Memorandum of causes resulting in the unfinished conditions of enrollment work and omission of names from the rolls of citizenship of the Five Civilized Tribes.
I. Under the act of June 10, 1890. the burden was thrown upon Indian citizens of making application for their enrollment. Many of them were full-blood Indians, some were minors, others insane. All were entitled to look to the Government for assistance.
Paradoxical as it may seem, allotments were made to these same Indians subject to restrictions against leasing and sale. In oither words, they had business capacity to acquire their allotments, but not to dispose of the same.
II. In the hurry and confusion attendant upon the enrollment work under the act of June 10, 1906, many mistakes were made. This was due to the fact that the applications of approximately 75,000 persons were filed, and the commission was required under the law to dispose of each within 90 days after receipt thereof. Time has demonstrated that the work of the commission in many cases under said act was worse than worthless.
III. Two questions arose under the act of June 10, 1896, which afterwards led to great uncertainty, by reason of which much injustice was done unintentionally during the last weeks of the enrollment work. These questions were as follows:
(1). Were the decisions of the Dawes Commission final in the absence of appeal to the courts?
(2). Did the Dawes Commission and the United States courts have jurisdiction over the cases of persons having a “tribal status”; that is to say, persons who were admitted or enrolled, as Indian citizens, or otherwise duly recognized as such, prior to the date of said act?
It is sufficient here to note that the Department of the Interior, on May 21, 1903, in the Wiley Adams case, adopted the view, with the concurrence of all offices and parties concerned, that the commission and the courts did not have jurisdiction over recognized citizens. This rule was followed in the adjudication of many cases for four years, covering the period from May 21, 1903. to February 21, 1907, the latter date being the day when the opinion of the Atorney General of February 19, 1907, was received by this department.
IV. During the first half of the period devoted to the enrollment work a number of statutory constructions were made which were based upon lack of knowledge and failure of appreciation of the situation of the Indian people. Some of these constructions were too narrow to permit of justice being done, and it was several years before it was possible to get away from the erroneous practice which resulted from them.
To illustrate, I will cite the case of Serena Jackson, whose mother and several full brothers and sisters were enrolled. She was denied enrollment, although a babe five or six months of age, at the time the other members of the family were enrolled.
The decision against her was based on the technical ground that the decree in favor of the other members of the family did not specifically mention her name. Later it was held in parallel cases that the admission or recognition. The terms were practically synonymous of the parent included the unnamed minor child.
V. The rigid requirements imposed upon adults and persons of sound mind were also held to be applicable to insane persons, minors, and others under legal disability. For example, Nancy Smith, Choctaw by blood, of unsound mind, and Lottie Adams, a minor Chickasaw by blood, were both denied enrollment. (See opinion of A. A. G. of June 8, 1901; 16 A. A. G., 21.)
VI. Formal regulations were prescribed in the summer of 1899, under the act of June 28, 1898, requiring all persons to make applications for their enrollment. These regulations were foreign to the purpose of said act. which contemplated that the commission should take the initiative, even to the extent of requiring it to take “a census” if necessary. The failure of the commission to realize that it was to investigate enrollment rights, acting upon its own motion, as well as to hear cases which might be submitted to it, was one of the fundamental causes of its failure to reach all the people who were entitled.
VII. The residence clause contained in paragraph eight or nine of section 21 of the act of June 28, 1898, was misconstrued for about five years. The construction adopted was so narrow and restricted that people were denied enrollment who were simply absent from the Indian Territory, although constructively residents therein. This period of erroneous construction continued from June 28, 1898, to March 17, 1903. As a result much work had to be done over again.
VIII. A proper administration of the act of June 10, 1896, and of the Curtis Act of 1898, and of the act of May 31, 1900, required that the Dawes Commission should be in possession of all of the tribal rolls and in position to make intelligent use of the same. Nevertheless, it developed that the commission did not obtain a number of important rolls until late in 1902 or early in 1903, about six and a half years after such rolls should have been first obtained. It has been recently discovered that there were other important rolls made in 1874, as well as other citizenship papers and records, which the commission never obtained during the whole course of the enrollment work. The rolls last referred to were held in the office of Mansfield, McMurray & Cornish, and their failure to surrender the same amounted, on their part and on the part of the nations represented by them, as a great wrong upon all persons whose names appeared upon said rolls who were rejected because of the jurisdictional features of the act of May 31, 1900. This fact in its effect upon rejected cases is somewhat analogous to a single challenge, in a court of law, aimed against the jury considered as a whole.
IX. Besides the recently discovered rolls of 1874, there were other rolls which were not discovered until several years after the date when they were first required.
X. Numerous important rolls were not indexed by the Commission to the Five Civilized Tribes. A considerable number of these rolls were not even arranged in alphabetical order. Those that were so arranged were prepared by counties. This condition of affairs did not favor thorough work, and must necessarily have resulted in some cases in the rejection of the applicants.
XI. The act of May 31, 1900. limited the jurisdiction of the commission to the receipt of application by parsons duly enrolled or admitted by the tribal authorities as citizens. This act was well calculated to insure quick results, but it worked great injustice. The rolls which it exalted to high importance were very defective. Many names were stricken off without explanation, whole pages were cut out, and they were otherwise defective. All of such rolls were not obtained, and a considerable number were not indexed. The effect of this act, which in itself was fundamentally wrong, was rendered much worse because of the facts stated in connection with the tribal rolls.
The Secretary of the Interior was granted a supervisory power under this act which, under a liberal construction, could have been resorted to to save equitable cases.
The evil effects of this act continued throughout the enrollment work, for the reason that it was made, by reference, part of later acts and agreements.
XII. In the case of Esau Wolf, section 34 of the Choctaw-Chickasaw agreement (act of July 1, 1902. 32 Stat.. 641), it was so construed that the commission was held to be without authority to receive the application even of a full-blood Indian after December 24, 1902.
Wolfs name appeared upon the 1893 Chickasaw roll, and the commission might well have taken up his case of its own motion, irrespective of any application by him on his behalf. This follows because the Curtis Act of June 28, 1898. was made a part of the Choctaw-Chickasaw agreement by reference. Under said Curtis Act it was the duty of the commission to take up and consider cases, of its own motion. It follows that while said section 34 operated as a bar to the making of applications, the commission had full power to continue its own independent investigations. But no relief came to these people until the act of April 26, 1906, which saved applications made prior to December 1, 1905. The remedial feature of this act may be likened to a reprieve coming subsequent to the execution.
XIII. Persons having double judgments in their favor, rendered by the Dawes Commission and the United States courts under the act of June 10, 1896. were erroneously stricken from the rolls or denied enrollment in supposed compliance with the opinion of the Attorney General of February 19, 1907. One of these cases included Lulu West and her children. From the record in this case and from personal inspection of the applicants I am entirely satisfied that they should be enrolled. The erroneous application of said opinion of February 19, 1907, would never have been made had it not been for the fact that a subsequent opinion, rendered by the Attorney General March 4, 1907. modifying his former opinion, did not reach the department until two days after the closing of the enrollment work.
XIV. Under the Cherokee agreement of 1902 the Dawes Commission held erroneously that it was without authority to receive the applications of citizens of the Cherokee Nation after October 31, 1902. This construction was not corrected until the opinion of the Assistant Attorney General of April 26, 1906, in the case of George Tinney, which came too late to be of any value in the enrollment work.
XV. The acts of March 3, 1905, and April 26, 1906, provided for the enrollment of newborn children, the offspring of enrolled and recognized citizens. These children, by reason of the status of their parents, were clearly and indisputably wards, and minor wards at that, of the Government, yet the burden of making application was thrown entirely upon them.
XVI. Said acts of March 3, 1905. and April 26, 1906, were defective in their wording in that they failed to make provision for the enrollment of certain classes of children. The first of said acts provided only for the enrollment of the offspring of citizens whose enrollment had theretofore been approved by the Secretary of the Interior, overlooking the fact that there were applications pending in other cases which were equally meritorious. The second of these acts corrected said defect, but at a late date, and was itself defective in another respect, in that it continued no provision for the enrollment of a child living September 1, 1902, who was the offspring of a recognized citizen who died prior to that date.
XVII. The remedial feature of the act of April 20, 1906, authorizing the commission to consider applications made prior to December 1, 1905 was not of much value because of its retroactive nature. As stated, it came very much like a reprieve after an execution. This follows because the day, December 1, 1905, was reached and passed before the date of the act extending relief.
XVIII. Under the act of April 26, 1906, the offspring of enrolled Mississippi Choctaws were entitled to enrollment if living March 4, 1906. The Commission to the Five Civilized Tribes erroneously held that such children were not entitled to the benefits of said act. This ruling was corrected by the department in its decision of May 25, 1906, in the case of Willis Willis, but the applicants, owing to the error of the commission, lost at least one-third of the 90 days allowed them for the making of applications.
XIX. The commission erroneously held that the children of Choctaw freedmen were not entitled to enrollment under the act of April 26, 1906. This ruling was not corrected by the department until about a week or 10 days before the closing of the time for the making of applications, consequently by error in administration these people lost at least 80 days of the 90 day period to which they were entitled for the filing of applications.
XX. The Commission to the Five Civilized Tribes erroneously held that Cherokee freedmen were required to return to the nation prior to January 18, 1967. Many case were heard and much testimony was taken under this erroneous theory of the law: probably from three to five years’ work was done before the error was corrected. Finally, in the opinion rendered by the Assistant Attorney General, it was held that the privilege of returning was extended to February 11, 1867. As a result much of the work had to be done over again with great expense to all parties in interest.
XXI. The net of April 26, 1906, contained a drastic provision concerning Cherokee freedmen requiring physical presence in the Cherokee Nation on February 11, 1867, whereby several families were deprived of rights guaranteed them under Article IX of the treaty of 1866. Under this act some of the slaves of Chief John Ross were denied enrollment, although other slave members of his household having cases precisely analogous were enrolled.
XXII. The act of April 26, 1906, contained n new and drastic rule of construction by which several member’s of the Creek Nation were deprived of rights to which they were entitled under the treaty of 1866 between the Creek Nation and the United States. Other persons having parallel cases were granted enrollment prior to the act of April 26, 1906.
XXIII. The Commission to the Five Civilized Tribes, in Cherokee freedmen cases, adopted the practice of supplementing the records in given cases by adding thereto copies of the records in other cases. This was done although the parties to because thus supplemented were not parties to the case wherein the borrowed testimony was taken.
This resulted in the adjudication of cases without due notice and opportunity for bearing. In some instances parties to cases were notified of the intention of the commission to add copies of records !n other cases, but this was done after the supplemental testimony was taken. Under mien circumstances rebuttal testimony might have been furnished, perhaps, but even as to them there was no right of cross-examination at the original hearings.
XXIV. The act of April 26, 1906, worked a hardship upon persons of mixed Negro and Indian blood seeking a transfer of their names from the freedmen roll to the roll of citizens by blood. This was due to the fact that said act provided expressly that no transfer should be permitted unless an application for enrollment by blood was made within the time provided by law; that is to say prior to October 31, 1902, in the Cherokee Nation and December 24, 1902, in the Choctaw and Chickasaw Nations. Compare these facts with the time allowed other Indians by blood whose rights might be adjudicated by the commission if applications for enrollment could be shown prior to December 1, 1905. Here was a discrimination of nearly three years’ time against a certain class of Indian citizens.
XXV. If the Commission to the Five Civilized Tribes had been limited in its duties to the enrollment of citizens and freedmen. and had not been required to perform a multitude of other duties, the enrollment work would have been finished much sooner, possibly in three years. But the commission was overburdened with numerous other duties relating to the allotment of lands, the settlement of controversies, the removal of restrictions for townsite purposes, etc. But the congestion in the office of the commission was probably not so marked as in the Land Division of the Indian Office and the Indian Territory Division of the Secretary’s Office, where all classes of work coming from Indian Territory converged.
XXVI. The work of enrollment was much delayed for administrative reasons. For example, complicated cases would arise respecting certain classes of cases. They would he referred to the Assistant Attorney General for opinion. Then they would have to take their place, with other matters coming from other bureaus, and await action in their turn. While waiting for such opinions, it was the practice of the division to suspend action in parallel eases. When the opinions came out it sometimes occurred that rehearing’s were found necessary, and at times the commission was required to adopt a new rule of practice affecting a large numbers of applicants.
Important matters were also submitted to the courts and. pending action thereon, parallel cases were held up. A notable example of this kind is I hat at the case of intermarried whites, which was in the courts for three or four years and perhaps longer.
Many cases were also held up at the request of the attorneys for the Choctaw and Chickasaw Nations waiting for the decision of the Choctaw-Chickasaw court in cases which said attorneys claimed to be parallel with those before the department.
The penalty for all these delays finally fell upon the Indian wards of the Government.
XXVII. There was a vast amount of work on hand during the months of January and February of 1907. Shortly before the termination of the enrollment work, the Secretary of the Interior informed Congress that unless the time for completing the rolls was extended for one year, many worthy citizens would be denied their rights. Several reports to Congress, rendered in February and March of 1907. showed there wore between 2,500 and 3.000 cases requiring action at the bands of the Secretary of the Interior within the space of a few weeks at most. It was Impossible to give full and careful consideration to all such cases. Some were erroneously denied in supposed compliance with the opinion of the Attorney General of February 19, 1907. Others were never examined at all. The result was that the enrollment work was finished in law. but not in fact, on March 4, 1907.
XXVIII. Shortly prior to the termination of the enrollment work It was discovered that the reports, recommendations, and decisions of the Dawes Commission were predicated upon supposed decisions of the United States Court for the Northern District of Indian Territory, when. in fact, the commission1 was without authentic records of the decrees and judgments of said courts. Based upon the commission’s reports some were denied enrollment, and others were stricken from the rolls in supposed compliance with said opinion of February 19, 1907. This relates only to the Cherokee and Creek Nations.
XXIX. In the Land Division of the Indian Office and the Indian Territory Division of the Secretary’s Office there was great congestion of work owing to the fact that the business of all branches of the service in Indian Territory was required to puss through these respective divisions in the order named before final action was taken. The result was that while one man’s application was pending, another’s citizenship rights would be accorded, his allotment would be made, the land contest would be settled to which he was a party, his land would be leased for oil or gas, and he would be the recipient of thousands of dollars of income, or his restrictions would be removed and his hind actually sold. Of course, the favor thus shown in advancing one man’s case retarded the others in a corresponding degree. Following this came the arbitrary closing of the rolls on a fixed date.
XXX. The hurry and confusion toward the end of the enrollment work resulted in unintentional action in some cases. Final decisions were sometimes based upon some particular fact which would have been satisfactorily explained had there been time to examine the whole record.
XXXI. The opinion of the Attorney General of February 19, 1907, came at a most unfortunate time. After the receipt thereof, there were only a few days left to complete the enrollment work. There was not sufficient time to analyze said opinion or to confer with the Department of Justice concerning it. A hasty telegram was prepared in the department and sent to the Dawes Commission. Based upon this telegram, a large list of names was prepared of persons supposed to come within the terms of said opinion, and recommendation was made that such names be stricken from the rolls.
The points in this opinion, which were most far reaching in their effect, were decided wholly upon jurisdictional grounds: whereas the rulings of the Department of the Interior upon the same points were based entirely upon grounds going to the merits of the cases. The result was that there was a hurried attempt to review and change many decisions representing the work of approximately four years
It is now definitely settled that this opinion was misapplied and misunderstood in respect (1) to persons who were simply denied in 1896 by the Dawes Commission, and (2) to persons who having double judgments in their favor, failed to transfer or appeal their cases to the citizenship court.
Many names were stricken from the rolls because of these errors. There were also many cases pending at the time which were disposed of in original decisions based upon the same erroneous grounds.
As a matter of justice and good conscience, the work should not be allowed to remain in its present unfinished condition, but sufficient jurisdiction should be invested in the Secretary of the Interior to enable him to correct obvious errors.
