Office Of The Assistant Attorney-General
Washington, D. C., March 25, 1905
The Secretary Of The Interior
SIR: I received by reference of February 27, 1905, the motion for review and rehearing and accompanying papers in the application of Stonewall J. Rogers for enrollment of his children, Fannie L., Robert K., Mary L., and Henry C. as citizens by blood of the Cherokee Nation.
October 14, 1887, Rogers, then aged 21 years, with Henry C., his father, a brother, and three sisters, were admitted by the Cherokee national authorities as citizens by blood of the Cherokee Nation. There is no claim or suggestion that this was procured by any fraud or was in anywise without authority of law. Henry C. removed to the nation before December 4, 1894, was on the 1890 census roll, Cooweescoowee district, and died there March 5, 1896. Stonewall J. did not remove to and locate permanently in the Cherokee Nation until January, 1896. At the time of his admission to citizenship in 1887 he was an express messenger on the Southern Railway system on a route between Selma, Ala., and Cleveland, Tenn. He intended to remove to the Territory to locate permanently, and contributed from his wage savings to aid the family in improving a farm held in common, which has improvements said to be worth $2,000, but no act indicative of change of his own domicile to the Territory is shown until his removal, January, 1896.
July 21, 1892, he married Annie Kelley, a white woman, at Cleveland, Tenn. His wife remained in Tennessee to care for her mother to her mother s death, and joined her husband in the nation in the spring of 1899, in the home he had made for them there.
September 8, 1896, he applied to the Commission for enrollment of himself and his children, which was denied, and no appeal was taken therefrom. The record of that proceeding is not before me, and the ground upon which enrollment was then denied does not appear. He applied again November 17, 1900, and November 19, 1900, was denied upon two grounds:
- (1) That he was barred by the Cherokee act of December 4, 1894, which required absent citizens to permanently locate within the nation by June 4, 1895, and his return to the nation was not until January, 1896;
- (2) that he was barred by failure to appeal from the former action denying his enrollment. Upon a third application the Commission, May 20, 1902, reviewed and affirmed that action.
This was affirmed by the Department November 6, 1902, and July 20, 1903. a motion for review was denied. July 30, 1904, the present motion, supported by brief of counsel, was filed, and with the record is referred to me for opinion.
The point of the motion is that, as Henry C. Rogers, ancestor of the minor applicants, was borne on the tribal rolls of 1890, and they are his descendants born since that time, and are entitled to enrollment under section 21 of the act of June 28, 1898 (30 Stat, 495, 502-503), for enrollment of such persons borne on the tribal rolls “as may have lawful right thereto, and their descendants born since such rolls were made.”
I am of opinion that this contention can not be sustained. Allegiance of birth follows that of the immediate ancestor. Where continuity of allegiance is not maintained through the line of descent, the descendant is not born to the allegiance of the remote ancestor, as a grandparent, but to that of the parent at the time of birth. Where expatriation of a nearer ancestor occurs, the continuity of allegiance is broken from that of the remote ancestor, and allegiance of birth is to the sovereign to whom the allegiance of the nearer ancestor is due. The right of the minor children of Stonewall J. Rogers must therefore be determined by that of their father at the time of their birth.
Stonewall J. Rogers was admitted to the allegiance of the Cherokee Nation and was a Cherokee citizen until the full expiry of the time fixed by the Cherokee act of December 4, 1894, viz, to and including June 4, 1895, and he did not forfeit or lose his Cherokee citizenship until that day expired. His children born to that time were born to the Cherokee allegiance of their father.
The record before me is defective in that the dates of birth of his three older children are not fixed by the record, but their ages are testified to by him generally on November 17, 1900, as “Fannie L., age 7 years; Robert K., age 5 years; Mary L., age 11 months.” The fourth child, Henry C., is shown by a birth certificate to have been born ” January 31, 1902.” It is thus shown that the two younger children were born after June 4, 1895, when their father was barred of his citizenship. By break in the continuity of allegiance and expatriation of their parent I am of opinion that they can not claim Cherokee citizenship by virtue of descent from their grandfather, a more remote ancestor who was a Cherokee citizen.
The oldest child, Fannie L., being aged 7 years in 1900, was born before the Cherokee act of expatriation of absentee citizens took effect against her father, and she was born to Cherokee allegiance, as also may have been the second child, Robert K. The Cherokee expatriation act of 1894 expressly excepted minors. As to her, and perhaps also Robert K., the act had no effect. She and perhaps Robert K. have not lost their right, unless barred by failure to appeal from the adverse decision of the Commission in 1896.
I am of opinion that the failure to appeal did not bar Rogers’s child, or children, for the reason that the act of admission was a complete recognition by the nation of Stonewall J. Roger’s right and the full equivalent of an entry of his name upon the tribal roll. The act of inscription on the tribal roll was merely clerical and ministerial, not the admission itself. When that inscription was made, or whether or not it ever was made, to all legal intents and purposes it must be regarded as done when the merits of his application and his right to enrollment was found and declared, October 14, 1887. To all legal intent he was then enrolled, and his child or children born while he was yet in Cherokee citizenship were his “descendants born since such rolls were made.” As in 1896 the Commission had no power to exclude enrolled citizens, they were without jurisdiction to deny enrollment of such child or children, and the denial of their enrollment is no bar to the hearing of their case upon the merits.
Frank L. Campbell, Assistant Attorney-General
Approved March 25, 1905.
E. A. Hitchcock, Secretary