Law Under Which Claim is Made

III
Law Under Which Claim is Made

     We are aware that in what we shall say in this and the next section of this brief, we shall be traversing ground which is familiar to this department, but it is necessary to do this, for the orderly presentation of our views, and to bring clearly before the department what we understand to be the rights of applicants, and to show the difficulty of establishing those rights after so many years have passed since the treaty of Dancing Rabbit Creek, and thus to indicate what we believe is the reasonable rule that ought to be applied in the consideration of evidence offered at this time.
     The second section of the treaty of Dancing Rabbit Creek is as follows:
     "The United States under a grant specially to be made by the President of the United States shall cause to be conveyed to the Choctaw Nation a tract of country west of the Mississippi River, in fee simple, to them and their descendants, to inure to them while they shall exist as a nation, and live on it, * * *** the grant to be executed as soon as the present treaty shall be ratified."
     Here, then, in unequivocal terms, is a grant in fee simple,--a grant to the Choctaw Nation,--the nation as it then existed, and not only this, but to their descendants. It was a grant to the individuals of the nation in their aggregate capacity and to the descendants of those individuals. A nation as such can have no descendants. The descendants are of the individuals, who make up the nation. For the benefit of individuals the grant was originally made; to the benefit of individuals it. should now encore.
     This grant, as was recognized by the Dawes Commission in their report of January 28, 1898, was of a territory in common.  That body on page three of that report says: "It is a territory in common, and has been held as such from that day, 1830, till now.  Now, no tenant in common who voluntarily leaves the common property to the occupancy of his co-tenants can ever claim of them any of the fruits of its use."
     This is announcing a well known principle of law; but a principle equally well established, is that no mere absence from the common property forfeits the right of the co-tenants, unless there is a positive, direct and unequivocal repudiation of his title. If it pleases him to remain away from the common land while his co-tenants see fit to remain upon it, they reap the fruits in which he cannot share; but at any time he may return to the common soil, and when he does so he has all the rights of a part owner.
     Neither the United States nor the Choctaw Nation has ever repudiated the rights of the Mississippi Choctaws or their descendants, to take up their residence in the ceded territory, and become members of the tribe; but, on the contrary, these rights have always been recognized by both. Acts have been passed by the Choctaw Legislature recognizing the kinship of the Mississippi Choctaws and holding out inducements to them to remove to the Indian Territory, and memorials have been made by the Choctaw Legislature, praying the United States Government to extend assistance to the Mississippi Choctaws to remove to the Indian Territory. We shall not pause at this place to quote these laws or make further reference to them. They are familiar to this department, and we cite attention to them to show a constant recognition on the part of the Choctaw Nation of rights existing, in the Mississippi Choctaws who had never removed to the Indian Territory.
     The fourteenth article of the treaty, now to be referred to makes this provision:
     "Each Choctaw head of a family being desirous to remain and become a citizen of the states shall be permitted to do so, by signifying his intention to the agent within six months from the ratification of this treaty"
     Hence, it was definitely provided in the treaty that any Choctaw who signified his intention to remain might do so. Not only might he remain, but he might become a citizen of the State of Mississippi; and not only of the State of Mississippi, but of any State of the Union. This he might do, and forfeit no right, given by the article quoted above.
     To repeat, thus stands the grant:  There was given to the Choctaws making the treaty, and to their descendants, a tract of land west of the Mississippi River; that land went to the tribe, to the Individuals of the tribe as tenants in common, but those who remained did not thus forfeit their right of co-tenancy but retained it, even thought they became citizens of the states.
     But we note that is was provided in the fourteenth article that "if they reside upon said lands, intending to become citizens of the states, for five years after the ratification of this treaty, in that case a grant in fee simple shall issue; said reservation shall include the present home of the head of the family or a portion of it. Persons who claim under this article shall not lose the privilege of a Choctaw citizen, but if they ever remove, are not entitled to any portion, of the Choctaw annuity."
     A fact here worthy of consideration is one referred to by the Dawes Commission in their report of January 28, 1898, and we think we cannot do better than to quote it. At page 5, referring to the treaty of 1866, with the Choctaws and Chickasaws, regarding lands in the same territory, they say:
     "In this treaty far the first time the possibility of an allotment of these lands in severalty to the members of the tribes at some time in future was recognized. It was therefore provided in this treaty that whenever the tribes desired it, such allotment among their members should take place, and at great detail the manner in which it was to be done was set forth."
     The Commission then quote from the treaty the provision that notice should be given not only in the Choctaw and Chickasaw Nation's, but by publication in newspapers printed in the States of Mississippi, Tennessee, Louisiana, Arkansas and Alabama., "to the end that such Choctaws and Chickasaws as yet remain outside of the Choctaw and Chickasaw Nations may be informed and have opportunity to exercise the rights hereby given to resident Choctaws and Chickasaws."
     The Commission add, "There can be no doubt that this provision was inserted for the special benefit of those claiming to enjoy the rights of a Choctaw citizen under the fourteenth article of the treaty of 1830; many of these Choctaws having wandered away from. Mississippi, into the other states mentioned. It was a notice to them that these land's were about to be allotted members of the tribes, and if they desired to avail themselves of a share in the allotment they must make themselves such by taming from outside and joining their brethren in the common citizenship of the nation."
     There can be no doubt that the framers of the treaty of 1866 had definitely in view, the provisions of the fourteenth article of the treaty of 1830. By that treaty it had been provided that so many of the members of the Choctaw tribe as saw fit to do so,-even all, if they so desired;-as has been stated in more than one paper emanating from the Department of Indian Affairs.-might remain and become citizens of the states. By the treaty of 1866, provision was made that all who had remained in accordance with the provisions of that treaty could return and share in the allotment of the land held in common; no matter how great the number,-no matter of what states they had become citizens. The invitation was to return and take advantage of the rights given under the fourteenth article, and to share in the common patrimony secured to them by the treaty of 1830.

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