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Directions Issued February 9, 1907, to Commission
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Department Of The Interior,
Washington, April 22, 1912.
Hon. John H. Stephens,
Chairman Committee on Indian Affairs,
House of Representatives.
Sir: In compliance with the informal request of yourself and other members of the Committee on Indian Affairs, expressed at our recent conference, I am writing you with a view to furnishing the information which it was then agreed upon should be placed at the disposal of the committee respecting the claims of certain classes of persons whose names were omitted from the rolls of the Five Civilized Tribes approved by the Secretary of the Interior.
I will endeavor to supply the desired information by stating in substance the several questions discussed at the conference and giving you the facts, with as much precision as is possible at this time, concerning each.
1. At what time, in the course of the adjudication in the office of the Secretary of the Interior, was the deliberate consideration of Indian citizenship cases succeeded by the hasty examination incident to the attempt to complete the enrollment work by March 4, 1907.
The answer to this question is February 9,1907, which is evidenced by an order issued that day by the Secretary of the Interior to the Chief of the Indian Territory Division (copy herewith). The period of haste therefore extended from February 9 to March 4, 1907, both inclusive.
2. What classes of cases should be investigated or reexamined if any reopening of this work is to be authorized by Congress?
Class I includes those persons who, in a broad sense, were under legal disability at the time of the making of the rolls. More specifically stated, it embraces
(a) minors living March 4, 1906, either of whose parents is enrolled, or would have been entitled to enrollment if living at the date fixed for determining the right to enrollment;
(b) persons incarcerated, insane, or otherwise incompetent; and
(c) persons who. if enrolled, would be members of the restricted class; for none of whom application was made or proper proof submitted within the time prescribed by law, but who were otherwise apparently entitled to enrollment under the laws governing such matters.
A large part of the fieldwork of investigating cases of this class has been accomplished by representatives of this department since March 4, 1007, although there are some cases yet to be inquired into. The fruit of this fieldwork to date is embodied in two lists heretofore forwarded to Congress. The first was transmitted to the chairman of the Senate Committee on Indian Affairs by letter of February 12, 1910 copy of which was furnished the chairman of the House Committee on Indian Affairs by letter of February 23, 1910, A copy of the letter of February 12, 1910, appears on page 477 of the printed report of “Hearings before the Committee on Indian Affairs, House of Representatives. Sixty-first Congress, second session, on H. R. 19279, H. R. 19552, and H. R. 22830.” and the list referred to is commented upon in the last paragraph of page 279 of that report, which shows that it was not intended to convey the impression that a final conclusion had been reached as to the merits of these cases. It contains, exclusive of duplications, 729 names, some of which, however, are not within the noncompetent class.
The second list, consisting of several parts, was transmitted to you by my letter of February 19, 1912, wherein I stated that the persons therein named 537 in all apparently have qualifications which entitle them to enrollment in one or another of the Five Civilized Tribes, but whose names do not appear upon the final rolls. The rights of these persons were thoroughly looked into, and the examination as to them may be said to be complete, although, as indicated above, the investigation did not extend to all persons similarly situated. This investigation was completed as to the Seminoles and Creeks. It also covered all people reported in the Choctaw and Chickasaw Nations and all in the Cherokee except about three counties-Delaware, Craig, and Mayes-where a large number of full bloods live. I am informed that this investigation was made upon the informal request of the committee and that it was stopped about the last of January 1911 with the hope that the information obtained to that time might be put in shape to submit to the committee before the end of that session of Congress.
The lists transmitted February 19, 1912, include many of the names in the list transmitted February 12, 1910, as well as some cases which belong properly to the classes referred to hereinafter. Eliminating duplications, it is estimated that the lists transmitted with both of said letters do not net more than 800 names.
Class II.-This class, consisting of 52 persons, embraces those claimants whose applications were received and favorably considered by the Commissioner to the Five Civilized Tribes prior to March 4, 1907, but which were not forwarded to the Secretary of the Interior in time for action. Briefly stated, it is claimed that these persons failed to secure enrollment through no fault of their own, but solely through delay or inadvertence, and that their rights have never been finally adjudicated. The names of these claimants and the pertinent facts connected with each case are set forth in a report rendered by the Commissioner to the Five Civilized Tribes dated November 15, 1907, copy of which was transmitted to Congress with the letter of February 12, 1910, referred to above. All but one of the persons included in this class are included in the two lists referred to in connection with Class I.
Class III.-This class should include only such as were identified as Mississippi Choctaws from September 4, 1906 to March 4, 1907, both inclusive, or who were not notified of their identification until September 4, 1906. The act of July 1, 1902 (32 Stat., 641), contains a provision:
41. All persons duly identified by the Commission to the Five Civilized Tribes under the provisions of section 21 of the act of Congress approved June 28, 1898 (30 Stilts., 495) as Mississippi Choctaws entitled to benefits under article 14 of the treaty between the United States and the Choctaw Nation concluded September 27, 1830, may, at any time within six months after the date of their Identification as Mississippi Choctaws by the said commission, make bona fide settlement within the Choctaw-Chickasaw country, and upon proof of such settlement to such commission within one year after the date of their said identification as Mississippi Choctaws shall be enrolled by such commission as Mississippi Choctaws entitled to allotment as herein provided for citizens of the tribes, subject to the special provisions herein provided as to Mississippi Choctaws and said enrollment shall be final when approved by the Secretary of the Interior.
The act of April 26, 1906, declared:
That the rolls of the tribes affected by this act shall be fully completed on or before the 4th day of March 1907, and the Secretary of the Interior shall have no jurisdiction to approve the enrollment of any person after said date.
Persons identified as Mississippi Choctaws within the period of six months prior to March 4, 1907, were thus deprived of the privilege given them under this act of 1902.
There were other persons, approximating 1,100 in number, who were identified as Mississippi Choctaws, and who had sufficient time to remove to the Choctaw country, but who failed to perfect their right by removal. Such persons were not eligible to final enrollment under the agreement of 1902, and they should not be included in this class.
Class IV. In this class are included those persons whose cases were decided adversely to the claimants by the Secretary of the Interior, from February 9 to March 4, 1907, both dates included. Stated more specifically, this class embraces those persons who claim injustice was done them
(a) by reason of a misunderstanding respecting certain jurisdictional acts and a misapplication of certain opinions relating thereto, whereby records which were made up in the field, after much labor and expense, with a view to decisions upon the merits of the cases, were finally disposed of upon technical grounds, and
(b) by reason of the hurry and confusion incident to the attempted completion of the enrollment work by March 4, 1907.
To explain the jurisdictional phase of the matter it is necessary to refer somewhat in detail to certain acts and opinions. The Commission to the Five Civilized Tribes having submitted, prior to 1896, reports to Congress challenging the correctness of the tribal rolls theretofore made by the Indian officials, by reason both of the addition of names thereto of persons not deemed entitled to enrollment and the omission there from of the names of persons lawfully entitled to Indian citizenship, Congress by the act of June 10, 1896 (29 Stat., 321, 339), took away, in a large measure, from the Indian officials the authority to make their citizenship rolls and conferred jurisdiction of the subject upon officers of the United States.
Under said act, which was applicable to all of the Five Civilized Tribes and intended to accomplish the making of complete rolls, claimants were allowed to make application to said commission for citizenship within three months from the passage of the act, and the commission was required to determine the right of the applicant to be so admitted and enrolled and to decide all such applications within 90 days after made.
The act also conferred jurisdiction on the tribal courts and committees to receive applications for three months with direction to decide the same within 30 days. Right of appeal was given to the United States District Court for Indian Territory as to all cases decided under this act, both by the commission and by the Indian tribunals, with the declaration that the judgment of the court should be final. The law was silent as to whether decisions of the commission and the tribal tribunals should be final or not in the absence of appeal.
The said act also confirmed the then existing tribal rolls and directed the manner of making the final rolls in the following language:
That the said commission, after the expiration of six months, shall cause a complete roll of citizenship of each of said nations to be made up from their records, and add thereto the names of citizens whose right may he conferred under this act, and said rolls shall be, and are hereby, made rolls of citizenship of said nations or tribes, subject, however, to the determination of the United States courts, as provided herein.
The most serious question which arose under this act, in connection with subsequent acts, was whether Congress intended to confer any authority under it for the adjudication of the cases of persons having a tribal status, i. e., persons whose names appeared upon the tribal rolls or other official records, or whether the act contemplated only the adjudication of the claims of those persons whose alleged Indian rights had never been recognized by the tribal authorities.
This question was decided by the Department of the Interior several years later and by the Department of Justice still later. These rulings will be referred to in a subsequent connection.
Another question which arose late in the course of the enrollment work was whether decisions of the commission and the tribal tribunals under the act of June 10, 1896, were final, in the absence of appeal, in the sense of precluding any further consideration, under the agreements and later acts, of such cases.
During the six months allowed under the act of June 10, 1896, the applications of approximately 75,000 persons, embraced in some 7,500 claims, were received and passed upon by the commission. Hearings in the field were not had under this act, but the records were made up of affidavits and other papers filed with the commission, and its decisions, which were not signed by any member of that body, were noted usually by the single word “Approved” or “Rejected,” indorsed in pencil upon the jackets of the cases. Much uncertainty seemed to exist as to what class of persons were required to submit their cases, and many applications were made by persons whose names appeared upon tribal rolls as well as by others.
The next enrollment act was that of June 7, 1897 (30 Stat, 83), which, in so far as material, provides as follows:
That said commission shall continue to exorcise nil authority Heretofore conferred on it by law to negotiate with the Five Tribes, and any agreement made by it with any of the said tribes, when ratified, shall operate to suspend any provisions of this act if in conflict therewith as to said nation: Provided, That the words “rolls of citizenship” as used in the act of June 10, 1896, making appropriations for current and contingent expenses of the Indian Department and fulfilling treaty stipulations with various Indian tribes for the fiscal year ending June 30, 1897, shall be construed to mean the last authenticated rolls of each tribe which have been approved by the council of the nation and the descendants of those appearing on such rolls, and such additional names and their descendants ns have been subsequently added, either by the council of such nation, the duly authorized courts thereof, or the commission under the act of June 10, 1896. And all other names appearing upon such rolls shall be open to Investigation by such commission for a period of six months after the passage of this act. And any name appearing on such rolls and not confirmed by the act of June 10, 1896, as herein construed, may be stricken there from by such commission where the party affected shall have 10 days previous notice that said commission will investigate and determine the right of such party to remain upon such roll as a citizen of such nation: Provided visa, That anyone whose name shall be stricken from the roll by such commission shall have the right of appeal, as provided In the act of June 10, 1896.
Although many applications were made under the foregoing acts, very little was accomplished thereunder toward the final completion of the enrollment work, the major portion of which was accomplished under the acts and agreements that followed.
Next came the act of June 28, 1808, commonly known as the Curtis Act (32 Stat., 495), which was perhaps the most important of all enrollment acts. Under section 21 thereof provision was made for the making of rolls of citizens by blood and intermarriage of the several tribes. Authority was also given to make rolls of freedmen of such tribes and to identify Mississippi Choctaws. This act modified previous acts with respect to the confirmation of the tribal rolls by providing that the Cherokee roll of 1880 was the only roll intended to be confirmed by it and preceding acts of Congress, and authorized generally an investigation and adjudication of the rights of all persons whose names appeared on other rolls. It contemplated that such rolls should be purged of names placed thereon through fraud or without authority of law, but did not contemplate that new names should be added thereto except the names of children born after the rolls were made.
This act was followed by the jurisdictional act of May 31. 1900 (31 Stat., 221. 236). which is discussed more fully hereinafter in connection with Class V.
The foregoing acts, applying generally to the Five Civilized Tribes, were followed by acts passed in the years 1901 and 1902, approving agreements with the respective tribes. These agreements retained in substantial form the general acts, but also contained provisions of a special nature applicable to the particular tribes. They were followed by other acts in 1905 and 1906 authorizing the enrollment of a class known as “new borns.”
Referring again to the act of June 10, 1896, many appeals were taken thereunder to the United States courts, both by the Indian tribes and by individual appellants. Decisions of the appellate courts, declared under the act to be final, were made in 1897 and 1898. No subsequent authority was given in the Cherokee, Creek, and Seminole Nations to review these decisions, but a provision was inserted in the act of July 1, 1902 (32 Stat. 641) by which Congress approved the Choctaw-Chickasaw agreement of 1902, establishing the tribunal known as the Choctaw-Chickasaw Citizenship Court.
By section 31 of the act last referred to tho Choctaw and Chickasaw Nations were authorized to file a bill in equity in said court seeking annulment and vacation of all decisions rendered by the United States courts under said act of June 10, 1896. Authority was given to institute a test suit, in which actual notice was to be given to 10 persons admitted to citizenship or enrollment by said courts. These persons were to be “representatives of the entire class of persons similarly situated.” Two questions were to be determined:
(1) Should the proceedings in the United States courts under the act of June 10, 1896, have been confined to a review of the action of the Commissioner to the Five Civilized Tribes, upon the papers and evidence submitted to such commission, or should it have extended to a trial de novo of the question of citizenship?
(2) “Were such proceedings void and of no effect in the absence of notice to both of said nations?
This section provided further that in the event that the citizenship judgments obtained under the act of June 10, 1896, should be annulled or vacated in the test suit because of either or both of the irregularities claimed and insisted upon by said nations, as set forth in the two questions stated above, the files, papers, and proceedings of any citizenship case in which tho judgment or decision might be so annulled or vacated should, upon written application therefor, made within 90 days thereafter by any party thereto who was thus deprived of the favorable judgment, be transferred and certified to said citizenship court by the court having custody and control of the record in the case, and that upon the filing of such record, accompanied by clue proof of notice in writing of the transfer and certification thereto to a chief executive officer of each of said nations, said citizenship case should be docketed in the citizenship court and such further proceedings had therein as ought to have been had in the court to which the same was taken on appeal from the Commission to the Five Civilized Tribes, and as if no judgment or decision had been rendered therein.
Section 32 of said act of July 1, 1902, also provided that said citizenship court should have an appeal and jurisdiction over all judgments of the courts in Indian Territory rendered under said act of June 10, 1896, admitting persons to citizenship or to enrollment of either of said nations. This right of appeal was to be exercised under the statute by the said nations jointly or by either of them acting separately within six months after the final ratification of the Choctaw and Chickasaw agreement of 1902. The court was authorized in the exercise of such jurisdiction to consider, review, and revise all such judgments both as to findings of fact and conclusions of law and authority was given to either party to any such appeal to present such further evidence as might be necessary to enable the court to determine the controversy.
In the test case of J. T. Riddle et al., the citizenship court on December 19, 1902, rendered a decision in favor of the Choctaw and Chickasaw Nations as to both of the questions stated above, and set aside and vacated all decisions theretofore rendered by United States courts admitting applicants to enrollment.
Two classes of persons were involved in the Riddle case:
(1) Applicants who were denied citizenship rights by the Commission to the Five Civilized Tribes under the act of June 10, 1896, but who wore, on appeal, adjudged to be entitled to citizenship by the United States courts: and
(2) those persons who, after being found entitled to enrollment by said commission under said act, were afterwards successful in having such decisions affirmed by the United States courts upon appeal thereto.
Many persons of the first of these classes transferred their cases to the Choctaw and Chickasaw citizenship court in accordance with section 31 of the act of July 1, 1902, supra. However, there was much difference of opinion as to whether persons of the second class were required to transfer their cases to that court. The latter claimed that the duty, if any of taking an appeal rested upon the Indian nations as unsuccessful parties to the original proceedings, and that they (the applicants) were not required by law to take their cases to the citizenship court. This view was also held by the Department of the Interior until some time after the expiration of the 90-day period within which transfers might be made.
During the prosecution of the enrollment work by this department pursuant to the Choctaw and Chickasaw agreement of 1902, the question also arose as to whether the citizenship court had jurisdiction to consider cases where the applicants theretofore had acquired a tribal status through enrollment or other official recognition. This question, it will be observed, was analogous, if not identical, with that which is referred to in a previous connection respecting cases involved in proceedings before the Commission to the Five Civilized Tribes in the year 1896.
The leading case decided by the Secretary of the Interior upon the jurisdictional question was that of Wiley Adams, decided May 21, 1908. The decision is reported at page 144 in the book entitled “Laws, Decisions, and Regulations Affecting the Work of the Commissioner to the Five Civilized Tribes.” The report of the Commissioner of Indian Affairs of May 11, 1903 on said case appears on pages 145-147 of the same book. A copy of this volume is enclosed for your convenient reference.
The statements of facts in this case show that Adams was admitted to tribal citizenship by a citizenship committee of the Choctaw Nation November 6, 1884, and that, he was thereafter continuously recognized as a citizen of the Choctaw Nation and permitted to vote at their elections. He presented an application for enrollment to the Commission to the Five Civilized Tribes under the act of June 10, 1896. His application was denied by the commission and no appeal was taken to the courts. Subsequently the commission entertained his application for enrollment under the Curtis Act of June 28, 1898, and decided that he was entitled to enrollment. The decision of the commission concludes as follows:
It is therefore the opinion of the commission that its action upon the request of the applicant for citizenship, under the act of Congress of June 10, 1S96, was without authority of law, and of no force and effect upon the status of this applicant as a citizen of the Choctaw Nation, and also that Wiley Adams Is a citizen of the Choctaw Nation, and also that Wiley Adams is a citizen of the Choctaw Tribe of Indians in Indian Territory, and that his application therefor should be granted, and it is so ordered.
The Acting Commissioner of Indian Affairs transmitted this case May 11, 1903, with a report which reads in part as follows:
As is suggested by the commission, it had no authority under the law to remove his name from the Choctaw tribal rolls and its action in that instance was a nullity.
Under the act of June 28, 1898, the Curtis Act, additional powers were vested in the commission in that it was authorized to remove names from the rolls, which had been placed there improperly, but the investigation in this ease did not disclose any improper circumstances in connection with the enrollment of Wiley Adams by the Choctaw tribal authorities.
The decision of the Commissioner to the Five Civilized Tribes in this case and the report of the Indian Office thereon were approved in said decision May 21, 1003, by Hon. Thos. Ryan, then Acting Secretary.
To complete the history of this case it might be added that Adams’s name was subsequently placed upon the final rolls approved by the Secretary of the Interior; that his name was later stricken from those rolls, and that still later it was restored to the rolls, and that he has since been accorded full rights of citizenship.
Following the decision in the Adams case, decisions were rendered by the Secretary of the Interior, going a step further, holding that the United States courts, having only an appellate jurisdiction under the act of June 10, 1896, were also without jurisdiction over the applications of persons having a tribal status, and that consequently the citizenship court could not properly entertain such cases. Without discussing the cases in detail, in which the subject was further considered, I will merely refer to them by name and indicate the pages of the enclosed volume, cited above, where the decisions of the department are reported. They are as follows:
|Dr. Clay McCoy||147-153|
|Benjamin Vaughan et al||150-153|
|Loula West et al||153-157|
|Mary Elizabeth Martin||157-165|
In the period between the date of the decision in the Wiley Adams case (May 21, 1903) and February 19, 1907, the commission and the Commissioner to the Five Civilized Tribes heard and adjudicated many cases upon their merits, even though adverse decisions had theretofore been rendered under the act of June 10, 1896, by the United States courts and the, Choctaw-Chickasaw Citizenship Court, and the records and action in practically all cases were made to conform to the jurisdictional view of the Secretary of the Interior as expressed in said decisions.
Such was the condition of affairs February 19, 1907, when the opinion of the Attorney General was rendered relating to the cases of William C. Thompson. Loula West, and others, 26 Ops., A. G., 127-165.) It is not deemed necessary to make a copy of this opinion, as the printed volume will afford a more convenient source of reference, but the following excerpts indicate the purport thereof:
Myrtle Randolph and W. J. Thompson were children of a white father by his third wife, a white woman, his first and second wives having been Choctaws. Both parents and these children lived in the Choctaw Nation and were recognized us Choctaw citizens. The children were enrolled by the Choctaw Committee on Citizenship in 1892. Their application to the Commission to the Five Civilized Tribes for enrollment under the act of June 10, 1896 (29 Slat, 321, 339), was denied, which decision was reversed by the United States court in the Indian Territory, and its judgment affirmed by the Supreme Court. (174 U. S., 445. 469.) Subsequently, on appeal by the nation under the act of July 1, 1902 (32 Stat, 641. 646-649), their application was denied by the Choctaw and Chickasaw Citizenship Court. Held, that the citizenship court has jurisdiction and that its judgment is final.
The application for enrollment under the act of June 10, 1896 (29 Stat., 339), notwithstanding the fact that applicants were already on the rolls, was a waiver of the conclusiveness of the rolls in their cases, the act providing that the commissioner shall hear and determine the application of all persons who may apply to them for citizenship in any of said nations.
The act of July 1, 1902 (32 Stat. 641) contemplated that the citizenship court should have a revisory jurisdiction of all judgments of the United States courts in the Indian Territory admitting persons to citizenship on appeal from the judgments of the commission, whether the applicants were on the tribal rolls or not.
No authority has been conferred upon the Secretary of the Interior by the acts of July 1, 1902, paragraph 30 (32 Stat., 646) and April 26, 1906 (34 Stat., 137), to review the judgments of the citizenship court.
Loula West was admitted to citizenship in the Choctaw Nation by the Commission to the Five Civilized Tribes. The nation appealed to the United States courts in the Indian Territory and the judgment was affirmed. Later under the act of July 1, 1902 (32 Stat, 641, 647), the case was removed to the citizenship court, which denied her application. Held, that the citizenship court had jurisdiction of such cases, and its judgments therein are final.
William C. Thompson applied to the Commission to the Five Civilized Tribes for the enrollment of himself, wife, and children. The application was denied by the commission, and no appeal was taken there from. Claimant relies upon the fact that their names appear upon the tribal roll prepared pursuant to the Choctaw acts of September 18 and October 30, 1896. Held, that the action of the commission, not having been appealed from, was final and that the Choctaw Nation, even if it attempted to do so, had no right thereafter to admit them, such enrollment being without authority of law.
The provision in the act of June 10, 1S96 (39 Stat., 339), that “any person who shall claim to be entitled to be added to said rolls as a citizen of either of said tribes and whose right thereto has either been denied or not acted upon” might apply to the legally constituted court or committee of such tribes, with right of appeal to the United States court, had reference to a previous denial or failure of the tribal authorities to act, and not to action or nonaction of the commission.
The Department of the Interior attempted in the time intervening between the date of the receipt, of said opinion and March 5, 1907, to review many cases which had been decided according to the rule in the Wiley Adams case and also to decide cases then pending in conformity with the Attorney General’s opinion as construed by this department. As a result many names were stricken from the approved rolls, while many other persons, not yet enrolled, having similar cases, were denied enrollment.
By a letter of March 4, 1907, addressed to the President, copy herewith, the Attorney General made a statement as to the class of cases covered by his opinion of February 19, 1907, but this letter was not received in this department until March 6, after the jurisdiction of the Secretary to place names upon the rolls had terminated by express provision of law. Especial attention is directed to a paragraph of said letter as follows:
The persons in whose behalf Messrs McMurray and Cornish and Senator Curtis have intervened were enrolled as citizens by the Dawes Commission under the act of 1896; an appeal from this action of the commission was taken by the two nations to the United States Courts, and the decision of the Dawes Commission was there affirmed. This decree of the United States court was annulled as a result of the test case instituted in the citizenship court, in accordance with the treaty of 1902; but the case itself was not then transferred to the citizenship court, the claimants being apparently advised that they could rely upon the original decision of the Dawes Commission as entitling them to citizenship. It is obvious that the two sets of cases are not at all parallel, and I fully agree with Mr. Harr and with Senator Curtis that the terms of my recent opinion do not cover these cases.
An investigation of the records of the Commissioner to the Five Civilized Tribes has disclosed that there were about 131 of the so called jurisdictional cases decided within the period from February 9 to March 4, 1907. These cases include approximately from one to three persons each. It is estimated that the whole number of cases decided adversely between said dates by the Secretary of the Interior was 2,082. The actual number, however, requiring reexamination will be materially less because
(a) many names which were stricken from the finally approved rolls in supposed compliance with said opinions were restored to the rolls later pursuant to the decision of the Supreme Court of the United States in the case of Garfield, Secretary of the Interior, v. Goldsby (211 U. S., 249); and
(b) because the family right of the applicants has already been adjudicated in connection with other persons whose names are now on the approved rolls. This estimate does not include the so called transfer cases, affecting persons of mixed Indian and Negro blood enrolled as freedmen, a considerable number of which were adjudicated between said dates. Summarizing, the total number of cases falling in class IV will probably not exceed 1,724.
In respect of the cases decided adversely in the last few weeks, it is urged in behalf of the several tribes that such cases had, as a rule, “been carefully considered by the Commission to the Five Civilized Tribes, and that a considerable proportion of them were finally decided upon precedents found in decisions rendered before the period of hasty consideration. On the other hand, it is claimed that the decisions of the commission in many instances were rendered upon theories which did not obtain when the same cases were decided by the Secretary, and therefore that such cases received only such consideration as could be given them under the pressure of work then before the department. It is also claimed in behalf of the tribes that they suffered also because of this pressure in that names were wrongly placed upon the rolls, and that if mistakes are to be corrected by now adding names they should also be corrected by striking off names erroneously added.
Clans V. This class embraces the so called memorandum cases, which were refused consideration on the merits because of a provision in the act of May 31, 1900 (31 Stat.. 221, 23G), reading:
That said commission shall continue to exercise all authority heretofore conferred upon it by law. But it shall not receive, consider, or make any record of any application of any person for enrollment as a member of any tribe in Indian Territory who bas not been a recognized citizen thereof and duly and lawfully enrolled or admitted as such, and its refusal of such application shall be final when approved by the .Secretary of the Interior.
It is not claimed that the action of the department in refusing to consider such cases was erroneous, hut that the law was unfair and unjust, and that in the administration of this law further injustice resulted because
(1) the tribal rolls were, according to the reports of the Commissioner to the Five Civilized Tribes, incomplete and otherwise defective;
(2) the commission did not index and consult all rolls in its possession, and
(3) certain rolls were not transmitted to the commission or its successor until after the time fixed by law for the termination of the enrollment work. In disposing of this class of cases, the Secretary directed that memoranda be prepared instead of the usual formal record, and departmental action was based upon lack of jurisdiction without consideration of the merits of the cases.
The total number of cases of this class where the applicants may appear by reason of their descent and other facts to have been prima facie entitled to enrollment can be ascertained from the “census cards” in the office of the Commissioner to the Five Civilized Tribes, and will probably not exceed 140.
Recapitulating from the information at hand, it has been estimated that the approximate number of cases in the several classes mentioned are as follows:
|Class I.||Noncompetent cases (one person to a case)||800|
|Class II.||Delinquent cases (due to administrative delay)||52|
|Class III.||Mississippi Choctaw cases (families)||10|
|Class IV.||Jurisdictional and imperfectly adjudicated cases (averaging perhaps three persons to a case)||1,724|
|Class V.||Memorandum cases||140|
|Deducting 51 cases covered by both classes I and II|
As these classes necessarily overlap in a measure, it is probable that 10 per cent of the cases, and perhaps more, can be conservatively charged to duplications.
3. What will be the necessary time and expense of making an investigation?
The answer to this depends entirely upon the extent of the investigation that may be directed by Congress. If it be limited to those cases falling in Classes I, II. and III, it could probably be satisfactorily completed in six months after the force is organized and ready for work at an expense of not less than $6.000.
If Class IV is added, the time should be considerably extended or a separate force employed, and in either case the cost would be considerably augmented. The work pertaining to this class could possibly be done in six to eight months with a force of 8 to 10 employees, and at a cost of approximately $12.000. This is upon the theory that the examination will be limited to the records heretofore made up, and that no further testimony will be taken or investigation in the field required or additional arguments heard. If the cases are to be heard de novo, or if supplemental testimony is to be taken, the mere matter of notice so that all interested may be a Horded an adequate opportunity to be heard would involve a period of time that can not be estimated with any degree of accuracy. After the testimony is taken, time should be allowed claimants and the nations to present argument for and against the claims. Certainly this could not be brought within a period of less than one year, and whether it could be done within that time would depend upon the number of people who could be employed on the work. The cost of such a thorough examination as should be made, if this work is to be reopened, is entirely problematic. It has been estimated by those somewhat familiar with the subject at from $15.000 to $25,000.” If the claim of the tribes that any investigation to be made should include names mistakenly placed on the rolls is to be given recognition, the work and cost would be largely increased.
If Class V be added, additional testimony will have to be taken, because the records have not been made up in all these cases. The number of such incomplete cases can not be definitely ascertained without an examination of existing records in all this class. To properly handle this class will require additional time or additional force. The added cost can not be closely calculated, but it has been estimated at from $6,000 to $10,000.
As intimated before, the work to be done depends so much upon the form the legislation shall take that it is impossible to make a reliable or satisfactory advance estimate. If the new law shall prescribe new bases for rights, it is altogether possible that difficult questions of construction will have to be decided before the actual work of examination of concrete cases can be begun. It is not improbable that the views of the new examiners as to the proper construction of existing laws may be different from those obtaining when the cases were previously adjudicated. In either of these contingencies the parties interested, both claimants and the tribes, should be given opportunity to be heard before a conclusion is reached. This would consume time and add to the expense.
4. Whether there is available for the use of the committee a draft of a provision relating to this matter prepared in the department.
A draft of a provision concerning this matter was prepared in the department probably about February 1911, and a copy thereof is herewith for your information. This was done in compliance with an informal request from your committee and for its convenience. This, I am told, was not formally adopted by the department nor intended to be taken as expressing the views of this department that the enrollment work should be reopened. The transmission of a copy of this informal paper at this time is not to be taken as a recommendation by the department that legislation be enacted in that form or at all. The purpose of this communication is simply to supply you with such information as the files of the department contain on the subject. It may not be inappropriate to call your attention to the fact that substantially all the information herein has been furnished heretofore, except perhaps that the estimates of the number of cases falling within the several classes are now somewhat more definite. Very respectfully,
First Assistant Secretary.
[Vol. 6, p. 133, memorandum copies, Indian Territory Division.]
February 9, 1907.
Chief Indian Territory Division:
In view of the provision in section 2 of the net of April 26, 1906 (34 Stat. 137), “That the rolls of the tribes affected by this act shall be fully completed on or before the 4th day of March, 1907, and the Secretary of the Interior shall have no jurisdiction to approve the enrollment of any person after said date,” you are directed to have prepared in citizenship cases, with as little delay as possible, letters affirming the decisions of the Commission to the Five Civilized Tribes and the commissioner to such tribes, in the absence of an adverse recommendation by the Indian Office, when not in conflict with the plain provisions of law, accepting the finding of facts of said commission or commissioner, and where the question involved in any case is not pending before the Assistant Attorney General or the Attorney General.
E. A. Hitchcock, Secretary.
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