Decision Rendered Thornton D. Pearce

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Office Of The Secretary
Washington, D. G., May 21, 1904

Commission To The Five Civilized Tribes

Muscogee, Ind. T.

GENTLEMEN: March 19, 1904, you transmitted the record in the matter of the application of Thornton D. Pearce for the enrollment of himself as a citizen by intermarriage of the Choctaw Nation, including your decision of the same date, holding that the applicant should be enrolled.

The evidence shows that the applicant is a white man; that on January 14, 1883, he was married, in accordance with the laws, customs, and usages of the Choctaw Nation, to Parmelia A. Folsom, a recognized and enrolled citizen of the Choctaw Nation, whose name appears upon the 1893 leased district payment roll of the Choctaw Nation, Blue County, page 93, No. 9G8 ; that his Choctaw wife died in the year 1895; that subsequent thereto the applicant married a white woman, having no rights of Choctaw citizenship by blood. It also appears that the applicant has resided continuously in the Choctaw Nation since 1878, up to and including September 25, 1902, and that his name is found, as an intermarried citizen, upon the 1896 Choctaw census roll. You cite as precedents for your decision the action of the United States Chickasaw citizenship court in the case of Thomas Brinnon v. The Choctaw and Chickasaw Nations, decided on January 20, 1904.

Reporting May 17, 1904, the Acting Commissioner of Indian Affairs recommends that your decision be approved. A copy of his letter is enclosed.

Article 38 of the treaty of 1866 between the Choctaw and Chickasaw nations and the United States 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.

Section 5 of the act of the Choctaw council, approved November 9, 1879, provides:

Should any man or woman, a citizen of the United States or of any foreign country, become a citizen of the Choctaw Nation by Intermarriage as herein provided, and be left a widow or widower, he or she shall continue to enjoy the rights of citizenship unless he or she shall marry a white man or woman or person, as the case may be, having no rights of Choctaw citizenship by blood. In that case all his or her rights acquired under the provisions of this act shall cease.

In the case of F. R. Robinson v. The Choctaw Nation, cited by you, the facts are similar to the facts in the case under consideration. The applicant was a white man, who married a Choctaw woman in accordance with the laws of the Choctaw Nation. She died, and the applicant afterwards married a white woman, not a citizen of the Choctaw Nation. The United States court for the central district of Indian Territory held that the applicant was entitled to be enrolled. In this case the court said:

The treaty makes every white man who may marry a Choctaw or Chickasaw woman a citizen, to use the language of the last words of article 38, above set out, “in all respects as though he was a native Choctaw or Chickasaw.” By this provision of the treaty there is to be no difference between a citizen by virtue of his marriage and a native Choctaw. The} 7 are to enjoy equally and alike all of the benefits of Choctaw citizenship, as well as share the burdens. Any act, therefore, of the Choctaw council passed after the ratification of the treaty which makes a distinction between them, granting to one greater privileges or rights, or imposing on him more burdens than the other, or which shall undertake to enlarge or curtail the rights and privileges which flow from citizen ship as to the one and not as to the other, would be in violation of this provision of the treaty and therefore void. An act which puts the white man in any respect in a different attitude or condition than the Indian is void.

In the case of Thomas Brinnon v. The Choctaw Nation, cited by you, the facts are very similar to those in the case under consideration. The Choctaw-Chickasaw citizenship court held that the applicant in that case was entitled to be enrolled. The court in this case said:

It is our opinion that when the applicant complied with the thirty-eighth article of the treaty by marrying an Indian woman by blood according to the laws of that nation, and resided in the Territory continuously since that time, he became vested with certain personal rights; those rights he should not be divested of by a subsequent act of the Choctaw council.

The courts decisions in the cases above referred to, and which you cite as precedents for enrolling the applicant, do not necessarily control the Department in the adjudication of cases transmitted by you. However, the Department considers that your decision holding that the applicant should be enrolled is in accordance with the law, and the same is hereby approved.

Respectfully,
Thos. Ryan, Acting Secretary.

Office Of Indian Affairs

Washington, D. C., May 17, 1904.

The honorable the Secretary Of The Interior

SIR: Referring to Department letter of May 14, 1904 (I. T. D. 3956), I have the honor to enclose herewith a report from the Commission to the Five Civilized Tribes, dated March 9, 1904, transmitting the records relative to the application of Thornton D. Pearce for enrollment as an intermarried citizen of the Choctaw Nation.

March 9, 1904, the Commission to the Five Civilized Tribes decided that the applicant is entitled to enrollment as an intermarried citizen. They quote from article 38 of the treaty of 186O, section 5 of an act of the Choctaw council of November 9, 1875 (Durant Dig., 22G), from the decision of the United States court for the central district of the Indian Territory, lion. William II. II. Clay ton presiding, wherein the court, on June 29, 1897, in the matter of F. H. Robinson v. The Choctaw Nation, held that Robinson was entitled to enrollment as an intermarried citizen, and refer to the holding of the United States court for the southern district of the Indian Territory, Hon. Hosea Townsend presiding, in which it was held by that court in cases similar to the Robinson case that applicants were not entitled to enrollment, and quote from the decision of the Choctaw-Chickasaw citizenship court in the case of Thomas Brinnon v. The Choctaw and Chickasaw Nations.

The record in this case shows that the applicant, Thornton D. Pearce, is a white man; that on January 14, 1883, he was married to Mrs. P. A. Folsom, a citizen of the Choctaw Nation, and that said marriage was performed in accordance with the laws of the nation.

The applicant has resided in the Choctaw Nation since 1878. His citizen wife died in 1895, and thereafter he married C. T. Timberlake, a white woman. Article 38 of the treaty of I860 is as follows:

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.

And the fifth section of the act of the Choctaw council of November 9. 1875, provides:

Should any man or woman, a citizen of the United States or of any foreign country, become a citizen of the Choctaw Nation by intermarriage as herein provided, and be left a widow or widower, he or she shall continue to enjoy the rights of citizenship ; unless he or she shall marry a white man or woman or person, as the case may be, having no rights of Choctaw citizenship by blood. In that case all bias or her rights acquired under the provisions of this act shall cease.

In the case of F. H. .Robinson, above mentioned, which is similar to the case under consideration, the United States court for the central district of the Indian Territory, held in 1897 that the applicant was entitled to enrollment As stated by the Commission, the United States court for the southern district of the Indian Territory in similar cases in 1897 held that the applicants were not entitled to enrollment. The citizenship court on January 29, 1904, in the Thomas Brinnon case said:

The treaty of 1866 provided the applicant should be a member of the Choctaw Nation upon his complying with the treaty by marrying an Indian and residing in either the Choctaw or Chickasaw nation. If the act of council as above referred to set out was an attempt to withdraw the right from the applicant which has been conferred by the treaty, which is paramount to an act of the Choctaw council, of course the council would have no such right. What rights did the applicant acquire by reason of his marriage to a Choctaw Indian and residence in the Choctaw Nation under the treaty of 1866? Did the membership in the tribe simply mean a right on the part of the Choc taw Nation to try the applicant in their courts and subject him to the pains and penal ties of their laws without bestowing upon him any further rights that the real Indian had by reason of their membership in the tribe? We hardly think those who made the treaty intended to impose these requirements upon those who were admitted as members of this tribe by intermarriage without also bestowing upon the applicant some other benefits guaranteed to the real Indian. When a white man married an Indian woman and became a member of a tribe of Indians he forsook his own people, became isolated from his own race, and became an Indian for many intents and purposes, then why should he be deprived of all those rights other members of the tribe were entitled to enjoy? It is our opinion that when the applicant, complied with the 38th article of the treaty by marrying an Indian woman by blood according to the laws of that nation and resided in the Territory continuously since that time, he became vested with certain personal rights. Those rights he should not be divested of by a subsequent act of the Choctaw council. We are, therefore, of the opinion that this applicant is entitled to citizenship in the Choctaw Nation and is therefore entitled to a judgment by this court admitting him to such, and a judgment will therefore be entered accordingly.

In view of the records in this case, and considering the position taken by Judge-Clayton in the Robinson case, and the holding of the citizenship court in the Brinnon case, and the recommendation of this office of May 14, 1902, in the Matt Davis case, which is, in so far as Matt Davis is concerned, almost identical with this case, the office is of the opinion that the decision of the Commission is correct, should be approved, and its approval is recommended. Very respectfully,

A. C. Ton Nek, Acting Commissioner.

 



MLA Source Citation:

United States. Commission to the Five Civilized Tribes. Laws, Decisions and Regulations Affecting the work of the Commissioners to Five Civilized Tribes, 1893-1906. Washington: Government Printing Office, 1906. AccessGenealogy.com. Web. 18 September 2014. http://www.accessgenealogy.com/native/decision-rendered-thornton-d-pearce.htm - Last updated on Mar 28th, 2013


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