Department Of The Interior,
Washington, March 17,1903.
The Commission To The Five Civilized Tribes
Muskogee, Indian Territory
Sirs: I am in receipt, through the Commissioner of Indian Affairs, of a report of your commission relative to the right to identification as Mississippi Choctaws of half-blood children of identified full-blood Mississippi Choctaws.
November 21, 1902 the department referred to your commission for consideration and report a communication from Charles F. Winton, of November 11, 1902, contending that the children of identified full-blood Mississippi Choctaws are entitled to identification, though such children are of part white blood. Your commission made its report of December 9, 1902, that in its opinion:
The identification of Mississippi Choctaws is limited to full-blood Indians alone, with the exception of those persons who can show proof of compliance on the part of their ancestors with the provisions of the fourteenth article of the Choctaw treaty of 1830 or the descendant of any Mississippi Choctaw who received a patent to land under said fourteenth article.
The provisions of the forty-first section of the act of Congress of July 1, 1902 (32 Slats. 641), can not in the opinion of the commission be construed to confer upon the children of full-blood Choctaw Indians by white persons the special benefits therein conferred upon full-blood Choctaws.
Article 2 of the treaty of September 27, 1830 (7 Stat., 333). granted to the Choctaws en bloc a tract of land in Indian Territory in fee simple. Part only of these Indians removed to the granted land. By article 14 of the treaty they had a right to remain and become citizens of the States and there take allotments of land. By article 16 the others were to be removed to the Indian Territory.
Section 21 of the act of June 28, 1898 (30 Stat., 495, 503), authorized the commission to determine the identity of Choctaw Indians claiming rights in the Choctaw lands under the fourteenth article of the treaty of September 27, 1880, supra, and to make a correct roll of citizens of the several Indian nations, and directed 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 be 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.
Article 41 of the agreement between the United States and the Choctaw and Chickasaw Nations, made March 21, 1902, ratified on part of the United States July 1, 1902 (32 Stat., 641. 651), provides on behalf of the Mississippi Choctaws that all persons identified by the Commission to the Five Civilized Tribes under section 21 of the act of June 28, 1898, supra, as Mississippi Choctaws entitled to benefits of article 14 of the treaty of September 27, 1830, supra, may, within six months from their identification, make bona fide settlement in the Choctaw-Chickasaw country, and upon proof of such settlement within a year after their identification be enrolled as Mississippi Choctaws entitled to allotment, applications for identification as Mississippi Choctaws being limited, however, to six months from final ratification of the agreement.
Said article prescribed as a rule of evidence that (1) all full-blood Mississippi Choctaws and (2) the descendants of full or mixed blood Mississippi Choctaws who received patent to hind under article 14, supra, who had not moved to the Choctaw-Chickasaw country prior to June 28, 1898, shall be deemed Mississippi Choctaws entitled to benefit of article 14 of the treaty and to identification as such by said commission.
But under the further provisions of said article the foregoing clauses 1 and 2 shall not operate to the benefit of one (a) not a Mississippi Choctaw of the full blood or one (6) not descendant of a Mississippi Choctaw who received patent to land under the treaty or to one (c) otherwise barred of the right of citizenship in the Choctaw Nation.
Under these provisions of law the question arises whether children of mixed white blood of a duly identified full-blood Mississippi Choctaw are entitled to enrollment as Mississippi Choctaws entitled to allotment in the Choctaw-Chickasaw country.
It can not be presumed that by clauses 1 and 2 above it was intended to authorize the enrollment of a person as a citizen of the Indian Nation and at the same time to exclude that person’s descendants. To do so would be contrary to the law of descent and right of the child to succeed to the civic rights of membership in the community to which the parent belongs, universally recognized by all political organizations and differing only in respect to the line of descent whether confined to the male or female tine or common to both.
To admit to enrollment one because he has been identified as a full-blood Choctaw and to exclude from that privilege his child, unless such child can show that a remote ancestor had. in fact, received the benefit of article 14 of the treaty of 1830 would be absurd. The whole tenor of the legislation relating to the enrollment of members of the Five Civilized Tribes shows an intention to avoid such an absurdity and to give to the child the same rights as to citizenship as are held by the parent. The controlling motive in the enrollment of Mississippi Choctaws is to exclude all who can not trace their claims to one who comes within the provisions of said article of the treaty of 1830 and to enroll all who can thus trace their claims. In the case presented here the father has, under the rule of evidence prescribed, brought himself within the provisions of said treaty, and all who can trace their descent from him must be considered as having brought themselves within the rule of evidence thus prescribed. The fact of mixed blood can not exclude children of those identified as entitled to be enrolled as Mississippi Choctaws from right to be enrolled as such. You will be governed accordingly, and will enroll as Mississippi Choctaws the children of all persons who are or may be identified by you as full-blood Mississippi Choctaws entitled to enrollment.
Very respectfully, E. A. Hitchcock.