood, or other means by which they claim citizenship, by not less than two good, respectable Choctaw, disinterested persons, before a proper committee, or the chairman thereof; and the chairman or secretary of the committee shall have power to administer any and all oaths that may be necessary in conducting the investigation. The committee aforesaid to be appointed by the general council and to report to the body, by act or resolution or otherwise, in reference to the petition or petitions of the person or persons claiming to be citizens, or of Choctaw blood or descent ; and in the event of the adoption of such report of the committee, then such person or persons shall thereafter be deemed and considered to be bona fide citizens of the Choctaw Nation.
The peculiar wording, “or of Choctaw descent,” itself implies that one of acknowledged Choctaw descent became a Choctaw citizen by mere settlement in the nation. The act of October 2, 1882 (ib., 174), gave an appeal in such cases from adverse action of the council to the United States Indian agent. Until after this time the right to become a Choctaw citizen seems to have been fully and unqualifiedly conceded to all persons of Choctaw descent by mere settlement and residence in the nation, the only procedure required being for record proof of the right, which arose as of course upon proof of the facts of descent and residence.
An act, apparently of November, 1886 (Laws, 1894, p. 266), imposed a restriction of one-eighth Choctaw blood as necessary to acquiring citizenship in the nation. Section 4 significantly provided “that this act shall not be construed to affect persons within the limits of the Choctaw Nation now enjoying the rights of citizenship,” thus showing that persons of Choctaw descent entitled to be recognized as citizens, but not yet recognized formally by the council or admitted to the rolls, were residing in the nation, “enjoying” and entitled to enjoy “the rights of citizenship.” The act of October 30, 1888 (ib., 227), constituted a tribunal for citizenship, by a committee of the general council, and still recognized that satisfactory proof of Choctaw descent and residence in the nation entitled an applicant to full recognition as a Choctaw citizen. The second section of this act provided:
It is hereby made the duty of the sheriff of each county in this nation to ascertain the number and name of persons, or parties in their respective counties, who claim Choctaw rights, by blood or otherwise, and who have never established the same in accordance with the laws of this nation, and report the same to the principal chief immediately. Every such person living in this nation and claiming to be a citizen by blood or other wise, and who shall fail to comply with the provisions of this act, after having been duly notified thereof by the sheriff, or other authorized person, shall be deemed and considered an intruder, and shall be removed beyond the limits of the nation forthwith by the principal chief.
An act of the same day (ib.. 288) made the action of the council upon application for citizenship final. This act, however, did not deny the right of an absentee Choctaw to acquire citizenship by taking up residence in the nation, but made the council the final tribunal upon the sufficiency of proof.
As late as December 24, 1889, the Choctaw general council memorialized Congress by a resolution, that:
Whereas there are large numbers of Choctaws yet in the States of Mississippi and Louisiana who are entitled to all the rights and privileges of citizenship in the Choctaw Nation; and
Whereas they are denied all rights of citizenship in said States ; and Whereas they are too poor to immigrate themselves into the Choctaw Nation: Therefore, Be it resolved by the general council of the Choctaw Nation assembled, That the United States Government is hereby requested to make provisions for the emigration of said Choctaws from said States to the Choctaw Nation.
This policy was maintained. By acts of April 8, April 9, and October 27, 1891, Mrs. Anna Boyd and others, Cornelius Hickman and others, and Henry Lewis, Mississippi Choctaws, late arrivals, were simply “recognized” by resolution of the council as citizens. (Laws, 1896, pp. 315, 320, 329.) This form “declared” or “recognized,” rather than “admitted,” was the usual one and was used in the acts declaring Mrs. Mayo and family, Joseph R. Plummer, Caroline Hazel and others, and Lucy Dodson and others, entitled to citizenship. (Laws 1888, pp. 14, 35, 45, 54.) It was always regarded as a matter of right of such persons, not of grace or grant in the nature of adoption, admission, or naturalization of an alien. This policy seems not to have been abandoned until October 16, 1895, when the council adopted the resolution (Laws 1896, p. 4) that:
Be it resolved by the general council of the Choctaw Nation assembled, That all parties who claim citizenship to the Choctaw Nation, and intend proving the same, are hereby notified that they must file their petitions as the law directs on or before November 15. 1895, as after said date no petitions will be entertained by the Choctaw Nation, and an parties who have their petitions filed are hereby notified that they must come forward and prosecute the same at once.
September 18, 1896 (ib., p. 43), an act was passed by the Choctaw council for appointment by the principal chief of three citizens by blood as a commission to proceed within ten days after its passage “to enroll all recognized citizens of the Choctaw Nation,” and section 3 provided:
Be it further enacted, That the rolls when completed by said commissioners shall be certified to by said commissioners and delivered to the principal chief of the Choctaw Nation on or before the twentieth day of October, 1896, to be revised and approved by the next general council of the Choctaw Nation.
Such a roll was made and prepared by the Commission and is known as the 389(5 census roll. There was another roll of 1890, known as the “Complete” or “Revised census roll,” of which the principal chief, Choctaw Nation, August 17, 1897, wrote the Commission that ” the revised roll which I recently furnished your Commission is the only roll made by this nation that contains the names of intermarried citizens.” It was made under resolution of the general council, October 30, 1896, which (Laws 1896, p. 73) constituted a commission of five persons to prepare “a complete roll” of the nation. It was furnished sundry rolls, and among others the roll made out by the commissioners under the act of September 18, 1896, from which they were authorized “to expurge the names of all persons whom they shall adjudge not to be citizens.” They were directed to enroll nine general classes of persons, which, so far as here material, were ” Choctaws by blood born and raised in the Choctaw Nation. All Choctaws by blood who have been admitted to citizenship by the general council and now residents of the nation.” They were “especially prohibited from enrolling” eight classes of persons, the seventh, and only one here material, being “all persons who have applied for citizenship and have not been accepted by the general council.” The act provided that:
All persons coming under any of the prohibitions are hereby declared noncitizens and not entitled to the rights or privileges of citizens of the Choctaw Nation.
This roll, when completed, signed by the chief commissioners, and approved by the principal chief, was to be the legal and authorized roll of citizens of the nation. In his letter of July 17, 1897, to the Commission, the principal chief stated that he had refused to approve the last roll made under the act of October 30, 1896, because he was satisfied that there are some names thereon “that have been registered through fraud or misrepresentation.”
Upon which of the two rolls of 1896 applicants names appear is not clearly shown by the Commission, but the testimony of Simon E. Lewis, “a member of the Choctaw commission,” taken before the Dawes Commission December 4, 1900, is that he put the applicants on the roll; that Governor McCurtain ordered me to put them on there, and that is how they got on there, under orders from the governor in January, 1897, in revising the roll.
I therefore infer that by “the 1896 Choctaw census roll,” mentioned in its decision, the Dawes Commission intended to indicate the roll prepared under the act of October 30, 1896, which the governor refused to approve, and not that known as the census roll of 1896, prepared under the act of September 18. While the governor did not approve this complete or revised roll, his dissent to, or doubt of, its accuracy had no reference to the names he directed to be thereon inscribed.
The view taken by the United States courts for Indian Territory, acting on cases appealed from decisions of the Dawes Commission in citizenship cases under the act of June 10, 1896 (29 Stat, 321, 339), was that (1) Mississippi (or absentee) Choctaws whose ancestors or themselves had never removed to the nation were not entitled to be enrolled; but (2) that one who had theretofore actually removed to the nation was entitled to be enrolled as a citizen, with all the rights, except that those who had taken benefit of the fourteenth article of the treaty of September 27, 1830 (7 Stat., 333, 335), were excluded from sharing in annuities. Jack Amos et al. (Ann. Rep. Com. Indian Affairs, 1898, p. 454); E. J. Home (ib., p. 465); general summary (ib., p. 473). The court in Jack Amos, supra, expressed the opinion (ib., p. 114) that:
As an evidence that the Choctaw people themselves took this view of the question, attention is called to the fact that their council passed many acts and resolutions inviting these absent Choctaws to move into their country, and on one occasion appropriated a considerable sum of money; and until the past two or three years have always promptly placed those who did return on the rolls of citizenship, but never enrolled an absent Choctaw as a citizen (p. 116). The reason for this conclusion is to my mind morally certain when it is remembered that ever since the treaty of 1830, now for a period of nearly sixty-seven years, with the exception of the past two or three years, the Choctaw Nation, by its legislative enactments and by its acts so long continued that by custom they have become crystallized into law, have universally admitted all who should remove and rehabilitate them in all the rights and privileges of citizenship enjoyed by themselves.
On the other hand, in the case of Mrs. A. O. Mallory and others, November 28, 1904, wherein a Choctaw, born in 1843 in Mississippi, living there till 1894, removed to the nation and had thereafter resided therein, the Choctaw-Chickasaw citizenship court held that the treaty of 1830 imposed an obligation to remove from the State upon all who did not claim benefit of the fourteenth article, and that such removal must have been “within a reasonable time.” What was a reasonable time was not defined, but it was held that removal in 1894 was not within a reasonable time, and enrollment was denied. Judicial constructions are thus at variance. Of the two, the first appears the better reason and supported by the historic facts.
The only limitation imposed by Congress and the laws of the United States is the provision of the act of June 28, 1898 (30 Stat, 495, 503), that “No person shall be enrolled who has not heretofore removed to and in good faith settled in the nation in which he claims citizenship.” So far as a bar is raised by the laws of the United States, it is sufficient if a claimant to citizenship in the Five Civilized Tribes removed to and permanently settled in the Indian tribe wherein he claims to be enrolled prior to June 28, 1898.
Subject to the power of Congress, the Indian nations are self-governing communities, entitled to control and manage their own internal affairs, such as their citizenship, rules of descent, revenue, and criminal procedure. Roff v. Burney (168 U. S., 218, 222); Citizenship cases, United States courts, Indian Territory (Annual Report Commissioner of Indian Affairs, 1898, pp. 473, 499. 525); Jones v. Mehan (175 U. S., 1); Buster v. Wright, Indian inspector; Sanborn, J., eighth circuit, Mar. 7, 1895; Talton v. Mayes (163 U. S., 376, 385); United States v. Kagama (118 U. S., 375, 381). Except as above limited, it is wholly a matter of Choctaw law when a Choctaw by blood became separated from the nation and lost right to reunite himself to it. Congress so directed the Commission, and by the act of June 10, 1896 (29 Stat, 321, 339), provides:
That in determining all such applications said Commission shall respect all laws of the several nations or tribes not inconsistent with the laws of the United States, and all treaties with either of said nations or tribes, and shall give due force and effect to the rolls, usages, and customs of each of said nations or tribes.
As the Choctaw Nation up to November 15, 1895, was continually inviting the absentees to reunite themselves with its body and accept its citizenship, and the applicants accepted that invitation and permanently located in the nation, it was their right under the act of 1896, supra, to he enrolled by the Commission to the Five Civilized Tribes, or by “the legally constituted court or committee designated” by the tribe, if they made application therefor within three months from the passage of the act. By the usages and customs of the Choctaw Nation of sixty years standing, “crystallized into law,” they were entitled to be “recognized” as its citizens. This enrollment was not an admission to citizenship, but merely the recognition of citizenship existing.
Application was made to the Commission to the Five Civilized Tribes June 14, 1899. Upon the record the Commission found:
that none of the applicants herein has ever been admitted to Choctaw citizenship by a duly constituted court or committee of the Choctaw Nation or by the Commission to the Five Civilized Tribes, or by a decree of the United States court in Indian Territory, under the provisions of the act of Congress approved June 10, 1896 (20 Stat., 321), nor does the name of any of the applicants appear upon any of the tribal rolls of the Choctaw Nation, with the exception of the 1806 Choctaw census roll, which enrollment, it is contended, was without authority of law.
It further appears from the record herein that in October, 1806, the applicants made application to the general council of the Choctaw Nation for admission to citizenship in said nation and that no action by the said general council was ever taken upon said application.
It further appears from the record herein that in December (September or October), 1806, application was made to the so-called “revisory board,” appointed under an act of the general council of the Choctaw Nation approved October 30, 1806, for the enrollment of the applicants herein as citizens of the Choctaw Nation, and that the applicants, James S. Long, Joseph Long, Forbis Long, and Lula F. Long (as Lula Long), were by said revisory board enrolled upon the 1806 Choctaw census roll, Sans Bois County, Nos. 7704, 7701, 7702, and 7703, respectively. Said revisory board had no legal existence, having been created subsequent to September 10, 1806, the time when the jurisdiction of the Choctaw Nation to receive applications for enrollment as citizens of that tribe expired, as provided by the act of Congress approved June 10. 1806 (20 Stat., 321), and had no authority to receive or consider the application of these applicants for enrollment as citizens of the Choctaw Nation or to enroll them upon the 1806 Choctaw census roll.
Section 21 of the act of Congress approved June 28, 1898 (30 Stat., 495), provides that:
“Said Commission is authorized and directed to make correct rolls of the citizens by blood of all the other tribes, eliminating from the tribal rolls such names as may have been placed thereon by fraud or without authority of law, enrolling such only as may have lawful right thereto, and their descendants born since such rolls were made, with such intermarried white persons as may be entitled to Choctaw and Chickasaw citizenship under the treaties and the laws of said tribes.”
It is therefore the opinion of this Commission that the names of the applicants, James S. Long, Joseph Long, Forbis Long, and Lula F. Long (as Lula Long), were placed upon the 1806 Choctaw census roll without authority of law and should be eliminated and stricken therefrom.
I am of opinion that the Commission erred in its application of the law to the facts. As above shown, until November 15, 1895, the usage and custom of the Choctaw Nation for more than sixty years was to recognize absentee Choctaws upon their removal to and permanent settlement in the nation. No admission to citizenship was by the usage of that tribe necessary. When applicants removed to the nation in 1894 they thereby became citizens. The council could not by prohibiting its committee from enrolling a class of citizens for no cause except its own nonaction, decitizenize them unheard. Were that its intent I would have no hesitation in saying that such arbitrary action was beyond its power and in clear violation of section 11 of the bill of rights of the Choctaw constitution, as an attempt to outlaw or deprive a class of citizens of their liberties and privileges unheard.
But a more appropriate and proper construction of the seventh prohibiting clause in the act of October 30, 1896, above quoted, is that it was intended to apply to cases of noncitizens who had applied for admission or adoption into the nation and whose claims had been heard and found to be unfounded and whose claims had been rejected. So construed, the prohibition was a proper exercise of legislative power, but had no application to those who by tribal usage became citizens by reuniting with the nation in 1894. In putting the omitted names of such persons on the roll the revisory board and the governor in so advising were acting properly and within their powers. I am therefore of opinion that applicants were not enrolled without authority of law, and certainly not by fraud, and the Commission erred in denying their enrollment.
The letter of reference also states that heretofore:
The Department has proceeded upon the theory that the Commission was granted authority sufficient to vest in it jurisdiction to determine, upon their merits, the citizenship rights of all applicants whose names appear upon the tribal rolls, including the Choctaw census roll of 1896. Your opinion is accordingly requested as to whether the course pursued by the Department in such cases, where no fraud is shown, has been taken in accordance with law.
I am of opinion that such is a proper construction of the act which makes the rolls the basis of the Commission s jurisdiction and enrollment without authority of law or by fraud the only ground for exclusion of one who is enrolled. Very respectfully,
Frank L. Campbell, Assistant Attorney-General
Approved February 19, 1906.
E. A. Hitchcock, Secretary
Washington, D. C., March 6, 1905.
The Honorable The Secretary Of The Interior
SIR: I enclose a report from the Commission to the Five Civilized Tribes, dated January 19, 1905, transmitting the record of the application for enrollment as citizens by blood of the Choctaw Nation by James S. Long, Joseph Long, Forbis Long, and Lula F. Long.
January 19, 1905, the Commission decided adversely to all the applicants.
The record shows that none of the applicants has ever been enrolled or admitted to citizenship by any legal tribal authority of the Choctaw Nation or by any United States tribunal.
It further appears that in October, 1890, the applicants made application to the general council of the Choctaw Nation for admission to citizenship and that no action was ever taken upon said application.
It is further shown that in December, 1890, application was made to the so-called revisory board of the Choctaw Nation for the enrollment of the applicants herein, and they were by said revisory board enrolled upon the 1895 Choctaw census roll. It further appears that at the date of such enrollment the said revisory board had no legal existence. It further appears that the applicant, Lula F. Long, died prior to December 7, 1900.
In view of the record the approval of the Commission s decision adverse to the applicants is recommended.
C. F. Larrabee, Acting Commissioner
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