John R. Kirk Et Al.
Commission jacket No. R-155.
August 31. 1896. Original application filed with the commission for the enrollment of Amanda N. Kirk as a citizen of the Choctaw Nation by intermarriage, and her children, John R. and Malinda, as citizens by blood.
Amanda N. Kirk claimed her right by reason of her marriage to John C. Kirk, deceased, who was a citizen of the Choctaw Nation by blood.
November 10. 1800. Commission rendered its decision in words and figures as follows, to wit: ” Rejected.”‘ From this decision there was no appeal.
November 10, 1896. John R. Kirk. 14 years of age, appeared before the commission at McAlester, Ind. T., and applied for the enrollment of himself and his sister, Malinda Kirk, 12 years old. The record shows that claimants are the children of John C. Kirk, a half-blood Choctaw Indian who died when applicant, John R. Kirk, was 4 years old and when his sister was an infant; that claimants were born in the Choctaw Nation; that there mother was a white woman, who upon the death of her husband married a man by the name of Blackburn: that upon the death of claimants’ father the two children. John R. and Malinda, were taken by a white man by the name of John R. Davis to Oklahoma, where they lived for a period of five rears; that the said John R. Davis then returned to the Choctaw Nation, bringing the children with him. and that they have since continuously resided therein.
It appears from the affidavits of Hawkins Seeley and Billie Duke that the father of John C. Kirk, a white man. went to the war and never returned, and from the affidavits of Richard Duran and Nancy Underwood that John C. Kirk’s mother, Annie Kirk, nee Parker, a full-blood Indian, died in the year 1863, thus leaving John C. Kirk, father of the claimants, an orphan.
It further appears that although the father of applicants received his share of the net proceeds claim, paid in 1889, and was born and lived in the Choctaw Nation, where he was always recognized as a Choctaw, his name is not on any of the tribal rolls.
It further appears from the record that on November 14, 1899, the mother of the claimants appeared before the commission at McAlester and made application for the enrollment of the children. John R. Kirk and Malinda Kirk, as citizens by blood of the Choctaw Nation. (Copy of the examination records of John R. Kirk, John R. Davis, and Novella Blackburn are hereto attached and marked ” Exhibits A-A 1.”)
The affidavits of Billie Duke and Hawkins Seeley, John R. Davis and E. J. Davis, Richard Duran and Nancy Underwood are hereto attached and marked ” Exhibits B, C, and D.”
April 14, 1902. Commission rendered its decision denying claimants because their names and the names of their father did not appear on the tribal Indian roll. (Copy of the said opinion hereto attached and marked ” Exhibit E.”)
May 14, 1902. Decision of the commission approved by the Secretary.
Counsel for claimants respectfully submit that to deny these infant children their clear right to enrollment as citizens by blood of the Choctaw Nation because their names, or the name of their father, do not appear on the tribal rolls is gross injustice in view of the fact that their father was left an orphan when an infant and John R. and Malinda Kirk were taken by white people to raise when the former was only 4 years old and the latter but 2 years old. The blood and residence of the claimants is clear and they should be enrolled.
(Two in all.)
Respectfully submitted.
Walter S. Field, Attorney for Claimants
Exhibit A
Commission To The Five Civilized Tribes,
McAlester, Ind. T.,
November 13, 189V.
In the application of John R. Kirk and sister for enrollment as Choctaws, being sworn and examined by Commissioner McKennon, he states:
Q. What is your name?
A. John R. Kirk.
Q. How old are you?
A. Fourteen.
Q. Where were you born and raised?
A. I was born in the Choctaw Nation.
Q. Have you lived there all of your life?
A. Most all of my life. .
Q. Where did you live besides that?
A. In Oklahoma.
Q. How long?
A. About six years.
Q. When did you come back to the Choctaw Nation from Oklahoma?
A. About five years ago.
Q. You had been six years there and returned here five years ago from Oklahoma?
A. Yes, sir.
Q. Have you any father and mother living?
A. I have a mother living; my father is dead.
Q. Is your mother a white woman or an Indian?
A. She is a white woman.
Q. Was your father an Indian?
A. Yes, sir.
Q. What kind?
A. Choctaw.
Q. What was his name?
A. John C. Kirk.
Q. Do you know how long he has been dead?
A. I was about 4 years old when he died.
Q. Do you know whether your father was a recognized Choctaw citizen or not?
A. I don’t know.
Q. You don’t know whether he was ever on the rolls or not
A. No, sir.
Q. Have you got any brother or sister living?
A. I have got a sister.
Q. What’s her name?
A. Malinda Kirk.
Q. How old is she?
A. She Is about 12 years old.
Q. What is your mother’s name?
A. Novella Kirk. She has married again, and her name is now Novella Blackburn.
John R. Davis, being sworn and examined, states:
Q. What is your name?
A. John R. Davis.
Q. How old are you?
A. Fifty-six.
Q. You are a white man?
A. Yes, sir.
Q. Don’t claim citizenship in the Choctaw Nation?
A. No, sir.
Q. Do you know John Kirk?
A. Yes, sir.
Q. And his sister. Malinda Kirk?
A. Yes, sir.
Q. Did you know their father?
A. I did.
Q. Was he an Indian?
A. Yes, sir.
Q. What kind of an Indian?
A. He claimed and showed to be a half Choctaw Indian.
Q. How long did you know him?
A. I knew him about 20 years, up until he died: he died 2 years after Oklahoma opened up.
Q. About how many years ago was that?
A. I think about 10 years. It seems to me: I had been in Oklahoma 2 years when he died.
Q. Did yon know their mother?
A. Yes, sir.
Q. What is she?
A. She is a white woman.
Q. The mother of these two children?
A. Yes. sir.
Q. Where were they married?
A. In Red River County, Tex.
Q. Have these children always lived here in the Choctaw Nation?
A. With the exception of pretty near 5 years: I kept them in Oklahoma after their daddy died.
Q. When did you return to the Choctaw Nation?
A. Going on 5 years ago.
Q. Are they living with you now?
A. Yea, sir; this boy does; the girl is going to school at Pauls Valley.
Q. Do you know whether their father was ever a recognized Choctaw citizen?
A. I don’t know that he was ever on the rolls.
Chick Com Peter Maytubby. Did you try to enroll these children at Tishomingo?
A. I tried to enroll them at Stonewall, but not at Tishomingo.
Commissioner McKennon. These two children are not on any of the Choctaw rolls.
Examined by Choctaw Commissioner Lewis :
Q. Did these children draw land out in Oklahoma?
A. No, sir.
Commissioner McKennon:
Q. Did they draw money?
A. These applicants’ father got money at Atoka : I don’t know how much he got.
Q. That was the net proceeds?
A. That was in 1889. I think.
Commissioner McKennon. That was the net proceeds, and was distributed to the heirs of the parties entitled to it.
Witness. The only time the children has ever been out of the Territory was when their father died, and I come and got them and took them to Oklahoma and kept them there, and when they come back the Indians that knew them let them go to the Indian schools: that was the Chickasaw schools.
Commissioner McKinnon: Enrollment refused.
Department Of The Interior, Commission To The Five Civilized Tribes.
I hereby certify, upon my official oath as stenographer to above named commission, that this transcript is a true, full, and correct translation of my stenographic notes.
M. D. Green.
Exhibit A1
Commission To The Five Civilized Tribes
McAlester Ind. T., November 14, 1899.
In the application for the enrollment of John and M. C. Kirk, as Choctaws. Novella Blackburn, being sworn and examined by Commissioner McKennon, testifies as follows:
Q. What Is your name?
A. Novella Blackburn.
Q. How old are you?
A. Thirty.
Q. You are a white woman?
A. Yes, sir.
Q. You say you have two children; what are their names?
A. John Kirk and M. C. Kirk.
Q. How old is John?
A. Fourteen years old.
Q. How old is the other?
A. She is 12 years old.
Q. Application was made for them in 1896 to the Dawes Commission, and they were rejected?
A. Yes, sir; they were overlooked; we had no attorney whatever.
Q. They were rejected by the Dawes Commission?
A. Yes, sir.
Q. That judgment was not appealed from?
A. No. sir.
Commissioner McKennon. That judgment is absolutely final against them, and their enrollment is. of course, refused.
Department Of The Interior, Commission To The Five Civilized Tribes.
I hereby certify upon my official oath as stenographer to above named commission that this transcript is a true, full, und correct translation of my stenographic notes.
M. D. Green.
Exhibit B
Indian Territory, Southern District:
In the matter of the application for enrollment as citizens of the Choctaw Nation of Amanda N. Blackburn. John C. Kirk, and Malinda C. Kirk on this the 26th day of June, 1899, before me a notary public in and for said district and Territory, Willie Duke (alias Willis Suchy) and Hawkins Seeley, the former of Jesse, Ind. T., and who by me being first duly sworn did upon their respective oaths state and depose as follows:
That they were personally each well acquainted with John C. Kirk in his lifetime, and who was the father of said John R. and Malinda Kirk, and the husband of Amanda N. Blackburn: that they knew said John C. Kirk when he- was a small boy in the Choctaw Nation ; that he was a Choctaw Indian by blood, and they knew him by the name of John Parker, and his mother’s name was May Parker; that was her Indian name but she married a white man by the name of Kirk who went off to the war and never came back. May Parker had two children, a boy and a girl. We do not know what became of the girl. We saw John Kirk, the father of said John R. and Malinda Kirk, often until bo moved from our part of the nation to near Purcell, Ind. T. We knew him after he married Amanda Blackburn, nee Davis, the mother of the children John R. mid Malinda Kirk. After they were married they lived for over three years in the same neighborhood with us. and we were at their house frequently, and we saw the said children after they were born and knew them to be the children of said John Kirk whom we knew as a boy by the name of Parker. He took the name of Kirk after his father when he became a grown man. John Kirk (Alias Parker) was undoubtedly a Choctaw Indian. Our mother was n sister of May Parker’s mother and we always called John Kirk (Parker) a cousin of ours. He looked like an Indian. He was dark skinned, black, straight hair, and brown eyes.
(Signed) Bille Duke (Billie Duke).
(Signed) Hawkins (his X mark) Seeley.
Witness to mark:
T. N. Patmell
Subscribed and sworn to before me on this 28th day of June, 1890.
[seal.] T. N. Palmett,
Notary Public.
(Endorsed on back: “Department of the Interior, received Jan. 6, 1900. No. 56. Indian Territory division. Affidavit of Billy Duke.” “1021. Department of the Interior, received Oct. 2, 1899. No. 2827. Indian Territory division. John K. Kirk et al. vs. Choctaw Nation. Affidavit of Billie Duke and Hawkins Seeley.”
Exhibit C.
Indian Territory, Southern District:
On this the 21st day of July, 1899, personally appeared before me a notary public in and for said district and Territory, J. R. Davis and E. J. Davis, residents of the Chiekasaw Nation, Ind. T., mid stated in relation to the Choctaw citizenship of J. R. Kirk and Malinda Kirk, orphan children of J. C. Kirk, deceased, as follows. That he (J. C. Kirk) lived in the house with them for two years in Texas, and they lived with him in the Choctaw and Chickasaw Nation for five years: that he died in April, 1891, at Purcell. Chicasaw Nation, and was buried at Purcell Chickasaw Nation, and that they had taken his children and had taken care of them for six years in Oklahoma. And I, J. R. Davis, brought them back to Stonewall, Chickasaw Nation in August 1897, to be enrolled by the Dawes Commission, and they were rejected by said commission because they were not found upon the Indian enrollment, and it was stated by Bill Bowlin that their names had been taken from the enrollment by and through the directions of Palmer Mosby, governor of the Chiekasaw Nation, also that said children have been attending the Indian schools at Colbert and Pauls Valley before and since said rejection. And they further state that they first became acquainted with their grandfather who was a white man, formed said acquaintance in the Choctaw Nation near where Antler now is in the year sixty-two or three, and that Kirk volunteered in the United States Army and died in Little Rock, Ark., during the war, and their mother died in 1863. Her maiden name was Annie Parker: and they further state that said J. C. Kirk, now deceased (who was the father of J. R. Kirk and Malinda Kirk), was taken care of by Chas. Payne, a white man who had taken him down on Red River with whom he lived for three or four years. He then went back to Choctaw Nation and afterwards lived with him for two years in Red River County, Texas prior to his marriage with Novellan Davis, their, daughter. They also state that when he was with the Indians that he was known as John Parker, or John Counter Parker, Parker being the maiden name of his mother.
And I. J. R. Davis, further state that I went with J. C. Parker to Atoka in time of the payment of the annuity in the year 1899, and he drew his annuity and his citizenship was not questioned nor disputed. He drew said money in the name of Parker, which was the name of his mother prior to her marriage with Kirk.
And they also state that the mother of J. C. Kirk, alias J. C. Parker, was a full-blood Choctaw Indian.
(Signed) J. R. Davis.
(Signed) E. J. Davis (his X mark).
Subscribed and sworn to before me this the 21st day of July, 1899.
[seal.] (Signed) A. B. Swanson, Notary Public.
Exhibit D
Indian Territory, Southern District:
On this the 20th day of July 1899. personally appeared before me, a notary public in and for said district and Territory, Richard Duran and Nancy Underwood, citizens of the Chickasaw Nation, Ind. T.. and stated in relation to the Choctaw citizenship of J. R. Kirk and Malinda Kirk, orphan children of J. C. Kirk, deceased, as follows: That they knew J. C. Kirk and his mother in the Kimishi Mountains in the Choctaw Nation. Ind. T., and that his mother was a full-blood Choctaw Indian, and that her maiden name wus Annie Parker, and that she died in time of the rebellion between the States in the year 1863. and that J. C. Kirk, deceased, drew money in 1889 in the Choctaw Nation at Atoka in the name of Parker, his mother’s name before marriage: and they further state that the said J. R. Kirk and Malinda Kirk, whose names appear in this affidavit, are the identical persons desiring enrollment before the Dawes Commission Indian Territory, and that they are the children of J. C. Kirk, deceased, whose Indian name was Jhen Parker, or by which he was known among the Indians.
(Signed) Richard Duran (his x mark).
(Signed) Nancy Underwood (her x mark).
Subscribed and Sworn to before me this the 20th day of July, 1899.
[seal.] (Signed) A. B, Swanson, Notary Public.
Endorsed on back: “Department of the Interior, received Jan. 6, 1900. No. 56. Indian Territory Division. John R. Kirk et al. vs. Choctaw Nation Affidavits.”
Exhibit E
Department Of The Interior,
Commission To The Five Civilized Tribes
In the matter of the application of John R. Kirk and his sister, Malinda Kirk, for the enrollment of themselves as citizens by blood of the Choctaw Nation.
Decision
The record in this case shows that on November 13, 1899. the applicant, John R. Kirk, appeared before the commission at McAlester. Ind. T.. and there and then made personal application for the enrollment of himself and his minor sister, Malinda Kirk, as citizens by blood of the Choctaw Nation.
It appears from the records of this commission that Amanda Kirk filed the, original petition for the admission of John R. Kirk and his sister. Malinda Kirk, children of John C. Kirk, as citizens of the Chickasaw Nation with the commission under the provisions of the act of Congress of June 10, 1896. (29 Stats.. 321.)
Under this act the applicants submitted their rights as citizens of the Chickasaw Nation for adjudication to the Commission to the Five Civilized Tribes, and in the Chickasaw case. No. 68, the commission denied the applicants citizenship in the Chickasaw Tribe, and no appeal was prosecuted there from to the United States court in Indian Territory, and the rights of applicants as Chickasaws became res adjudicata.
Applicants now ask to be enrolled as citizens of the Choctaw Nation, and the evidence shows that they are the children of John C. Kirk, a Choctaw Indian by blood, and it further shows that John C. Kirk’s name was never on any of the rolls of said tribe, nor was he ever recognized by any of the tribal authorities as a citizen of said nation, nor does it appear that said John C. Kirk, the father of these applicants, was ever admitted to citizenship by the legally constituted authorities of said Choctaw Nation.
It does not appear from the evidence offered in support of this application and an examination of the tribal rolls of the Choctaw Nation in the possession of the commission that the applicants have ever been enrolled as citizens of the Choctaw Nation, nor do their names appear on any of the tribal rolls of the Choctaw Nation in the possession of the commission, nor does it appear that they have ever been admitted to Choctaw citizenship by the legally constituted authorities of the said nation.
It further appears from an examination of the records in the possession of the Commission to the Five Civilized Tribes that neither of the applicants have ever been admitted to citizenship in the Choctaw Nation by the Commission to the Five Civilized Tribes or by a decree of the United States court in Indian Territory, in accordance with the provisions of the act of Congress of June 10, 1896. (29 Stats.. 321. supra.)
The act of Congress of June 28. 1S9S (30 Stats.. 495). provides as follows:
“Said commission is authorized and directed to make correct rolls of the citizens by blood of all the other tribes (excepting Cherokee), 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 rights 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 John R. Kirk and Malinda Kirk are not lawfully entitled to he enrolled as members of the Choctaw Tribe of Indians in the Indian Territory, and that their application as such should be refused, and it is so ordered.
The Commission To The Five Civilized Tribes.
_______ _______, Acting Chairman.
________ _______, Commissioner.
________ _______, Commissioner.
Muskogee, Ind. T. April 14, 1902
