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The claimants in the following case have been enrolled as freedmen, but as the tribal officials had previously enrolled them as citizens by blood, and as there is no question as to the lawfulness of such enrollment they should be placed upon the final roll by blood.
Susan Brashears Et Al., Freedman Card No. 615. Choctaw Freedman Roll, No. 1346.
(Application for transfer from Choctaw freedman roll to Choctaw roll by blood.)
January 13, 1906. Petition filed with the Commissioner to the Five Civilized Tribes for the transfer of the names of Susan Brashears (formerly Susan McCoy); Mary Jane McCoy, Michael McCoy, Lizzie Robuck (nee McCoy), Frances Boatwright, and Emma Cook, children of Susan Brashears: and Isaac Cook, Lila Cook, Nellie Cook, Willie Cook, and Eva Cook, minor children of Emma Cook, from the roll of Choctaw freedmen to the roll of Choctaw citizens by blood, and alleging that Susan McCoy married, as her first husband. Oliver Stock (or Boss) McCoy, who was a citizen of the Choctaw Nation by blood, and that by that marriage she became an intermarried citizen of the Choctaw Nation; that the other applicants are the children and grandchildren of said Oliver Stock McCoy and Susan McCoy, and are entitled to citizenship in the Choctaw Nation as citizens by blood. The affidavits of Mary Jane Cook and Susan McCoy in support of said petition were filed therewith. The affidavit of Susan McCoy, showing the facts in her case, is as follows:
Susan Brashears, first being duly sworn, on oath states that she is about 58 years old and lives at Atlas, in said nation and Territory.
Affiant further states that she has been the lawful wife of George Brashears, a Choctaw citizen, since the 13th of March. 1901, and that prior to that time for 33 years she was the wife of Oliver Stock McCoy, or sometimes called Boss McCoy, a recognized and enrolled Choctaw citizen of one-half white and one-half Choctaw blood, by whom she had seven children, five of whom are living, and are named as follows: Frances Boatwright, Emma Cook, Michael McCoy, Lizzie Robuck and Mary McCoy.
Affiant states that her father was a white man named Martin Guess, who was an adopted citizen of the Choctaw Nation, and that her mother was a colored woman and a slave.
That when she appeared before the Commission to the Five Civilized Tribes for the enrollment of herself and children, she stated to the commission that her children were of Choctaw blood, and asked that they be enrolled as Choc-taws by blood, but that the commission informed her that they would not consider her application as such, but would enroll them as freedmen.
There appears in the record the affidavit of Charles Cohee, as follows:
Charles Cohee, first being duly sworn on oath, states that he is 57 years of age, resident of the Chickasaw Nation. Ind. T., and lives at the town of Berwyn, in said nation and Territory; that he is enrolled as a Chickasaw freedman and that on the 1st day of September 1898, he was appointed by R. N. Harris, governor of the Chickasaw Nation, a member of the committee to sit with the Dawes Commission for the purpose of identifying applicants for enrollment as freedmen: that he was again appointed to the same position by Gov. Johnston in April, 1899, and that he worked every day with the commission during their sittings in the Chickasaw Nation, and most of the time during their sittings in the Choctaw Nation.
Affiant further states that at the beginning of the work the committee of which he was a member, in making statements to the Dawes Commission of the status of applicants, made particular mention of those who claimed to have Indian blood; that the applications of such persons claiming Indian blood were received a while by the commission, but that in a short time, about 15 days after the committee began its sittings, all such applications were rejected by the said Dawes Commission, and the committee of which affiant was a member was Informed that those applicants who were born to slave mothers or to Negro women who were descended of slaves, were freedmen, and would be enrolled as such only, and the said committee was advised to discontinue hearing the statement of applicants as to their Indian blood, as in no case would they be enrolled as Indian citizens; and that therefore the said committee from that time on, with possibly a few exceptions, refused to hear statements of persons of mixed colored blood, of their claim that they were possessed of Indian blood in any degree whatever: that the said committee from that time on, in stating to the commission the status of applicants, only made mention of such family relations as would establish their rights as freedmen and made no mention whatever of the existence of Indian blood, although in many instances they knew applicants were possessed of such.
There also appear in the record the affidavits of Ellis Williams, Solomon Gilbert, W. L. Bennett, and Thomas Norman, to the same effect as the affidavit of Charles Cohee.
The records in possession of the Commissioner to the Five Civilized Tribes show that on May 11, 1899. Susan McCoy appeared before the commission, at Goodland. Ind. T., at which time and place the following proceedings were had:
In re application of Susan McCoy, to the Commission to the Five Civilized Tribes at Goodland, Ind. T., May 11, 1809, for enrollment as a Choctaw freedman. Being duly sworn by Commissioner Needles and examined by him et al., she testified as follows:
Q. What is your name?-
A. Susan McCoy.
Q. Were you a slave?-
A. Yes, sir: I belonged to Sam Colbert.
Q. Who was your mother?-
A. Polly Colbert.
Q. Who did she belong to?-
A. Sam Colbert.
Q. Have you been living all the time in the Territory?-
A. Yes, sir; right here, no other place but here.
Q. Are you married?-
A. I was married, but my husband is dead. I have a married daughter. Her husband took her off a little before Christmas, and she was to get back here by this time, but she has not come yet. He took her down about Texarkana somewhere.
Q. Has she got any children?-
A. Yes, sir; she but them with her, she has six.
Q. What Is her name?-
A. Frances Boatwright
Q. Do you know that she has this young child. George W. Boatwright?-
A. Yes sir.
(Enrolled Susan McCoy and children and Frances Boatwright and her children as Choctaw freedmen.)
The records show no further proceedings at that time.
There is nothing in the record to show that any answer was ever filed by the nations to the petition for transfer above set out.
February 13, 1906. Hearing had before the Commissioner to the Five Civilized Tribes, in the matter of the application for the transfer of the names of applicants from the freedman roll to the roll of Choctaws by blood. At that hearing the following, among other proceedings, were had:
By Mr. Lee: Now. Mr. Commissioner, let the records, show that the request was made to have included in the record the names of Oliver Boatwright, Tommie Boatwright, Jimmie Boatwright, Marion Boatwright, Cleaton Victor Boatwright, and George Washington Boatwright, minor children of Frances Boatwright, one of the petitioners herein.
By the Commissioner: These children are not named in the original petition, are they?
By Mr. Lee: No sir.
By the Commissions: The hearing will be confined to the allegations contained in the petition under the regulations adopted by the Commissioner to the Five Civilized Tribes on January 2, 1906. The testimony to be taken in this case will not apply to those applicants.
Susan Brashears, principal applicant, in her examination before the commissioner on February 13, 1906, states: That she is 59 years of age, and lives near Hugo; that she had been enrolled as a Choctaw freedman and had selected her allotment of land and received 20 acres; that she was enrolled under the name of Susan McCoy as a freedman; that she was married to McCoy, her first husband, about five years after the war, and immediately upon her marriage she was adopted as a citizen; that her children have selected allotments as freedmen: that she herself was born in the Choctaw Nation, and was the slave of Sam Colbert, and lived in the Choctaw Nation continuously since the time of her birth up to the present time; that she acquired her rights to Choctaw citizenship by reason of her marriage to McCoy, and did not claim to be a Choctaw by blood; that her father was a Choctaw man, who came here with the Indians from Mississippi, and her mother was a colored woman; that she had told the commission that her children were Indians and should be enrolled as Choctaws and not as freedmen.
By the Commissioner:
Q. Answer that question. Susan: I want to know when you applied to the Dawes Commission for the enrollment of yourself and your children as Choctaw freedmen, and you said nothing about them being entitled to enrollment as Choctaw citizens by blood of the Choctaw Nation?-
A. Yes, sir; I did. I told them my children ought to be enrolled as Choctaws, I sure did.
That she went where the colored people were being enrolled.
Q. If you were Indians and claimed Indian rights here, why did you not go where the Indians were?-
A. Well, they would have pushed me away.
The record shows that Susan Brashears was the daughter of Martin Guess, an adopted white citizen of the Choctaw Nation, and Polly Colbert, a Negro woman, slave of Sam Colbert: that Oliver Stock (or Boss) McCoy, was a recognized and enrolled Choctaw citizen of one-half white and one-half Choctaw blood.
The record shows that on page 11 of the 1885 census roll. Kiamitia County, Choctaw Nation, appear the following names, opposite the numbers set out:
166. Oliver McCoy.
167. Susan McCoy, citizen by marriage to McCoy
168. Francis McCoy, Half-blood citizen on father’s side
169. Emily McCoy, Half-blood citizen on father’s side
170. Molsy McCoy, Half-blood citizen on father’s side
171. Michael McCoy, Half-blood citizen on father’s side
172. Elizabeth McCoy, Half-blood citizen on father’s side
The records show that all applicants herein are enrolled upon the freedman rolls of the Choctaw Nation as finally approved by the Secretary.
January 31, 1907. Decision of the commission, denying applications of all claimants for transfer from the freedman rolls to the roll of Choctaws by blood, for the reason that-
It does not appear from the records in the possession of this office that any application has ever been made for the admission of petitioners herein as citizens by blood of the Choctaw or Chickasaw Nations, under the provisions of the act of Congress approved June 10, 1896 (29 Stilts., 321), or for their enrollment as citizens of said nations prior to December 25, 1902.
Statement By Counsel
Counsel for claimants respectfully submit that the record shows the marriage of the principal claimant. Susan Brashears (formerly Susan McCoy) to Oliver Stock McCoy, a Choctaw citizen by blood; the blood and descent of the other applicants, who are the children and grandchildren of Oliver Stock McCoy and Susan McCoy; their recognition by the tribal authorities, as shown by their enrollment upon the census roll of 1885; their continuous residence in the Choctaw Nation from birth; and the descent of principal applicant from Martin Guess, an adopted citizen of the Choctaw Nation.
The act of Congress approved June 28, 1898, provided:
That In making the rolls of citizenship of the several tribes as required by law, said commission Is authorized and directed to make rolls of citizens by blood of all other tribes (Including the Choctaw and Chickasaw Tribes), eliminating from the tribal rolls such names as may have been placed thereon by fraud or without authority of law, enrolling such only as may have lawful right thereto and their descendants born since such rolls were made.
Under this act the, commission was directed to eliminate “from the tribal rolls such names as may have been placed thereon by fraud or without authority of law.” Nowhere in the record is there a line shoeing that the names of applicants were placed upon the census roll of 1885 by fraud or without authority of law, or that the nations ever made any such allegation, or that either the nations or the commission ever made any attempt to show that said names were placed on that roll “by fraud or without authority of law.” If the names of applicants were not placed upon the tribal rolls “by fraud or without authority of law,” then they “have lawful right thereto “; and if the names are rightfully upon the census roll of 1885 as Choc-taws by blood or intermarriage, then it is obligatory upon the commission to enroll them, together with their descendants.
This case comes within the opinion of the Assistant Attorney General for the Department of the Interior in the Joe and Dillard Perry case, which opinion was approved by the Secretary and has never been reversed. Under that opinion the applicants were entitled not only to a hearing but to enrollment.
Those entitled to enrollment are Susan Brashears (formerly McCoy), Michael McCoy, Lizzie McCoy (now Robuck), Mary McCoy, Emma Cook (nee McCoy), Isaac Cook, Lilly Cook, Nellie Cook, Willie N. Cook, Eva Cook, Frances Boatwright (nee McCoy), Oliver Boatwright, Tommy Boatwright, James Boatwright, Powhattan Boatwright, Clayton Boatwright, George Washington Boatwright, and George Lorey Cook.
Ballinger & Lee