M. W. McCarley Et Al.. Chickasaws.
Dawes Commission. No. 100. United States court. No. 4, Ardmore. Citizenship Court, No. 77-T.
September 9, 1896. Application made to the Dawes Commission for the enrollment of Daniel McDuffie, Elizabeth McDuffie. R. H. McDuffie. Callie H. McDuffie, Mattie L. McDuffie. Casey E. McDuffie, J. M. Crawford, M. J. Crawford, J. M. Crawford, Mary McCarley, Manda Jarvas, George Jarvas, Sarah Ann Jarvas, Nancy Jarvas, W. M. McCarley, Nancy McCarley, James McCarley, Eli McCarley, Sidney McCarley, Macom McCarley, Sarah McCarley, Walter McCarley, Effie McCarley, Ernest McCarley, and Nancy McCarley as citizens by blood, with the exception of George Jarvas and M. W. McCarley, who applied as intermarried citizens.
Said application sets up the fact that the applicants had applied to the Chickasaw court of claims, and that after hearing the claim the court issued the following certificate:
Certificate Of Citizenship
Daniel McDuttie v. Chickasaw Nation. Suit for citizenship
Office Court Of Claims.
Chickasaw Nation Tishomingo, Ind. T., February 14, 1895.
This day this cause came on for hearing. After examining evidence produced by plaintiffs the court was of the opinion that the following parties to the suit are Chickasaws and are entitled to the rights of Chickasaw citizens: Daniel McDuffie and his wife, Elizabeth McDuffie, and their children. R. H., Callie H., Mattie, Lee and Casey E. McDuffie: J. M. Crawford and his wife, M. J. Crawford; Mrs. Amanda Jarvis and her children, Sarah Ann, Mary Jane, and Nancy Jarvis: William McCarley and his wife Nancy McCarley and their children, Sarah Ann, Ell, Sidney, Macom, Walter, Effie, Mary, Earnest, and Nancy McCarley.
Given under our hands this day and date above written.
C. A. Burris, Chairman.
W. H. Bourland,
J. Brown, Committee.
R. H. Nichols. Clerk.
The application sets out that the findings of the court of claims was sent to the Chickasaw legislature for its approval, but that the legislature, without having received the testimony or being advised of the facts, passed upon the case adversely.
The application then affirmatively states that the applicants are Chickasaw Indians by blood, and direct descendants of Nancy Frazier, a Chickasaw Indian, who resided in the State of Mississippi prior to the removal of the Chickasaw tribe to the Indian Territory.
There was attached to the application the proceedings before the court of claims, consisting of their petition in that court, and the depositions taken in said court of William Simpson and J. F. Wolf, in addition to evidence of applicants.
William Simpson testified that he knew Nancy Frazier in Mississippi; that she was a Chickasaw by blood; that she had five children, Henry Frazier, Tom Frazier, Nancy Frazier, Polly Frazier, and Charles Frazier. That they lived in Yalobusha County, Miss. That Nancy Frazier married Archie McDuffie. That Norman McDuffie was a son of Archie and Nancy McDuffie. That the said Norman married, but that he (witness) did not know the names of his children. That Nancy Frazier came to the Chickasaw Nation in 1835 or 1837.
J. S. Wolf testified to the same facts.
October 3, 1896. Answer of the Chickasaw Nation filed denying the right of the Chickasaw court of claims to issue certificates of citizenship and setting up the action of the legislature nullifying the action of the court of claims.
Attached to the answer were two ex parte impeaching affidavits of B. S. Kemp and H. F. Hurry.
Kemp, who swears that he is an Indian, names nine persons, two of which are witnesses in this case, as having a notoriously bad reputation for truth and veracity. He also states he came to the Indian Territory with the Chickasaws in 1837; that he never knew but one Nancy Frazier, who had one child each by two different men, but that he did not know their names nor does he state whether they were male or female children or what became of them. H. F. Murry swears that witness J. F. Wolf is not worthy of belief.
November 10, 1896. The Dawes Commission rendered its decision in this case in words and figures as follows, to wit, “Rejected.”
An appeal was taken from the above decision to the United States court for the southern district of the Indian Territory sitting at Ardmore and referred by that court to a master in chancery.
The following is quoted from the testimony of J. M. Crawford before the master in chancery:
Q. I will ask you if you have not always been recognized and treated as a Chickasaw Indian and have enjoyed the privileges that any other Chickasaw Indian enjoys?-
A. Yes, sir: I have always been recognized ns a citizen of the Chickasaw Nation and have got permits from Chickasaw government and have had orders to put men off my place from the Chickasaw Nation on three different occasions and at one time I brought one of the men in arms.
Q. Did you ever get any permits?-
A. Yes, sir; I got permits five or six years ago.
Q. Have you any of them now?-
A. No sir; I have none with me at this time, but Charles Carter jas written me permits.
Q. Has anyone ever held land under you?-
A. Yes sir.
A. Old man Brocketts held land under me three years, and I was holding land by virtue of me being a citizen of the Chickasaw Nation.
Q. Did you apply for annuity in 1892?-
A. Yes, sir; I did.
Q. Did you draw any?-
A. No, sir.
Q. Who was your partner in business?-
A. Judge Carter.
Q. When were you before the court of claims?-
A. In 1889.
Q. Who was your attorney?-
A. Judge Carter.
March 12. 1898. There was filed the report of the master in chancery reading as follows:
In the United States court for the southern district of the Indian Territory at Ardmore, Daniel McDuffie, plaintiff, v. The Chickasaw Nation, defendant. Masters’ report.
To the Hon. Hosea Townsend. Judge:
The plaintiff, Daniel McDuffie, and his wife, Elizabeth McDuffie, and their children. R. H., Callie H., Mollie Lee and Casey E. McDuffie; J. M. Crawford and his wife, M. J. Crawford: George Jarvis and his wife, Amanda Jarvis, and their children, Sarah Ann, Mary Jane, and Nancy Jarvis: W. M. McCarley and his wife, Nancy McCarley, and their children, James, Eli, Sydney, Macon, Sarah, Walter, Effie, Mary, Ernest, and Nancy McCarley all claim to be Chickasaw Indians and lineal descendants of Nancy Frazier, a full-blood Chickasaw Indian, and pray to be enrolled as such.
The defendant denies that plaintiffs are Chickasaw Indians or entitled to enrollment, and alleges that said Nancy Frazier, under whom plaintiffs claim their right, only had two children, one of whose names is Winchester Colbert and the other is named Leader: that none of these applicants are descendants of the said Nancy Frazier; and that she is the only Chickasaw Indian by that name it ever knew. He further alleges that the court created by the Chickasaw legislature, who issued the certificates of citizenship to the plaintiffs heroin, had no right to issue the same; that the Chickasaw legislature was the only legal tribunal authorized to enroll Chickasaw Indians.
It appears that the material part of plaintiffs testimony was taken upon an application for enrollment before a court created by the Chickasaw legislature, and that said testimony was used before the Dawes Commission upon the application of plaintiffs for enrollment.
It appears that plaintiffs attorneys rely upon the certificates of citizenship given plaintiffs by the said Indian court, as well as the testimony taken before said court and since. The six first sections of the act creating said court provides for the court and its organization. The seventh section provides that the chairman of said court shall make a complete transcript of their proceedings, to be submitted to the legislature for their approval or rejection, and that their decision shall be final. The legislature to pass on said applications should have met the first Monday in September, 1895, but did not meet until October of that year. They then rejected all the applicants that had obtained certificates from said court.
I don’t, attach much importance to the issuance of said certificates by said court. In my opinion it only shows that they were satisfied that the applicants were citizens. Their acts were extra judicial, and therefore do not bind the Chickasaw Nation nor entitle the applicants to enrollment.
I have directed my search for light to the confused mass of testimony taken before said Indian court, together with testimony taken before me since then. A large part of the testimony taken since is impeaching testimony. The plaintiffs offer in support of their application the testimony of William Simpson, who says he is a Chickasaw Indian by blood and 72 years of age; that he knew Nancy “Frazier in the State of Mississippi and knew her to be a Chickasaw Indian by blood: that she married and had five children, one of whom married Archie McDuffie; that they had several children born unto them, one of whom was named Norman McDuffie; that Norman McDuffie married and had several children born unto him. James Frazier, a witness for plaintiff, says that the above testimony of William Simpson is true in every detail. J. S. Wolf, a witness for the plaintiff, says that he knew Nancy Frazier in Mississippi: that she was n full-blood Chickasaw Indian: that she had a daughter who married Archie McDuffie. Nancy McCarley says that she is a daughter of Dorothy McDuffie and a lineal descendant of the said Nancy Frazier. Amanda Jarvis says she is a daughter of Norman McDuffie and a lineal descendant of the said Nancy Frazier, who was a full-blood Chickasaw Indian. Mrs. J. M. Crawford who is about 46 years of age, says that her grandmother’s name was Nancy Frazier, and witness connects all applicants herein as descendants of said Nancy Frazier. The applicants fully establish the fact that they are legal descendants of Norman McDuffie by testimony that is not contradicted. Now, the only question for me to decide by the testimony is whether or not this Norman McDuffie is a descendant of the said Nancy Frazier. The defendants contend that Norman McDuffie is not a legal descendant of said Nancy Frazier, and offer as proof the testimony of one Ben Kemp, who says that he is a Chickasaw Indian and knew Nancy Frazier, and knows that the applicants herein are not descendants of hers. This witness makes an impeaching affidavit in which he impeaches the testimony of J. S. Wolf and William Simpson, who testify in this case; and Fred Humphrey, William Fisher, John Kemp, and Patsy Hall, who did not testify in this case, were also impeached by said Ben Kemp. In my opinion he has weakened his own testimony; he knows too many persons whose reputation for truth and veracity is bad. The reputation of the witness, Simpson, is fully sustained by other witnesses, who testify to his good reputation for truth and veracity.
I am of the opinion from the testimony of Simpson and Wolf and from the testimony of the family tradition that all the applicants herein are the legal descendants of the said Nancy Frazier, who was a Chickasaw Indian, except the said Elizabeth McDuffie, J. M. Crawford, George Jarvis, and W. M. McClearley, who are intermarried citizens, and that they are each and all of them entitled to enrollment as such.
I therefore recommend that a decree be entered directing that they be enrolled upon the rolls of the Dawes Commission as members of the Chickasaw Tribe of Indians.
John Hinkle, Master in Chancery.
March 14, 1898. Judgment of the United States court rendered decreeing applicants citizens of the Chickasaw Nation. Certified copy of said judgment hereto attached.
September 22, 1898. The following applicants appeared before the Commission to the Five Civilized Tribes and were enrolled: Daniel McDuffie. Elizabeth McDuffie, Charlie H. McDuffie, Cassie E. McDuffie, Nancy McCarley, James McCarley, Eli McCarley, Macon McCarley, Sarah McCarley. Walter McCarley, Effie McCarley, Mary McCarley. Ernest McCarley, Nancy McCarley, Amanda Jarvis, Mary Jane Trout, Sidney McCarley, Sarah Ann Short, and Nancy Newberry, all as citizens by blood, and on the same day the following were enrolled as intermarried: M. W. McCarley and George Jarvis.
Subsequent thereto applications were made within the time provided by law for the enrollment of the following-named children: Herman Allen McCarley, Elma Myrtle McCarley. Jennie Anne Trout, Cynthia May Trout, Stella Lillis Trout, George Orville Trout, Cassie E. McCarley, Hessie Viola McCarley, Sallie May Newberry, Effie Myrtle Newberry, Benjamin Westmoreland Trout, Thomas Norman Trout, Robert E. Lee Trout, Harvey Cleveland Trout, Bessie Elizabeth Trout, Gracy Ella Trout, Mandie Bell M. McDuffie, Daniel Frizzell, and Sarah E. Frizzell.
December 17, 1902. Judgment of United States court set aside by decision of the Choctaw-Chickasaw citizenship court in the “test case.”
March 17, 1903. Record transferred to citizenship court for trial de novo.
June 16, 1904. Applicants filed motion in citizenship court to dismiss their case in that court.
The record now in this case does not disclose whether said motion was ever considered, except that among the papers appears a decree signed by the members of the court declaring the applicants non-citizens.
June 29, 1905. Decree above mentioned filed.
February 14, 1907. And on subsequent days applications were filed for all the above-named parties under the regulations adopted in the Lula West case, the petitions alleging tribal enrollment.
February l6, 1907. Decision rendered by the Commissioner to the Five Civilized Tribes dismissing petition for the enrollment of Nancy McCarley, wife of M. W. McCarley, because of her death prior to September 25, 1902, and denying the petition of all the other applicants because the record did not show tribal enrollment or recognition.
February 20, 1907. Record forwarded department.
March 2, 1907. Action of the commissioner approved by the secretary.
Statement By Counsel
Counsel for claimants respectfully submit that the report of the master and the judgment of the United States court correctly set out the facts in this case as to the blood and continual residence in the Chickasaw Nation of the applicants and that they are in fact Chickasaws entitled to be placed upon the rolls as such.
Those entitled are: Daniel McDuffie, Elizabeth McDuffie, Charles H. McDuffie, Cassie E. McDuffie, Nancy McCarley, James McCarley, Eli McCarley, Macom McCarley, Sarah McCarley, Walter McCarley, Effie McCarley, Mary McCarley, Ernest McCarley, Nancy McCarley, Amanda Jarvis, Mary Jane Trout, Sidney McCarley, Sarah Ann Short, Nancy Newberry, M. W. McCarley, George Jarvis, Harman Allen McCarley, Elma Myrtle McCarley, Jennie Arine Trout, Cynthia Ann Trout, Stella Lillis Trout, George Orville Trout, Cassie E. McCarley, Hessie Viola McCarley, Sallie May Newberry, Effie Myrtle Newberry, Benjamin Westmoreland Trout, Thomas Norman Trout, Robert E. Lee Trout, Harvey Cleveland Trout, Bessie Elizabeth Trout, Gracy Ella Trout, Maudie Bell M. McDuffie, Daniel Frizzell, Sarah E. Frizzell. (40 in all).
Respectfully submitted. Walter S. Field.
Transcript Of Proceedings
United States Court. Indian Territory, Southern district. ss:
At a stated term of the United States court in the Indian Territory, ____ district, begun and had in the court rooms at Ardmore, in the Indian Territory, on the 15th day of November, in the year of our Lord 1897. Present: The Hon. Hosea Townsend, judge of said court. On the 14fth day of March 1898, being a regular day of said term of said court, among the proceedings had were the following, to wit:
Daniel McDuffie et al. v. Chickasaw Nation
This day this cause coming on to be heard, upon the pleadings, exhibits, proof, muster’s report and exceptions filed thereto by the Chickasaw Nation, and the court upon the hearing of said case is of the opinion and therefore adjudges that the report of the master filed herein be and the same is hereby, confirmed in all respects; and the court, being sufficiently advised upon the whole case:
Doth order, adjudge, and decree that the plaintiffs and applicants. Daniel McDuffey, R. H. McDuffie, Gallic H. McDuffie, Mattie Lee McDuffie, Cassie R. McDuffie, Mrs. M. J. Crawford, Amanda Jarvis, Sarah Ann Jarvis, Mary Jane Jarvis, Nancy Jarvis, Nancy McCarley, James McCarley, Eli McCarley, Sindey McCarley, Macom McCarley, Sarah McCarley, Walter McCarley, Effie McCarley, Mary McCarley, Earnest McCarley, and Nancy McCarley, each and all be admitted as members of the Chickasaw Tribe of Indians by blood, and that they have all the rights, privileges, and immunities as such.
It is further ordered, adjudged, and decreed that the applicants, Elizabeth McDuffie, wife of Daniel McDuffie: J. M. Crawford, husband of M. J. Crawford: M. W. McCarley, husband of Nancy McCarley: and George Jarvis, husband of Amanda Jarvis, each and all be admitted as members of the Chickasaw Tribe of Indians by intermarriage, and that they each have all the rights, privileges, and immunities as such.
The clerk of this court is hereby ordered to transmit a certified copy of this judgment to the Commission to the Five Civilized Tribes of Indians, which said commission is hereby directed to place the names of each and all the above-named parties upon the rolls of citizenship made out by it for the Chickasaw Nation as members of said Chickasaw Tribe of Indians in the way and manner as herein indicated.
To this judgment the Chickasaw Nation excepts.
United States Court, Indian Territory, Southern District, ss:
I, C. M. Campbell, clerk of the United States court within and for the district and Territory aforesaid, do hereby certify that the foregoing orders are truly taken and correctly copied from court journals of mid court as the same appears to me.
In testimony whereof I have hereunto set my hand and affixed the seal of said court at Ardmore, this 4th day of May A. D. 1989.
[seal.] C. M. Campbell, Clerk.
This is to certify that I am the officer having custody of the records pertaining to the enrollment of the members of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole Tribes of Indians, and the disposition of the land of said tribes, and that the above and foregoing is a true and correct copy of a certified copy of a judgment of the court dated March 14, 1898, in the matter of the enrollment of Daniel McDuffie et al. as members of the Chickasaw Nation.
J. Geo. Wright,
Commissioner to the Five Civilized Tribes.
By W. H. Angell,
Clerk in Charge of Chickasaw Records
Muskogee, Okla., November 1, 1910