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Slavery in the Choctaw and Chickasaw Nations
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Slavery was an existing institution in the Choctaw and Chickasaw Nations at the time of and prior to the treaties of 1830 and 1837, and the same general rule regarding the status of the offspring of slaves seemed to have prevailed there as in the neighboring States. Out of the social system thus existing various conditions arose resulting in the following classes:
Slavery in the Choctaw and Chickasaw Nations was abolished by Article II of the treaty of April 28, 18661, between the United States and the Choctaw and Chickasaw Indians. Thereafter the old distinction between “bond and free”‘ vanished and all had the status of free people, blacks as well as Indians and whites. Following this change in the law, the child of an Indian citizen would not be barred from enrollment simply because one of its parents was formerly a slave. Children thus born to free parents, following the emancipation, were as fully entitled to enrollment as children born to such parents prior thereto.
After slavery had been abolished, the blacks remained among their former owners, and in the course of time there came to be three classes of persons of mixed black and Indian blood residing in the Choctaw-Chickasaw country. By comparison of these claims with the classes existing prior to emancipation the citizenship rights of such persons can be determined. The classes are as follows:
If the right to be transferred from the freedmen rolls to the rolls of citizens by blood of the Choctaw and Chickasaw Nations relates only to the members of class 3; that is to say, to the offspring of emancipated persons by Indian citizens, the number of persons who could possibly be accorded the right of transfer would necessarily be considerably less than would at first seem, particularly as the number would be further diminished by reason of the impossibility, in many cases, to furnish satisfactory proof of Indian blood.
My conclusion is that there are persons of this class who are entitled to enrollment as citizens by blood and that they have not had due opportunity to prove their rights, also that they have not been accorded by law equal privileges with other persons having Indian blood. I wish particularly in this connection to call your attention to the pictures of Blanche Wilson and her niece and to the testimony relating2 to them, copy of which is herewith.
It was the custom of the Choctaw and Chickasaw Nations for years prior to the treaties of 1830 and 1834 to add to their membership by admitting white persons, members of other Indian tribes, and others, as appears from the records of the Indian Office and from various acts of their national councils passed from time to time bearing upon the adoption of and intermarriage with citizens. Former provision was made for such persons in Articles XXVI and XXXVIII of the treaty entered into April 28, 18663. Said articles read as follows:
The right here given to Choctaws and Chickasaws. respectively, shall extend lo nil persons who have become citizens by adoption or Intermarriage of either of said tuitions, or who may hereafter become such.
Every white person who having married a Choctaw or Chickasaw resides in the said Choctaw or Chickasaw Nation, or who has been adopted by the legislative authorities, is to be deemed a member of said nation, and shall be subject to the laws of the Choctaw and Chickasaw Nations according to his domicile, and to prosecution and trial before their tribunals, and to punishment according to their laws in all respects as though he was a native Choctaw or Chickasaw.
It will be observed that these articles refer to two classes of persons: (1) Citizens by adoption and (2) citizens by intermarriage, hut that no reference is made in either article to the descendants of such persons- nor is there anything in either to show that the ceremony of marriage with non-citizens was to be performed in any particular manner or within any particular jurisdiction; nor is their anything to show that there was any intention at the date of said treaty to impose a special rule upon such persons not applicable to Indians by blood, restricting their right to marry non-citizens white persons and prescribing penalty for so doing.
I have called attention to these features of said articles because of the doctrine which was adopted, in part at least, that the rights acquired by adopted and intermarried citizens were personal only. and that no right of citizenship accrued after the death of their Indian spouses to non-citizen white women with whom they might intermarry or to their offspring by such women.
About 10 years after the treaty of 1866 the tribes adopted a legislative policy designed to regulate marriages with non-citizens and to limit the acquisition of citizenship rights to such persons, to the exclusion of others who might subsequently be connected with them through second marriages.
By the act of November 9, 1875, relating to intermarriage, the Choctaw Nation provided in part as follows:
5. Should any man or woman, a citizen of the United States or of any foreign country, become a citizen of the Choctaw Nation by intermarriage, as herein provided, and be left a widow or widower, he or she shall continue to enjoy the rights of citizenship: unless he or she shall marry n white man or woman or person, as the case may be, having no rights of Choctaw citizenship by blood; in that case all his or her rights acquired under the provisions of this act shall cease.
This section, as you will note, makes no reference to the children resulting from second marriages with non-citizens, but presumably reference to them was thought unnecessary under the circumstances. In connection with this section the Attorney General, in an opinion February 19, 1907, in the Kingsbury-Littlepage case, expressed the view that:
It is clear that at least since 1875 the Choctaw Nation never intended that a white persons intermarrying into the tribe should have power to confer citizenship upon his children by a subsequent, marriage to other than a citizen by blood. The informal opinion of Attorney General Moody (of Feb. 24, 1906) unquestionably had reference to cases of this character.
The Chickasaw Nation also legislated upon this subject. By act of October 19, 1876, as amended September 24, 1887, it was provided as follows:
Sec. 3. Re it further enacted. That no marriage heretofore solemnized, or which may hereafter be solemnized, between a citizen of the United States and a member of the Chickasaw Nation, shall enable such citizen of the United States to confer any right or privilege whatever in this nation, by again marrying another citizen of the United States, or upon such other citizen of the United States or their issue.
This section is a repetition in substance if not in exact terms of the act of 1870. which before amendment read as follows:
Be it further enacted. That this act shall not he construed so as to interfere with marriages solemnized prior to the treaty of 1866, and that it take effect and be in force from and after it passes.
In the amended form the act also contains the following provision:
Sec. 4. Be it further enacted. That all acts or parts of acts coming in conflict with the provisions of this act are hereby repealed, and that this act take effect from and after its passage.
Prefatory to what follows I desire to call to your attention two features of the Chickasaw act of 1876: It was aimed against the extension of citizenship rights through the marriage of an intermarried white citizen to a later husband or wife who was a ”citizen of the United States,” as well as against “their issue.” Such language naturally challenges attention and invites inquiry as to whether the same effect would follow if the second marriage was entered into with a man or women already a citizen of the Choctaw or Chickasaw Nation by a former marriage or by adoption. I will also ask you to note the portions of said acts which have been underscored, showing that the act was not intended to affect marriages solemnized prior to the treaty of 1866, and that it was to take effect from and after its passage.
Of course these acts rest solely upon the power of the Choctaw and Chickasaw Nations to legislate concerning the subject, and. as they touch upon matters also covered by a treaty with the United States, to wit, said treaty of 1866, the most important question of all is whether the said tribal acts are in conflict with that treaty.
In the adjudication of the cases of white persons it was doubtless thought at first that it would prove easy to apply a uniform rule, but this was a mistaken idea. Different cases presented different questions, and it soon became evident that the principles applicable to one case were not at all in point as to another. As has been stated, the adoption of citizens had its origin many years ago and the records show that in the very early history of the tribes foreigners were admitted to citizenship. This was notably true of missionaries, and it sometimes came to pass that there was not only one generation in adopted families, but two and even three generations were embraced in such families. All of this occurred in early days, before anyone could be accused of ulterior motives in seeking citizenship. This was true of persons who joined the tribes as missionaries, teachers, etc.
The different phases of the question can best be seen by reference to the decision of specific cases. I find that the United States Court for the Central District of the Indian Territory, in the case of F. R. Robinson v. Choctaw Nation, wherein Robinson, a white intermarried citizen, married as his second wife a white non-citizen, held that the treaty made every white man who married a Choctaw or Chickasaw woman a citizen in all respects as though he were a native Choctaw or Chickasaw. and that, by virtue of the treaty of 1866, there was no difference between a citizen by intermarriage and a native citizen: that all were to enjoy equally and alike the benefits of Choctaw citizenship as well as to share the burdens. The court also held specifically (1) that his marriage to n white woman after the death of his Indian wife did not decitizenize him. and (2) that the offspring of such a marriage would be entitled to enrollment, inasmuch as children follow the citizenship of the father.
The view of the United States court was not adopted, however, by the Choctaw-Chickasaw citizenship court. The latter, in the case of E. H. Bounds et al. The Choctaw and Chickasaw Nations, wherein Bounds, a white intermarried Choctaw, his second wife a white non- citizen, and their children were applicants for enrollment, held that Bounds was entitled, but that his wife and children were not. The right of Mr. Bounds was expressly based upon Article XXXVIII of the treaty of 1866. The court, referring to said Article XXXVIII of the treaty of 1866, said:
The grant of the Government is to the Indians and their descendants and heirs, in apt and pointed language, in the patent and treaties before that. If this treaty designed to give intermarried, not only white persons and adopted white persons, but also their purely white descendants, any rights, why did it not declare, then, in 1866 in that treaty that such further rights as claimed now were conferred by adding the words their heirs and descendants”?
The question was presented to the Department of the Interior in the regular course of the enrollment work in the case of Mary Elizabeth Martin. There it was held by the Secretary of the Interior, approving the opinion of the Assistant Attorney General of March 24, 1905, that the applicant was entitled to enrollment. The record shows that in her case she was born about 1891 to Walker Martin and Sallie Moore Martin, his wife, both being white intermarried citizens, the father having previously married Bettie Munroe, a Choctaw, and the mother having previously married Nelson Munroe a Chickasaw. Both Indian spouses died prior to the marriage of the applicant’s parents. The Assistant Attorney General discussed the case at considerable length, quoting the decision of both of the courts, referred to above but accepting the view announced by the United States court in the Robinson case, holding that Mary Elizabeth Martin was born to the allegiance of her father and that it was unnecessary to write the word “descendants” in said Article XXXVIII of the treaty of 1866.
The question was brought to the attention of the President, who called upon the Attorney General for a report thereon. The latter, in a letter dated February 24, 1906, advised the President that a memorandum had been prepared in his office expressing the view that the fair and reasonable construction of the treaty of 1866 was that a white person by marriage with an Indian acquired only personally the rights and privileges of citizens by blood and not the capacity to confer citizenship upon others, adding that he did not think the question free from doubt, although convinced from the reasoning in said memorandum that the interpretation therein suggested was the better one and would lead to more just results.
This report was forwarded February 27, 1906, to the Secretary of the Interior, with the following note from the Secretary to the President:
In the President’s judgment, without any reference to the act of Congress, it is perfectly clear that equity demands that the son of white parents who has no Indian blood In him. even though one of those parents may have been adopted into a tribe, should not be treated as an Indian.
In view of the report of the Attorney General and the President’s opinion expressed in connection therewith, the Secretary of the Interior, on April 24, 1908, rendered a decision denying the application of Mary Elizabeth Martin for enrollment.
As it appeared from the statement of the Attorney General that his report to the President was based upon a letter dated January 26, 1906. from the Commissioner of Indian Affairs, the Secretary of the Interior, under date of March 14, 1906. requested of the Commissioner of Indian Affairs a copy of said letter. The latter, under date of March 14, 1906, complied with this request, inclosing also copies of several letters, written in 1886 and prior thereto, to various individuals relating to the subject of Indian citizenship. The Secretary of the Interior was not convinced by the letters cited by the Commissioner of Indian Affairs, and on April 24, 1906, in a letter of some length to the commissioner, pointed out his objections to the letter’s citations. Subsequently he submitted to the Attorney General, under date of May 29, 1906, two Choctaw enrollment cases, one being that of Myrtie Randolph and her brother, W. J. Thompson. The other was the case of Cyrus H. Kingsbury and his sister, Lucy E. Littlepage. In a letter of same date the Secretary of the Interior set forth fully and at considerable length the views entertained by him concerning the rights of white children, and in so doing devoted considerable attention to the history of the Choctaw Nation, as well as its laws, treaties, and customs.
The Secretary’s letter of May 29, 1906, together with the cases submitted therewith, were considered by the Attorney General in his opinion of February 19, 1907, and after setting forth the facts in the Randolph-Thompson case and noting particularly that the decision adverse to the applicants had been rendered by the citizenship court, expressed the view that:
Whatever their intrinsic merits, these chums have been finally decided adversely to the claimants by the judgment of the citizenship court.
The Attorney General then took up the cases of Kingsbury and Littlepage. Their right to enrollment was based primarily upon an act of the Choctaw Council of November 15, 1854, granting all the rights, privileges, and immunities of Choctaw citizens “unto John Parker Kingsbury and to his wife, Hannah Mariah.” Under this act said persons were to enjoy all benefits to which citizens of the nation might thereafter be entitled, except in the participation of any sum of money which might then be due the nation under treaty stipulations theretofore made.
It further appeared in the case of these applicants that the names of both were enrolled on the tribal Choctaw census roll of 1885, and that they had been in other ways recognized as citizens of the nation, having been born and raised therein. This case the Attorney General decided in favor of the claimants, and, after discussing the opinion or report previously rendered by the Department of Justice on the same subject, stated as follows:
The case of the present applicants is quite different from that just referred to. Here both parents were adopted into the tribe. It must have been contemplated that they might have children and, if so, what was to be their citizenship if not that of their parents?
In this case it will be noted that both parents were made citizens by adoption. By reason of this fact I desire to refer again to the case of Mary Elizabeth Martin. There both parents were also citizens by intermarriage, one of the Choctaw and the other of the Chickasaw Nation. The law gave such persons the right to marry and there was no bar to their marriage with each other. Could it be properly held that each, having become an Indian citizen by intermarriage, lost that citizenship by marriage to the other? In other words, was it possible that, by the intermarriage of two citizens, both became non-citizens? Furthermore, what would be the citizenship of children born in such a household? As the Attorney General said in the case of the parents of Kingsbury and Littlepage, ” it must have been contemplated that they might have children, and, if so. what must be their citizenship if not that of their parents? ” This feature of the Mary Elizabeth Martin case seems to have been overlooked.
As I have suggested before, new cases as they arose presented different points for consideration. Subsequent to the opinion of the Attorney General of February 10, 1907. the Department of the Interior was called upon to determine whether Martha Black and her children should be enrolled as citizens of the Chickasaw Nation. There Martha Black originally acquired citizenship in the Chickasaw Nation by intermarriage with one Thomas Bacon, who was the son of Harvey Bacon, a white missionary adopted into the Chickasaw Nation in Mississippi prior to the treaty of May 24, 1834. After the death of said Thomas Bacon, his wife. Martha Black, married George Black, a white non-citizen, by whom she had two children. In this case it was held by the Secretary of the Interior, approving the opinion of the Assistant Attorney General of February 28. 1907, that Mrs. Black and her children were entitled to enrollment. Here it was reasoned that Thomas Black was a full citizen of the Chiekasaw Nation, being the descendant of a fully adopted white person; that he was not in the position of an intermarried white person, but. in legal status, he and his ancestor were Indians since prior to 1834. and within the opinion of the Attorney General of February 19, 1907. in the case of Kingsbury and Littlepage.
There was another point decided in this case, based upon the fact that Martha Black was a Cherokee by blood. It was held that she did not lose her citizenship by marrying George Black, for the reason that the in-marrying and out-marrying provisions of the Chickasaw act of October 19, 1876, had no reference to Indians of other tribes, but only to citizens of the United States.
There is one more case of importance which was decided by the Secretary of the Interior along this line. Approving the opinion of the Assistant Attorney General of March 4,1907, in the case of Henry E. Burks, he pointed out the cases to which the Choctaw and Chickasaw marriage act of 1875 and 1876 had reference, as well as to those to which said acts did not apply. It appears that Burks’s parents, at the time of their marriage, were already Indian citizens by former marriages, his mother being an intermarried Choctaw and his father an intermarried Chickasaw, and that their marriage to each other occurred prior to the treaty of 1866. The Assistant Attorney General expressed the view that the Choctaw act of 1875 was not intended to be retroactive; that it would certainly seem inequitable in the extreme to apply it to persons who married prior to the treaty of 1866, or to their offspring born prior to that date, and that accordingly there appeared to be no lawful bar in such cases to the enrollment of the children as native born Choctaws.
He also pointed out that, inasmuch as the Chickasaw act of 1870 was to take effect from and after its passage and in view of the use of the word “shall ” therein, as well as the inhibition contained in section 14 of Article I of the constitution of the Chickasaw Nation against retrospective laws, that said act was designed to have a prospective effect only and that it was intended to prevent an intermarried white from conferring Chickasaw citizenship by a second marriage upon a “citizen of the United States,” or upon the issue resulting from such marriage, but that manifestly a marriage with a person who had theretofore become a member of either of said nations would not be such a marriage as would come within the terms of the statutes.
These difficult questions were pressing for solution at the time when the volume of work following the opinion of the Attorney General of February 19, 1907, was at its high-water mark, and there was insufficient time to give the complicated questions the attention which was their due. There are two cases which I desire especially to bring to your notice because I met the applicants during the course of my field investigation. Important information concerning the people in these cases is to the effect that the equities are very strong in them and that they are entitled, both by reason of the good character they bear in the communities where they live and the long years of industry and good citizenship, to a large measure of consideration. The first of these cases is that of tire said William J. Thompson and his sister, Myrtie Randolph, which was disposed of on jurisdictional grounds by the Attorney General on February 19, 1907, as noted above. This Mr. Thompson is also identified as the William J. Thompson who furnished me the affidavit of November 21, 1908, relative to the Choctaw rolls and records which were retained in the office of Mansfield, McMurray & Cornish. The father of this William J. Thompson and Myrtie Randolph was Giles Thompson, a white man who became a citizen, by intermarriage, of the Choctaw Nation prior to the treaty of 1830. and whose name is mentioned therein.
His membership in the tribe antedated its removal to the Indian Territory. After the removal of the tribe west he resided with the Choctaw people and was uniformly recognized in many ways as a citizen. As appears from the recently discovered rolls, he was enrolled by the tribal authorities in 1874. His children were born in the Choctaw-Chickasaw country and have always resided therein, having been educated in the Indian school and accorded generally the privileges of other citizens of said nations. They feel that their father was one of the Choctaw citizens to whom the grant of the western lands was made pursuant to the treaty of September 27, 1830, and that as the grant was to inure to said citizens and to their descendants they come literally within the terms of the treaty. The seeming objection to their case is that their father, subsequent to the death of his Indian wife, married a white woman and that they are the issue of such marriage. Evidently this case is not parallel to that of the white children whose rights were discussed in the report of the Attorney General of February 24, 1906. William J. Thompson states that the former slaves of his father were enrolled as Choctaw freedmen because they were the slaves of a Choctaw citizen, but that although he is the son of that same citizen he is without citizenship rights in the Choctaw Nation. It would seem that the equities in this case are fully as great as in the case of Kingsbury-Littlepage.
The second of the equitable cases which I desire to bring to your attention is that of John Ward and his sister, Sarah A. York. Their father, Samuel Ward, became an intermarried citizen of the Choctaw Nation September 29, 1848, through intermarriage with Minerva Thompson, a Choctaw woman. After the death of his Indian wife and on October 14, 1852, he married Eliza Jane Ramsey, who was a Cherokee Indian by blood, and was then residing in the Choctaw Nation. Mr. Ward and Mrs. York, who now seek enrollment, are the issue of that marriage. I am unable to state their ages, but judge from their appearance they must have been born prior to the treaty of 1866. Enrollment rights are now claimed by them and their descendants. Mr. Ward has served as deputy sheriff and has filled other important offices in the Choctaw Nation, having been one of the most potent influences therein for law, order, and civilization. He and his sister claim they were born in the Choctaw Nation, educated therein, and have always lived there: that they have improved lands, erected buildings, and that the work of their whole lifetime is at stake. Decision adverse to them was rendered by the Choctaw-Chickasaw Citizenship Court.
There are two facts in their history deserving of special attention. First, they are Cherokees by blood, being descendants of a woman who was a regularly enrolled Cherokee, and have resided, through the comity which existed between the tribes in the Indian Territory, all their lives in the Choctaw Nation, and, second, the marriage of their father to his Indian wife occurred prior to the treaty of 1866. Accordingly there is no clear bar to their enrollment as Cherokees by blood, but they do not seek such enrollment because they have always resided in the Choctaw Nation and all their property rights are there. Nor is it clear that they are not entitled to enrollment as native-born Choctaws. Their father at the time of the treaty of 1866 was residing in the Choctaw Nation and having theretofore married a Choctaw woman came literally within the terms of Section XXXVIII of the treaty of 1866. He and all other persons like situated became adopted citizens by force of that article, even if they were not such prior to 1866. His children, if born prior to the treaty, were already vested with citizenship rights at the date thereof, and if born subsequent thereto were entitled to all the rights of adopted citizens. Under the circumstances it would appear that their case is fully as meritorious as the cases of Kingsbury-Littlepage and Martha Black et al.
Based upon the different opinions referred to above and the various cases which have come to my attention, my conclusion is that the doctrine of “personal right,” as applied to naturalization in said tribes, or to admission to citizenship therein, should not be held to affect (1) the offspring of persons who acquired citizenship through “adoption.” (2) the offspring of intermarried whites or others resulting from marriages to non-citizens subsequent to the death of their Indian spouses, provided that the subsequent marriage was contracted prior to the act of November 9, 1875, if in the Choctaw Nation, or prior to October 19, 1876, in. the Chickasaw Nation, (3) the offspring of intermarried whites each of whom, by a prior marriage, acquired Choctaw or Chickasaw citizenship, and (4) the offspring of intermarried citizens resulting from marriages to non- citizens subsequent to the death of the Indian spouses through whom citizenship was originally acquired, provided that either of the parents of such offspring was an Indian by blood of some other tribe.
As to the white children of intermarried citizens born after the death of their Indian spouses to non-citizen whites as the result of marriages contracted subsequent to said acts of November 9, 1875, and October 19, 1876, I am convinced that their rights have never had that full consideration which the questi6n is entitled to receive by reason of its importance. The point involved in their cases is more difficult than the question affecting the intermarried whites, which was-referred to the Court of Claims and finally decided, on appeal, by the Supreme Court of the United States. But I think that the members, as a class, have never been represented by attorneys at any hearing and that, as such, they have never had the opportunity to present brief of argument or to be heard. Even in the matter of Mary Elizabeth Martin, there is nothing in the report of the Attorney General of February 24, 1906, to show that the record in the case was before him or that the applicant was represented in any way. In that report the Attorney General pointed out that the question was not free from doubt. That this is true is also evident from the diverse nature of departmental decisions which have been rendered in the matter.
I also think that the cases of those intermarried whites who were denied enrollment should be reconsidered where their alleged rights were based upon marriages contracted prior to the said acts, according to the nation in which citizenship was claimed.
Identified Mississippi Choctaws who were not finally enrolled because they failed to furnish proof of removal to and settlement in the Choctaw-Chickasaw country.4
By section 41 of the act of July 1, 19025, it was required (1) that Mississippi Choctaws should remove to the Choctaw-Chickasaw country within six months following the date of their identification as such, and (2) that they should make proof of such settlement to the Commission to the Five Civilized Tribes within one year after said date. The duties imposed by this section were so arduous that a large number of identified Mississippi Choctaws, mostly full-blood Indians, were compelled to forego all benefits contemplated by the act. The total number of persons identified as Mississippi Choctaws was 2,534. but only 1,445 were finally enrolled. Thus there were 1,089 persons entitled under the law who failed to secure its benefits. This difference was due in part to the closing of the enrollment work on a fixed date. There was a considerable number of persons in whose favor decisions were rendered during the latter part of February or in the early part of March. 1907, for whom it would have been a physical impossibility to remove to the Indian Territory and furnish proof of settlement therein prior to March 4. 1907. There were others, as I found from personal investigation, who removed to the Choctaw-Chickasaw country and who, failing to find work or other means of sustenance during the 3-year period preceding the issuance of patents to such persons, were compelled to return to their old homes in order to provide the necessities of life. There were still others who removed to the Indian Territory and who selected “provisional” allotments but were induced by speculators to lease their land for an inadequate consideration and to leave the country. As such leases were usually for long periods of time, the continued absence of the allottee was very much to the advantage of the lessee.
14 Stat., 769 ↩
The rights of these children, if living March 4, 1906, are substantially the same as of their parents. See opinion of the Assistant Attorney General of February 16 1907, in the Mississippi Choctaw case of Nicholas Charles et al. ↩
14 Stat. 769, 777, 778 ↩
Children whose parents, although identified as Mississippi Choctaws, were not finally enrolled as citizens because they failed to establish proof of their removal to and settlement in the Choctaw-Chickasaw country within the time required by law. ↩
32 Stat., 641 ↩
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